Veto and Voice in the Courts: Policy Implications of Institutional Design in the Brazilian Judiciary

Abstract

A common issue in democratic consolidation in Latin America is the weakness of the judiciary in upholding the basic rights fundamental to democracy. In the words of one observer, this weakness is failure which is a consequence of the precarious functioning of the judiciary.' Its precariousness is frequently attributed to institu tional weaknesses, such as underfunding, rickety systems of judicial administration, and problems of access. The Brazilian federal courts offer an intriguing counterpoint. An independent judiciary operating under unambiguous institutional rules may have effects that are potentially as important in their policy impacts as a weak judiciary, perpetuating the power of certain groups and undercutting initiatives by other branches of govern ment. There are of course moments when the judiciary should act as a check and bal ance on other branches of government. However, it is possible that courts' structure may offer a venue that is especially advantageous to specific political players who seek to block policies that alter the status quo.2 Two recent examples suggest the Brazilian courts' potential to influence public policy in civil service reform and agrarian reform. On September 30, 1999, Brazil's highest court, in response to a case filed by the Brazilian Bar Association (OAB), suspended a tax on civil service pensions. The government was visibly shaken by the defeat, which was expected to create a budget shortfall topping US$1.25bn. Markets were even more unnerved, fearing that Brazil would be unable to meet its debt oblig ations. To compensate for the judicial decision, and to reverse deteriorating market sentiment, the finance ministry was forced to announce an emergency package of spending cuts and tax increases. A second example comes from agrarian reform, which became an increasingly contentious political subject during the 1990s, following land seizures by landless peasants' groups and violent police repression. Forced to address the issue, the gov ernment in 1999 adopted a new policy that made expropriation procedures more efficient but also constrained the landless movement in its primary tactic of land seizures. The policy seemed to be a successful attempt at reconciling interests on both sides, until Brazil's highest court struck down the policy's limits on monetary claims in land expropriation cases in response to a suit by the OAB.