By Andre Pires de Andrade Kehdi, Rafael Custódio and André Augusto Salvador Bezerra*
The positivization of the principle of the separation of powers and the subsequent establishment of the Judiciary as a separate and independent branch coincided with the emergence of the rule of law after the European bourgeois revolutions and the independence of the United States of America in the 18th century. In this historical context, it was recognized that for a State to be limited and obedient to the legal order, it would require, among other conditions, the regular functioning of a court system that is free from undue interference.
When talking about a court system without undue interference, we are usually referring to the independence of the Judiciary from the Executive and Legislative branches. But that is not all. When talking about the absence of interference, we also need to talk about the autonomy of each judge from the senior officials of their own court.
In other words, it is necessary to permit each judge to issue rulings in accordance with their legal conviction, independent of both external pressure (i.e., the Executive and the Legislative) and internal pressure, from the very court on which they serve (i.e., the Judiciary).
This is why article 95 of the Brazilian Constitution guarantees judges life tenure, irremovability and irreducibility of pay. These are guarantees that protect all society, since they enable independent judgments.
It is important to remember that these guarantees are also the subject of protection — and concern — by various international mechanisms. These include the United Nations (UN), through its international rapporteurs, and the International Human Rights Tribunals, such as the Inter-American Court of Human Rights and the European Court of Human Rights.
In spite of all this, more than 26 years after the promulgation of the democratic constitution, we can see that the Brazilian Judiciary has not achieved the independence necessary for the application of the principle of autonomy and the separation of powers. And, more seriously, this non-application occurs through tenuous and at times imperceptible means that nonetheless affect the regular functioning of the court system and, consequently, the rule of law itself.
The power of appointment attributed to the presidents of the courts constitutes one of these subtle mechanisms. This power consists of the authority vested in senior court officials to select judges to exercise the judicial function in a given location, meaning they can also dismiss them and replace them with other members of the profession at any time.
This is an exception to the aforementioned irremovability, a guarantee that prevents the dismissal of judges by internal decisions of the court or by the action of the other branches. And since it is an exception, the appointments should occur exceptionally: only to enable the continuity of the service in courts where tenured judges are on vacation or on leave, or if they have been promoted or suspended.
As it happens, this exceptional character of the appointments is not observed. On this point, the case of the Judicial District of the City of São Paulo is paradigmatic.
Currently, more than 40% of the auxiliary judges in the city (who are appointed) do not cover absences by tenured judges. Instead, these auxiliary judges are working full time, as if they were tenured but without the guarantee of irremovability. In principle, they can be removed from their position at any time, on the whim of the president of the court.
It is important to note that many of these jurisdictions are strategic. For example, in the Judicial District of the City of São Paulo, all arrests in flagrante delicto are analyzed by judges from the Department of Police Inquiries (DIPO). However, DIPO does not have tenured judges and instead they are all appointed.
What occurs in DIPO is not an isolated case. It is repeated in numerous other courts in São Paulo, which are occupied, if not exclusively then at least in the majority of cases, by appointed judges. The same occurs in judicial posts that judge the validity of the amounts charged by the municipal or state Treasuries or even by financial institutions.
This situation begs the question: what guarantees are there for people who have been arrested supposedly in flagrante delicto, or for taxpayers or consumers in a dispute with the public authorities or a bank, that their cases will really be heard by an impartial judge?
The answer to this question is none at all. There are no guarantees, however well-intentioned the president of the court may be and however honest the appointed judge is. The citizens who are defendants in these cases will never know whether the judges issued their decisions based on their own convictions or due to some external pressure. This alarming structural flaw permits the imagination of the defendants to run wild, leading to serious misgivings about the credibility of the judgments.
More serious still, these positions held by appointed judges have been increasing in recent years. This is the case with the so-called “Super VECs” Prison Sentence Enforcement Courts, which were established by law in 2013. The legislation established centralized Prison Sentence Enforcement departments across the state of São Paulo, formed only by judges appointed by senior officials from the State Court.
In other states in Brazil, the situation is similar. In Rio de Janeiro, for example, there is the case of the Juizado do Torcedor (Soccer Fan Court), vested with broad authority to judge cases of soccer-related violence; in Bahia, irremovability is violated in other ways: senior officials from the State Court do not hold public examinations for the promotion of substitute judges, preventing a wide range of judges from becoming tenured and, therefore, from being guaranteed irremovability (and autonomy).
Since it violates the guarantees of independence of the Judiciary, this power of appointment has been challenged in both the National Justice Council and the Supreme Court. Recently, the National Justice Council ordered the São Paulo State Court to establish rules stipulating impartial and objective criteria for these appointments; it also ordered the Bahia State Court to hold public examinations for the promotion of substitute judges.
The rulings directed at São Paulo and Bahia have both been suspended by injunctions issued by Justice Lewandowski, of the Supreme Court. The analysis of the constitutionality of the law that creates the “Super VECs” in São Paulo faces a similar situation, and in this case the presiding judge is Justice Dias Toffoli.
The ideological control of judges exists and is very real. Worse than denying it is to not act in the face of the evidence. It is up to the Supreme Court, given this situation, to impose itself as the guardian of the independence of the Judiciary and the defender of the constitutionally established democratic rule of law.
*Andre Pires de Andrade Kehdi is president of the Brazilian Criminal Sciences Institute (IBCCRIM).
Rafael Custódio is coordinator of the Justice program at Conectas Human Rights.
André Augusto Salvador Bezerra is president of the Executive Board of the Association of Judges for Democracy (AJD).
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