Who watches the watchers - Brian Nicholson
Eleana Calmon, a 67-year-old career judge, is shaking up Brazil’s judiciary, speaking of ‘the bandits behind the robes’. She’s co-opted the assistance of everyone from Federal Police to the Finance Ministry’s money laundering unit in her efforts to unveil them.
Quis custodiet ipsos custodes? The age-old dilemma arises once again as Brazil’s judiciary agonizes over a small but potentially significant step into the modern world. At the centre of the storm is an unlikely figurehead, Eliana Calmon, a 67-year-old career judge from the northeast state of Bahia who was largely unknown outside of her profession – until, that is, she told reporters in September that the Brazilian judiciary ‘today has very serious problems of infiltration by bandits hidden behind the robes.’
Even though Calmon stressed that the vast majority of Brazilian judges are honest and dedicated, she propelled what might otherwise have remained a rather arcane question of legal jurisdiction into an overnight national headline, with finely phrased insults flying back and forth between lawyers and judges. Being Brazil, it soon involved pension privileges, tropical beaches and, inevitably, football.
Calmon is ‘corregedora nacional’, which could translate roughly as ‘inspector-general of the judiciary’. The inspectorate is part of the National Council of Justice (CNJ), a body that was created via constitutional amendment in 2004 with a mandate to help modernize and moralize the judicial system. In its first half-dozen years the CNJ made occasional waves by clamping down on judicial nepotism, for example, while the inspectorate beavered away to ramp up the pressure on errant judges. But it made little real headway in its responsibility to ‘conduct investigations, inspections and make corrections whenever serious or relevant facts so justify.’
At issue is jealously guarded court autonomy – or a longstanding tradition of protecting your colleagues, depending on whose interpretation you choose.
As a federal republic with 26 states and the federal district, Brazil has a judicial system largely inherited from its Portuguese colonial rulers, then shaped by a Mussolini-inspired corporatist wave in the 1930s. There are five separate branches of justice – federal, state, military, labour and electoral – with a total of 91 courts, including the Supreme Court that handles constitutional issues. Until Congress saw fit to create the CNJ these were all self-policing, each with their own independent inspectorates to investigate – or not – allegations of corruption or other malfeasance within their ranks. These regional inspectorates still exist; the dispute concerns the circumstances under which the national inspectorate can step in. Calmon and most of her CNJ colleagues say they have a constitutional mandate to intervene whenever they see the need; many lower-level judges argue that local processes must first run their full course. And there’s the rub.
Calmon complained that her inspection visits to state courts have thrown up numerous problems, in particular with cases involving senior judges. She described ‘judges not doing their duty; (disciplinary) case files at a standstill, sitting on shelves or in cupboards because nobody wants to move things forward. We have found many bad situations that the (local) inspectorates are incapable of handling, often because of misplaced staff loyalties or because the senior judges don’t back up the inspectorate.’
Not all regional courts were equally bad, she said; São Paulo for example had a better investigative record but still suffered from a protective esprit de corps. Calmon also called for tougher penalties. Currently, the maximum is compulsory retirement, with pension, even for judges found guilty of selling verdicts, or diverting public funds to the local Masonic Lodge, to mention but a couple of recent cases.
The Brazilian Judges’ Association (AMB) pooh-poohs all this. Association president Nelson Calandra said that isolated cases of errant judges are dealt with adequately by the local inspectorates: ‘We have been doing this for a long time, and that’s why we have a First World judiciary.’
The AMB has fought the CNJ tooth and nail since it was created, lodging multiple allegations of unconstitutionality with the Supreme Court. ‘Once more, the national inspectorate casts doubt on the behaviour of Brazilian judges and usurps the competence of organs that are charged by the Constitution to investigate felonies,’ Calandra said recently, after the CNJ revealed it was investigating 62 judges facing accusations of misconduct.
‘Calmon has incurred the wrath of many judges for her energetic, pro-active stance. With just a two year term as inspector-general, she quickly sought help from federal police, the federal income tax service and the Finance Ministry's money laundering unit.’
Perhaps even more than with her words, Calmon has incurred the wrath of many judges for her energetic, pro-active stance. With just a two-year term as inspector-general, she quickly sought help from federal police, the federal income tax service and the Finance Ministry’s money laundering unit. These supply confidential information that is cross-referenced with the judges under investigation, their families and other persons who may have been used as fronts. Even though these investigations are secret, they have sparked heated arguments about the extent of the inspectorate’s powers. The question will inevitably be decided by the Supreme Court, which shortly after Calmon’s ‘bandits’ statement postponed hearing an AMB unconstitutionality motion, apparently hoping the dust might settle.
The Brazilian Bar Association (OAB) is fully behind Calmon, and she received a lengthy standing ovation at the association’s 2011 National Conference. The OAB was a leading advocate for creating external control of the regional inspectorates, and OAB President Ophir Cavalcante said that if the Supreme Court rules against the CNJ or its key attributions this would represent ‘a serious setback, because the CNJ has opened up the judiciary and given it transparency... This unconstitutionality motion aims to make it a black box again.’
Cavalcante rejected suggestions that allegedly errant judges were adequately investigated before the CNJ was created: ‘Whenever they (regional inspectorates) received accusations against members of the judiciary, they simply shelved them, without investigating.’
Brazil’s 16,000 judges are unlikely to get much public support. They are often seen as over-privileged, earning up to US$15,000 a month with two months’ annual vacation and retiring on full pay. Major newspapers frequently criticise them for not always maintaining adequate distance from companies that could become plaintiffs or defendants in big-money cases. In November the National Association of Labour Court Judges sought over US$100,000 of sponsorship from major public and private companies for a weekend sports tourney for 320 judges and their families at a swanky beach resort in the Northeast, while federal judges tried to negotiate a similar event at a mountain sports centre run by the Brazilian Soccer Confederation (CBF) near Rio. The problem, Calmon pointed out, is that CBF President Ricardo Teixeira faces a federal investigation for illegal enrichment and money laundering.
Ricardo Barretto, a founder-partner of the 50-lawyer BKBG practice in São Paulo, noted that democracy requires both the rule of law and due process, which in turn require transparency. ‘The debate now started can help authorities make clear to society their determination to preserve these principles.’