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the twentieth century many ruptures of the rule of law.
In the 1930s Brazil had a fascist regime led by an
odious dictator who was inclined toward the Axis
powers. In 1941 and in early 1942, the Brazilian
people massively demonstrated for entry into the war
with the allied powers. 8 Eventually, Brazil entered the
war in August, 1942, in response to this enormous
demand. In the process, one expeditionary force of
thirty-five thousand soldiers and aviators was sent to
Italy, and a ferocious naval war raged in the South-
Atlantic, which cost Brazil the loss of 98 per cent of its
merchant navy. 9 Following the war, democracy was
reinstated in 1945 only to be suppressed by a military
coup in 1964, which started a regime that lasted until
1986, when the rule of law was again reinstated in the
wake of a great popular movement. Brazil had become
a very complex society with the largest Italian
population outside of Italy, estimated at 37 million
people (the city of SaÄ o Paulo alone has more Italians
than the combined populations of Rome and Milan)
and the largest African population outside of Africa.
Millions of ethnic native Brazilians, the majority of
which integrated, live mostly but not exclusively in the
centre and north of the country. In addition, there are
numerous other nationalities, such as Arabs, Germans,
Japanese, Koreans, Poles, in great numbers. Lastly,
there is the phenomenon of widespread racial miscegenation,
which has greatly contributed to the
benign nature of our people and for its renowned
tolerance.
THE JUDICIARY IN BRAZIL
Brazil's legal system has its roots in Roman law, with
strong influence from various European sources, such
as Portuguese (constitutional law), French (civil,
commercial, company law), German (civil and criminal
procedure) and Italian (criminal and labour)
legislation. Some elements of US inspiration can also
be found in the areas of competition; securities;
environmental law; as well as in taxation. Unjust
and/or impractical law is fiercely resisted by the civil
society, in the best Tupi-Guarani tradition. Following
the re-democratization of Brazil in 1986, a constituent
assembly was formed with the mission of enacting a
new constitution, which task was accomplished in
1988. The Constitution of 1988 was, at very best,
highly inadequate in time and space, and accordingly
has already suffered 29 separate amendments. In the
present federal administration only, the constitution
has been amended by 19 different bills. 10 However,
what is most striking about Brazil's constitution is not
the number of amendments it has suffered, but the
reforms it will still have to undergo, before it becomes
a rational platform for the rule of law, federative pact,
political balance and economic activities.
The 1988 Constitution divided the Judiciary in
ordinary and specialized courts. As Brazil is a
federation, the ordinary court system is established
at the state and federal levels. The ordinary courts
comprise civil and criminal benches and the specialized
courts attend to labour, military and electoral
cases. Appeals may be filed to second and third
instances. At the top of the pyramid, there is the
constitutional court, the Federal Supreme Tribunal.
The Superior Tribunal of Justice (STJ), with 33
ministers, is the court of last resort for non-constitutional
matters. All last resort tribunals are based in
Brazil's capital, BrasõÂlia. With the re-democratization
of the country and the adoption of the new constitution,
Brazil became an increasingly litigious country,
second only to the USA in terms of litigation. In 1997,
four million suits were filed in the Brazilian courts.
This number jumped to five million in 1999. The
specialized labour courts alone tried 2,3 million cases
in 1998. In the same year, the STJ decided 101 000
cases with published opinions, whereas the STF, with
11 justices, decided 52 000 cases.
The 1988 Constitution allowed the Executive
branch to legislate by means of decrees, Provisional
Measures (MPs). In theory, those MPs should be
enacted only in those cases of relevance and urgency
and to be valid for only 30 days. However, in case
Congress does not approve the law within 30 days,
the administration is allowed to re-enact the measure.
The current administration enacted 199 measures,
which were re-enacted 3 336 times. For each MP,
there are approximately 30 000 suits. Thus, the
legislative effort of the FH Cardoso administration
brought about, only in connection with MPs,
5 970 000 suits. Federal, State and Municipal governments
have a policy of litigating in bad faith and
never settling cases, as the interest of the respective
administrations is put above that of the public's. What
counts is to procrastinate the obligation to pay to the
extent possible, so that another administration will
have to foot the bill. The State of SaÄ o Paulo alone, in
spite of having the reputation of one of the best
managed in the Brazilian federation, has approximately
of US$ 6 billion dollars of judicial indemnification
in arrears, and the municipality of SaÄ o Paulo,
which does not enjoy the same reputation, US$ 1
billion. As the State of SaÄ o Paulo refuses to pay those
judicial awards, there were, in 1999, 1 103 requests
for judicial intervention in the State's executive
branch, whose governor has resorted to evading
summons! 11
In spite of such numbers, the Brazilian judiciary has
only approximately 10 000 first-instance judges and
200 000 active lawyers for a population of 150 million
people. As in France, those judges are all civil servants
subject to a public examination for qualification.
Brazilian judges have benefited from continuing legal
education programmes for more than ten years. In the
higher courts, twenty per cent of members come from
ISSN 0256±6060±Unisa Lat. Am. Rep. 16(2) 2000 39