THE JUDICIARY’S CONSTITUTIONAL DESIGN

A. The Federal, State and Specialised Courts

The judicial system in Brazil does not seem, in principle, very distinct from other countries. As a federation, Brazil features both federal and state courts, but also some specialised courts in areas such as electoral, labour and military law.

The Superior Court of Justice (STJ) is composed of 33 justices appointed by the President of the Republic and nominated after the Senate’s approval.

118 The Rule of Law and Brazil’s Politicised Judicial System governors and some other authorities, writs of mandamus and habeas data against an act of a state minister, and conflicts of jurisdiction between courts (except those in which superior courts are involved).^[698] It is also responsible for �the homologation of foreign courts decisions and the granting of exequatur to letters rogatory’.^[699]

Among the specialised courts, the most similar to the STJ is the Superior Labour Court (TST), which is composed of 27 justices also appointed by the President of the Republic and nominated after approval by the Senate. Also, here the presidential discretion is limited: all justices must be chosen among judges from the Regional Labour Courts (4/5) or among lawyers or members of the Labour Public Ministry (1/5). The TST then provides a list of three names, approved after internal voting, to be submitted to the president. Such a specialised Court decides cases that address labour conflicts, the right to strike and collective negotiations.^[700] It does not reach, however, public servants hired through administrative law, whose cases are either decided by state or federal courts.

The specialised electoral judicial system oversees all elections for municipali­ties, states and the Union. Its structure is rather distinct from the other spheres of the judiciary, since its members exert a mandate for a limited term. The Superior Electoral Court (TSE) is composed of members of other courts and lawyers, who exert their mandate for a two-year term, which can be renewed once.^[701] Five of its seven members are elected, by secret vote, among three justices of the Supreme Court (STF) and two justices of the Superior Court of Justice (STJ). The other two justices are appointed by the president among lawyers of �notable juridical learning and good moral repute’, who are then nominated by the STF.^[702] The TSE harmonises precedents in electoral law nationwide and is the original jurisdiction for cases involving the election of the president and vice-president of the Republic as well as the registration and nullification of political parties. At the state level, the Regional Electoral Courts are composed of seven judges with a temporary mandate and have authority over cases of candidates for Governor and Vice-Governor as well as members of the National Congress elected in that state and the state Legislative Assemblies. They also judge appeals from decisions made by first instance judges or electoral boards.^[703]

The specialised military judicial system is the least known among all spheres of the Brazilian judiciary and is an authoritarian legacy. The 1988 Constitution left it practically untouched despite the years of military rule and the atrocities

committed by the military during the civilian-military dictatorship (1964-85).^[704] Its structure differs from the pattern of the Brazilian judiciary. The Superior Military Court (STM), whose origins date back to 1808 - the oldest superior court in the country^[705] - is part of the federal system and is composed of 10 general-officers from the highest ranks of the three forces and five civilian judges, who enjoy life tenure and are appointed by the President of the Republic and nominated after the Senate’s approval.

The hierarchical configuration of Brazil’s judiciary looks rather intuitive, but how it operates is not. For example, a case decided by a State Appellate Court or Federal Regional Court will very likely reach both the STJ and the STF, the first focusing on statutory provisions and the latter on the Constitution. It could even happen that, from a decision by the STJ, the case can be appealed to the STF based on a constitutional controversy from that decision. In the end, it could be said that a case could be decided by four instances, even though the access to both the STJ and STF is more restrictive. At the labour courts, a case, after being decided by first and second instance courts, can reach the TST, whose decision by one of its chambers can be appealed to one of the Court’s higher chambers (called Sefdes) and, then, to the STF, if there is a constitutional matter under discussion.

Based only on these examples, it could already be anticipated that Brazil’s judicial design is rather confusing, bureaucratic and slow, and such

120 The Rule of Law and Brazil’s Politicised Judicial System dysfunctionalities can naturally be subverted in favour of lawyers’ and judges’ own interests and strategies. Even though there have been incremental constraints on appeals to superior courts and the STF, the reality is that judges have to deal with a caseload that challenges quality and transforms their chambers into production-oriented organisations.

B. The Federal Supreme Court

The Federal Supreme Court (STF), created in 1890^[709] just a few months after Brazil’s transition to a republic, is the apex court of the Brazilian judicial system and is routinely in the spotlight. However, before the transition to democracy in 1985 and some structural and behavioural changes that took place with the new constitutional order, the Court would not appear in Brazil’s major histori­cal developments, unlike presidents and Congress. It has been - possibly also due to this rather restrained behaviour - the most stable institution throughout the country’s history, showing a level of stability that is considerable by Latin America standards.^[710] It has also presumably been the most successful branch in preserving its prerogatives, corporatist interests and structure over history. There were naturally some moments of crisis, such as during the civilian-military dictatorship (1964-85),^[711] when three justices were expelled and two other retired in protest. The Court was then packed by increasing the number of justices from 11 to 16,^[712] and it could not review typical authoritarian legislation, such as the Institutional Acts^[713] and habeas corpus for political crimes.^[714] It was also the period when its independence was visibly undermined.^[715] Still, all in all, the Court has been mostly preserved.

During the transition to democracy, this high capacity of self-preservation would show its cards again: the STF’s justices intensively lobbied to keep the Court’s same structure and composition of the previous years, while expanding its powers even further in the new constitutional order. More than before, the STF would present itself as the �guardian of the Constitution’: while its author­ity over statutory interpretation was transferred to the STJ, new constitutional tools, such as a better structured abstract system of judicial review, were added to its repertoire. However, the STF remained as the apex Court of the traditional

and concrete system of judicial review, according to which appeals from the lower courts can reach the STF through the so-called extraordinary appeal (recurso extraordinario) if they feature a constitutional matter in dispute. It is also the Court originally responsible for deciding some conflicts among the units of the federation and criminal cases involving high-ranking authorities, such as members of Congress and the president.

Interestingly enough, Brazil could have left the Constituent Assembly with a distinctly designed constitutional court. A proposal for the creation of a consti­tutional court with exclusive authority over constitutional matters composed of justices with a limited term in office gathered large support especially from left­wing parties, but it did not prevail in the end.^[716] Moreover, other proposals that aimed to enfranchise any citizen to file an abstract action of unconstitutionality (ADI), the major action in the abstract system of judicial review, lost to other proposals that kept such an avenue far more restrictive.^[717] The STF behaved as a key player in the Constituent Assembly to preserve its own interests, while also working as a shield to block some constitutional innovations,^[718] in a clear association with conservative politicians and movements^[719] that saw themselves threatened by that democratic momentum.^[720] As a court from the past in the new democratic order, which managed to �rapidly transform the [constitutional] text into something much closer to the spirit of the previous constitutional order’,^[721] it seldom challenged the government^[722] and, as Marcos Faro de Castro puts it, �largely refrained from resorting to available remedies in order to expand its power by the cumulative articulation of substantive doctrine in case law’.^[723] Many of its decisions at that time adopted a very formalist and self-restrained approach that recalled its behaviours during the dictatorial years,^[724] whose prece­dents would naturally not fit well in the new democratic regime. Moreover, such a preservationist behaviour also meant blocking the most progressive agenda of the new regime while paving the way for �the constitution of a liberalising regime’ that matched the governmental agenda.^[725]

The STF left the Constituent Assembly stronger, but with very limited changes in its design and composition (even the justices were the same from the prior regime). It kept the number of 11 justices,^[726] all appointed by the President of the Republic and nominated after the Senate’s approval. The confirma­tion hearings in the Senate have since basically functioned as a rubber stamp of the executive, though naturally political negotiations and a fierce lobby for the potential appointees kept occurring behind the scenes.^[727] According to the Constitution, justices must be native Brazilians and over 35 and under 65 years old, chosen among those with �notable juridical learning and spotless reputa- tion’.^[728] There is no fixed term for the STF’s justices, who can serve until the mandatory retirement of 75 years old. The possibility that justices can serve for such a long time has boosted the Court’s preservationist nature,^[729] though the correlation between the justices’ decisions and the political inclinations of those presidents who appointed them is empirically inconsistent.^[730] The Court’s model of deliberation also followed the same pattern of the prior regime, but since 2002 the hearing sessions, which were already public, have been broad­cast nationwide. The seriatim deliberative model, according to which justices render their opinion in a sequence (in the case, based on their seniority in office), aggravates the STF’s lack of effective collegiate deliberation and even its unequal model of decision-making.^[731] The final result is basically the sum of each opin­ion, which is not easily translatable into an opinion of the Court.^[732] This model has also prompted a higher level of politicisation based on the fact that justices read their opinions to be also broadcast live on TV Justifa.^[733]

The new constitutional order strengthened the abstract system of judicial review while basically keeping the concrete one untouched. The concrete system, which dates back to 1890, is inspired by the US Supreme Court’s model and basi­cally means that a case can reach the STF through appeals from the lower courts whenever there is an alleged violation of the constitution.^[734] It always refers to a concrete case, and every single judge, even from lower courts, can declare that a legal norm is unconstitutional. The case can reach the Court especially through the extraordinary appeal (recurso extraordinario), but the 1988 Constitution has not laid down any specific mechanism for the STF to exert a more discretionary power in accepting or rejecting those appeals.

The 2004 Judicial Reform (constitutional amendment n. 45/2004) introduced the �general repercussion’ (repercussao geral), which was implemented by the Court in 2007: every extraordinary appeal since has to �demonstrate the general repercussion of the constitutional issues discussed in the case’, but it set the high quorum of two thirds of the justices to reject it.^[735] Such a change has indeed impacted the Court’s caseload,^[736] which previously comprised mostly cases with identical constitutional controversy. With this mechanism, the STF basically selects one single paradigmatic case and the lower courts replicate that precedent in other cases with identical constitutional controversy. Therefore, such cases are retained by the lower courts until the STF’s precedent is issued, thereby reducing the number of cases reaching the STF. It does not follow that such a mechanism has changed the Court’s willingness to exert its discretion, though rejections have been significantly low.^[737] The upshot is that the STF still keeps deciding a similar number of constitutional controversies, but now it is not just the Court itself that replicates the precedents in other cases with identical controversy.

A reinforced abstract system of judicial review seemed to be a radical revamp of Brazil’s judicial review system. Unlike the â€?representation of unconstitution­ality’ (representaςao de inconstitucionalidade) of the previous constitutional order that was an exclusive initiative of the Attorney-General of the Republic (Procurador-Geral da Republica),^[738] the direct action of unconstitutionality (aςao direta de inconstitucionalidade or simply ADI) of the new constitu­tional order can be filed by the President of the Republic, the directing board of the Federal Senate and the Chamber of Deputies, the directing board of a State Legislative Assembly or of the Federal District Legislative Chamber, state Governors or the Governor of the Federal District, the Attorney-General of the Republic, the Federal Council of the Brazilian Bar Association, a political party with representation in the National Congress, and a confederation of labour unions or a professional association of a nationwide nature.^[739] It is not the wide enfranchisement that was first planned during the Constituent Assembly,^[740] but it is far more inclusive than the previous model. Each of these persons and insti­tutions can directly file an ADI to question the constitutionality of a federal or state law or normative act.^[741]

Though rare, it is also possible to file an ADI in cases of legislative omission (ADI-O), when the unconstitutionality is due to a â€?lack of a measure to render a constitutional provision effective’.^[742] In this situation, the decision implies the notification of the competent power to adopt â€?the necessary actions and, in case of an administrative body, to do so within thirty days’.^[743] Other actions in the abstract system of judicial review are the declaratory action of constitutional­ity (aςao declaratoria de constitucionalidade or simply ADC), whose goal is to harmonise and bind the declaration of constitutionality of a statute nationwide if lower courts are interpreting it otherwise, and the â€?claim of non-compliance with a fundamental precept’ (arguiςao de descumprimento de preceito funda­mental or ADPF). This last action, which was only implemented in 1999,^[744] has in practice served as a subsidiary action for situations in which ADIs are not allowed, such as federal and state statutes enacted before the 1988 Constitution or in cases of municipal statutes.

Notwithstanding this mixed system of constitutional review, which appar­ently provides the Court with a set of tools for exerting its role of �guardian of the Constitution’, the STF cannot really be deemed a model of constitutional court. This system rather exacerbates its structural dysfunctionalities. There is no discretionary refusal of cases, such as the writ of certiorari of the US Supreme Court, thus every case requires a decision, even if it is a very standard one. The numbers are staggering: on average, the STF provides a final decision in approximately 100,000 cases/yearly (98,196 in 2021, 99,659 in 2020, 115,886 in 2019, 126,743 in 2018), but the vast majority are not collegiate: in 2021, for instance, only 15.7 per cent of the cases were decided by the STF’s collegiate bodies.^[745] Many decisions basically replicate precedents, but, nevertheless, this impressive caseload creates some serious barriers to research. It also serves to justify the justices’ excessive individual powers, as if the reasons for retain­ing such powers were merely procedural, not strategic. On the other hand, the abstract system of judicial review, which has been claimed as �an instrument to protect the objective order and to defend subjective rights’,^[746] has not effectively served for this purpose. Most cases in the abstract system of judicial review judged so far targeted other issues such as federal and interbranch conflicts, but not basic rights.^[747]

It took some years until a radical shift began to take root and transform the Supreme Court into a key player in Brazil’s democracy.^[748] It first saw a renova­tion of its justices as the former ones were retiring - a movement that gained pace during the centre-left government of President Lula da Silva (2003-10). Some structural reforms, such as the 2004 Judiciary Reform,^[749] which strength­ened the abstract system of judicial review, inaugurated the National Council of Justice (the oversight body of the judiciary) and launched the TV Justifa, laid the groundwork for a more visible and politicised STF.^[750] Yet, perhaps more importantly, there was a shift in the way the STF embraced its interpretative role of the Constitution. It was when the Court began adopting a more flexible inter­pretation of rules and principles^[751] as well as malleable methodologies, such as the principle of proportionality,^[752] which helped empower the Court to advance in areas of moral disagreement^[753] or in those traditionally depicted as part of legislative or executive discretion and convenience.^[754] The change was significant and more confrontational to certain segments of society and politics. It did not take long until a backlash would become more tangible.

The first visible shift was a higher focus on certain individual rights that brought wider attention to the Court. Although the Court has since not signifi­cantly changed its behaviour in areas of social and economic rights,^[755] it has increasingly advanced in some sensitive subjects of individual rights that chal­lenge the rising conservative and religious mindset in the country. This clash of narratives - the STF defending individual rights and conservative and reli­gious movements as well as politicians arguing that such subjects are under legislative exclusive authority - brought the Court into the spotlight as never before. Decisions such as the one that recognised same-sex civil unions^[756] (paving the way for same-sex marriages),^[757] criminalised homophobia and transphobia,^[758] declared unconstitutional municipal laws prohibiting gender and sexual education in schools,^[759] or expanded the scope of legal abortions to cases of anencephaly^[760] sparked a severe backlash from some conservative sectors of society and Congress. Petitions aiming to contest Brazil’s restrictive legislation on abortion^[761] have been received and challenged by those sectors with fierce opposi­tion, even when there is not yet a Court’s decision.^[762] Other cases triggered some reaction from middle-class and rich segments of society, such as the one that declared constitutional quotas for Black people to access public universities.^[763] However, despite those cases above and others on individual rights (for exam­ple, freedom of speech,^[764] academic freedom,^[765] embryonic stem-cells research^[766] and presumption of innocence),^[767] the same reasoning could not be extended to social and economic rights, with the exception of some relevant cases on the right to health (distribution of high-cost medicines by Brazil’s universal health system,^[768] or, more recently, on COVID-19 governance).^[769]

More radical still is the STF’s behavioural change in matters of sensitive political affairs, economic governance and interbranch conflicts.^[770] That discrete, non-confrontational and self-restrained Court of the beginning of the democratic years, when it was �relatively impervious to pressures for the expan­sion of judicial power’,^[771] does not exist anymore. On several occasions, the STF astonished the legal community with decisions that feature a degree of encroach­ment on the other powers that is rarely found in comparative law. For instance, the STF, either by one single justice^[772] or one of its organs, suspended the President of the Federal Senate^[773] and the President of the Chamber of Deputies from their duties;^[774] declared unconstitutional the re-election of the Presidents of the Chamber of the Deputies and the Senate;^[775] and even determined how the pace of legislative deliberations should occur.^[776] Its decisions significantly rearranged the electoral competition by declaring electoral thresholds unconsti­tutional (then leading to growing party fragmentation),^[777] prohibiting corporate campaign-finance contributions^[778] and banning candidates from running in elections.^[779] Even if one could argue that some such decisions were constitu­tionally justified, they nevertheless challenged previously adopted arguments in those circumstances, such as the interna corporis doctrine or the administra­tive merits doctrine, which claim that those subjects are respectively part of the parliament’s or the executive’s discretionary power.

As a major political player, it has nevertheless conducted itself very incon­sistently. Its decisions often challenge well-established precedents and even internal procedural norms. The Court’s high level of inconsistency and uncer­tainty is also aggravated by failures of institutional design and practice. The Court should decide by expressing the opinion of the Court, but, as seen, only a fraction (roughly 10-20 per cent) of decisions are decided by one of its collegiate bodies (two panels, composed of five justices each, or the plenum, composed of all 11 justices). Even though in most controversial and landmark cases the Court tends to decide them through one of these bodies, it does not rule out the possi­bility that the rapporteur issue a preliminary injunction, which may take time until it is confirmed (or not) by one of those collegiate bodies. The Court has adopted strategic manoeuvres that expose the politicisation of decision-making in several ways. Not only have justices calibrated their powers in order to control external factors that could destabilise the Court,^[780] but they have also increas­ingly adopted design loopholes for their benefit. Informal mechanisms of timing

128 The Rule of Law and Brazil’s Politicised Judicial System control,^[781] excessive individual judicial powers^[782] and strategic collaboration with the press (often implying the anticipation of an opinion)^[783] - just to name a few - have become normal decision-making strategies.

Pushed by the STF’s unorthodox behaviours and structural dysfunction­alities, the whole judiciary has been impacted by a great influx of potential politicisation of its decisions. It is not that comparable moves are not found elsewhere, but they clearly point out that Brazil’s empowered Supreme Court is also a consequence of its capacity for transforming entrenched interests and self-reinforcing processes^[784] into a window to bypass potential constraints on its powers, also by �mutually’ bargaining with the political system.^[785] The new constitutional order and the international trend toward more accountable and active constitutional courts have served well the purpose of justifiably placing the STF in the middle of the most challenging democratic debates in Brazil. In this regard, the STF has indeed behaved as an important player of Brazil’s democracy, with all the ups and downs that such a role implies. It has also behaved as a relevant shield for democracy by blocking or constraining some authoritarian acts that have gained momentum, especially during the Bolsonaro presidency. Examples are the STF’s prohibition of production and sharing of intelligence reports against critics of the government,^[786] the investigation of those who attack the Court and its members through fake news and threats^[787] and the investigation of whether President Bolsonaro interfered in the federal police for personal purposes.^[788]

Based on these criteria, it could be argued that the Court, at least up until now, enjoys a reasonable level of autonomy that has proven more and more vital for the health of Brazil’s democracy. However, unless such institutional designs and practices are significantly overhauled, Brazil’s STF will keep presenting itself as a Court of 11 minds in continuous disputes, be they legitimate, well-founded or a sheer exercise of strategic and political calculations. The impacts on the rule of law are significant: a powerful, but rather dysfunctional and unaccount­able Court may provide some leading and landmark decisions here and there,^[789]

but it will be a court whose powers and Institutionality will be consistently challenged for good and not so good reasons.

C. The �Ancillary’ Institutions of Justice: The Public Ministry, the Advocacy­General of the Union and the Public Defender’s Office

The 1988 Constitution also empowered some ancillary institutions of justice, notably the Public Ministry (Ministerio Publico), the Public Defender’s Office (Defensoria Publica) and the Advocacy-General of the Union (Advocacia-Geral da Unido) (and their counterparts in the federal states). The Ministerio Publico, though normally translated as Prosecutor’s Office or Public Prosecution, should be more accurately translated simply as Public Ministry, because its scope goes far beyond criminal prosecution. It is a remarkably powerful institution, which is endowed with substantial institutional autonomy^[790] and constitutional guar­antees that are comparable to those of the judiciary. It is deemed by some to be a fourth branch of power^[791] and is thereby not exactly a typical institution of justice despite the fact that its activities are mostly concentrated in the judicial system.

In the prior regime, the Public Ministry was the legal representative of the federal executive power, but the new constitutional order transferred such a role to the Advocacy-General of the Union. With the 1988 Constitution, the Public Ministry’s design was radically revamped and its powers were so deliberately enhanced that its general duties would be described as �[defending] the juridical order, the democratic regime, and the inalienable social and individual inter- ests’.^[792] This vague constitutional clause combined with the Public Ministry’s high degree of autonomy and vast guarantees implies that this institution features substantial powers to defend the rule of law and Brazil’s democracy. It does prosecute crimes of all sorts, including cases of corruption, but it can also file Public Class Actions (Afdo Civil Publica) to defend diffuse (for indetermi­nate persons) and collective rights (for persons with some legal connection),^[793] in areas such as environmental, consumer and Indigenous rights. The scope can be much broader since the Constitution states that it can �exercise other func­tions which may be conferred upon it, provided that they are compatible with its purpose(...)’.^[794] It is also an external body to oversee the police,^[795] even though it has exerted such a role far less effectively than it should.^[796] Finally, the Public Ministry is called to manifest its opinion in every case in the abstract system of judicial review, and the Attorney-General of the Republic (the highest authority of the Federal Public Ministry), can file Direct Actions of Unconstitutionality in the Supreme Court,^[797] even though it has done so largely in favour of the Public Ministry’s institutional interests rather than to effectively defend basic rights.^[798]

The Public Ministry spreads across all the 26 states and the Federal District and also follows the specialisation of the judicial system (labour, electoral and military courts). There is also a specialised Public Ministry acting directly in the Federal Audit Court (TCU) (and its state and even municipal counterparts), though such accounting tribunals are part of the legislative body, not the judici­ary. The members of the Public Ministry are admitted after successfully passing rigorous entrance examinations and, like judges, earn the highest salaries in Brazil’s public sector. The argument for such high salaries has been based upon the maintenance of their autonomy, but the constitutional text contains a seri­ous design flaw: the Attorney-General of the Republic is the only authority who can prosecute the President of the Republic for ordinary crimes by filing a crimi­nal complaint directly in the Supreme Court, which then requests the Chamber of Deputies’ authorisation.^[799] However, the only constraints for appointing the Attorney-General of the Republic for a two-year term are that he or she is: (1) over 35 years old; (2) a career member of the Public Ministry; and (3) approved by the Federal Senate,^[800] which has historically not exerted such a control. During President Lula da Silva (2003-10) and Dilma Rousseff’s (2011-16) presidencies, the Attorney-General of the Republic was the one that had won the internal election among the members of the Federal Public Ministry in an internal elec­tion. President Michel Temer (2016-18) broke such a tradition and appointed the runner up. President Jair Bolsonaro (2019-22) disregarded this convention and appointed Augusto Aras, who was not among the most voted. The conse­quence is that, during the Bolsonaro administration, investigations against the President and his entourage did not make any effective progress.^[801]

Therefore, despite the Public Ministry’s extensive powers, there is still a significant gap between its potential and its real performance in strengthening the rule of law. As it happens with the judiciary, its high autonomy has also raised the strategy of excluding itself from mechanisms of vertical and horizon­tal accountability,^[802] and its members have also intensely lobbied to keep their corporatist interests untouched. Their mindset is also marked by what Rogerio Arantes calls �political voluntarism’, that is, the Public Ministry behaves as if it were the only institution that can defend the interests of a �weak society� in a country whose political institutions are portrayed as �corrupt and/or unable to fulfil their duties’.^[803] Such unconstrained behaviour has led the Public Ministry to present itself as the major player in combatting corruption, but it has in some cases overstepped the boundaries of due process of law, mainly by galvanising support of the media and large sectors of society. The politicisation of the Public Ministry has been pronounced in some leading cases - the most recent are those connected to �Operation Car Wash’^[804] - but the response from the internal and external bodies which oversee the Public Ministry, notably the National Council of the Public Ministry (CNMP), has been rather weak.^[805]

The Public Defender’s Office (Defensoria Publica) is, according to the Constitution, �an essential institution to the jurisdictional function of the State and is responsible for the judicial guidance and defence, in all levels, of the needy under the terms of Article 5, LXXIV’, which, in turn, says that �the State shall provide full and free-of-charge assistance to all who prove insufficiency of funds’.^[806] The Public Defender’s Office is, therefore, the institution whose role is to defend those who cannot afford legal representation and, as such, is a major player in broadening access to the judiciary and democratising justice. Its consolidation as an important player in Brazil’s judiciary, however, has been bumpier than the constitutional text points out: due to the lobby of other legal careers during the Constituent Assembly, some of which exerted that type of representation in various federal states, the effective implementation of the Public Defender’s Office took some years^[807] and only in 1994 was a supplemen­tary law enacted organising the Federal Public Defender’s Office and prescribing general rules for the State Public Defender’s Offices.^[808] The 2004 Judicial Reform enhanced its functional and administrative autonomy and, in 2009, Congress

132 The Rule of Law and Brazil’s Politicised Judicial System passed a new supplementary law that granted further powers to this institution, such as �[promoting] human rights’ and �defending... individual and collective rights’.^[809]

In the last few years, the Public Defender’s Office has visibly gained strength. It is still much associated with the legal representation of defendants in the crim­inal judicial system, but it has appeared more frequently as a leading player in some cases that go far beyond criminal justice, sometimes even competing with the Public Ministry’s expected role of protecting diffuse and collective rights. The Supreme Court has recognised that the Public Defender’s Office can defend collective and diffuse rights of the needy and even file Public Class Actions (Af∂es Civis Publicas)^[810] in areas such as consumer, housing, prisoners’ rights and reproductive and sexual rights.

Finally, the Advocacy-General of the Union (and its counterparts in the states and some municipalities, normally called procuradorias) is the institu­tion that represents the Union (or the states and municipalities) judicially or extrajudicially.^[811] At the federal level, it is a new institution, created by the 1988 Constitution as a consequence of the Public Ministry’s autonomous role as a defender of the society’s interests and the legal order, which may not be in line with that of the federative unit. Therefore, in cases in which the interests of the Union (or of the states and municipalities) are at stake, it is the Advocacy­General of the Union (or procuradorias) that provides legal representation as well as works as a legal advisory board. It is also the institution that defends the legal norms that are questioned in the Supreme Court through judicial review.^[812]

As with the members of the Public Ministry and the Public Defender’s Office, the lawyers of the Advocacy-General of the Union are selected after rigorous entrance examinations, but, unlike those institutions, its head, the Advocate­General of the Union, is �freely appointed by the President of the Republic from among citizens over thirty-five years of age, of notable juridical learning and spotless reputation’.^[813] Even though most of its members are experts in their field and are highly qualified, the very nature of this institution makes it far less autonomous than the Public Ministry and the Public Defender’s Office.

III.