PRIVILEGES AND THE JUDICIAL SYSTEM: THE JUDICIARY AS A BLATANT ILLUSTRATION OF BRAZIL’S INEQUALITY
The system of justice and its â€?ancillary’ institutions are themselves a blatant illustration of Brazil’s inequality. Their members are the best paid public offiÂcials in Brazil, whose salaries are comparable with or even higher than those of much wealthier nations and whose privileges are not found in any other public career.
The new constitutional order strengthened the judiciary’s guarantees, especially its independence, but it has done so by providing it with a substanÂtial budget and ample autonomy over its spending. According to the National Council of Justice (CNJ), the judiciary’s total expenditure in 2020 corresponded to 1.3 per cent of Brazil’s GDP or 11 per cent of all expenditures by the Union, the states, the Federal District and the municipalities combined.[838] The averÂage monthly expenditure of every single judge was R$ 48,160 (roughly U$ 9,000.00),[839] including all sorts of compensations, benefits, and subsidies they earn, compared with the average salary of R$ 33,400 (roughly U$ 6,500.00).[840] Moreover, a newly-hired judge earns 81 per cent of a Supreme Court justice. Piaui, a magazine, published a series of comparisons showing that Brazil’s judiÂciary proportionally costs three times more than the Spanish judiciary (1.5 per cent v 0.47 per cent of their GDPs),[841] and that, considering only the basic salary (not supplementary benefits), state judges earn three times more than a court clerk, five times more than a social worker, and 12 times more than a nursing assistant.[842] The whole judiciary, including judges and public servants, has an average income that is twice that of parliament and three times more than that of the executive.[843] The inequality is glaring both by domestic and international standards. As Luciano Da Ros and Matthew Taylor empirically prove, â€?Brazil has the highest judicial budget in purchasing power parity terms per inhabitant of all the federal systems in the Western hemisphere’.[844]Justa, a research project, organised some data furnished by the National Council of Justice (CNJ) that reveal a shocking amount of inequality in the judicial system: 51 per cent of Brazilian judges come from the upper social classes and are among the 0.08 per cent of Brazil’s wealthiest people.
By crossÂexamining various data on race and gender, the outlook is also disturbing: there are 7.4 times more white male judges than Black female judges. Based on the 2010 Brazilian demographic census, which points out a slight majority of Black people (pretos and pardos) in society (51 per cent), Justa concludes that â€?white men are 37.8 times more likely than black women to become appeals court judges, 8.2 times more likely than black women to become judges [and] 4.6 times more likely than black female judges to become appeals court judges’.[845]Also shocking is how the judiciary is overfinanced when compared to other basic services. In Sao Paulo, Brazil’s wealthiest state, state courts consumed about 5 per cent of all the annual budget from 2013 to 2018, more than 10 distinct basic services combined, including housing, social programmes, energy, communiÂcation, citizen rights and sanitation. More importantly, this number has risen significantly: whereas the state budget rose 22 per cent in 2018 compared to 2013, the judiciary’s budget increased 45 per cent (the rise was also considerable for the state Public Ministry - 52 per cent - and the Public Defender’s Office - 40 per cent). Most of this growth is due to payments of staff and salaries, while investments in programmes aimed at promoting rights and citizenship as well as custody and social reintegration were mostly neglected.[846] A similar outcome could also be found in other Brazilian states.[847]
If the judiciary as a whole has been growing hungrier for resources, it has nevertheless fiercely combatted attempts to improve mechanisms of horizontal accountability. Members of the system of justice and its ancillary institutions are selected after having passed rigorous entrance exams, but those exams are self-reinforcing in that members of that very judicial system are usually the ones who design those exams, with little input from academia or other social movements.
Inclusiveness has been also deficient: only recently have such exams begun adopting quotas for Black candidates.[848] The consequence is that, once recruited, members of the judiciary (and also the other institutions of the judiÂcial system) reproduce a â€?peculiar condition of an aristocratic body’[849] to fend off any effective control over its activities and advance its corporatist agenda.Such corporatist agendas have led to a type of corruption that is deeply institutionalised and distorts the language of democracy, such as the principles of separation of powers and judicial independence, to obtain budgetary gains, increased salaries and strengthened prerogatives, while shielding the judiciary from external oversight.[850] The creation of the National Council of Justice (CNJ) and the National Council of the Public Ministry (CNMP) through the 2004 Judicial Reform[851] originally suffered fierce opposition, and, once installed, their role of overseeing has been very limited - not to say strategically limited. They are not in reality external oversight bodies, as they are mostly staffed by judges or members of the Public Ministry, so, even though seemingly providÂing some accountability, the defence of corporatist interests tends to prevail in the end.[852] There has been, in any case, some progress especially in tackling ordinary corruption in the judicial system such as embezzlement, bribery, nepotism, and to foster greater transparency and efficiency, but the results up until now have been rather modest.[853] The CNJ and CNMP publish informaÂtion on budgetary data, public procurements and salaries as well as reports and databanks providing data on judicial productivity, human resources, finance and bottlenecks in the judicial process, all available on the internet. Yet, when it comes to effective punishment, the numbers are rather disappointing. For instance, from 2004 to 2019, the CNJ only applied some sort of punishment in 118 cases, most of which (66) were mandatory retirement,[854] which looks more like a reward than a penalty.[855]
The system of justice has therefore been very successful in preserving its benefits, structures, and practices in the new democratic order, and its enhanced constitutional guarantees have been strategically adopted as a potent shield against any attempt to change this scenario.
The upshot is that Brazil’s system of justice ends up being less of a model for the rule of law if its improved institutional capacities are used in such a convenient way for their own politiÂcal manoeuvres and strategic interests. Its self-enforcing processes, which have not significantly changed after the transition to democracy, leave little room for making the judiciary and the ancillary institutions of the system of justice more accountable and responsive to the demands of a highly unequal society. This symptom is well portrayed in the still low levels of enforcement of rights, particularly social and economic ones, as well as in the highly inefficient crimiÂnal justice system. It is also found in the challenges of balancing its reasonable levels of independence with the risks of excessive politicisation.V