The Financial Times, Nov. 19, 2004
Raymond Colitt in São Paulo
Settling a tax dispute or getting a divorce in a Brazilian court can take so long that some company executives and greedy spouses are happy to be sued. Indeed the law's delays and judicial corruption are the cause of some of the biggest investor complaints about Brazil, harming the country's international competitiveness.
But this week, after more than a decade of debate, Congress approved reforms. The constitutional amendment introduces external controls over judges, streamlines legal proceedings, strengthens public defence and gives special treatment to human rights cases.
"It is a step towards the judiciary we dream of," said Márcio Thomaz Bastos, justice minister.
The most controversial measure is the creation of the National Council of Justice, charged with policy planning and investigating allegations of wrongdoing. Made up not only of judges and public prosecutors but also of lawyers and representatives of civil society, it has the power to suspend judges.
In an attempt to reduce the number of repetitive cases, the Supreme Court can set a binding precedent for lower courts. By some accounts, this could eliminate more than half of all appeals. It would also establish more uniform interpretations of the law.
"The big problem for many foreign investors has been dealing with legal uncertainty in Brazil," said Agostinho Tavolaro, head of the legal committee in the American chamber of commerce in São Paulo. "This reform will bring more clarity."
Critics say the move is undemocratic and prevents a grass-roots renewal of the law. "It may make justice swifter but it is potentially also dangerous," said Horacio Bernardes Neto, a São Paulo corporate lawyer.
To reduce its caseload, the Supreme Court can now reject cases it thinks lack broader legal implications. The country's highest tribunal deals with more than 100,000 cases. Among many of the mundane cases it tried this year included one of a man kicking his mother-in-law on the shins nearly three years earlier.
In an attempt to reduce pressure from local strongmen and interest groups, the Supreme Court can now order cases involving human rights violations to be tried in federal rather than state courts.
Public defence attorneys, who are often volunteers or double as public prosecutors, have won administrative autonomy from the executive, increasing their chances of additional funding. Most the population cannot afford lawyers.
As part of the amendment, retiring judges must now wait three years before they can practise law privately. Sergio Renault, secretary for judicial reform, insists this week's constitutional amendment is "only the beginning of a broad restructuring" that will further improve the quality and speed of justice. "The real benefits for the average citizen are yet to come."