BY MATT HUTCHINS
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Justice Gilmar Mendes, the President of the Brazilian Federal Supreme Court, spoke at HLS on Monday, October 27 about Brazil’s constitutional jurisprudence since 1988, describing the development of norms and institutional controls by the independent Brazilian judiciary as a critical element of the nation’s transition to democratic government. Justice Mendes was appointed to Brazil’s high court in 2005 and became the President of the court this year; he holds an undergraduate and a master’s degree in law from the University of Brasília and a master’s and a Ph.D. in law from the University of Münster in Germany. His research has placed particular emphasis on the abstract control of constitutional norms, and the speech he delivered, entitled “Controlling Constitutionality in Brazil,” examined the mixture of abstract control and diffuse control of constitutionality which has resulted from the adoption of the 1988 Constitution.
Justice Mendes characterized the balance of diffuse and abstract control of constitutionality as having created a mixed system of control over norms which is strongly informed by developments in both European and American constitutional jurisprudence. The abstract control of norms, or the European model, was written into Brazilian law in the 1988 constitution by the creation of actions such as the collective writ of mandamus and direct unconstitutionality suit.
These tools provide legal means of direct intervention which are centralized around the authority of the Federal Supreme Court, and as a result the court is empowered to issue preliminary injunctions against government action which may be deemed unconstitutional, issue rulings that have immediate effect or come into effect at some later time, or interpret the law without declaring it unconstitutional. These tools augment the Brazilian judiciary’s diffuse control of constitutional norms through the traditional tools such as the habeas corpus, habeas data, and writ of mandamus actions, which allow any judge to wield the authority to declare a law or government action in violation of the constitution.
According to Justice Mendes, this mixed system of constitutional control has enhanced the legitimacy of the Federal Supreme Court while enabling the enforcement and extension of individuals’ fundamental rights. Justice Mendes noted that the creative development of complex procedures for constitutional control is an important aspect of the adaptation of government to the cultural and regional needs of a nation. In its young history, the Federal Supreme Court has helped the nation handle constitutional problems such as crippling inflation and the impeachment of the president, and that its success in the decision of these questions of national importance has been largely attributable to the autonomy of the judiciary under the 1988 Constitution.
The Court has played an important role in the development of the nation’s government by harmonizing the interests of the branches of government and controlling abuses of the prosecutors’ authority. In this way its decisions have helped ease the consolidation of democracy and eased the transition to a welfare state through development of the educational system and guarantees of human rights. Furthermore, the Court has a unique role in the integration of international norms through its openness to foreign law, demonstrated by its frequent references to foreign courts and the recognition of international human rights treaties as superceding national law.
Justice Mendes delivered his lecture in English, and afterwards he responded to questions from the audience in Portuguese with a translation following, provided by S.J.D. student Adilson Moreira. Professor Gerald Frug asked how the Court has worked to balance issues of federalism in Brazil. Justice Mendes said that in the history of Brazil, the 20 years since 1988 have been the longest period of continuous democracy.
Although the transitional government which created the constitution was not strongly centralized, the 1988 constitution created a more centralized government. The Federal Supreme Court has worked to improve member states’ competence to govern by moving away from strong centralism toward the harmonization of state and municipal power with federal power.
Justice Mendes said that great progress has been made since the 1988 Constitution toward the provision of adequate health services in Brazil, but there remains great progress to be made in the harmonization of health opportunities across the Brazilian Federation’s member states. He noted that there are two primary types of challenges: adjudicating injunctions in cases where provision of greater services is requested through the construction of hospitals and cases which address other important issues, such as petitions for the right to receive health care services in other countries, including Cuba. He proposed that a discussion be initiated to bring together the many stakeholders whose concerns need to be addressed by coordinated efforts between state and municipal governments.
When asked about racial and gender inequality, Justice Mendes admitted that Brazil is a country of great inequality, with vast differences between the southern and northern parts of the country and between racial groups. “Social inequality generates endemic problems such as prostitution in women and even children.” Although legal remedies cannot address all these inequalities, diffuse rights are being advanced through public prosecution, and legislative initiatives are bringing affirmative action programs to state universities. In the end, the range of procedural tools providing access to the courts will allow solutions to be developed which will foster the further development of the nation’s democratic government.