By: Luiz Henrique Diniz Araujo
The rise of the Judicial Power is a world phenomenon that goes back to 1945, as a consequence of some ideas largely accepted: 1) humanity then acquired the conscience that the brutalities that led to the Second World War partially derived from a formalist conception of law and from the absence of the judiciary as part of the political process; 2) the decline of the prestige of majoritarian politics—a fact in Brazil, in France, in the United States and in many other democracies; and 3) the incapacity of the political branches to decide politically costly issues.
In addition to those general (or worldwide) causes, in Latin America, and specifically in Brazil, there are some specificities that made this topic about politics and the judiciary and, as well as judicial activism, a major issue in Brazilian constitutional law. I would like to stress the most important ones:
- a) The new democratic constitution. In 1964, a military dictatorship was installed in Brazil. Under that regime, in the year of 1967, a constitution was drafted that suppressed the freedom of speech, due process of law, and many other individual rights. The Executive Branch was oversized. The Parliament and Judiciary, on the other hand, played no relevant role. More than twenty years later, in 1988, with the Brazilian transition into a new democracy, a new constitution was drafted, the one under which the country is still governed. This new constitution is an extensive one—it contains 250 articles and was amended more than sixty times. The Constitution contemplates subjects as diverse as individual rights, public healthcare assistance, many aspects of family law, protection of the elderly people, protection of the Indian people, the entire tax system, and social security law. These are issues that in many other democracies are left to the political process, but in Brazil they have a constitutional status. Per se, this phenomenon takes these issues away from the political process and brings them to potential litigation in courts.
- b) The second local reason for the rise of the Judicial Power in Brazil is the model of the Brazilian Judicial Review adopted by the Constitution of 1988, that combines the North American model (diffuse model) and the European model (abstract model). As a consequence, in the Brazilian system, every judge is entitled to declare a statute unconstitutional in the case to be decided. In addition to that, there are Direct Actions (or Direct Constitutional Lawsuits) that are decided exclusively by the Supreme Court in an abstract fashion (in theory). Additionally, a wide range of public and private actors is entitled to file these lawsuits before the Supreme Court.
- c) As a third local reason, I would add the lack of enforcement of rights in the Brazilian social reality that induces the Judiciary towards a more present posture in the political life.
As a consequence of all these factors (the worldwide ones and the national ones), the Brazilian Supreme Court (and also the lower courts and judges) has been playing a very important role in the democratic process. This leads to many important decisions involving gay marriage, abortion, assisted suicide, reform of the social security system, reform of the political system, all sorts of environmental cases, tax matters, educational matters, etc.
The judicialization of politics has to some extent, led to judicial activism in Brazil. I would like to make a very quick digression about judicial activism in order to better clarify the concepts I am adopting here. The concept of judicial activism is quite controversial and has a wide semantic range. Judicial decisions can be labeled as activist if they a) strike down arguably constitutional actions of other branches; b) ignore precedent; c) depart from accepted interpretive methodology; d) represent result-oriented judging; or e) create judicial legislation (“legislation from the bench”). Here, I will use the expression judicial activism in the last sense mentioned (a judicial decision innovates the legal order).
From this perspective, we could cite as activist the Brazilian Supreme Court decision recognizing the same-sex partnership marriage—despite the absence of an express provision of this right in the Brazilian Constitution or in any statute—based exclusively on the equality clause and the principle of human dignity. In actuality, the strict terms of the Brazilian Constitution only protect the relationships between a woman and a man.
Another example is the large number of judicial decisions providing expensive medical care or medicines by the direct application of the dignity constitutional principle and of the constitutional rights to health and life. These decisions many times disregard the limits of the statutes and of the regulators´ provisions.
Certainly, the expression “judicial activism” has gained a very negative connotation in recent times. Nonetheless, as these two examples demonstrate, it cannot be left aside that some decisions labeled as activist are helping the new Brazilian democracy to advance.
Many scholars in the United States, like Justice Antonin Scalia and professors Mark Tushnet, Daniel Farber, and, Jesse Chopper, are critical of the active role played by the Judiciary Branch. These scholars say that the people have the right to govern themselves. That is certainly a very important idea, but is democracy nothing else? Are there not values protected by the Constitution that should be enforced by the courts?
In conclusion, it is important to say that it is often hard to tell if the Brazilian Judiciary is, in the negative way mentioned before, being active or not. But it can certainly be said that in Brazil nowadays, the Judiciary Branch makes up part of the political process and that much social progress is a consequence of judicial decisions. However, we must be careful about the high risks involved, because I am sure none of us wants to replace military dictatorship with dictatorship from the bench.
Luiz Henrique Diniz Araujo is a federal attorney in Brazil and Ph.D candidate at Universidade Federal de Pernambuco, Brazil (Federal University in the State of Pernambuco).