A MORE ACCESSIBLE, THOUGH STILL UNACCOUNTABLE, JUDICIARY AND THE INCREASING CULTURE OF RIGHTS

In the wake of the 1988 Constitution, one of the major discussions among legal sociologists and constitutional lawyers was how to enforce the vast array of

A More Accessible Judiciary and the Increasing Culture of Rights 133 basic rights of the new constitutional order.

This protective framework led to a high constitutionalisation of demands in the judiciary, which, little by little, began issuing decisions that either embraced such protections, particularly in the lower courts, or constrained them in the higher courts.^[817] These two movements - lower courts exerting a sort of activ­ism and higher courts providing a shield against such moves - led to a growing frustration in society. Even though some lower courts decided favourably on the need for governmental public policies and economic programmes to be imple­mented, the final say by the higher courts was mostly preservationist. Social and economic rights require significant state funding and an effective governance against social inequality to become reality.

However, years of democratic life have since provided a more robust aware­ness of the need to transform the judiciary into a more inclusive institution, where popular demands can more easily reach the courts and courts, in turn, can enforce rights and constrain the government when needed. The massive caseload and backlog of unresolved cases^[818] as well as the bureaucratic structure of the judiciary have nevertheless limited such movements and even been strategically used as a means to reverse potential inclusive gains of the new Constitution. The advent of the 1988 Constitution has led to an �explosion of litigations’,^[819] and the judiciary has been called upon to assure the web of social protection of the Constitution, but it has, in comparison to other judiciaries in Latin America,

lagged behind in enforcing them.^[820] [821] There have been some important move­ments to bring the judiciary closer to the population, such as the introduction of the small claims courts (juizados especiais),^1s2 where individuals, even with no representation by a professional lawyer, can access the judiciary and obtain expedited decisions; the creation of the Public Defender’s Office (Defensoria Publica); and the adoption of alternative dispute resolution mechanisms (ADRs) such as mediation and conciliation in various types of procedures^[822] and the creation of mediation and conciliation centres, even at the Supreme Court.^[823] Moreover, the 2004 Judicial Reform provided some innovations such as the introduction of the amicus curiae in public audiences,^[824] the financial and administrative autonomy of the Defender’s Public Office, the National Council of Justice (CNJ) and the National Council of the Public Ministry (CNMO) as bodies to oversee the Judiciary and the Public Ministry, and new procedural rules aiming at speeding up and harmonising conflict resolutions.^[825]

The Constitution of 1988 features a comprehensive set of open and vague clauses in matters of basic rights, which boost the judiciary’s interpretative powers. The expanded capacity of the Public Ministry and the Public Defender’s Office to file actions in matters of diffuse and collective rights as well as a set of new legislation on collective rights also prompt a more active judiciary in rights protection.^[826] The new constitutional design fosters, therefore, a more active judiciary, but it does so without providing it with robust mechanisms for coher­ence in decision making.

Overall, however, the judiciary has behaved more favourably in protecting civil-political rights over social and economic ones, but even those first-generation rights are, as expected, unequally enforced depending on the claimant. The inequality of treatment, especially in the criminal justice system, between whites and Blacks, rich and poor, is shocking.^[830] Social and economic rights, which largely impact the underprivileged segments of society, are often balanced with the general claim of �governability’, without specifying what such a �govern­ability’ actually means. In principle, such rights can only be enforced insofar as they do not yield �insupportable’ costs to the government. Usually they are dubbed �programmatic clauses’,^[831] depending on infra-constitutional regulation and on the government’s definition of public policies according to the economic context.^[832] The prevalence of economic reasoning - besides political calcula­tions - in decision-making has been a crucial tone of Brazil’s judiciary and of its strategic position in the political realm,^[833] in a coordination with the political system^[834] that speaks volumes about this behaviour. The high deficit of judi­cial response to such claims, the labyrinthine procedures and laws, the excessive delays, the unequal treatment and the uncertainty derived from inconsistent and incoherent decisions have brought about a lack of confidence in the judiciary (even though still greater than in other powers)^[835] and a negative perception of its public image.^[836] More importantly, its insulation from the real world has weakened its ability to behave as a catalyst of social justice.^[837] Its preservationist conduct has rather exacerbated the fact that the judiciary can be both the most blatant illustration of inequality and a promoter of inequality.

IV