01. Procedure Acceleration
Article 5º Everybody are equal under the law, without distinction of any nature, guaranteeing to all Brazilian citizens and foreigners resident in the Country the inviolability of the right to life, freedom, equality, safety and property, under the following terms: …
LXXVIII to everybody, in the judicial and administrative spheres, are assured a reasonable duration o the process and the ways to hasten the proceedings.
It gives constitutional basis to the rules that force the State and those who work for it the duty of quickness in the acts of administrative or judicial nature, as those prescribed by articles 125, II and 133, unique, 189 and 456 of the Civil Code Process, as below:
Art 125 The Judge shall conduc the process as per the legal disposiions of this Code going into:
...
II – To wach over for a quick solution of the litigation;
Art 133. The Judge shall respond for losses and damages when; …
II. Refuses, omits or delays, without just cause, measure/providence it should be ordered byhimself or is requested of the party Sole Paragraph. I shall be considered confirmed the hypohesis foreseen in the nº II, onlyafter the party, through a Court oficial, shall requesrom theJudge toorder the measure/providence and he does not comply with the request within 10 (ten) days.
Art. 189. The Judge shall pronounce:
I – the interlocutory decisions, within 2 (two) days;
II – the final decisions, within 10 (ten) days.
Art. 456. Finished the debate and offered the memorials, the Judge shall pronounce the final decision on the spot or within 10 (ten) days.
The change on art. 93, II, “c”, imposes an impediment to the promotion of judges the unreasonable retention of records as we shall see.
02. International Treatises
3º The international treatises and conventions about human rights which are approved, in each National Congress House, in two shifts, by 3/5 of the votes of the members shall be equivalent to constitutional amendments.
The hierarchy grade which the international treatises assume, when inserted in the national legal system has always been a controversial theme of the Brazilian law. Notwithstanding the good intention of the legislator, we may not forget that the expression, Human Rights has a semantic content extremely ambiguous and with a difficult delimitation. It should be understood, in a restrictive manner, that the human rights are those which rule the individual lives who are protected by the legal system. As clear as this delimitation might be, the questions shall continue. It may be considered similar themes to human rights those including capital punishment (which institution is forbidden in Brazil under the immutable clause as per the whole interpretation of articles 60, IV1 and 5º art. XLVII 2 ) similar to those concerning health (sanitary conditions, hospitals access’ etc.). We also may include in this theme of individual guarantees and rights, as the aforementioned article 60, IV of the Federal Constitution.
In this case, we would deal with abstract concepts as equality and freedom, and it shall be a tiring task, to define what points should or should not be inserted in the Brazilian Legal System by a special quorum. In other words: Tax matters related to the isonomy matter – immunity, for example – would it be included in this case?
Another interesting question is about the possibility on the national legal system (law in its lato sense) of a hierarchy value identical to the Federal Constitution, with the possibility to revoke its dispositions.
03. Modification of Clause III of Article 36
Art 36. The Intervention’s decree shall depend on:
…
III. order of the Federal Supreme Court, representation by the General Attorney of the Republic on hypothesis of article 34, VII and in case of refusal of execution of Federal Law.
1 § 4º - It shall not be matter of discussion the amendment proposal to abolish: (…) IV – the individuals rights and guarantees
2 Art 5º - Everybody are equal under the law, without distinction of any nature, guaranteeing to all Brazilian citizens and foreigners living in the Country the inviolability of life right to life, freedom, equality, safety and property, under the following terms: (…) XLVII It shall not have punishments: a) death penalty, except in case of declared war, as per terms of article 84, XIX: b) perpetual character (…)
The modification of the mentioned clause caused the extinction of the clause IV, which determined that the Federal intervention was linked to the Superior Court of Justice’s arrangements as below 3 :
III – order of the Federal Supreme Court ,representation of the Republic General Attorney, on article 34, VII hypothesis;
IV order of the Federal Superior Court, of Justice, representation of the Republic General Attorney in case of refusal to the Federal Law execution.
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04. Modification of clause II of article 52
Art. 52. It is privately in the Senate’s legal power:
…
II to process and to judge the Federal Supreme Court Ministers, the members of the National Council of Justice and the members of the National Council of the Public Ministry, General Attorney of the Republic and the Union General Lawyer.
This modification enlarged the legal power (unusual function) of the Federal Senate, attributing to it the competency to judge the members of the National Council of Justice, which was created by this Constitutional Amendment.
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05. Creation of the National Council of Justice
The National Council of Justice is an organ of the Judiciary Power4, which headquarters, as the Federal Supreme Court’s and Superior Court of Justice’s, are in the Federal District5 It shall be composed by fifteen members with more than thirty five and less than sixty six years old, with a two years mandate6, admitted one renewal. The Council members shall be appointed by the President of the Republic, after the absolute majority of the Federal Senate’s choice approval.
The Council composition shall be the following:
• a Minister of the Federal Supreme Court, appointed by the respective court;
• a Minister of the Superior Court of Justice appointed by the respective court;
• a Minister of the Superior Court of Labor appointed by the respective court;
• a Superior court judge of the Court of Justice appointed by the Federal Supreme Court.
• a State judge, appointed by the Federal Supreme Court;
• a Federal Court of Appeals judge, appointed by the Supreme Court of Justice;
• a Federal judge, appointed by the Supreme Court of Justice;
• a Judge of the Regional Labor Court, appointed by the Supreme Labor Court;
• a Labor Judge, appointed by the Superior Labor Court;
• a member of the Public Ministry of the Union, appointed by the Republic General Attorney
• a member of the State Public Ministry chosen by the Republic General Attorney among the appointed names indicated by the responsible organ of each state institution
• two attorneys appointed by the Federal Counsel of the Brazilian Bar Association
• two citizens, with a notorious legal knowledge and untouchable reputation, one appointed by the House of Representatives and other one by the Federal Senate.
The powers of the National Council of Justice are the following:
• To watch for the autonomy of the Judiciary Power and also the accomplishment of the Magistrate Statute, issuing regulating acts, as per its competency or recommend measures;
• To watch the compliance of art. 378 and appreciate, by its own initiative or by provocation the legality of the administrative acts done by the members or organs of the Judiciary Power, being empowered to destitute, revise or fix terms to adopt the necessary providences to accomplish the law, without restraining the competency of the Union Audit Court;
• To receive and to examine the complaints against the members or organs of the Judiciary Power, including its auxiliary services, and notaries and registries organs rendering notary services which act by the public power delegation or are authorized without any lessening of the disciplinary competency of the courts, appealing to a higher courts disciplinary processes in course and determine the transference, the availability or retirement with due subsidies or payment by working time and applying other administrative sanctions, assuring plenty defense. The act of transference, availability and retirement of the magistrate, by public interest, shall be based on the decision by vote of the absolutely majority of the respective court or by the National Council of Justice assured full defense9;
• Represent to the Public Ministry, in case of crime against the public administration or abuse of authority;
• To check by its own initiative or by provocation, the disciplinary processes of judges and members of the judicial courts with less than one year old ;
• To elaborate a statistical report each six months about the rendered decisions by each Federation unit, on the different organs of the Judiciary Power;
• To elaborate an annual report suggesting the necessary providences, concerning the situation of the Judiciary Power of the Country and the Council’ activities, which should be part of the message of the President of the Federal Supreme Court to be remitted to the National Congress, on the opening of the legislative session.
3 Art. 34. The Union shall not intervene neither in the States, nor in the Federal District, except for: (…) VIII – to assure the respect of the following constitutional principles: a) republican way, representative system and democratic regime; b) human rights; c) rendering accounts of the public administration, direct and indirect.
4 Art. 92. The organs of the Judiciary Power are: (…) – The National Council of Justice. 5 Art. 92, § 1º
7 Art 103-B
8 Art 37 The direct or indirect public administration of any of the Union Powers, of the States, the Federal District and Municipalities should obey the legality principles, impersonality, morality, publicity and efficiency…
9 Art. 93 VII
The National Council of Justice has special venue, and all the suits against it should be judged by the Federal Supreme Court10. The President of the aforementioned organ should also be responsible by the Council’s presidency. He shall act in trials, only in case of parity, being excluded of distribution of suits filed at the Federal Supreme Court11.
The Minister of the Superior Court of Justice shall act as a Correctional Magistrate and shall be excluded of the litigations’ distribution at the Court, being his/her functions besides those given by the Magistrate Statute: a) To receive claims and indictments of any interested one concerning the magistrates and judiciary services; b) to practice executive activities of the Council, of inspection and of general correction and c) to request and to appoint magistrates, delegating attributions and requesting court staff, including the political divisions and subdivisions12 .
As an easier way to access the National Council of Justice, it shall be created in the States and Federal District, hearing judges to receive claims and indictments of any interested party, against the members of the organs of the Judiciary Power or against the auxiliary related services, representing directly to the National Council of Justice13 .
Magistrature
Several clauses of art. 93, have been changed by the 45th Constitutional Amendment, therefore, modifying the exercise of Magistrature. The “Caput” of the aforementioned clause says:
Complementary Law, by the Federal Supreme Court, shall dispose about the Magistrature Statute observing the following principles:
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Now it is a Constitutional demand the Law graduation and at least 03 (three) years of activity in the “juridical area” 14. The judges promotion, which is mentioned in clause II 15 , shall observe the productivity standard goals 16 .It also is demanded a substantiated vote and a full defense guarantee in case of choice by age by the Courts 17 . The records unfair retention in excessive time from that one stipulated by Law is a strong motive to avoid the judges promotion, on terms of the item “ e” added to the clause II of the mentioned article18 of the law. There is a possibility that the main/official judge has no residency in his judiciary district, to object to the Court of Appeals authorization19.
The action for removal, availability and the magistrate retirement, by public interest, it is not anymore linked to 2/3 approval of the Court of Appeals' members. Now it is necessary a simple majority, either of the court members or of the National Council of Justice members20.
Other dispositions aiming at the acceleration of the jurisdictional process and reassuring its importance are mentioned in the recent clauses XII, XIII, XIV and XV of article 93 of the Federal Constitution which determine:
• The incessant jurisdictional activity (it means that the court recess is extinguished)21
• Adaptation of the number of judges per district22.
• A bigger participation of the justice officers in practice of non deciding acts of mere administration.23
• Immediate distribution of the processes24
10 Art 102. It is privately the Federal Supreme Court legal power to guard the Constitution, by: processing and judging (…)r) litigations against the National Council of Justice and against the National Council of the Public Ministry;
11 Art 103 – B, § 1º
12 Art 103 – B, § 5º
13 Art 103 – B, § 7º
14 I – the beginning of the career as a substitute judge, upon public exam of titles and tests with the participation of the Brazilian Bar Association in all phases , demanding from the law bachelor, at least, 03 (three) years of juridical activity and appointment by the classification order;
15 II – promotion of court-division to court-division, alternatively , by age and merit, attending the following rules:
16 “ c) evaluation of merit upon performance, also by the productivity standard goals and by activities during time of jurisdiction and by frequency and improvement through official courses or recognizable ones of improvement”. FORMER REDACTION: “c) comparison of merit upon capabiity and security during time o jurisdiction by fequency and improvements inoficial courses.”
17 “d) Court may refuse the older judge examined by age, through a full substantiated vote of 2/3 of the members, according a proper procedure, and assured a wide defense, repeating the voting until a common indication”. FORMER REDACTION: “d) Court only mayrefuse the older judge examined by age, by the substantiated vote of 2/3 o its members according a proper procedure, repeating the voing until a common indication´.
18 “e) It shall not be promoted the judge who, unfairly, blocks records beyond the legal term, being unable to return it to the register without the proper clearance or decision”.
19“VII the main/official judge shall live in his district, except by Court authorization”.
20 VIII the removal act, availability and retirement of the judge, by public interest, must be approved by the absolute majority of the votes either of the respective court or of the National Council of Justice, assuring extensive defense; FORMER WORDING: “ VIII - the removal act, availability and retirement of the judge, by public interest, shall be valid by 2/3 of the respective court, assuring extensive defense.
21 “XII the jurisdictional activity shall be continuous, being forbidden blanket vacations at courts and Courts of Appeals of, judges at permanent duty shall work, at the days with no court working hours.
22 “XIII the number of judges at the jurisdictional unit shall be proportional to the judicial demand and also to its population;
23 “XIV the law officers shall receive delegation to practice of the acts of administrative and office with no decision effects.
Concerning Magistrature, the Constitutional Amendment nº 45, imposes on the ex magistrates a “quarantine” of three years to work as a lawyer in the courts they used to work for25, being blocked on terms of article 95 $ unique, clause IV to receive, under any pretext, help or contributions from individuals, public or private entities, except exceptions determined by law.
Labour Justice
The modification on article 114 of the Federal Constitution explained and confirmed the competency of Labour Justice. The former wording of the aforementioned clause says the following:
Art 114. Labour Justice has to conciliate and judge the individual and group disputes between employees and employers, including the entities of external public law and of the direct and indirect public administration of the municipalities, of the Federal District, of the States and of the Union and under the law, another controversies due to labor relation, as well as the litigations arising from the enforcement of its own judgments, including the collective ones.
The updated working enforcement of the mentioned law article grants competency to the Labour Justice to decide the following:
• Litigations from labour relationship, including entities of external public law and of the direct and indirect public administration of the Union, of the States and of the Federal Districts and the municipalities.
• Litigations involving strike rights;
• Litigations about union representation, between unions and employees and between union and employers;
• The writs of mandamus, Habeas Corpus and Habeas Data, when the questioned act involves matters under its jurisdiction;
• The competency conflicts between organs with labor jurisdiction, except the ruled in article 102, I,
• The suits of damages by pain and suffering or by pecuniary damage under labour relationships;
• Suits related to administrative penalties imposed to the employers by the labor inspection organs,
• The execution, by its own initiative authority, of the social contributions foreseen on art. 195, I a, and II and its legal increase, as by following its own decisions;
• Other controversies due to labour relation.
24 “XV the processes’ distribution shall be immediate in all jurisdictional degrees.
25 Art 95, § unique : Sole Paragraph: It is forbidden to the judges…. V act as a lawyer in a Court which he has left, before three years of leaving the position by retirement or exoneration;
The change in the Constitutional text which caused controversies, although, it was the possibility of the Federal Supreme Court in disclosing Stare Decisis with binding effects under the judicial organs and those from the public administration, under terms of article 103 – A, with the wording below:
STARE DECISIS
Art 103-A. The Federal Supreme Court, may, under on its own initiative and authority, upon decision of 2/3 of its own members, after decisions of the constitutional matter, approve Stare Decisis that, from its publication on, in the official press, should have binding effect to the other organs of the Judiciary Power and also to the direct and indirect public administration, on the federal, state and municipal’s spheres, as well as, its revision or cancellation under the law.
Due to some light differences in this constitutional feature, a carefully analysis is advisable concerning its content granting a better comprehension. We see:
“ The Federal Supreme Court may…”
The beginning of the aforesaid constitutional article delegates exclusive competency to the Federal Supreme Court to publish the mentioned Stare Decisis. The verb which binds the sentence to the object (“may”) explains the available binding (in opposition to the forbidden and obliged ones).
So, it was not obliged to the Court a duty, therefore a possibility´. It means that: The Constitutional text grants a competency without determining, in an endless way, that the Court is limited, in possible ways to practice it.
“ …by its own initiative and authority…”
Before the sentence object, the first appositive explains, the initiative of the internal procedure which shall result the Stare Decisis. Therefore, the initiative may occur (a) ex officio- it means, part of the Court itself, or by means of (b provocaion. Regarding the latter initiative form, the Constitutional text remains silent leading a way to appoint who shall have legal interest in arousing such provocation, avoiding any initiative of procedure to be followed.
“ …by means of the 2/3 decision of its own members…”
The second latter appositive before the object of the sentence, demands the necessity of approval by 2/3 of the Court members (it means, at minimum eight Ministries remaining the current presentation of the House with eleven Ministries) of the StaeDecisis in question.
The doubt in relation to this part is concerning to the term “ by means of” and its connection to the verb “ may” and the subject of the sentence, “ Federal Supreme Court, previously examined. It means: “ by means of” means as well “ Hereby” as Hereinafter”. Therefore, it is not clear enough, if one or two acts are described toward the publishing of the Stare Decisis.
If we do understand the “by means of” as “Hereby” the own voting would represent the publishing of the Stae Decisis, which shall not be linked to a former step, similar to a “sanction” (we shall see farther on, the used verb is “ to approve”) observed in the legislative process.
By the other hand, if we give another meaning to “ by means of” we shall have that the Federal Supreme Court (the subject of the sentence) “ should” sanction (“approve, to use the term in the law) the content of the aforementioned Stare Decisis.
This interpretation which matches in a better way with the part of the legal feature, leads to a doubt: who, in the name of the Federal Supreme Court, would agree with such “approval”?
It seems that the impossibility of the second interpretation is clear, so we understand that the approval and voting are an unique action, not fitting any analogy to the legislative process previously proposed.
´… after repeated decisions…”
For publishing in a valid way the Binding Stare Decisis by the Federal Supreme Court, it is necessary a manifestation about a specific matter several times.
This is highly important as the Stare Decisis shall not be valid on isolated decision. It is necessary to have several Stare Decisis upon the Federal Supreme Court, letting, in a legitimate way, the beginning of the procedure with the approval of the binding title.
´… concerning constitutional matter…”
Such part reassures the essential competency of the Federal Supreme Court, except (as matter of privileged venue) this Full Board has the competency to appreciate the matter of Constitutional Nature
It is also important to have in mind that only such matters are the Court competency. It may not be different, as we have seen previously, one of the conditions to approve the Stare Decisis is the Stae Decisis letter of existence judged by the Federal Supreme Court.
Therefore, there is no way to think about the possibility of having contents of the Binding Stare Decisis, matters or questions once previously decided ultimately by the Superior Court of Justice, Superior Labour Court and others.
We may not forget that, although, it may occur paradoxes: Courts as the Superior Court of Justice must receive resources for analyzing concerning questions previously appreciated and discussed several times: It means: Matters regarding to infra-constitutional rules would be exposed to analysis with more frequency than those regarding to Constitutional matters, as while as, those (infra-constitutional matters) shall not be exposed to the Binding Stare Decisis.
Another point originated by the previously appreciated one, would be the increasing of the Federal Supreme Court competency. It is known in our procedural law, that the Constitution is the law main and essential source. The Brazilian Constitution does not follow an outline pattern, but an exhaustive one: explaining legislatives competencies, procedures for arising Laws and also about material law. Due to the amplitude, it is boundless the quantity of matters that may be considered as “constitutional field”
Now therefore, it shall not be odd if the Federal Supreme Court would consider itself able or competent to appreciate matters once solved at the Judiciary Power instances being immediately inferior (STJ, TST,STM,STE) fading these organs functions.
´…to approve the Stare Decisis …”
We have already done some comments about this part. Although, it is necessary an enforcement which may be important. The statement which is in article 103-B of the Federal Constitution, in its direct organization would have the following structure: “ The Federal Supreme Court may approve the Stare Decisis which…” For possible approval it is necessary the consent of 2/3 of its members. The matter we have launched before was: The consent of this ratio would have corresponded to the Stare Decisis’ approval, or the validity and the legal effect of the statement would be exposed to any latter act which may constitute the effective approval? This is only one of the ambiguities, which we have solved, according to what has been exposed before, including that the constitutional decision is an unique step – it means, got the majority described, Stare Decisis is considered immediately approved.
§ 1º The Stare Decisis shall have, as the main goal, the validity, the interpretation and the efficiency of the determined rules from which shall come real controversies among the judicial organs or among these and the public administration that may cause serious juridical insecurity and relevant multiplicity of the processes about the same matter.
§ 2º With no damage from what would be established under the law, the approval, the revision or cancellation of the Stare Decisis may be approved for those who may propose the direct unconstitutionality suit. § 3º From the administrative act or judicial decision which may oppose the Stare Decisis or which may be applicable in a wrong manner, it may cause claim by the Federal Supreme Court who judges this claim deemed with soured, shall null the administrative act or shall cease the requested judicial decision and will determine that another one shall be issued with or without the Stare Decisis, according to the matter
Responsible Attorneys:
José Luiz Cabello Campos cabellocampos@prmurray.com.br
Gustavo Dean Gomes gdgomes@prmurray.com.br
Denise Furuno
dfuruno@prmurray.com.br
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