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Autonomy of the Judiciary is one of the issues of the exchange program for Portuguese-speaking countries

Thursday, October 11, 2012

The president of the Brazilian Federal Supreme Court (STF), Justice Ayres Britto, opened on Monday morning (Oct. 8) the 1st edition of the Tobias Barreto exchange program, which brought to Brazil judges and presidents of the constitutional courts of the member countries of the Conference on Constitutional Jurisdictions of the Portuguese speaking countries (CJCPLP). At the event, representatives from Angola, Cape Verde, Guinea-Bissau, Sao Tome and Principe, Mozambique and East Timor were present.

The central axis of the discussions of the first day of event was the autonomy of the Judiciary. In its opening speech, Justice Ayres Britto qualified the Brazilian Constitution as “a long lasting hallmark” on Brazilian legal history, placing the country “in the forefront of the most civilized countries” in the world. “Our constitution established the highest objective of democracy”, he said.

Still speaking of democracy, Justice Ayres Britto quoted the jurist, philosopher, poet and critic Tobias Barreto (1839-1889), who gives name to the program. Barreto used to say that “where the people is not everything, the people is nothing”

As we celebrate this year’s municipal elections, which took place on Sunday (Oct. 7) he said that the popular sovereignty bases the Brazilian Constitution and is expressed by the act of voting. “In Brazil there has been 24 uninterrupted years of democracy” and this is due to the “glorious” Constitution, which “erected democracy as a political model”

Justice Ayres Britto also highlighted the fundamental role that the Supreme Federal court has been playing in this constitutional architecture, in pronouncing decisions on legal issues of “the highest importance”. He recalled that the STF has declared the constitutionality of the Clean Record Law; declared the equality of rights of heterosexual and homosexual couples and overthrew the Press Law reaffirming thus the press freedom in the country; assured stem cells research and the right of the indians to the traditional occupation of their lands.

Another example mentioned by Justice Ayres Britto was the prohibition of nepotism, “a persistent expression of the colonial patrimonialism”, on the three circles of the public administration of the three branches of the Republic. According to him “more and more, black people, indians, women, elderly, homosexuals are treated consistently to the more advanced idea of human dignity” relying thus a “fraternal constitutionalism, consecrator of the pluralism”

After the opening session, Judge Efigenia Clemente, from the Constitutional Court of Angola spoke on the historical development of the Conference on constitutional jurisdictions of the Portuguese Speaking Countries, of which her country presides for the biennial 2012-2014

Justice Gilmar Mendes traces history of the constitutionality control system in Brazil

Continuing the activities of the first day, Justice Gilmar Mendes traced a history of the Brazilian constitutionality control system, since the constitution of 1891 to the present days, highlighting the decisions made by the Federal Supreme Court under the trauma of the interventions suffered during the military government. Justice Mendes mentioned practical examples on how the Supreme Court has been deciding cases that demand strong positioning, as in the right of strike of public civil servants, the termination of pregnancy of anencephalic fetuses and the civil marriage of homosexual couples.

According to Justice Gilmar Mendes, Brazil is undergoing a constant process of improvement and transition of its control of constitutionality and this is due in large part to the need for solution of demands that emerged specially after the promulgation of the 1988 Constitution, which extended the right of bringing to court of Direct Action for the Declaration Unconstitutionality (ADI – Article 103 of the Constitution), once restricted to the Attorney General, introducing a new concept of abstract control of constitutionality.

Control mechanisms of constitutional omission were also highlighted during Justice Gilmar Mendes’ speech. He recalled that, in cases of omission the Supreme Federal Court initially would ask the National Congress to enact the claimed law, understanding enshrined on the Writ of Injunction 107. “But the years have passed and the STF has verified that its appeal to the legislator was not effective, that the Congress would not give much attention to its request”, he said. “Then, the STF has started to render judgments with normative-additive sense, saying that, in some cases, it was possible to achieve some results by extracting answers from the constitution itself. That is what happened in the article 8 of the ADCT, in subject related to the Law of Amnesty”, he stated. Justice Mendes also mentioned other decisions in terms of legislative omission.

Budgetary autonomy and internal and external control of the Judiciary

In the afternoon, presentations were centered on the subject of the autonomy of the Brazilian judiciary. The Secretary-General of the National Council of Justice. Dr. Francisco Alves, spoke on the “Brazilian Judiciary in the Constitution on 1988” and the Director-General of the Supreme Federal Court, Dr. Amarildo Vieira, spoke on “Budgetary autonomy of the Brazilian Judiciary”.

Dr. Amarildo Vieira presented the main constitutional provisions on the matter and noted that the budgetary, financial and administrative autonomy ensures the means for regulating the functioning of the bodies of Judiciary, without the interference of the Executive branch. Dr. Amarildo mentioned, however, that the implementation of the budget must be aligned to the Law of Budgetary Directives (LDO), consolidated by the Executive and approved by the Legislative. He also stated that the Constitution has created minimal guarantees for the judiciary “to work without relying much to the central power, as it was formerly”.

The secretary of internal control of stf, Edna Prandini, highlighted that the existence of internal control in government bodies stems from constitutional provision and, in the Supreme Federal Court, the secretariat is directed linked to the presidency. “This linkage to the president of the court is a recommendation of Court of Audit, which enables the realization of activities independently, autonomously without the interference of audited and managers”. According to the secretary, the STF internal control acts not only on proving legality of acts, but also in determining the outcome of management. “When we think of control, what comes to mind is the idea of legality, but we have evolved, we also evaluate effectiveness and efficiency”.

The director of Budgetary Control department of the National Council of Justice spoke on the “National Council of Justice monitoring the budget in Brazilian Judiciary” – Antonio Carlos Rebelo, director of the department of budgetary control of the CNJ.

After the presentations, there was a space for the debates, during which participants would clarify doubts and made comparisons to the reality of their countries.

For the second day, visits to Superior Courts and other public bodies scheduled.

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