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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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