Judiciário assumiu papel de liderança política

O Judiciário brasileiro assumiu, nos últimos anos, um "crescente papel de liderança política". A afirmação consta de artigo publicado pelo desembargador Fausto De Sanctis, do Tribunal Regional Federal da 3ª Região, no International Judicial Monitor , editado pela International Judicial Academy, de Washington, nos Estados Unidos.

No artigo Recent Legal and Judicial Reform Initiatives in Brazil , De Sanctis faz um histórico da atuação do Judiciário no período posterior à Constituição de 1988. Segundo ele, a relevância política assumida pela magistratura se deve especialmente à negligência do Legislativo em decidir questões como greve no serviço público, aborto, pesquisas com células-tronco, demarcações de terras indígenas e fidelidade partidária, que agora estão nas barras dos tribunais.

O desembargador também aborda o que chama de crise geral de eficiência do sistema judicial, centrada em três aspectos: lentidão, pouca transparência e falta de acesso à Justiça. Ele finaliza com as principais mudanças legislativas e constitucionais dos últimos anos, como a adoção do processo eletrônico, a criação do Conselho Nacional de Justiça, a Súmula Vinculante, entre outras.

Leia o artigo abaixo:

Recent Legal and Judicial Reform Initiatives in Brazil

The Brazilian judicial system is composed of numerous institutions. Its formal nucleus is the judicial power (Articles 92 and 93, Brazilian Constitution), but it also encompasses the essential functions of the branch: prosecutors, public defenders, and private lawyers. Within this context, the Judiciary must be highlighted as the core of the judicial system. The brazilian Judiciary has, over time, assumed a role of growing importance of political leadership.

The historical evolution of the brazilian public institutions, especially after the Federal Constitution of 1988, reveals a shift in government powers from a system that emphasized Legislative and Executive powers to one that also includes the judicial branch. Political disputes avoided by the Legislative Power are now being included in cases being filed in court.

Some examples of recent decisions of the Brazilian Supreme Court reveal that the reluctance of the legislature to exercise its power and authority has been accompanied by the filing of cases in court and the subsequent willingness of the courts to hear these issues. These cases have involved issues relating to the activity of the strike in public service, abortions, stem cell research, tribal lands, elections regulation of party loyalty, and amnesty for the military. These are issues that traditionally involved the exclusive exercise of legislative power. Therefore, what should be regulated by law, by representatives of the people, turns out to be determined by judicial decisions, not always in keeping with popular sentiment. It is remarkable that the role that the judicial power, specifically the Brazilian Supreme Court, has performed as the last level of confirmation of legislative policy decisions. Defeated groups in the Congress have used the judicial power to obtain decisions about constitutional proposals that had failed in the legislature.

At the top of both the federal court system and the several state court systems, for purposes of appeal, is the Brazilian Supreme Court (Supremo Tribunal Federal S.T.F.). It is comprised of 11 justices (Ministros) who are appointed by the President and approved by the Senate. The justices of this court must be at least 35 but less than 65 years old. They have life tenure until their compulsory retirement at age 70.

The judicial power now occupies new institutional space. Deciding questions of political nature, the Brazil Supreme Court has becomes a political entity, and has been observed with great interest by various social groups. Thus, Brazilian society has become aware of the importance of judicial decisions in day-to-day social and economic life and economic development. This judicial activity has caused it to become a center for discussion. Legal discussions now involve economists, psychologists, journalists, members of social movements, NGOs etc. who realize the importance of judicial function.

The occupation of a new political space brings new challenges to the judiciary. Where once there was a big distance from social demands, today they are multiplying in the judicial branch. Where once there was a respectful silence relating to its deci...