1
The judge and the governance of the Judicial Branch in Brazil:
from the bureaucratic model to the democratic one
Luciano Athayde Chaves*
“There’s no doubt about the ‘lack of will for the democratization of this State branch’ [Judicial Branch] (José Eduardo Faria et alii). It can be said that the successive Latin American establishments have tried to use the judiciary powers or, at least, neutralize them, in order not to disturb their own power”.
Eugenio Raúl Zaffaroni
Contents: 1. Introduction: trust in the Judiciary Branch and the efficiency expectation;
2. Management and governance: setting some stipulative definitions; 3. The Judicial Branch: from the bureaucratic model to the democratic one. A possible transition? 4. the judges and the judiciary management: main characters of the Justice System or actors of its dysfunctionality; 5. Final thoughts; 6. References.
Abstract: This paper aims at discussing the judicial management from the idea of
governance, within a context of a necessary transition from the conservative model to a democratic judicial management one. In this way, it seeks to highlight the obstacles to effective governance and emphasize the good initiatives in this direction.
1. Introduction: trust in the Judicial Branch and the efficiency expectation Despite the growing presence of the Judicial Branch in current public debates, the amount of reflections about its historical characteristics and functioning is still small.
However, this “opacity” in the judiciary matter is not something new. In his now classical work about the Judicial Branch, Eugenio Raul Zaffaroni calls our attention to the usual poverty in the analysis, when one intends to think over the functions and the dynamics of its bodies and even pointing to the need
* Labour Judge in Rio Grande do Norte, Brazil. Master degree in Social Sciences from the
Federal University of Rio Grande do Norte, Brazil. Professor at the Federal University of Rio Grande do Norte. Former National Justice Council Assistant Judge (2012). Former President of the Labour Judges National Association (2009-2011). Email: <athayde@trt21.jus.br>.
2 for a multidisciplinary approach for the validity of any investigation (cf. ZAFFARONI, E. R. Poder judiciário. São Paulo: Revista dos Tribunais, 1995, p. 21-2).
From this point of view, one incursion in the judiciary universe must consider the complexity of its phenomena, its power relations, the sociopolitical interactions of its actors, the ideological patterns applied to its functional dynamics and rituals, in addition to other possible dimensions.1
For this reason, the problem of managing the justice system2 bodies
cannot be studied from only one angle, whether it be the public administration one or the corporative-functional criteria.
Once agreed with this methodological issue, I stress that society has been progressively more attentive to the Judicial Branch because of its leading role in the Constitutional State (Zagrebelsky), in the fundamental rights achievements and in the judicial review or control of the government acts.3
However, it is an approximation that shows, at least, two potentially creative tension sources: trust, since the society hopes that Justice system will fulfill their needs, assigning to it, as Garapon says, the quality of promises’
guardian (democratic and social ones); efficiency expectation, strand embodied in
the demand for a reasonably fast and efficient answer, and not only about the bill of rights, but also – and maybe mainly – in delivering the results of their subjective rights secured in the sentences.
From the tension between these two dimensions, these two projections of society over the Judicial Branch, it is possible to picture a crisis, which Werneck Vianna summarizes as follows:
“What is called the Judiciary Branch crisis is nothing but a sudden adaptation to the contemporary face of Brazilian society, without being materially, conceptually or doctrinally ready to deal with the load of new problems that society has been presenting (1997, p. 12)”
In terms of managing the judicial apparatus – an issue addressed in this essay – that expectation finds a shield, from the normative point of view, in an
1 That’s what Boaventura de Sousa Santos tries to do in his approaches to the functioning of the
justice system, the Brazilian one included (cf., for everyone, “Para uma revolução democrática da justiça”. São Paulo: Cortez, 2007).
2 In this text the expression “justice system” is used in a more narrow meaning, including only
the bodies, both courts and administrative ones, that make the Judiciary Branch. There is a broader meaning for this expression, in which the prison and resocialization system, the public and private lawyers, the Prosecutors’ Offices and the Public Defense Offices, for example, are included.
3 About this topic, check: VIANNA, L. W et alii (Corpo e alma da magistratura brasileira. Rio de
Janeiro: Revan, 1997); SANTOS, B. S (2007); ZAFFARONI, E. R (1995); GARAPON, Antoine. O juiz e a democracia: o guardião das promessas. Rio de Janeiro: 1999); FARIA, José Eduardo (org.). Direitos humanos, direitos sociais e justiça. São Paulo: Malheiros: 2002.
3 expressed constitutional command for the efficiency of managing the public resources (art. 36, FC) and, certainly, in the efficiency of its services.
In the activity of the Judicial Branch actors, this also means quality in delivering the court judgments, the right time and form.
Thus, the institutional guarantee to self-government, trusted to the Judicial Branch by the arts. 96 to 99 of the Federal Constitution4, also constitutes an
obligation to practice its administrative-financial autonomy in order to reach those expectations and assure its own members’ independence for the judging practice.
It is saying: the self-government or the judges’ government5 is not an
isolation wall from the judiciary bodies who form the justice system, but an
4 In the current constitutional regime, the Federal Supreme Court, has reaffirmed the normative
power of this Judiciary Branch’s self-government precept, as in the following precedents: “THE STATE-MEMBER’S AUTONOMY. THE STATE CONSTITUTION AS AN EXPRESSION FOR AN AUTONOMOUS NORMATIVE ORDER. THE STATE CONSTITUTENT’S CONFORMATION POWER IS NOT COATED BY ABSOLUTE CHARACTER. LIMITATIONS TO THE CONSTITUTENT DECORRENT POWER. JUDGE’S SELF-GOVERNMENT
POSTULATE. POWER SEPARATION PRINCIPLE. IMPOSSIBILITIY FOR THE STATE
PARLIAMENT, THROUGH STATE CONSTITUTION AMENDMENT, TO PROHIBIT THE EXECUTION OF ORAL TEST, ELIMINATORY OR CLASSIFICATORY, IN THE PUBLIC CONTESTS IN GENERAL, SPECIALLY THOSE IN APPLICATION FOR JUDICIARY AND ATTORNEYSHIP CAREERS. PROTECTIVE MEASURE UPHELD (ADI 1080 MC, Rel. Min. Celso de Mello, Full Court, judged on 29.06.1994); (emphasis added) “DIRECT ACTION OF INCONSTITUTIONALITY. STATE JUSTICE COUNCIL COMPOSED BY STATE JUDGES, AUTHORITIES FROM OTHERM BRANCHES, LAWYERS, NOTARY’S OFFICE’S REPRESENTATIVES AND JUSTICE FUNCTIONARIES. The creation by the state constitution, of State Justice Council with this formation, aiming at supervising and following the Judiciary Branch’s bodies’ performance is unconstitutional for it harms the power separation principle (art. 2nd of the Federal Constitution), of which the court’s self-government and its administrative, financial and or budgetary autonomy are corollaries (arts. 96, 99 e paragraphs, and 168 of the Federal Constitution). Previously judged direct action that declared the unconstitutionality of the articles 176 and 177 of the permanent part of the State Constitution of Pará, as well as its article 9 and its sole paragraph in the Transitory Dispositions Act of the same Constitution (STF, ADI n. 137, Rel. Moreira Alves, Full Court, judged on 14.08.1997). (emphasis added).
5 The expression “Judges’ Government” is polysemous, and it has a dense historical
construction. In the continental European context, the expression was originally related to the problem of the Judges’ autonomy regarding the ideological orientation that supported the state interest. However, Dalmo Dallari remembers that “the expression ‘judges’ government’ is not considered nonsense in the United States of America, where the judges’ political role is implicit in the constitutional organization of the power branches, and where, moreover, the political influence is so strong that it is possible to talk about a ‘constitutional revolution’ held by the judges. A simple reading of the Constitution, that was elaborated in the moment of creation of the North American state, 1787, makes it obvious that it was intended to give to the Judicial Branch the condition of State Branch, equivalent to the others. The judges were trusted with
full autonomy, with the possibility of broader action, and it has been intensely appropriated by the judges” (O poder dos juízes. São Paulo: Saraiva, 1996, p. 91) (emphasis added). As seen,
4 opportunity of independent integration of the judges to the State and to society, without wavering or being corrupted due to maintenance or structural or self-organization needs.
In this context, the problem of judiciary governance presents itself, externally, in a social demand call for improving their services, especially after the Constitutional Amendment n. 45/2004, elevating the reasonable processing time to the fundamental right level (art. 5th, LXXVIII, Federal Constitution)
Internally, the governance main aspects affect the juridical service actors (judges and functionaries), and relate to all the administrative flows that encompasses the Judiciary Branch administration bodies at all levels.
It is in this area that some themes are included, such as: a) the
self-government administrative assignments distribution; b) the administrative
(de)concentration and (de)centralization; c) the budgetary resources application criteria; d) disciplinary power issues and the so-called judiciary discipline ones; among others.
Thus, there is concern about the way some approaches have been presented regarding the judicial administration, from the idea of disqualification of the judges to face these challenges, strongly based on the (pre)conception that the managing acts are not covered by their expertises, advising the adoption of another model, one that confines the judges merely to attaining their final and “natural” assignments, namely, typically juridical acts, and assigning (or, as a benefit, delegating) to professional managers/administrators the task of thinking, planning, coordinating, supervising and executing the acts related to material and human resources necessary to support the Judicial Branch’s core activity: the judiciary service.6
As seen, it is an ad hominem typology argument, with strong disqualifying colors, which is not really surprising, since, as pointed out by Zaffaroni, it has been very common to have the analysis of themes that pervade the Judiciary from methodological simplifications and imputations of flaws to the judges. These initiatives, he says, do nothing more than “prevent the serious
included) of acting and the juridical independence, so much so that, from the American judicial review experience, the possibility of judicial control of acts from the other branches starts to be considered. Apart from that, the dialogue with this text by Dallari also allows us to think over our influences, that, the influences in the shaping of our Judicial Branch’s model, a very modestly explored aspect in our tradition of study of justice things and law itself. For going deeper in the characteristics of the two traditions reference for us, (Civil Law and Common Law), I suggest reading: (GARAPON, Antoine & PAPADOPOULOS, Ioannis. Julgar nos Estados Unidos e na França: cultura jurídica francesa e common law em uma perspectiva comparada. Rio de Janeiro: Lumen Juris, 2008).
6 Cf., about the topic, pronouncement of the Judiciary Reform Officer, in which he supports the
idea of creating a specific career in the courts’ scope, responsible for administrating the court (available, in Portuguese, at: www.conjur.com.br. Accessed on 10.09.2013). We will explore deeper this point of view further in this paper.
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debate about the judges selection, the organic and distribution and direction of the Judicial Branch’s duties.” (1995, p. 21).
On the other hand, any debate on the non-jurisdictional attributions of the judges must, in my point of view, consider that – despite the social, institutional and political transformations promoted in the constitutional order since the 1988 Federal Constitution enactment, going through the Amendment n. 45/2004 - the courts’ internal organic model has been virtually the same, in honor to the conservative or bureaucratic type, with little or very little collective participation in the courts’ internal management acts, as stressed by Andrei Koerner:
In this process, the bureaucratic judiciary organization model, in which judges are subordinates to higher level bodies whose decision criteria are not always very clear, has again not been questioned. In this model the judges’ internal independence is not assured and they end up focusing on their individual careers and keeping an isolation attitude towards their judiciary colleagues and non-corporative associations, as in relation to the public administrators and the political or social organizations’ leaders (‘O debate sobre a reforma judiciária’. Novos Estudos. CEBRAP, N.º 54, julho 1999, pp. 11-26).
Thereby, any conclusion about the governance model best adapted to the current constitutional values needs, primarily, to consider which are the effective governance efforts and experiences that have been assured to the judges and, therefore, which are the limitations and problems of these experiences.
This paper aims at critically thinking over the problem of judiciary administration and its challenges, considering some liking aspects: a) the Judiciary Branch’s actors’ role in its self-government landscape; b) the Judiciary Branch’s characteristics; c) the governance models (conservative and participative); d) the blocking and improving points for a more participatory governance; and e) the other governance models’ plausible results.
2. Management and governance: establishing some stipulative definitions As a methodological question on facing the judiciary administration themes, I have as fundamental setting to which conditions and meanings I apply the terms management and governance.
That is because they are polysemous or multi-meaning terms, whose lexicographical or historical definitions are not enough to define the complexity of its significance inside the context in which we use them (for the semiotic, the
pragmatic dimension).
In the Brazilian Portuguese Language dictionary “Aurélio”, we have the lexicographical definition of management: “action of managing; management;
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and is strongly responsible for it, but without legal authorization”. While the
governance term is found as something related to government.
We can note, then, that we are also investigating the possible stipulaltive definitions7 to the terms management and governance, namely in the Justice
administration scenario. The term governance is relatively new in the public space, and it has been inserted in the Public Administration glossary because of the influx of some international organisms with the objective of enlarging the public administration.
In this effort to stipulate a definition that encompasses the complexity of today’s State power and sovereign related functions, the governance has been understood as the way through which the power is put into practice in the administration of social and economical resources of a country, aiming at the development and at the capacity of government’s planning, formulating, programming, putting into practice functions.8
The origin of the term, as Luiz Akutsu and Tomás de Aquino Guimarães highlight, is related, either in the corporative or public area, to the system’s efficiency control context, constituting itself into one “analytical tool for the
comprehension of the factors that organize the actors’ interaction, the procedures
dynamics and the game’s rules” (‘Dimensões da governança judicial e sua
aplicação ao sistema judicial brasileiro’. Revista Direito GV, v. 8, n. 1, São Paulo, Jan/Jun 2012).
Thus, the governance encompasses a broader idea than the strictu sensu management or administration. While this last significance – the management – is based on a tactical operational context (administrative routines, immediate answer to problems and contingencies), the first – the governance – projects meanings of action planning, achieving long term objectives and, in a broader sense, transcending the shorter cycles of organizational or bodies’ commands in the public administration.
In this meaning we can take, for example, Resolution n. 70 by the National Justice Council, that regulates the “Planning and Strategic Management
in the Judiciary Branch scope” as an example of the governance dynamics, since it
considers the administration in the long term, with the adoption of institutional and public politics9 which transcend the courts’ chiefs’ biennial terms, fostering
the concretization of longer term execution objectives and results evaluation.10
7 About the relation between language and law; lexicographical and stipulative definitions, cf.
WARAT, Luis Alberto. O direito e sua linguagem. Porto Alegre: Fabris, 1995.
8 Cf. in Portuguese <www.signficados.com.br>. Accessed on 10.9.2013.
9 About the idea of public politics in the Judiciary Branch scope, cf. FREITAS, Vladimir Passos
de. ‘Judiciário também deve ter as suas políticas públicas’. Revista Consultor Jurídico. Available in Portuguese at: www.conjur.com.br. Accessed on 22.09.2013.
10 From Resolution n. 70/2009, by CNJ, I highlight the list of values found in the article 1st, item
III: “a) credibility; b) accessibility; c) celerity; d) ethics; e) impartiality; f) modernity; g) probity; h) social and ambient responsibility; i) transparency [accountability]”.
7 I have assumed this complexity of the term, then, to enlarge the context of judiciary management or judiciary administration (adopted here as equivalents) in order to promote a more inclusive point of view.
And, from this viewpoint, I include in its study and dynamics not only the traditional judiciary stage characters, but also other social actors that join the justice system problem, to influence it directly or to get social answers compatible with the expectations raised by the constitutional order (access to
justice, reasonable process time, court guardianship effectiveness, morality in managing people and public resources, public ethic, pedagogical and peace inductive of jurisdiction, among others).
In this Judiciary Branch governance context, for example, I agree with Professor Joaquim Falcão, who believes, in his working field, among other actors: the Federal Supreme Court, National Justice Council, the Superior Courts of Appeals, the Attorney’s Office Headquarters, The Brazilian Bar Association, the State and Federal courts’ representatives, the Judges associations, the Prosecutor’s Office Headquarters and its Judiciary Reform Office and the National Congress (cf. ‘A governança do judiciário’. Correio
Braziliense, Brasília, 16.12.2010, p. 29).11
Thus, when we talk about governance, we deal not only with an internal view, merely a judiciary engine management, but with the very projection of an institutional Judiciary Branch self-government assurance, which means setting the eyes over the courts’ walls, since many internal advances depend on institutional articulation with the other branches, hence the harmony and interaction traits set by the political organization predicted in the Federal Constitution.
As highlighted by Akutsu and Guimarães, the Republican Agreements set in favor of the Judicial Branch’s development (2004 and 2009) indicate that the problems in the justice system cannot be faced by the traditional management dynamics, but by a governance model that can materialize the construction of republican councils, which also requires a political-institutional articulation attitude by the judiciary.
This means that the dialogues among the representatives of different republic branches can no longer cause any kind of estrangement, in order to achieve – through the political action emerged from the judiciary governance – the necessary conditions to, for example, approving institutional and procedural reforms that assure more effectiveness to the Justice acts, as well as in actions
11 Resolution n. 70/2009 by CNJ enphasizes this multi-participation in the governance when
establishes, in its art. 2nd, item III, § 4th the following: “The courts shall assure the effective participation of functionaries and first and second level judges, named by the respective associations, in the formulation and execution of its budgetary propositions and strategic plans”. Later, in the art. 6th-A, when discussing the National Judiciary Branch Meeting, the same Resolution assures the participation of courts, Internal Affairs Departments and judges associations even in the preparation meeting (item III, §§ 1st e 2nd).
8 that promote the internalization of right and duties, the resocialization of sentenced ones, the integrity of fundamental rights, the litigation reduction and other normative and valorative characteristicsthat still demand materialization in our juridical and social order. Also in the idea apparently external, the Judiciary needs to establish dialogues with the Congress and with the Executive Branch, as seen in topics such as: judges and functionaries payment, budgetary annual law, new courts creation, job positions creation, among others.
The governance idea is also related with another important aspect of our contemporary State: accountability, which can be simply understood as the duty to be accountable, internally and externally.12
The achievement of this governance obligation implies the adoption of interaction strategies with the civil society and with the other actors of the Justice system, clarifying the judiciary politics of public resources optimizing politics, as well as offering reliable indicators for the judges’ activities from all over the country.
This opening attitude is an emblematic example of the modern
governance: transparency is the touchstone of the Judicial Branch legitimation.
And from this less dim and more translucent image, the Judiciary must not only show the example, but be the example for all the other branches. This ethicality attitude legitimates it to materialize, for example, the fundamental principles of Public Administration, placed together in art. 37 of the Federal Constitution.
3. The Judicial Branch: from the bureaucratic model to the democratic one. A possible transition?
Facing the governance theme also demands considering the Brazilian Judiciary Branch’s characteristics, especially what happened before and after the 1988 Federal Constitution as well as the possible hints of opening and democracy after the Constitutional Amendment n. 45/2004. That is because understanding the internal dynamics historicity reveals a lot about the context in which some criticisms are made and, on the other hand, the possibilities to support another type of administration of the bodies that make the complex and strong judicious structure in Brazil.
For this purpose, I use models described by Koerner (1999), in a text written by the time the Judiciary Branch’s reform was in debate. This methodology still seems valid today.
12 It is inside this suggestion of accountability that there are many initiatives from the National
Justice Council and its Judiciary Researches Department (DPJ), instituted by the law n. 11.364/2006, having the report Courts in Figures, publishes annually, as the biggest badge of this effort. Observe that the item II, in the art. 5th of the mentioned law disposes that it is part of DPJ’s objectives to “develop researches aiming at getting to know the Brazilian Jurisdictional function.”
9 For this writer, the opinion leaders on the justice system and Judiciary Branch’s matter could be characterized into many positions, from which, considering our aims, I highlight two: corporative-conservative and democratic.
The corporative-conservative position is the one that predominates in the higher judiciary structure levels (superior courts and 2nd instance courts of
appeals), but it is also the opinion of other members. For this position, the difficulties that the Judiciary has been through do not demand great structural changes, neither an administrative control organ. More budgetary resources and procedures law’s modernization would make for great advances towards the systems improvement.
About this model, Koerner pointed:
“The strength of this position is a result of its traditional character, since it confuses itself with the very independent Judiciary formation in the country. Highlighted during the military regime, the conservatism in the Judiciary remained untouched during the democratic transition. In this process, marked by the permanence of the political and bureaucratic scene, as well as of the public administration models, there was no debate nor the political pressure that would motivate deep changes in the Judiciary form and organization (1999, p. 12)”
It means: while the 1988 Federal Constitution enlarged the institutional guarantees – the Judiciary’s self-government included - and eventually the Judiciary role in the Republic, there was not seen, on the other hand, a debate on the internal bodies workflows; for this reason, generally, the same traditional administrative structures and management models remained, having as a trademark the great tasks centralization on the, for example, courts’ presidents.
Therefore the well-timed observation of Koerner:
“Thus, the government control powers were expanded by the Judiciary, as well as its external independence: this means, the decision autonomy in relation to the other State Branches, but without a discussion over the model based on which the Judiciary administrative bodies would perform the political and social public resources usage control (1999, p.13)”
However, as highlighted before, in agreement with this same writer, this model shows a tendency (even paradoxically) of the judges’ internal independence reduction, due to the administrative relations’ verticality degree. In this context, according to Koerner, two opposing characteristics to the
governance model end up being emphasized: individualism and isolationism.13
The position that supports a more democratic model for the Judicial Branch is based not only on an expectation of a greater approximation of its
13 Though, in this context, we cannot understate the great importance of the judges associative
movement, which has worked, many times, as an opposing force in the tension arena caused by the conservative model, since it does not take into consideration the decentralization of the decision making and the greater participation as administration vectors leaders.
10 members with the society, but also on the influx of the constitutional values in their decisions.
In the administration aspect, this model would allow a greater deconcentration of the management acts, as well as a greater interaction/participation of the judges in the internal deliberations, as highlighted by Koerner:
“This position is supported by some judges, law professionals and researchers. From a corporative point of view, it represents advantages for the greater part of the judges, not only the first instance ones, in the beginning of their career, but also for the intermediate position ones. These judges are excluded from the direction bodies and do not take part in relevant decisions about the judiciary politics, due to the direction powers concentration being in the hands of the older judges in the superior courts. Thus, this position criticizes the control of the judicial higher levels over their careers and activity, as well as the lack of control over the courts’ administrative and disciplinary decisions. Its suggestions extend the judges’ functional autonomy and their participation in the decision making. (1999, p. 14).”
The distinction between these models overcomes only the Judiciary administration, because the conservative model tends to hire and keep a more bureaucratic type of judge, not only in the reproduction of decision methods closer to French positivism, but also in the passivity towards the management system, only repeating them.
In other words, the bureaucratic model offers very little for the construction of a judge’s institutional identity, blocking one of the most important governance parts, which is the idea of integration/participation.
More than that: with the increase for the Justice access, this model has shown progressive insufficiency evidences, as Tâmara de Azevedo Severo Alves Dias tried to sum up, with scientific administration contributions:
“The bureaucratic model, so valued by the past leaders, in which the manager acted vertically, with purely formal instruments, obeying the hierarchical logics, has shown to be no longer enough, because more knowing what to do, people want opportunities to use their knowledge, talent and competences, and to feel important and involved in building the future of the organization they belong to. The leaders need to find that their role has changed in a significant way; consequently, behavior needs to change too. The critical challenge in which they find themselves refers to the fact of taking new responsibilities, that they must be committed not only to achieving the organizational goals, but also to the development of people and of new leaders who must be able to continue the constant organization adaptation process in the context in which they are. From this line of thinking, one of the most relevant aspects to be dealt with is the Judiciary Management, mainly in the administrator judge’s role that fights for efficient and practical solutions in conquering productivity through innovative mechanisms, commitment with the public resources optimization, cutting red tape, producing quality resources and managing committed and motivated people. (O papel do juiz na gestão contemporânea. Brasília-DF, mimeo, 2009, p. 13).”
11 If the judge does not feel integrated to the judiciary administration system, except in rare situations, we could not talk seriously about governance.
This is one of the reasons why the leveling goals projects14, for example,
have caused so much repercussion (many times negatively) in the National Judiciary basis.
That is because these projects cannot overcome the dissatisfaction screens related to the internal management of the judiciary bodies, namely the resources application form, the previous debate on the projects, the structural and human resources asymmetries, the politics of creation of new organs or decisions about relocation of the existing ones, among other aspects.15
Though, generally, the distinction between these two models seems to me valid and present, there are advances that deserve to be registered.
The creation of the National Justice Council (acronym in Portuguese CNJ) was, in this perspective, one of the most highlighted innovations of the Constitutional Amendment n. 45/2004, since it innovated in the judiciary administration traditional scene, adding other actors, with great administrative supervision powers and project development: the administrative councils16,
topped by the CNJ.
Regarding the justiceship, the CNJ composition had, in my point of view, strong influence of the conservative model, since it does not present any type of mechanism of judges’ participation in choosing its members.
The indications are made by the superior courts, which, in my viewpoint, has moved the involvement away from the Branch’s members, a requisite for not only legitimating the body as a projection of the collective, but also to amplify the debate around projects and suggestions, which would happen if the
14 National Justice Council, Resolution n. 70/2009, art 2nd, § 1st, item II.
15 It is important to remember that the leveling goal setting is not a result of a vertical and direct
decision by the National Justice Council. In the preparatory meetings, mentioned by Resolution n. 70/2009, the court’s representative’s suggestions are collected, though some others are made by National Justice Council’s members (it happened, for example, with the Goal for 2003, about the administrative improbity cases’ judgment, topic directly suggest by the CNJ, based on the seminar held on the topic between May 31st and June 1st 2012, in Brasília/DF, under the coordination of the counselor Gilberto Martins). What happens is that this courts’ representative’s decision making is not very clear. In some cases they are not even judges, but functionaries who act in the courts’ goal setting and/or strategic planning bodies. On the other hand, it is not possible to measure the quality of the previous debate held in local instances. All that makes it easy for a perception, not always correct, that the leveling goals are vertical. This perception is, from this viewpoint, usually and symbolically appropriated to the local level (of courts and internal affairs offices), in order to demand its fulfillment face to the administrative hierarchy, which intensifies the judges’ estrangement on the Judiciary Branch’s strategic planner’s goals and of the goals themselves as an integration element, although not the only one.
16 As the Federal Justice Council precedes the Constitutional Amendment n. 45/2004, the novelty
12 indication was preceded by a collective choice and not only by the judiciary highest bodies.
Even registering this improvement points, I believe that the presence of representatives from all Justice levels in the CNJ composition and also in the Presidency, in the General-Secretariat, in the Internal Affairs Office and in other Council’s internal bodies is a sign of improvement that cannot be undervalued.
In the General-Secretariat case, maybe it is one of the greatest improvements of the National Justice Council, since it materializes a judge’s governance in a layout that really sets it apart from the conservative model. Coordinating executive tasks that come from the Council’s and its Presidency’s decisions, the Secretary-General reflects the virtues of a governance that sets the administrative decentralization, training staff and applying the Branch’s member’s viewpoint to the Council’s management tasks.17
In this same context, the fact also deserves to be registered that the Prison System’s and Socioeducative Actions Execution’s Supervision and Monitoring Department (DMF), instituted by the Federal Law n. 12/2009, to work in the CNJ scope, in the terms of its art. 2nd, coordinated by “an auxiliary judge, named by the National Justice Council and supervised by a Counselor, designated by the full court.”
The other two major branches of the Federal Judicial Branch, the Labour Justice and the Federal Justice, also have their superior councils, wherein the Federal preexists the Labour one. That is because the Superior Council of Labour Justice was created by the Amendment n. 45/2004.
Although in both the seat and the right to speak have been assured to the judges’ class, there is not even one representative in the composition, according to the levels of judicature, being absent, for example, first instance judges.18
In the regional and state courts and, especially after the Res. n. 72/2009, the participation of auxiliary-judges inside the so-called high administration19
17 In the year 2013, the Superior Labor Justice Council also started to count with a
Secretary-General that makes part of the Labor judge’s board. Also in the Superior Electoral Court, the General-Secretariat is headed by a judge.
18 In the case of the Superior Labor Justice Council, the Law Project n. 4591/2012, derived from
the Superior Labor Court and which regulates its structures and competences can change this picture a little. That is because the substitutive, approved by the Labor, Administration and Public Service Commission, started to include, in the Council composition, “one Labor Judge, tenure and court holder, chosen by the Superior Labor Full Court.” In case it is accepted, this text shows great improvement when includes one first instance representative, even repeating the conservative model in the indication, and also having, in theory, little influence capacity since it an administrative body of 12 members.
19 I adopt this expression “high administration” only to highlight that, in many cases, regarding
some determined courts, it means the highest administrative level, those expected to say the defining words.
13 has increased. (Presidency, vice-presidency(ies), internal affairs, judicial school, etc.).20
I have insisted on the importance of this acting, because it represents improvements in relation to the traditional and conservative management systems model (cf. CHAVES, Luciano Athayde. ‘O judiciário que queremos: reflexões sobre o planejamento estratégico do Poder Judiciário’. Revista da Escola
Nacional da Magistratura (Associação dos Magistrados Brasileiros). Brasília, ano
7, n. 6, nov. 2012, p. 356-374.).
Nevertheless, it is also necessary to recognize that the auxiliary model is still embryonic among us and needs a deeper debate regarding its targets and effective management powers.
Only assisting, many times on the same level as the other functionaries-advisors, does not seem to be equally an institutional layout that translates the
judges’ governance. It is necessary to advance in the concretization of
decentralized management models, whose lines assign the Auxiliary Judges determined functions, always observing that they are power members, even – and mainly – in the indispensable administration tasks.
I believe that we have a lot to advance in this Auxiliary Judges’ matter. I also highlight in this progress line the forum director’s role. I have witnessed that, in many places and in relation to many branches of the Judiciary, it is a very interesting example of governance, since it offers the integration of the judges in the Justice administration, as well as projects the decentralization of the complex task of managing the public businesses.
Moreover, this experience contributes decisively to the improvement of the judge in the management activities, thus, training staff to offer, in the right time and form, to the high administration, one of today’s institutional needs and cause of strong society criticism.
What happens is that, in many cases, this task of the administration of the forum is not supported by a minimum administrative structure, neither assured the director Judge of the forum the autonomy, after listening to the judges who act in that area, to define how to use the available human and material resources.
Likewise, there are examples of the judiciary administrative structure in areas or regions, with the aim at offering decentralization.21
20 The Resolution n. 72/2009 was changed, in 2012, by the Resolution n. 149, which added
another hypothesis of calling an auxiliary judge, which said: “[…] the Courts’ Presidency can also call an auxiliary judge to act exclusively in the management and supervision of the procedures related to the precatory and small values requisition.” It is a meaningful improvement, since the CNJ adopted this possibility after judging corruption cases in the precatory management offices. The presence of a judge at the head of this office, directly helping the President, was considered fundamental to the improvement, the transparency and the safety of the indirect execution system against the State, an aspect considered deeply connected with the idea of self-governance and governance in the Judiciary Branch.
14 Even in the choice of the courts’ directors, where very little has improved since democratization, there is a piece of news which deserves to be highlighted.
In the Regional Labour Court of Rio Grande do Sul State, a regimental amendment was approved, assuring a previous conference with all judges for the indication of names for the courts’ and judicial school’s direction positions. Although it does not have a binding character, it is an interesting experience of political-administrative opening.22
These examples show, in summary, that the democratic opening, of which the 1988 Federal Constitution is a mark, did not offer a great debate on the judiciary administration, despite of having trusted the self-governement to the Judiciary Branch.
Even the Amendment n. 45/2004, shown as the first step towards the
Judiciary reform, has advanced very little towards its internal democratization.
In the interpretation of Mattos and Bollmann, the internal democratization should be a corollary of the very democratic opening that starts in the Constitutive Assembly that has promulgated the current Fundamental Text. And more: it should have been done in the exact measure in
21 About the Santa Catarina Justice example, cf. ABREU, Cesar Augusto Minoso Ruiz. ‘Judiciário
do novo tempo’. Revista da Escola Nacional da Magistratura (Associação dos Magistrados Brasileiros). Brasília, ano 7, n. 6, nov. 2012, p. 334-55).
22 It is the Administrative Resolution n. 18/2013, that presents the following content: “Art. 1st
The survey process foreseen in the paragraphs 1st and 12 of the article 16 of the 4th Region Regional Labor Court Internal Regiment will be governed in the form of the following articles: Art. 2nd. The survey process will be held by a commission formed by three members, two being
court judges indicated by the Full Court, and a single judge indicated by the 4th Region Labor Judges’ Association – acronym in Portuguese AMATRA IV. Sole paragraph. The Survey Commission will be chaired by the most experienced career court judge. Art. 3rd. The Full Court
will make a Survey Commission up to the first September business Friday and will indicate the names of the eligible court judges that will compose the survey nominate, in the terms of art. 102 of the Supplementary Law n° 35/1979. § 1st. The AMATRA IV will indicate, up to the first
September Thursday, its respective representative. § 2nd. The commission will indicate in two
days’ time, the functionary who will work as its secretary. Art. 4th The nominata for the election of the Judicial School will be composed by all the Courts’ Judges, observing the art. 227-C of the Court’s Regiment, refusal admitted. Art. 5th There will be a specific space in the Court’s internal net, with access limited only to the judges, for each court’s judge in the survey nominata to consult and make unique presentation. Art 6th The survey will be held in the last Monday, Tuesday and Wednesday of the September month, through secret vote in an electronic device, in the Court’s internal net. § 1st In the voting space, there will be the indications in the nominata, and each indicated judge will vote in two names, as foreseen in the § 1st of the Internal Regiment article 16, and two names for the Judicial School, as foreseen in the Internal Regiment’s article 227-C. After completing the vote, the judge will get an electronical receipt, without indication of the choice made. Art. 7th The votes counting will be concluded up to 10:00 a.m. of the following day after the survey and the results will be released by the Court’s Presidency and sent to the Full Court. Art. 8th The ignored cases will be decide by the Survey Commission. Art 9th This Administrative Resolution takes effect on its publication date.”
15 which the access to the Justice and the greater juridical guarantees for the jurisdictional prosecution have been aimed at.
In these writers’ words:
“If the democratic practice is determined by the State Constitution, it must influence not only the main Judiciary activity, but also its internal relations. It is the internal democratization that internalizes the values necessary for its external practice, under the risk of happening a genetic incompatibility that causes noise to the jurisdictional activity, eventually reflecting in society itself.
Thus, in the Judiciary Branch democratization field, among its side activities, some actions must be attempted as techniques for strengthening the democratic values: (1) electing the Judiciary Branch’s directors by the Judges; (2) expansion of the Judges’ participation in the courts’ decisions (CNJ, CJF and CSJT), either directly or indirectly through the associations; (3) guarantee of judges’ participation in the courts’ budgetary management; and (4) improvement of the strategic planning mechanisms (MATTOS, Fernando Cesar Baptista de & BOLLMAN, Vilian. ‘Democracia e Poder Judiciário: propostas para uma nova justiça brasileira. Revista da Escola Nacional da Magistratura (Associação dos Magistrados Brasileiros). Brasília, ano 7, n. 6, nov. 2012, p. 311).”
Therefore, even in the experiences after the Amendment n.45/2004, we can conclude that the improvements in judiciary related themes are not seen as enough to assure the idea that a transition from the conservative model to the democratic one, which means more participation of the Judges, has happened.
In this context, the governance idea is still an aim to be achieved.
4. The judges and the judiciary administration: governance main characters or actors of its dysfunctionality.
Is it a judge’s role to manage the Justice activities? Is it correct to expect from him/her the practice of this function or is this activity dysfunctional?
In my viewpoint, these inquiries seem to be the leitmotiv of those who support that one of the Judicial Branch’s inefficiency problems is the assignment of the structure and resources management to the judges, who would not have the technical capacity to fulfill this role, even understanding that the Federal Constitution ensured institutional (administrative, budgetary and financial) autonomy to the courts.
Researching about today’s Judicial Branch’s institutional profile, Maria Tereza Sadek highlighted that it is possible to affirm the existence of a direct relation (that, of the cause-effect type) between the management quality or efficiency and the reduction of the procedures blocking points, which means, whose results, if positive, would be “significant performance development”.
And Professor Sadek recognizes that the efficient justice administration of the started to be discussed only very recently:
16 “Actually, neither the Law courses, nor the judge’s schools used to provide room in their curriculum for subjects related to financial and administrative management. Despite of this disability, the judge was demanded something way beyond his/her bachelor degree, he was required to be an administrator. This expectation could even be reasonable when the complexity was smaller and the lawsuits amount was substantially lower. It is certainly no longer reasonable due to the increasing complexity and extraordinary demand multiplication for the Judiciary Branch’s services (SADEK, Maria Tereza. ‘Poder Judiciário: uma nova construção institucional’. Revista da Escola Nacional da Magistratura (Associação dos Magistrados Brasileiros). Brasília, ano 7, n. 6, nov. 2012, p. 404).”
Although her approach is not clear about the inconvenience of the judge’s role in the management acts, and eventually, in the governance, her criticism is appropriately very well aimed at a formation problem.
However, as we have seen, the conservative model does not include or foresee this integration between the judge and the Justice administration as necessary. It is little to diagnose that he is the manager of his judiciary unit, when we know that the autonomy level is, traditionally, very low.
Therefore, in principle, I support that this formation problem is a corollary of the very current model that, commonly, demands from and foments, conserves or stimulates the judge very little regarding the governance.
More straightforward, however, is the criticism made by the Executive Branch on role of the judges in the judiciary administrative bodies.
Highlighting the sentence “Judges must not manage”, the brazlian electronic magazine “Consultor Jurídico” (Juridical Counsel) published a report about the Judiciary Reform (a body topped by the Ministry of Justice) Secretary’s speculation during an event held in the 3rd Region Federal Court of
Appeals, according to which “the Judiciary’s problem is the courts’ management”: “According to Caetano, it is necessary to create two new careers in the Judiciary: one to manage the court and another for juridical administrator. “The judge has an excellent juridical formation and must engage in it, and not in managing”, supports. The first position, according to him, would be responsible for the administration of the court, and the second to follow the judge and be his/her right hand in the offices’ administrative matters. (Available in Portuguese at www.conjur.com.br. Acessed on 21.09.2013)”
The Reform Secretary’s suggestion, in the same event, was heard with agreement by that court’s president, who affirmed, accordingly: “We need a
manager. The judge must judge, not be a manager”, the same opinion shared by the
Bar association, São Paulo section, also present in the event.
It seems to me, however, that recognizing that there are problems in the functional drawing and dynamics does not imply disqualifying the institutional central actors, the Branch’s members, the judges, as main character of a courts’
17 The perception of low judiciary administration quality/efficiency is certainly the result of a multi-factor process. Nevertheless, we cannot repel an argument that seems very reasonable: the management centralization is a result of never, actually, collectively, inviting the judges to take part in this process.
Maybe that’s why there’s no thinking over a better preparation of the Law graduates, or even judges candidates, in management, administration or governance themes. Moreover, why demand this preparation if managing the judiciary apparatus is something very sparse?
What is more interesting in facing this theme is that, in many countries (Spain, Portugal, France and Argentina, for example), it is a central point in their judges’ institutional agenda a Judiciary administrative autonomy, which flaunts the fundamental functional independence, but is dependent on the Executive Branch for everything else that refers to administration functionaries selections, equipment, physical structure and its own maintenance).
It means that, what we already have, self-government, other countries crave for. And why?
As Zaffaroni says, self-government is the activity that is impregnated in the very judges’ independence idea (1995, p.35). For this reason, it does not seem to be an option for the judges. Contrastingly, having the control of one’s space and structures is fundamental for basing one’s independence.
For this reason, it should not cause any estrangement that the Judiciary is virtually the only Branch to suffer these criticisms. Various other public bodies (parliaments, universities, for example) are self-governed, without any criticism over their manager’s capacity or incapacity.
We must not think of Judiciary self-government as a projection of its independence, if the judges, internal or externally, depend on the manager’s political decisions (directors-functionaries) or Executive Branch members. The administrative autonomy, as it is formatted in the self-government, does not allow this delegation level.
Among us, on the other hand, the Resolution n. 70/2009 by CNJ, in its virtue, musters the judges to incorporate the judiciary management in their
expertise row, because it is from a good management that arises a better justice.
Therefore, I believe that removing the judges from the management scene, withholding them from their governance, can result, in the end, in a reduction of the independence level and, on the other hand, materialize the following ideology: leaving the judge dependent regarding the Justice activities’ management will weaken their autonomy, therefore risking the democracy itself, because it only gets stronger with independent judges in all senses.
The Judiciary self-government is, as we have seen, assured by the Federal Constitution. However, it does not mean that we have, in our judiciary bodies, one governance scenario, with administrative decentralization, participation, internal democracy, qualification, among other elements indispensable for an offering an efficient service.
18 Far from that. The lack of internal democracy, due to the resistant bureaucratic manager system, innate to the conservative model, has blocked the change in the administration area that we all expect.
That is why the current ethical studies in the judiciary do not forget this aspect of the judges’ formation, regarding their technical qualification to fully take on administrative tasks.
In the classes of the Judge José Renato Nalini (Ética para um judiciário
transformador. São Paulo: RT, 2011, p. 39), despite contemporary judges’
qualities, “will fulfill his/her tasks better if improves the procedures, fluxes and judicial
formalities, adopts great procedures’ management systems, administrated well the people and creates a collaborative environment. Being a leader is understanding that the judge is not just a juridical pieces creator technician. He is a multi-task professional.”
In this perspective, the knowledge related to judiciary administration must be included in the judge’s expertise list, to be developed during the initial or continuing formation courses, in order to enlarge the set of competences indispensable to the regular exercise of his activities.
Therefore, the ad hominem argument (or fallacy) cannot stress the intension of preventing the judges from managing, since the idea is very recent that, instead, we must advance more in the formation and recruiting of professionals better prepared for these challenges.
In addition: it cannot be denied that the judges’ governance stems directly from the Fundamental Norm. For this reason, it is the judges’ responsibility to lead this management, with the essential collaboration of the functionaries, higher-level advisors, and the other functionaries:
“The judge will always be leading a team of professionals, composing a micro-system responsible for a slice of the jurisdictional service of the whole institution. That is why he will be delegated the job of managing this team, a side activity to the main one of offering the jurisdictional service, directly responsible for its success. The judge that is able to manage his team will offer the society a faster and efficient service. The Court President himself, when a good manager23, will find creative solutions, bold and
innovative, capable of combining low cost and efficiency. In this context, considering the importance of this quality of the modern judge, the discussion about this model’s new profile is inappropriate. (ALVES, 2009, p. 12).”
However, this preparation is useless if not followed by advances in the administrative decentralization and in the expansion of participation of a larger number of judges in these activities.
23 Our great challenge, in the strategic planning terms, and, therefore, for a longer time frame, is
to ensure that the good experiences and the public politics, debated and democratically approved in each court, make it to overcome naturally the biennium of one presidents’ mandate. The more permanent characteristic of the judges (cf. Alexander Hamilton, The federalist papers) allows us to think of more continuity of action.
19 And this decentralization process is fundamental, in order - progressively – to have the staff trained.
A local manager prepares himself to become the director of a big court. This one, in his turn, prepares to take other jobs in his career sequence, resulting in a prepared Court President, for example. That way he would not have problems to understand topics, such as public budget, people management, etc.
The current model, opposingly, implies the repeated sentence pronounced by institutional leaders: “managing is complicated; we didn’t prepare for that”; “the public bureaucracy is known”, among others.
In order to face this picture, the Court Manager Cesar Ruiz Abreu makes and interesting suggestion that is related to the creation of the Management, Modernization, Public Politics and Institutional Politics Council in the Court of Appeals of Santa Catarina.
Considering that this council by the so-called high administration (president, vice-president, inspector, vice-inspector) under the supervision and control of the Full Court, suggests that the decisions of the Council should not be delegated to the court functionaries, as usually happens, but to the Branch’s members, with the following characteristics:
“The auxiliary would be a kind of executive, with the job of carrying out two fundamental tasks: a) help to bring the president and the court’s high direction for the decision making, bringing the discussion and the opinion of the administrative apparatus; and b) supervise the fulfillment of these political guidelines initiated by the Full Court. Directly connected to the president, and chosen personally by this one, with him would dispatch the not delegated subjects and the ones with greater political or administrative meaning.
This model would avoid: firstly, the misconduct of assignments’ sub delegation to someone not qualified as a Branch member; and secondly, it would save the president more time for the adequate and efficient representation of the institution and to the more appropriate examination of the fundamental political options, to think about the great themes that distress the Judiciary, its agents and those served by it, the society. (ABREU, 2012, p. 351-2).”
And concludes:
“The choice of a Court Judge to perform the Court’s President’s political decisions administrative control functions, as well as the ones taken by the high directive bodies, seems to be an efficiency guarantee and a decisive step towards the administrative community and the Judiciary Government, from the Full Court. (ABREU, 2012, p. 352).”
What seems interesting to me in this proposal is the understanding of the need/opportunity of a greater participation of the judges in its governance. Todays’ high delegation level to non-members of the Branch greatly worries me. That is why this proposal innovates, when it considers the court’s presidency the governance gravitational center, around which many levels and types of actors – judges – are achieving their policies.
20 This body will certainly count on the essential functionaries to perform its tasks, some experts in progressively important areas (such as information technology, for example). This side activity, however, cannot become the gravitational center, as today happens, due to the great task concentration in the high direction bodies, generating the dysfunctionality I have discussed: the judges’ government does not always belong to the judges.
For this reason, I have insisted on the risk of spreading the ideology that disqualifies judges: at the limit, it is an idea that ignores all the historicity of the little democratic participation of the judges in the judiciary matters and also ends up weakening this Branch’s functional independence.
This self-government weakening, in the judges’ board perception, results in autonomy and individual independence loss. The judge who sees himself totally dependent and does not act as a main character internally is more likely to cooptation, either for functional reasons (career progressions, removals, retributions, advantages), or, as projection of the first ones, when doing his jurisdiction tasks.
To conclude, I face another criticism on the role of the judge as the main character of the judiciary matter, which is the very jurisdictional service. I believe this criticism is weak, since the Federal Constitution itself did not consider these tasks incompatible. Moreover, I believe it is possible, in most jurisdictional bodies, to blend harmonically the two tasks, achieving the desirable reasonability.
Thus, I cannot see inconvenience or jurisdictional loss caused by the fact of the judge trying to integrate in the governance plans of his institution, interacting in the general plan and in his acting place. The same applies to the court members, who also take on the usual task of managing their offices, sections, groups and/or chambers.
Certainly, in some jobs (court presidents, inspectors, big court directors, auxiliary judges, among others), the dedication should be integral. However, in these hypothesis, the temporary absence of the judges for devoting themselves to the governance activities is made up by the institutional gains achieved with these tasks. It means that the governance results are directly experimented by the main activity, since the institutional quality rising, the addition of new resources, and the implementation of new workflows and technologies (information included) bring direct benefits to the jurisdictional service.
Therefore, the judge’s dedication to these tasks – total or partially – is a step full of progress for the Judiciary Branch.
In this context, the reading that our Justice system problems are related to the management tasks held by the judges is reductionist.
The spaces for improving on this theme are so many that only after a new institutionalization of the Judicial Branch, in which the Constitutional will (Konrad Hesse) translates into an activism of the judges in the governance direction, the criticism on the justice administration could be taken seriously.
21 In today’s context, the hostile assaults against the Judiciary management should be taken as the translation of a political ideology which only tends to weaken the Brazilian Judiciary.
5. Final thoughts
The political re-democratization, whose juridical mark is represented by the 1988 Federal Constitution, reinforced the guarantees of the Judiciary Branch, among which is that of self-government.
It is a political organizational drawing of great importance, desired by many other comparable justice systems.
Nevertheless, the traditional management traits, which are typical of the conservative model, known for strong administrative tasks’ centralization, were kept and very subtly changed after the Amendment nº 45/2004.
In this profile, the governance idea, which suggests the participation and formulation of long lasting strategic politics, suffers great hindrances and limitations, not allowing the judges, as a body, to perform the tasks, compatible to the social challenges and demands for efficiency and transparency in the judiciary administration area.
In addition to these impediments, the course of a judge’s technical disqualifying ideology regarding the fulfillment of the management tasks, which shows great weakening potential of the Judicial Branch, and at the limit, harms its independence.
Despite some important improvements, we are still far from the democratic model concretization, one which considers that the self-government, in the Judicial Branch perspective cannot be achieved without mechanisms such as administrative decentralization, judges’ bodies’ participation in the Justice matters and institutional dialogue.
For this reason, I believe the problem is not considering the judges’ presence in the management acts a dysfunctionality, but yet offers the functional and institutional conditions for the governance to be effectively performed by the judges.
Only from the presence of this kind of context we will be able, critically, to evaluate the routes to take towards the efficiency of the administration of Justice and, in the end, the very quality of the Justice system we have.
From this viewpoint, jurisdiction and administration must be symbiotically in the agenda and in the ethos (Weber) of the Judges, since both tasks derive directly from the Federal Constitution. Hence, from this destiny the judges cannot dodge, as reminds the unforgettable Mário Moacyr Porto’s admonition: “the judicature - as all artistic activity – is not a profession we choose, but
22 6. References
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