JUDICIARY: JUDICIAL AND POLITICS INSTITUTION

 “CNJ Order. Even without Congress’ law, action ensures homosexuals the same  heterosexual couples right, including exchange of marital status, right to divorce and share spouse’s inheritance; notary’s office that refuse celebration will be punished. “(ESTADÃO, 2013)

STF CNJ action has been a clear example of intensification of the Judiciary-Legislative relationship. The order issued to notary’s office is an attempt to fill a gap in legislative action, identified by the Judicial court. However, it is subject of debate the topic raised by many people, especially within the Legal community: does the Judiciary have legitimacy to override the Legislative and deliberate matters concerning the Congress?

This type of occurrence is called “judicial activism“, and It has been increasingly present. Actions like the CNJ (already expressed in this work paper), Sopreme Court’s binding precedents and other devices found in the brazilian Judiciary are legitimate mechanisms of intervention. Furthermore, there is also the authentic interpretations, which are configured when an applicator of the Law decide to edit interpretive norms, so, laws that guide the interpretation of others, and, eventually, link all the decisions taken previously and hereafter. (KELSEN, 1976) From the moment an interpretive standard is regulated in all cases judged based on the target standard should be reassessed, in order to adapt to the new legal situation surrounding that issue. Thus, as stated by Kelsen himself: “The interpretation by the law of the applicator body is always authentic. It creates law “(Kelsen, 1976, p. 47). Thus, the above interpretations illustrate a form of judicial activism as lend themselves to the role of the legislative branch of producing standards. Thus, the responsibility of the judiciary to interpret and apply the laws, determining the scope and extent of the rules. Faced with a legal system and the assessment of a case, its function is to tell the law and end the dispute. However, it is common ground that the regulatory evolution does not move at the same pace that the changes in society, causing often the situation where a standard is displaced or in relation to social dynamism quoted, or even the laws that followed. 1Thus, a law is able to suffer ad subrogation or derogation, with the first phenomenon is the full repeal of the norm, when declared in the text (the provisions to revoke or otherwise-is revoked the following law ), when expressly incompatible with the latest standard or when fully regulate the matter that was the previous law; and the second aspect implies only that the effect of the repeal of the law will be the same to the other normative texts (articles, paragraph, item). These mechanisms aim at legislative organization plan, establish a minimum of coherence to the normative whole. (Mendes, 2004) Nevertheless, it is not rare a conflict of standards and a single case can be disciplined by conflicting laws, at which the judge uses his interpretive technique to define what should be applied. Importantly, the judge is not restricted to the normative body, may also invoke transcendent principles of law in relation to the normative analyses. There is also the situation where the law is contrary to the principles that maintain the cohesive legal system and can open space to the judge’s order to purge the disharmonious standard. It’s a situation where it lends itself to the role of negative legislator. And on the other hand, when analyzing a particular case, there is no standard that will address the situation, the judge has the power to establish a new legal situation, noting, however, the legal system and their cohesion. The last one refers to acting as a positive legislator and is a consequence of the principle of not spearing form the jurisdiction: the absence of a normative text is no a justification for not to judge. 1Given these features, that can already be being observed in this Judiciary and Legislative System, is necessary to mention the political systems in which there is a delegation of political power to the judiciary, through the so-called judicial review, and where can be observed several other phenomena arising from this fact . The first is called judicialization of politics, that exactly sums up the fact that some decisions, which should rather be taken by organs of national power and the executive, are being decided by the judiciary (Barroso, 2008). “As intuitive, the judicialization involves a power delivery to judges and courts, with meaningful alterations in language, argumentation and the way of society’s participation. The phenomenon has multiple causes. Some of them express a global inclination; other are directly related to Brazilian’s institutional model” (BARROSO, 2008). This process known as judicialization, primarily still depends of two aspects; a determined context and the called judicial activism. According to Tate and Vallinder (1997 abud ARANTES). This context would be the presence of democracy, with separation of powers, weak political parties, weak coalition governments and a system of groups of interest. Besides, something essential would be the named judicial activism, defined as the own will of judges and of the Public Ministry to act and be part of the situation, having the “responsibility of implementation of rights and solution of major conflicts of society” (ARANTES, 2002). Thus, it is possible to imagine judicial activism as a proactively way of interpretation of constitution, having its origin in American Supreme Court, which already adopted an active stance compared to some schedules related to racial issue, social and economic. This activist stance can be seen in countless situations that include the very direct application of Constitution in situations not directly contemplated by its text, manifestations of unconstitutionality to normative acts and behavior taxes or even abstentions to the Government (BARROSO, 2008). “[…] the judicial activism, so far, has been part of the solution, not of problem. But it is a powerful antibiotic, which use must be eventual and controlled. With overdose, there is risk of dying with healing” (BARROSO, 2012). This judicial activism provides, therefor, a normative evolution within juridical universe and of the system of partition of powers. The normative evolution, described above, occurs in subtle ways. “Usually, these changes are discreet, so that their implications are not seen as break, but as a continuation” (COSTA, 2013). They are nothing but setting the right to society’s ideas, avoiding a jurisdiction that does not reflect the society over it rules. If this happens, “the Constitution will be transformed, inevitably, in a simple “piece of paper” that accepts all and have no power compared to the true and real constitution, which is due to the real factors of power” (OLIVEIRA, 2011). There is, however, in most of the legislation, mechanisms that interferes on its modification while current regulations. What changes, in fact, is not the text of the rule itself, but their interpretation. The legal interpretation will contemplate the changes in social principles, wherein “the society and axiom play important role on this interpretative task by studies and social movements noisy claim” (OLIVEIRA, 2011). This phenomenon is called “Constitutional Mutation”, which means, literally, change in Constitution, in other words, of rules. In practice, it is concentrated in the hands of Supreme Court, responsible for defining the application of current laws. In the words of Minister Gilmar Ferreira Mendes: “It is privately up to the Federal Senate: X- stop the application, in whole or in part, of a law declared unconstitutional by final decision of the Supreme Court;” (MENDES, 2004). Therefore, it is up to the Supreme Court the interpretation of these laws, being limited, on constitutionality, to a revision by the Senate: the final decision on the interpretation of laws is by the Supreme Court, being up to the Senate only its review. A recent situation of “constitutional mutation” is in the case of gay marriage legalization in the United States. The US Supreme Court held that marriage should be extended to homosexual couples in states that barred the privilege. This was a reflection not only of social pressures, claiming adequacy of laws to the popular will, but also the change in design of the Supreme Court’s own judges, who have to design, mostly the need for change in the interpretation of the rules to reflect the social context of the time. As can be seen, the classical idea of ​​separation of powers, found in famous authors like Locke (1632-1704) and Montesquieu (1689-1755), contained in the “Spirit of Laws” work was adopted, in a peculiar way, by different countries. There is no simple division, common to the legal layman, a judiciary that judges, an executive running and a Legislative creating laws. This notion of tripartite powers initially was built by France (from 1789, with a more republican model, without giving political power to the judiciary) and the USA (from 1787, with a more liberal model), influencing later , most of the countries. Latin American countries such as Brazil, despite the presence of a hybrid model, has a greater proximity of the American diffuse model, through, above all, a model of judicial review, which had already been discussed above (Arantes, 2002). For all the reasons already discussed above, and this model of judicial review, processes and decisions of the Court are often restricted to a debate between an elite and aristocracy, which generates enough uproar. There are, in fact, a strong control mechanism for the decisions taken, causing public opinion and deliberative democracy are ignored in this debate limited to only 11 members, considered people of “outstanding legal knowledge” (SILVA, 2010). And that when they actually have (or at least admit) that expert knowledge: Alberto Torres, for example, in 1904¹, was appointed eventhough not be fit for the post. He was studying. A few months later, he took office (VILLA, 2011). However, this is not to say that the Brazilian authorities partition system has distortion. It is a system with peculiarities (COSTA, 2012). Just as the American judicial system has its peculiarities, the Brazilian system has its own, making a comparison between the two is not valid. They are different games, with sample sizes rules. The tripartite division of powers Brazilian was adopted in Brazil in its own way, which did not invalidate or vilifies such a phenomenon. The aim of this paper is to point out that the relationship between the Judiciary and Legislative is not a distortion, is inherent to the system. It is only the lawyers, as well as society, to discuss possible improvements or reforms, after all, nothing is so perfect that it can not be changed. NOTES: ¹ The constitution of 1891, the first of the Republic, already provided for appointment to the Supreme Court those with “notable juridical” REFERENCES: Arantes, Rogério Bastos. Judiciary: between justice and the police. Available at: <http://academico.direito-rio.fgv.br/ccmw/images/9/9d/Arantes.pdf&gt ;. Accessed on: 26 Juh. 2015 BARROSO, Luis Roberto. Legalization, judicial activism and democratic legitimacy. (Syn) thesis, v. 5, no. 1, p. 23-32, 2012. Bilenky, Thais. In a landmark decision, the US legalize gay marriage. Folha de S. Paulo. São Paulo, 2015. Available at: <http://www1.folha.uol.com.br/mundo/2015/06/1648129-em-decisao-historica-estados-unidos-legalizam-casamento-gay.shtml&gt;. Accessed on June 2015. COSTA, Alexandre Araújo. Judiciary and interpretation: between Law and Politics. Magazine Think V.18, No.1, 2013. Available at: http://www.unifor.br/images/pdfs/Pensar/v18n1_artigo1.pdf. Access:. 20 Jun 2015 Kelsen, Hans. Pure theory of law / Hans Kelsen; [João Baptista Machado translation]. 6th ed. – Sao Paulo: Martins Fontes, 1998. MENDES, Gilmar F. The role of the Senate in the constitutional control: a classic case of constitutional change. Journal of Legislative Information, Brasilia, DF, v. 41, no. 162, April / June 2004. OLIVEIRA, Edézio Muniz. Constitutional mutation. In: Legal Scope, Rio Grande, XIV, n. 90, July 2011. Available at: <http://www.ambito-juridico.com.br/site/?artigo_id=9813&n_link=revista_artigos_leitura&gt ;. Accessed on June 2015. The São Paulo State. Brazil gay marriage officiates, with the right last name and division of property, May 15, 2013. Available at <http://sao-paulo.estadao.com.br/noticias/geral,brasil-oficializa-casamento-gay-com-direito-a-sobrenome-e-partilha-de-bens-imp-,1031923&gt; Accessed on 28/06/2015. SILVA, Alfredo C. G. da. Review and control of the legislative power of the Supreme Court decisions. Legal Portal Investiture, Florianópolis, 4 June 2010. Available at: http://www.investidura.com.br/biblioteca-juridica/artigos/judiciario/162959-revisao-e-controle-do-poder-legislativo-das-decisoes-da-suprema-corte.html . Access:. 27 Jun 2015 VILLA, Marco Antonio. The history of Brazilian constitutions. São Paulo: Leya 2011. BARROSO, Louis STF of the Year:. Judicialization, activism, and democratic legitimacy. Available http://www.conjur.com.br/2008-dez-22/judicializacao_ativismo_legitimidade_democratica?pagina=4&gt; Accessed on 27/06/2015
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