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Chief Justice of the STF opens meeting of the Venice Commission at Ouro Preto (MG)

Monday, 5 May 2014

On Monday morning (5), while conducting the opening of the meeting of the Sub-commission on Latin America of the Venice Commission, the Chief Justice of the Brazilian Federal Supreme Court (STF), Joaquim Barbosa, stressed the importance of dialogue on the role of the Judiciary Power on the efficacy and effectiveness of economic and social rights in the constitutional systems of the member countries of the Venice Commission. He also highlighted that, during the meeting, the creation plan of a permanent and independent body for Latin America will be promoted, “a sister-institution of the Venice Commission.”

According to him, cooperation between constitutional courts on judicial activity has great significance for the strengthening of democracy in Latin America. "The linguistic proximity and similar cultural traits make this dialogue more fraternal and enriched with the exchange of experiences with countries in other regions of the world," he said.

In the past years, according to the Court’s Chief Justice, "economic crises and consequent austerity measures imposed on society have plagued the most diverse countries." "In these times of financial unbalance, the State budget suffers cuts and reductions that, in most cases, it ends up affecting the fulfillment of social and economic rights," he said adding that the lack of sufficient resources for the realization of economic and social rights by the State "ends up arriving at the Judiciary Power, which must solve the resulting conflicts."

According to Chief Joaquim Barbosa, allegations of the State’s financial inability, the reasonableness of the claim brought in court, and the allocation of public funds to certain public policies are recurrent issues and require theoretical and practical confrontation in concrete cases brought into court. He evaluated that the discussions to be undertaken during the meeting will have much value for the reflection on this broad topic and of great relevance to the democratic rule of law, "where the effectiveness of constitutional rights and the independence of the Judiciary Power are essential for the confrontation of conflicting interests."


Also in the morning, the President of the Supreme Federal Court lectured on social rights in the Brazilian Constitution inside the block that constituted the theme of the constitutional definition of social and economic rights. According to him, the Federal Constitution of 1988, which celebrated its silver jubilee on October of last year, was the milestone of the democratic order’s restoration in Brazil after the military regime and consecrated social rights on various articles.

In its 6th article, the Chief Justice affirmed, the Constitution prescribes the following as social rights: education, health, food, work, housing, leisure, security, social welfare, protection to maternity and infancy as well as assistance to the homeless.

“However, the efficacy and effectiveness of these social rights guaranteed in the Constitution are counterposed many times the state organs’ scarcity of budgetary resources that are responsible for its implementation, especially in times of crisis, of fiscal and monetary austerity and of governmental measures with aims to reduce public expenditures,” he highlighted. Consequently, according to Chief Justice Joaquim Barbosa, on various occasions the Judiciary Power ends up solving controversies on the consolidation of the social rights contained in the Constitution due to the omission of competent state organs in order to secure these rights. 

According to him, “the exercise of the constitutional jurisdiction on the enforcement of social rights constitutionally guaranteed has been of great relevance on the Brazilian judiciary system.” The Chief Justice highlighted that the STF has understood to be possible, even though exceptionally, that the Judiciary Power determines that public policies, defined by the Constitution itself, be implemented by the omitted state organs in order to give efficacy to these rights.

“It is like that that, in various sentences and rulings, the Supreme Court recognized that before the unconstitutional omission of the Executive Power and Legislative Power there is no talking about the breach of the principle of separation of powers, by the Judiciary Power’s activity, due to the supremacy of the Constitution,” he stressed. To the President of the Court, the consolidation of the social rights provided in the Constitution is a continuous process, not being able to exhaust the theme in this brief intervention.

He highlighted that it is important to remember that power emanates from the people and it is to them that the State should respond to, “imbued with the most elevated values emanated from our institutionality with the protection to the essential minimum of basic rights in an adequate manner to a worthy existence.” “We all await anxiously – not only from the Executive and Legislative Powers, but also from all the members from the Brazilian Judiciary Power, when duly requested to solve problems – that they may have in their core such wide range of social matters, which in turn, are so delicate in our country,” he concluded.


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