巴西新参议院右翼主导 司法改革压力升温

Leonardo Sica, president of the OAB’s São Paulo chapter, warns to risk that reform wishes are captured by political groups seeking to subdue Judiciary Ana Paula Paiva/Valor The new composition of the Senate, beginning next year and dominated by right-wing political parties, coupled with the possible launch of an investigation into Supreme Court justices’ alleged personal ties to former Banco Master banker Daniel Vorcaro, increases the risk of impeachment proceedings against members of the Court. This unprecedented situation is putting pressure on the Supreme Court itself, the Executive branch, Congress, and the legal profession to work toward a structural reform of the Judiciary. Judicial reform could shield Supreme Court justices Judiciary ethics code targets family ties and events Court seeks unprecedented removal of judge over sexual misconduct At least 74 proposed amendments to the Constitution (PECs) on the subject are currently pending in the National Congress. The Chamber of Deputies alone has at least 12 proposals explicitly referring to “judicial reform,” most of which are more than 20 years old. The PECs propose, among other measures, selecting justices from among career judges; imposing terms of up to 15 years; setting a minimum age of 50 for appointment to the Supreme Court; involving the National Council of Justice (CNJ), the Brazilian Bar Association (OAB) and the Senate in the selection of justices; prohibiting justices from handling cases directly or indirectly sponsored by their spouses or second-degree relatives; and allowing citizens to file complaints against justices for reasons other than crimes of responsibility. The current rules for appointing Supreme Court justices are set out in the Constitution. Candidates must be between 35 and 70 years old. The president of the Republic has exclusive authority to nominate candidates, who must then be approved by the Senate. This year, for the second time in Brazil’s history, a nominee put forward by the Executive Branch was rejected: Federal Attorney General Jorge Messias. The previous rejection occurred during the government of Floriano Peixoto in 1894. In court proceedings, justices may declare themselves disqualified or recuse themselves on conflict-of-interest grounds. Mandatory retirement is set at age 75. Political scientist Rodrigo Prando, a professor and researcher at Mackenzie University, says judicial reform could offer an alternative to impeaching Supreme Court justices. “That is when we will understand whether there is actually a desire to consider how the institution can function better, or whether this is simply an extreme-right campaign to remove justices from the Court. It is worth remembering that impeachment requires more than political will: a crime of responsibility must be proven,” he says. Rubens Glezer, a professor at FGV Direito SP, agrees that reform is necessary “because the Supreme Court has proved incapable of drafting and implementing a Code of Ethics.” However, he cautions that it will be important to assess whether the changes could undermine governability or increase the risk of corruption. “The Supreme Court reform agenda creates a problem because taking powers away from the Court may seem like a commendable initiative, but where will those powers go? A reform of the political system must be considered alongside it,” he says. Further consequences Structural reform would also have economic consequences, according to a study by the NGO Convergência Brasil. The organization’s data show that Brazil’s Judiciary handles a high volume of cases but is expensive and remains congested. In 2024, total judicial expenditures reached R$146.5 billion, equivalent to 1.2% of GDP, while 80.6 million cases remained pending, according to the NGO. This year, the institutional crisis has delayed several court rulings, including decisions related to tax reform. “Our contribution is to propose a reform agenda, including fixed eight-year terms for Supreme Court justices, with no possibility of reappointment, alongside a new judicial governance index so that we can also assess courts based on the efficient use of public resources, transparency, and accountability,” says lawyer Luciano Benetti Timm, one of the researchers responsible for the study. Chief Justice Edson Fachin proposed creating a code of conduct and ethics for members of the Court when the Judiciary resumed its activities in February, but his fellow justices did not embrace the idea. Some argue that the National Organic Law on the Judiciary (Loman) is sufficient. Among other provisions, the law stipulates that judges must not express political opinions, manage businesses, comment on pending cases, or submit to external pressure. In June, Fachin established the Study Group on the Modernization of the Justice System, bringing together justices from higher courts, judges, law professors, and legal experts. In September, the group held a meeting to organize and consolidate proposals submitted over the preceding months. Six thematic subgroups were formed to analyze the suggestions and present their conclusions. The next meeting is scheduled for the 16th. As the main interlocutors between judges at all levels of the Judiciary and given their technical expertise, lawyers could play a leading role in a new reform. In September, the Brazilian Bar Association (OAB) established a committee to consolidate contributions from the organization’s regional chapters and submit a proposal for structural judicial reform to Congress. Leonardo Sica, president of the OAB’s São Paulo chapter, says the social and technological changes of the past 20 years alone justify a new reform. “Our digital justice model, for example, is extremely advanced, but it has never been regulated by law. Each court has done things as it sees fit,” he points out. He also argues that the constitutional framework failed to anticipate the prominent role assumed by the Judiciary. “We need to restore the Legislature’s role of making laws and the Judiciary’s role of adjudicating cases. That is why we submitted our proposal to Congress.” The current political climate is favorable to reform, Sica says, but the risk is that this legitimate public demand could be captured by political movements seeking to weaken the Judiciary. “The solution is to bring good ideas to the table. We have been calling on courts and judges to take part in the debate and actively contribute to a technically grounded reform,” he says. “We do not want to reform the Judiciary because we are unhappy with its rulings, but to make its administration more efficient.” Existing proposals The OAB’s proposal could be attached to existing bills. One example is PEC 95/2015, authored by Tadeu Alencar, a former minister for Entrepreneurship, Microenterprises and Small Businesses, former federal deputy for the Brazilian Socialist Party (PSB of Pernambuco) and former attorney for the National Treasury. The proposal has already been approved by the Constitution and Justice Committee, meaning it meets constitutional requirements, and is awaiting the establishment of a Special Committee. PEC 95/2015 proposes that five justices be nominated by the Executive Branch, two by the Chamber of Deputies, two by the Senate, and two by the Supreme Court itself. Candidates would have to come from the Judiciary and serve nonrenewable 12-year terms. In addition, appointments to the Court would be restricted to individuals between the ages of 45 and 65, and a cooling-off period would be imposed both before and after justices take office when it comes to holding elected positions. Alencar argues that judicial reform has never been more necessary. “But I do not see a genuine concern with improving the current model in proposals that simply seek to take away the Executive Branch’s exclusive power to nominate justices. In established democracies such as Portugal, Italy, and Spain, fixed terms are provided for, with nominations divided among the three branches of government,” he says. The far right, which has gained strength in Brazil in both the Chamber of Deputies and the Senate, he warns, “intends to gain total control over state institutions so it can operate without the checks and balances that are an essential part of democracy.” The most recent judicial reform, carried out in 2004, established the National Council of Justice (CNJ) and the National Council of the Public Prosecutor’s Office (CNMP). The CNJ introduced annual case-resolution targets for judges in an effort to reduce the growing backlog of lawsuits. This year, the council also approved the abolition of mandatory retirement as a disciplinary penalty for judges who commit serious misconduct. Superior Court of Justice member Marco Buzzi was the first to face the new rule following allegations of sexual harassment. According to Pierpaolo Cruz Bottini, a lawyer who headed the Secretariat for Judicial Reform in 2004, the previous reform had clear objectives: reducing delays and expanding access to justice. Today, he says, the excessive number of cases is linked to individuals and companies that abuse the judicial system, including public entities and major litigants, to delay rulings and avoid payments. Bottini also emphasizes that the 2004 reform involved a diverse group of participants. The Supreme Court was represented by two justices appointed by former president Fernando Henrique Cardoso of the Brazilian Social Democracy Party (PSDB): Nelson Jobim and Gilmar Mendes. The Senate’s representative was José Sarney (of then-Brazilian Democratic Movement Party, PMDB, Maranhão), while the Justice Ministry was represented by lawyer Márcio Thomaz Bastos. Senator José Jorge (of then-Liberal Front Party, PFL, Pernambuco) served as rapporteur for the PEC. “It had a political dimension, but it was not partisan. Its substance was technical,” he says. In Bottini’s view, diversity must also be a defining feature of any future reform.