Cape Town Rev-Eng-070109 by jlhd32


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									                         Constitutional Justice in Brazil

                As the top organ of the Brazilian Judiciary, the Federal Supreme

Court plays the important role of interpreting the Federal Constitution and of

ensuring that rights and guarantees declared in the constitutional text become

an effective reality to all the Brazilian population. In fulfilling this mission, the

Court shoulders the great political and economic responsibility of applying a

Constitution full of fundamental rights and guarantees of individual and

collective character.

                Therefore, by interpreting the Constitution, the Federal Supreme

Court brings forth necessary constitutional evolution, turning the “wishes for

Utopia”1 of the 1988 Constitution into concrete reality. The Court has met the

increasing demand from society with a deep commitment to the realization of

fundamental rights.

                The Federal Supreme Court has decided some landmark cases,

dealing, among others, with questions related to racism and anti-Semitism,2

progression of the prison regime,3 party loyalty,4 the right of the political minority

to request the establishment of parliamentary investigating committees,5 and

the ban on nepotism in the public administration.6

  HÄBERLE, Peter. El Estado Constitucional. Translated by Hector Fix-Fierro, México D.F: Universidad
Autónoma de México; 2001, p. 7
  STF-HC 82.424/RS, Plenary, Rapporteur Moreira Alves, redactor of the decision Maurício Corrêa,
Justice Gazette of 03.19.2004.
  STF-HC n° 82.959/SP, Rapporteur Marco Aurélio, Justice Gazette of 09.01.2006.
  STF-MS 26.602/DF, Rapporteur Eros Grau, Justice Gazette of 10.17.2008.
  STF-MS 24.831/DF, Rapporteur Celso de Mello, Justice Gazette of 08.04.2006.
  STF-ADC 12/DF, Rapporteur Carlos Britto, judgment on 08.20.2008.

                   The Court has also examined complex questions on the

demarcation of indigenous lands, bearing in mind that the 1988 Constitution

acknowledges the right of indigenous peoples to the lands traditionally occupied

by them and attributes to the State the competence to carry out the demarcation

and to protect and enforce respect for all their cultural goods and values. 7

                   In a recent ruling, the Court debated the constitutionality of

scientific research of human stem-cells,8 with significant repercussion

throughout Brazilian society. During the judgment the Court turned itself into a

true forum for reflection and argumentation with the participation of the scientific

community and several sectors of civil society.

                   On this issue, one cannot fail to stress that the Federal Supreme

Court of Brazil has developed the instruments for the opening of constitutional

proceedings to an increasing plurality of subjects. Article 2, §2 of Law 9.868/99

enables the Court to allow for other organs and entities, denominated amici

curiae, to intervene in the proceedings so that they can voice their views on the

constitutional question at stake.

                   This model presupposes not only the possibility of the Court using

all available technical elements for the examination of the legitimacy of the

impugned act, but also a broad right of participation for interested third parties.

The amici curiae currently enjoy broad participation in the proceedings of

abstract constitutional review and make up a fundamental element in the

Supreme Court’s process of interpreting the Constitution.

    STF-PET 3.388/RR, Rapporteur Carlos Britto, judgment started on 8.27.2008.
    STF-ADI 3.510/DF, Rapporteur Ministro Carlos Britto, judgment on 29.5.2008.


               Thus it is possible to affirm that Constitutional Jurisdiction in Brazil

today adopts a procedural model that enables, in an ever increasing way, the

interference of a plurality of subjects, arguments and views in constitutional


               In addition to the intervention of an amicus curiae, Article 9 of Law

9.868/99 allows the Federal Supreme Court – if it is necessary to clarify a

factual matter or circumstance – to request additional information, to designate

experts or an experts’ committee to issue an advice on the matter, or to conduct

public hearings with the aim of gathering the testimony of persons with

expertise and authority in the matter.

               The Court has been widely using these new instruments for

procedural opening, as highlighted by public hearings recently carried out in

Direct Action of Unconstitutionality 3.510/DF, in which it debated the polemic

issue of scientific research with human embryos; in the Argüição de

Descumprimento de Preceito Fundamental (Claim of Non-Compliance with a

Fundamental Precept) 54; on the issue of abortion of an anencephalic fetus;

and in the Claim of Non-Compliance with a Fundamental Precept 101, that

deals with the importation of used tires.

               The opening up of debates to the participation of society has also

been broadened by the Court’s channels of direct communication with the

community. The Federal Supreme Court relies upon several mechanisms for

outreach to society, such as TV Justiça (“Justice TV”), Rádio Justiça (“Justice

Radio”) and the Central do Cidadão (“Citizen Center”).


              TV Justiça is an open, public and institutional television station

administered by the Federal Supreme Court. Its goal is to serve as a vehicle for

communication and outreach among citizens, the Judicial Branch, Public

Prosecutors, the Public Attorney’s Office, and the Bar Association.

              Besides filling in the void left by commercial broadcasters in news

about judicial questions, the work of TV Justiça is developed with a view to

inform, clarify, and widen access to the Justice system, rendering more

transparent its actions and decisions. TV Justiça provides unique transparency

to the system by broadcasting live, to the entire country, the plenary sessions of

the Court, including the oral arguments of parties and the debates of the


              The main goal of the TV station is to raise awareness of the

Brazilian society about the independence of the Judiciary, justice, ethics,

democracy and social development, while providing the people with knowledge

about their rights and duties.

              Rádio Justiça is a public radio station of an institutional character

managed by the Federal Supreme Court. FM broadcasting began on May 5,

2004. In addition to its dial frequency, the station may also be accessed via

satellite and the Internet. By addressing judicial disputes in depth, Rádio Justiça

seeks to make sure that important and complex questions be fully

comprehended and dealt appropriately. Besides the production of newscasts

by its own team, the radio station also relies on journalists from other courts and

entities of the Judicial Branch, who work as correspondents in all the states.

Rádio Justiça also broadcasts live judgments of the Plenary of the Court.


                   Presently, one of the main vehicles of communication between the

Court and the civil society is the Central do Cidadão (“Citizen Center”). Its

mission is to work as a direct channel of communication between citizens and

the Federal Supreme Court with a view to: a) providing guidance and

information on the workings of the Court; b) promoting the continuous

improvement in the meeting of demands; c) collaborating to simplification and

modernization of the Court´s proceedings; and d) raising the standards of

transparency, timeliness, and security of the activities of the Court.

                   Also in this perspective one cannot fail to consider the valuable

jurisprudence that the Court has built on the issue of the dignity of the human

being. Mainly in procedural and penal proceedings, the Court has established

its position that the transformation of man in an object of state proceedings is

inadmissible in a Constitutional State.9 Thus, the Court seeks in this object-

formula (Günther Dürig) the reason for the protection of the dignity of the

individual who faces penal investigative and accusatory proceedings or

proceedings of a sanctioning character in general. On this issue, the recent

decision in Habeas Corpus 91.952/SP should be highlighted. In this case the

Court established that the use of handcuffs by police authorities is licit only in

the case of resistance and of well-grounded fear of evasion, or if there is danger

to the physical integrity of the police authority or of third parties.

                   Thus the Federal Supreme Court has also imparted a singular

treatment to procedural fundamental rights and to the jurisdictional guarantees

to the protection of constitutional order, to the point of possibly representing, in

this aspect, one of the most complete constitutional systems in the world. By
    STF-EXT 986, Relator Eros Grau, DJ 5.10.2007.


demanding observance of due process of law and of freedoms in general, the

Court prevents that the Constitutional State be transformed into a Police State.

               While fulfilling these complex tasks, the Court has carefully strived

to avoid any negative interference in the activities of the Legislative. This has

been the guideline established by the Federal Supreme Court. The Court has

full understanding that it is not its duty to take the place of the lawmaker, or to

restrict the free exercise of political activity, which is of essential importance to

the Constitutional State.

               The democratic lawmaker and the constitutional jurisdiction play

equally   relevant   roles   in   contemporary    constitutional   States,   as   the

interpretation and application of the Constitution are tasks entrusted to all

Branches of government, as well as to society at large. In Brazil, the Powers of

the Republic are prepared and mature for an intelligent political dialogue above

party lines.

               The Brazilian Constitution proclaims social and economic rights

which are directly applicable legal norms. In a country like Brazil, where access

to basic social rights is not yet granted to millions of people, the generosity of

the Framers of the Constitution is not surprising, as it conveyed the perspective

that the Constitutional State is also a space for the synthesis and proclamation

of hopes that have been historically forgotten.

               The realization of the social agenda introduced by the Constitution

also constitutes a precondition for the achievement of a full-fledged democracy.

We are fully aware that a stable democratic regime can only be the fruit of


sustained economic development and of the establishment of an environment

where economic prosperity goes hand-in-hand with ample social integration.

              It is necessary to recognize that we are faced with a situation

where unfavorable indicators are really disturbing. The task of realizing the

social agenda heralded by the Constitution is not a simple one, and to this task

the Federal Supreme Court has dedicated its best endeavors. This is why

“thinking what is possible” and the very limit of what is financially feasible are

frequently kept in mind. In this perspective of institutional analysis, the Court

has proved to be a key-player in the enactment of the social promises of the

1988 Constitution.

              The necessary realism and pragmatism in the interpretation of the

constitutional text manifests itself impeccably in the very idea of “thinking what

is possible”, in the exercise of the arduous task entrusted to the Court by the

Constitution, of reconciling multiple expectations of the fulfillment of rights.

              Furthermore, the Federal Supreme court has evolved by adopting

new decision techniques in the abstract judicial review. In addition to the well-

known techniques of interpretation in conformity with the Constitution,

declaration of partial annulment without altering the text, or declaration of

unconstitutionality without pronouncing the annulment, assessment of a “still

constitutional law”, and the “admonitory decisions”, the Court has also widely

resorted to the techniques of limiting or restricting the effects of a decision,

which enables a declaration of unconstitutionality with pro futuro effects, from

the decision onwards, or from other moment to be defined by the Court.


              Even though the decisions made in the abstract review of the

constitutionality of norms usually produce effects which are ex tunc, erga

omnes, and binding to the Judicial Branch and to all entities of the Public

Administration, direct and indirect, the legislation that regulates these decisions

(Law 9.868/99) includes the possibility that the Plenary of the Court may

modulate the effects of the decisions in the abstract review of norms, thus

enabling the Court to declare the unconstitutionality of the norm: a) from when

the matter has been adjudicated onwards (declaration of unconstitutionality ex

nunc); b) from some moment after the matter has been adjudicated onwards

(declaration of unconstitutionality with pro futuro efficacy); c) without

pronouncing the annulment of the norm; and d) with retroactive effects, but

preserving certain situations. Thus it is the awareness of the extent of the

effects upon society of the decisions made by the Federal Supreme Court that

justifies the adoption by the Brazilian legislation of the technique of modulating

the effects of the Court’s decisions.

              The Federal Supreme Court has also built a sound jurisprudence

on fundamental rights. It has adopted efficient decision-making techniques in

constitutional review with the purpose of enforcing the normative power of the

Constitution and of erecting a society bred in a constitutional culture of

protection to the rights of the human person.

              The Federal Supreme Court usually employs comparative law as

a parameter in its decisions, even though it does not play a decisive role in the

creation of the Court’s jurisprudence. There are no legal or procedural rules for

the exercise of this activity by the Court, but this has not created any obstacle

for an ordered use of precedents developed in other countries.


                Comparative law doctrine and jurisprudence are mentioned in the

votes cast by the Justices of the Court as a means to qualify the debate and to

deepen the analyses and arguments developed in the judgments. The result

may be observed in well grounded decisions, with the consequent

enhancement of the Court’s jurisprudence.

                It is undeniable that comparative law exerts a strong influence on

the jurisprudence of constitutional courts nowadays. We should not lose from

sight that we live in a “Cooperative Constitutional State” – identified by

Professor Peter Häberle as that which no longer presents itself as a

Constitutional State turned upon itself, but one that offers itself as a reference to

other Constitutional States members of a community.10 We must bear in mind, in

this respect, that the comparison of fundamental rights can be qualified as the

fifth method of constitutional interpretation, along with the classical methods

developed by Savigny.11

                Following this tendency, the Federal Supreme Court remains open

to the doctrinal and jurisprudential output developed in comparative law, which

becomes more intense with the prospect of an ever growing increase in the

exchanges among Courts, Tribunals and Constitutional Chambers of several

countries.      The cooperation among organs of constitutional jurisdiction

undeniably favors the exchange of information among Courts.

    HÄBERLE, Peter. El estado constitucional. Translated by Hector Fix-Fierro. Mexico:
Universidad Nacional Autónoma de México, 2003. p. 75-77.
   HÄBERLE, Peter. El concepto de los derechos fundamentales. In: Problemas actuales de los
derechos fundamentales. Madrid: Universidad Carlos III de Madrid y Boletín Oficial del Estado -
B.O.E; 1994, p. 109.


              In this regard, the Federal Supreme Court keeps in its site in the

Internet ( a specific area for the posting of translations – to

English and Spanish – of summaries of its most relevant jurisprudence. The

Court is also working to make this information available in the databank of the

European Commission for Democracy through Law (CODICES), the so-called

Venice Commission, and in the Global Legal Information Network (GLIN),

whose central station is located at the U.S. Library of Congress.         Through

participation in these two data banks, the Court intends to make available for a

larger public the whole text of selected decisions in Portuguese, accompanied

by translations of their summaries into English, so as to promote the exchange

of legislative and jurisprudential information among several countries.

              The Federal Supreme Court possesses a comprehensive

jurisprudence in defense of human rights. In its rulings on the matter, it is usual

to quote international and regional human rights instruments.

              Besides being cited as the basis for decisions of the Court,

international treaties are also used as an argument for the impugnation of

national laws, as the 1988 Constitution, in its article 5, paragraph 2, grants that

the rights and guarantees contained in it do not exclude others resulting from

international treaties to which Brazil is a party.

              A significant example concerning international human rights

treaties was the ruling of Habeas Corpus 72.131, in 1995. In that case, it was

alleged that the entry into force of the Inter-American Convention on Human

Rights – the Pact of San Jose of Costa Rica – had rendered illegal the civil

arrest of a delinquent trustee in matters of fiduciary alienation. In 2008, the


issue was again reviewed by the Federal Supreme Court in recursos

extraordinários (RE - “extraordinary appeals”) 466.343 and 349.703, and the

International Covenant on Civil and Political Rights was invoked. In order to

solve that question, it was necessary to examine the hierarchical and normative

relation between international treaties and the Constitution and, more

specifically, the normative status of international human rights treaties and

conventions vis-à-vis the Constitution.

              Notwithstanding the interesting doctrinal discussion, the debate

about the constitutional status of human rights treaties in Brazil was to a certain

extent preempted by the promulgation of Constitutional Amendment 45, in

2004, which added paragraph 3 to article 5, with the following discipline:

“International human rights treaties and conventions which are approved, in

each House of the National Congress, in two rounds of voting, by a majority of

three-fifths of the votes of the respective members, shall be equivalent to

constitutional amendments.”

              As a result, it seems that the interpretation that confers a supra-

legality to human rights treaties and conventions is the more solid one. By

placing those instruments above the law and below the Constitution, they are

granted a special position in the legal system consistent with their special

character.    Moreover, with the ratification procedure established by the

Constitution for international treaties, any conflicting infra-constitutional norm is

thereby rendered void.

              This was the position defended by a majority of the Justices of the

Federal Supreme Court when deciding on RE 466.343 and 349.703, on


December 3rd 2008. They affirmed that the constitutional provision for the civil

arrest of a delinquent trustee had not been repealed by Brazil’s act of accession

to the International Covenant on Civil and Political Rights (Article 11) and the

Inter-American Convention on Human Rights – the Pact of San Jose of Costa

Rica (Article 7.7). However, the Court decided that the civil arrest of a

delinquent trustee was no longer applicable in light of the paralyzing effects of

the treaties on the conflicting infra-constitutional legislation on the matter,

current or future.

              The Federal Supreme Court has also made reference to

prominent cases from international courts. For example, in the decision of

Habeas Corpus 83.450, which addressed the question of extradition and double

nationality, the Court cited the Nottebohm case, of the International Court of


              Another case of great importance in Brazilian law was the one

discussed on the condemnation of a writer and publisher, for the felony of

discrimination against Jews, for having published, distributed and sold to the

public anti-Semitic works. The Court ruled this felony to be exempt from the

statute of limitations, as disposed in article 5, XLII of the Constitution.

              In this decision, in addition to extensive reference to international

instruments    as    the   Universal   Declaration    of   Human     Rights,   foreign

jurisprudence was also widely cited. Among several decisions, the Court

mentioned the case of Jersild versus Denmark, judged by the European Court

of Human Rights, in September 1994; the case Comic publication against the

Jewish people, of the Spanish Constitutional Court (Sentence 176/1995, judged


on 11/12/1995); as well as the vote of Justice Oliver Wendell Holmes in the

case Schenck v. United States, of 1919 (249 U.S. 47, 52), and the Virginia v.

Black et. Al., of the U.S. Supreme Court.

              Even though the use of foreign jurisprudence is common at the

Federal Supreme Court, there is no pre-established method for the research

and selection of decisions made by foreign and international courts. The

Justices enjoy independence in employing their own method for the research of

the subject matter and to treat it according to their discretion. The custom of the

Court of using references to foreign jurisprudence in its decisions dates back a

long time. Presently, there are no substantial questions of doctrine about the

reference or not to cases decided in foreign or international courts.

              There is no question that the development of the means of

communication has greatly facilitated access to decisions of foreign and

international courts. Fast access to the decisions of foreign and international

courts via the internet, with its search engines, has facilitated the increase in the

number of foreign cases cited in the decisions of the Federal Supreme Court.

              Nevertheless – though the citation and analysis of foreign

jurisprudence may serve as parameters to deepen the arguments wielded in a

specific type of conflict on fundamental rights, which many times are shared by

Western society as a whole –, it is premature to state that there is, at this

moment, a tendency to a convergence of jurisprudence in constitutional courts.

              What one finds, indeed, is a wide-ranging discussion of all

possible aspects of a specific conflict, aimed at guiding and informing the

constitutional judge in the exercise of his free persuasion in the appreciation of


the matter under examination. Even though it is possible that the jurisprudence

of constitutional courts will converge in the future, the role of the constitutional

judge is to ensure, to those under his jurisdiction, the guarantee of the

democratic rule of law and of fundamental freedoms, guarding also the rights of

minorities, according to the particularities and idiosyncrasies of his nation.


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