The “Unconstitutional State of Affairs” in Brazil’s Prison System: The Enchantment of Legal Transplantation

[Editor’s Note: This is the second of two perspectives on an ongoing case in Brazil where the Supreme Federal Tribunal, in deciding a case relating to prison conditions, imported the unconstitutional state of affairs doctrine used by the Colombian Constitutional Court. An alternative analysis by Vanice Regina Lirio do Valle, published last Friday, can be found here.]

—Thiago Luís Santos Sombra, University of Brasilia

The Brazilian Supreme Court has recently judged a lawsuit regarding the allegedly inhumane conditions of the country’s penitentiary system. The claim was filed by the Socialism and Liberty Party (PSOL), alongside the Human Rights Clinic of the Rio de Janeiro State University (UERJ). All 26 States, the Federal District and the Union acted as defendants of the mandatory requirements. What was so important in this case that brought it to newspaper headlines was that, for the first time in Brazilian history, the Supreme Court adopted a constitutional adjudication  technique called the “unconstitutional state of affairs” originally used by the Colombia Constitutional Court in a case related to cruel conditions in that country’s prisons and since utilized in a series of subsequent cases on diverse issues.

The unconstitutional state of affairs is a legal ruling that allows the Constitutional Court to acknowledge the failure of both the Legislative and Executive branches of government to enforce public policies against widespread and systemic violation of fundamental rights, thus justifying a judicial intervention in order to combat the structural causes of the violations and to put everything back in order with the Constitution. It is somewhat similar to the structural injunction in the United States.

When it takes place, the Court acts as an institutional coordinator, helping state organs overcome political and structural barriers and increasing dialogue with civil society. In other words, “the Court issues orders for remedying the budgetary and administrative capacity shortfalls and establishes minimum mandatory levels of protection of human rights”. It must then abandon its counter-majoritarian position and become an activist stakeholder. Instead of a passive player and even a conventional judicial activist, the Constitutional Court becomes a political coordinator. According to this judicial review model, the structural remedies implemented by Constitutional Courts are apparently a last resort for stopping fundamental rights violations.

Despite having later developed into a consistent notion in Colombia, the Brazilian Supreme Court had never employed such a model, and thus some fundamental questions arise: is it really necessary for the Brazilian Supreme Court to implement an adjudication practice that is foreign to our cultural model based on a legal transplant? What guarantees are there that Brazil will overcome inhumane conditions in prisons by adopting the Colombian model? In other words, in this post I am not focused on questioning the successful experience of Colombia. The questions I raise here concern the effectiveness of the legal transplant in the Brazilian context, particularly given the necessity of monitoring institutions in order to ensure implementation.

In public hearing sessions, the Attorney General attempted to oppose the action by arguing that no “State of Unconstitutional Affairs” can be drawn, above all because the Executive Branch has already been working to resolve the problems of penitentiary system. The judgment session has just finished and the Supreme Court to some extent agreed – it ruled that some of the relief requested has already been obtained. This makes the pronouncement of a “state of unconstitutional affairs” somewhat puzzling.

Moreover, the action filed by the PSOL requested preliminary relief on eight items. Curiously, only one out of eight was presented against the Executive Branch. The other seven were related to flaws in the behavior of the judiciary itself. In the end, just two out of the eight were upheld by the Court. The other six were refused because they were not so urgent, according to Justice Rapporteur Marco Aurélio. In the relief that was granted, the Court first required the release of special budgetary funds by the Executive Branch to restore or to rebuild prisons and, second, required judges to do a preliminary for prisoners within a specified time period, in accordance with the American Convention of Human Rights (articles 7.5 and 9.3). A contradiction can be found at the heart of the Court’s opinion. If only one request was filed against the executive branch and the other seven were directed against the judicial branch, why should we believe that the pronunciation of the unconstitutional state of affairs would be the best way to improve prisoners’ fundamental rights? More fundamentally, the use of the unconstitutional state of affairs seems problematic because a major reason for prison overcrowding is the use of judiciary’s use of imprisonment for too many crimes. This is not a matter that the unconstitutional state of affairs seemed designed to resolve.

Beyond this puzzle, the Brazilian judgment raises two important problems. The first is the possibility of ineffectiveness. The second is a perhaps deeper problem of democratic legitimacy. Acting as State Attorney, in my argument opposing the declaration of an Unconstitutional State of Affairs, I explained some facts about Colombian prison conditions following the decision that first used this mechanism (T-153 of 1998). T-153 focused on the problem of overcrowding in prisons and ordered the use of funds to build new prisons. In 2001, a humanitarian mission of the United Nations High Commissioner for Refugees (UNHCR) was in Colombia and reported that the prisoners’ situation was worse than before the declaration in 1998. Little of the work ordered by the Court had been done. The UNHCR worried that the Colombian Constitutional Court decision would not be enforceable and asked the Colombian government to take the lead. More recently (July 27, 2015), the newspaper The Bogotá Post noted a subtler problem: while 11 new prisons were eventually built, these were inadequate to treat the scope of the problem and did not resolve the root problem of over-incarceration.

In subsequent uses of the mechanism, particularly the well-known decision T-025 of 2004 on internally displaced persons, the Colombian Constitutional Court improved its methods of monitoring and enforcement. It has relied on a mix of periodic public hearings, civil society commissions, and follow-up orders to impact bureaucratic performance through time. But such a process is costly and difficult, and there is no real reason to think that it could work in Brazil. The evidence suggests instead that the Brazilian Court adopted the mechanism as a rhetorical device, without carrying out the necessary monitoring.

A second major concern is that the Colombian model of judicial review might engender a crisis of democratic legitimacy in the Brazilian Supreme Court. And the main reason for this criticism concerns both representation and deliberation values, as two important pillars of political democratic theory. In young democracies like Brazil, judicial review should foster a model of shared responsibility compatible with cultural values and institutional maturity.

Strictly speaking, the Brazilian case shows a pattern of constitutional adjudication practices which hides some clear rules of the deliberation process. The efforts to make the Supreme Court the key player of such public policies without changing the governance system might create a huge tension between the Executive, the Congress and the Judiciary instead of promoting institutional development. Will the Judiciary be able to leave the Executive in control of this public policy and act just as a essential partner, like in well structured democracies? Furthermore, as Professor Mark Tushnet has insightfully contended in a debate with the Brazilian Supreme Court Justice Luís Roberto Barroso at Harvard Law School , “as a democracy ages this tension might not be something positive.” It seems that the Court is more focused on grabbing power than it is on improving institutional dialogue and democratic deliberation.

Suggested citation: Thiago Luís Santos Sombra, The “Unconstitutional State of Affairs” in Brazil’s Prison System: The Enchantment of Legal Transplantation, Int’l J. Const. L. Blog, Sept. 30, 2015, at: http://www.iconnectblog.com/2015/09/the-unconstitutional-state-of-affairs-in-brazils-prison-system-the-enchantment-of-legal-transplantation/