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Brazil - The Judiciary



The judicial branch is composed of federal, state, and municipal courts. By 1995 small-claims courts augmented some municipal courts. Only appointments to the superior courts are political and therefore subject to approval by the legislature. The minimum and maximum ages for appointment to the superior courts are thirty-five and sixty-five; mandatory retirement is at age seventy. These federal courts have no chief justice or judge. The two-year presidency of each court is by rotation and is based on respecting seniority.

The 1988 constitution produced five significant modifications in Brazil's judicial system. First, it converted the old Federal Court of Appeals (Tribunal Federal de Recursos--TFR) into the Superior Court of Justice (Superior Tribunal de Justiça--STJ). Second, it created an intermediate-level Regional Federal Court (Tribunal Regional Federal--TRF) system. Third, the federal general prosecutor was given a two-year renewable term, subject to confirmation by the Senate, without the possibility of removal by the president. Fourth, the STF (Federal Supreme Court) can issue a warrant of injunction (mandado de injunção ) to ensure rights guaranteed by the constitution but not regulated by ordinary legislation. And fifth, the STF can decide on matters of constitutionality without waiting for appeals to come through the federal courts.

The judiciary came under criticism during the Collor and Franco administrations. The STF was harshly criticized during the Collor impeachment investigation and subsequent trials, particularly for the slow pace of the trials. In late 1993, former president Collor's appeal against the Senate's decision to strip his political rights for eight years ended in a four-four tie in the STF. Three judges had disqualified themselves: Collor's former foreign minister, Collor's first cousin, and the STF president who had presided over the Senate impeachment trial. Instead of throwing the case out after the tie vote, the STF called three substitute judges from the STJ, who broke the tie against Collor.

In addition, executive-branch public employees (especially in the armed forces) became discontented with the STF's utter disregard for parity salary scales among the three branches and with government austerity targets. To address these problems and to streamline the judicial process, the 1993-94 attempt at constitutional revision produced numerous proposals for reforming the judicial branch, including an external control body, the Penal Code (1941), and the 1916 Civil Code (revised in 1973). Significant reforms have yet to be enacted, however. The need for judicial reform in general is widely recognized because the current system is inefficient, with backlogs of cases and shortages of judges. Cases are frequently dismissed because they are too old. Lawyers contribute to backlogs by dragging out cases as long as possible because they are paid based on the amount of time they spend on a case. In addition, STF jurisprudence is not followed by lower courts. Some corrupt judges delay certain cases so that they can be dismissed. Vacancies on the bench are difficult to fill because of low pay and highly competitive examinations that often eliminate 90 percent of applicants.

Created in October 1890, the STF has eleven members appointed by the president with Senate approval. The STF decides conflicts between the executive and legislative branches, disputes among states, and disputes between the federal government and states. In addition, it rules on disputes involving foreign governments and extradition. The STF issues decisions regarding the constitutionality of laws, acts, and procedures of the executive and legislative branches, warrants of injunction, and writs of habeas corpus. Further, it presents three-name lists for certain judicial-branch nominations, and conducts trials of the president, cabinet ministers, and congressional and judiciary members. The president of the STF is third in the line of presidential succession and would preside over an impeachment trial held by the Senate.

The TFR (Federal Court of Appeals) was created under the 1946 constitution. It initially had thirteen members but expanded to twenty-seven members in 1979. In 1988 the TFR became the thirty-three-member STJ (Superior Court of Justice). As the last court of appeals for nonconstitutional questions, the STJ reviews decisions of the TRFs (Regional Federal Courts) and tries governors and federal judges. The president appoints its members with Senate approval on rotation. One-third are picked from the ranks of TRF judges; one-third from the ranks of State Supreme Court judges; and one-third from the ranks of state and federal public prosecutors.

The 1988 constitution created five TRFs--Recife, Brasília, Rio de Janeiro, São Paulo, and Porto Alegre. Each TRF must have at least six judges, appointed by the president and approved by the Senate. One-fifth must be from among lawyers or public prosecutors with at least ten years of professional experience. Members must be at least thirty years of age but no older than sixty-five.

Brazil's judicial system has a series of special courts, in addition to the regular civil court system, covering the areas of military, labor, and election affairs. The Superior Military Court (Superior Tribunal Militar--STM), created in 1808 by João VI (king of Portugal, 1816-26), is the oldest superior court in Brazil. It is composed of fifteen judges appointed by the president with Senate approval. Three members must have the rank of admiral in the Brazilian Navy (Marinha do Brasil), three must be general officers of the Brazilian Air Force (Fôrça Aérea Brasileira--FAB), four must be army generals, and five must be civilians. The latter must be over age thirty and under age sixty-five. Two of the civilians are alternately chosen from among military justice auditors and military court prosecutors; three are lawyers with noted judicial knowledge and ten years of professional experience.

The STM has jurisdiction over crimes committed by members of the armed forces. It was also used extensively to try civilians accused of crimes against "national security" during the military regime. States also have military courts to try cases involving state Military Police (Polícia Militar--PM). During the constitutional revision process of 1995, proposals were made to close down such courts at the state level. These proposals were renewed in 1997 after a series of revolts and strikes by Military Police in several states.

The government of Getúlio Vargas created the Superior Electoral Court (Tribunal Superior Eleitoral--TSE) in 1932 in an effort to end election fraud and manipulation. The TSE has jurisdiction over all aspects of elections and regulates the functioning of political parties. Its powers include supervising party conventions and internal elections; granting or canceling registration of parties; registering candidates and certifying those elected; regulating and supervising party access to free television and radio time during an election; and registering voters. All states have a Regional Electoral Court (Tribunal Regional Eleitoral--TRE); larger cities have municipal election judges, and smaller towns have local election boards.

The TSE has seven members, each with a two-year mandate. By secret ballot, the STF chooses three of its members to sit on the TSE, and the STJ chooses two of its members. The president appoints, with Senate approval, two lawyers from among a six-name list submitted by the STF. The TSE elects its president and vice president from among the members of the STF.

Since 1950 the TSE has made important decisions affecting Brazil's political system. In 1950 and 1955, the TSE decided in favor of the elections of presidents Getúlio Vargas (1951-54) and Juscelino Kubitschek (1956-61) by simple rather than by absolute majorities. In 1980 the TSE denied the "magic" label of the Brazilian Labor Party (Partido Trabalhista Brasileiro--PTB) to the Leonel de Moura Brizola faction, which was then forced to create the Democratic Labor Party (Partido Democrático Trabalhista--PDT). In 1994 the TSE prohibited noncandidates from appearing on the "free TV election hour," thus barring former President Collor from participating in the television campaign of the National Reconstruction Party (Partido da Reconstrução Nacional--PRN).

The system of labor courts was created by Getúlio Vargas in the 1930s to arbitrate labor-management disputes, which previously had been settled by police action. The 1946 constitution created the Superior Labor Court (Tribunal Superior do Trabalho--TST). Each state has a Regional Labor Court (Tribunal Regional do Trabalho--TRT), although São Paulo State has two TRTs, and each municipality has a set of labor conciliation boards. The labor court system has jurisdiction over all labor-related questions. It registers labor contracts, arbitrates collective and individual labor disputes, recognizes official union organizations, resolves salary questions, and decides the legality of strikes.

The president appoints, with Senate approval, twenty-seven judges to the TST. Seventeen of the judges--eleven career labor judges, three labor lawyers, and three labor court prosecutors--receive lifetime terms (to age seventy). Ten temporary judges are appointed from lists evenly divided between the confederations of labor and management.

The Public Ministry is an important independent body in Brazil's judicial system. Its principal component, the Office of the Solicitor General of the Republic (Procuradoria Geral da República--PGR), is composed of several public prosecutors selected by public examination. The PGR's headquarters is in Brasília, and it has branches in every state. The PGR is charged with prosecuting those accused of federal crimes, those accused of offending the president and his ministers, and all federal officials and employees accused of crimes. Before 1988 the president could appoint and dismiss the solicitor general at will. Under the 1988 constitution, the solicitor general has a fixed, renewable two-year term and is appointed by the president, with Senate approval, among the career prosecutors.

The Office of the Federal Attorney General (Advocacia- Geral da União--AGU), which was separated from the PGR by the 1988 constitution, defends the federal government against lawsuits and provides legal counsel to the executive branch. The AGU was organized and staffed under a provisional measure (MP) issued by President Franco.

Each state has a State Supreme Court (Tribunal de Justiça--TJ). The governor, with approval by the State Assembly (Assembléia do Estado), appoints the judges to the court. This court has the prerogative of appointing special state circuit judges to deal with agrarian problems. In addition, it is responsible for organizing and supervising the lower state courts. Each state is divided into district courts (comarcas ).

Data as of April 1997




 



 


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