Applying a Global Strategy to the Judicial Essay
- Length: 4 pages
- Sources: 10
- Subject: Business - Law
- Type: Essay
- Paper: #20826661
Excerpt from Essay :
Applying a Global Strategy to the Judicial Reform in Brazil
Brazil has emerged as a confident country across the world. Clearly, Brazil is among the first countries that emerged to stimulate the global economy and investment. Early, this year, the government of Brazil initiated new restrictions to preserve enduring foreign direct investment. The politics of Brazil have played a key role in the judiciary. This was recently demonstrated by the current president who sacked various judiciary officials on allegations of irregularities and corruption. While the president's firm political decisions have angered many, they have similarly gained support within the judiciary fraternity (Nunes, 2010). With this introduction about the political situation in Brazil, the following section describes the judicial reform in Brazil. Essentially, the paper follows the standard approach to judicial and legal reform.
Beyond the obscure wrangles on the contributions of the rule of law contributes to economic development, many reformers have adopted diverse global strategies seeking to redesign judicial frameworks in Brazil. The issues related to the evaluation of legal change are further exacerbated by the absence of operational and consensual definitions of key notions like accountability or judicial independence, and the exact thought on the rule of law (Fabri & Contini, 2009). The Democratic and Judiciary Decay in Brazil creates a deficiency in the developing literary works on the comparative investigation of the legislative issues of judicial reform. It offers a succinct platform for assessing the techniques of legal change whilst proposing the key pointers of change performance.
Just recently, the Congress implemented a constitutional amendment driven at producing changes within the judicial system. Almost all sections of the Brazilian constitution have been reformed. Most of the reforms were enacted by the new amendment referred to as "Brazil as Reforma do Judiciario"; this means the judiciary reform (Ryan, 2012).
Binding Precedent: an improved framework of binding precedent contributes to harmonize judicial decisions about issues of constitutionality and law. However, surveys on Brazilian judges established that half of them opposed the binding precedent. They claim that binding precedent petrifies the legal order hindering lower courts to fulfill the dynamic basic needs of the society (Brinks, 2009). A constitutional amendment proposal by the executive to create a binding precedent prompted judges to denounce the beneficial effort. They considered it as an arbitrary attempt aimed at curtailing the liberty of every judge to be independent from hierarchical restrictions. With such heightened protests from the judges, the government endorsed a new amendment that provided an improved framework of binding precedent.
Each sumula vinculante had to deal with the efficacy, interpretation, and validity of laws provoking the proliferation of lawsuits and legal uncertainty. Any judicial ruling or administrative act contradicting a sumula vinculante ought to be nullified. Similarly, any judge of the lower court who declines to comply with this provision is subject to administrative punishment (Ryan, 1998). Before this amendment, only the STF had the authority on direct actions to declaratory and unconstitutionality constitutional actions of the binding precedent.
Contrary to the judges in American Supreme Court, STF Judges lack the writ of certiorari that permits them to deal cases they considered worth their time. This absence of certiorari obliges judges in Brazil to decide a caseload of frivolous cases every month. As a result, judges in Brazil's judiciary system have expressed their concerns that the nation's highest court has been transformed into a small claims court. It is evident that the constitution of Brazil is a convoluted and lengthy document. Therefore, the Brazilian judiciary must establish the writ of certiorari. This will provide the judges with the authority to give priority to the most relevant cases. These judges will consider these cases as worth the effort and time of Brazil's highest court (Ryan, 2012). From the broad nature of the judiciary, the writ of certiorari is a sensible and natural solution to this challenge. Probably, this solution would help minimize the perception within Brazilians that to be impartial, each case must be ruled at the highest level of the judiciary.
While differentiating the later encounters of El Salvador, Argentina, Brazil, and Chile, this study surveys the objectives and method of judicial change along two primary axes of inquiry; one handles the goal of judicial change and the second one evaluating the global strategy. This study outlines the contributions of institutional design and constitutional engineering to strengthen or debilitate the rule of law (Gargarella, 2013). The four principle objectives of judicial change include:
(i). Improving the impartiality and independence of the judiciary
(ii). Enhancing the effectiveness of the courts,
(iii). Expediting access to justice; and (iv). Reinforcing judicial responsibility.
The two primary change trajectories are the incremental and successive methodology and a radical and concurrent approach. While questioning the definitive suppositions of reformers, Prillaman shows that all parts of legal change are geared towards strengthening their capacities. Besides, they may create unintended negative collaborations while "there may be no acceptable maps for victory, there are numerous ways to disappointment." A technique of simultaneous change on all fronts as the one embraced by Chilean reformers is ordinarily more viable at eradicating undesired results than the elective methodology of staggered gradualism (Barrington, 2012). Failing to offer a general hypothesis of legal change, reformers have had a tendency of depending on a specialized methodology, often transposing the lawful frameworks of additional advanced nations mechanically. They normally have monitored limited scope of variables while seeking to consolidate and isolate individual developments and proceed to other variables in a sequential and orderly manner. The desired change often proceeds naturally to the next one in a systematic, unilinear style.
Verifiable to the standard methodology is the suspicion that the legal itself may as well lead the change process. As a result, a notable point of the situation in Brazil is the magnitude at which the judicial hierarchy has been the inconsistent opposition of reforms. This technocratic methodology has obviously demonstrated its limits. However, the definitive procedure of separating a solitary extent of legal change and enhancing it free of the other structural blemishes is misguiding. One positive restructure does not inexorably expedite another (Pozas-Loyo & Rios-Figueroa, 2007).
Besides, discovering the right balance between the main dimensions of judicial credibility and impartiality is a long-term challenge. Studies focusing on judicial reforms presume the existence of a virtuous circle or a positive synergy across the various dimensions of judicial reforms. Not many reformers have anticipated the presence of potential trade-off and tensions around them. Without a doubt, the most harmful part of the failure of judicial change in Brazil has been the ineffectiveness to realize a workable balance between the distinctive judicial credibility dimensions. Judicial change cannot be disengaged from the wider political and financial flow of the country (Rowat, 2011). Judicial change, regardless, is a naturally political as opposed to specialized methodology involving an arrangement of political judgments at each stage. Additionally, the distinctive extents of legal soundness must be assessed in relative as opposed to supreme terms against exogenous measures. Legal change is fortuitous and needs to consider beginning conditions. Besides, variables like judicial freedom, responsibility, or productivity are essentially enduring instead of dichotomous facets (Pozas-Loyo & Rios-Figueroa, 2007).
Following these reforms, the Brazilian judiciary has started promoting the human rights agenda of the new regime. These changes have been enacted in response to the proposals of the new president who supported a series of reforms. The aim of the reformers was to develop courts that will serve functions of the government without being caught by political frictions. In other words, reforms were designated to harness judicial power while employing it towards pursuing interests of the government.
Barrington, L. (2012). Comparative Politics: Structures and Choices. Wadsworth Pub Co.
Brinks, D. (2009). Judicial Reform and Independence in Brazil and Argentina: The Beginning of a…