New Challenges of Constitutional Adjudication in Brazil
**To read the Special Report written by Gilmar Mendes, please click on the cover image to the left or scroll down to the report link at the bottom of the page. Below is a brief summary of the event's proceedings.**
Adopted in 1988, after 21 years of military rule, Brazil's Constitution guarantees a comprehensive set of fundamental rights to its citizens. It also gives great freedom to Brazil's Federal Supreme Court to conduct judicial review. In the last decade, the Supreme Federal Tribunal (STF)—the highest court in the country—has been "compelled to act" to compensate for administrative and legislative omissions concerning the extensive social agenda in the Constitution.
Ruling on controversial cases such as abortion and stem cell research, the STF has become a highly visible institution that plays a central role in Brazil's maturing democracy. In his first visit to the U.S. since assuming the rotating presidency of the STF last April, Minister Gilmar Mendes spoke at the Woodrow Wilson Center on October 24, 2008, about constitutional adjudication in Brazil and the challenges of reconciling the protection of fundamental rights with democracy. Mendes was joined by former Chair of the Sub-Committee on Latin America and the Caribbean of International Judicial Relations Committee of U.S. Judicial Conference, Judge Peter Messitte. Senior U.S. District Court Judge for the District of Maryland, Messitte provided a comparative perspective of diverse legal systems around the world, focusing on the United States and Brazil and differences between the common and civil law systems. "What you will see about Brazil, a civil law country," he observed, is that its legal structure "is one of the most eclectic in the world"; it draws from various sources, including Germany and the United States, to create a unique and comprehensive legal foundation. Messitte explained the distinction between abstract and diffuse systems of constitutional review.
Compared to other legal systems worldwide, Brazil is "doing pretty well," remarked Messitte. In the last few years, Brazil has enacted major constitutional reforms, including adopting the concepts of precedent (sumula vinculante) and discretionary review (repercussão geral) for the STF. It has gone beyond constitutional reform by institutionalizing judicial changes (for example, the Ministry of Justice created a department of judicial reform); expanding legal access through its justiça volante initiative, which literally "brings the court system" to distant populations in the Amazon and the interior of the country; and developing an efficient and effective small claims courts. This report, written by Minister Gilmar Mendes, is an abbreviated version of his 30-page article on the same topic of constitutional adjudication.