Brazil is one of the developing countries located in South America. In this country, the criminal justice system is characterized by the application of universal and abstract laws based on the principle that all citizens are equal before the law. Political and social development of the region prevents Brazil, and other countries of the region, from fast and effective growth of judicial institutions and new reforms in this sphere. Even though a juridical interpretation of the law admits a range of possible resolutions, the criteria which characterize judicial proceedings limit the space in which actors in conflict may negotiate and exchange political costs and benefits (Maxfield and Babbie 2008). This does not mean that the effects of these proceedings are neutral, for a law generates differential costs among diverse social groups (Adler et al 2003). Still, laws reorganize the form of conflict resolution, redefining the cost/benefit matrix determining the probability that each of the diverse social groups involved will realize their interests. Even though a law does not have a particular or concrete beneficiary — that is, even though it does not constitute a selective threat-it can establish the magnitude and universality of the costs that will confront those who decide to violate it.
In Brazil, federal and provincial courts are the main institutions of judicial system. To evaluate the effects of the judicial treatment of human rights violations on the democratic process, it is necessary to consider whether, in spite of the covert amnesty of the due obedience law passed during the last decade and the presidential pardons of the new administration, the existence of legal sanctions in Brazil is still sufficiently strong to redefine for the military the costs of deserting the democratic game (Louis et al 2008). Critics believe that the best way to determine whether a pardon has neutralized the deterrent effects of punishment or weakened a society’s confidence in the ethical foundations of its government is to look at the conditions under which it was granted, as well as its political meaning at the time. Beyond the ethical and political problems involved in pardoning anyone guilty of human rights violations, we acknowledge the possibility that pardons may serve a useful function at some stage in the transition to democracy. In the first stage, the appeal to judicial means allows for a redefinition of the costs to be incurred in case the military should return to authoritarian practices (Branco, 2006).
The main types of courts are federal courts and common courts. No doubt, courts that serve the law before the political needs of the executive can become sources of tension in processes characterized by unstable position. In this sense, politicians are right to be attentive to the risks entailed by autonomous judiciaries (Poelzl, 2007). Yet, while there is nothing wrong with being careful about these risks, the politicians’ error is to assume that the problem lies with the judiciary per se when, in fact, the challenge is one of getting used to democracy as a regime of governance and conflict resolution. Common justice is administered by: first instance, Court of Justice and Superior Court of Justice (Gaines and Miller 2008). The main courts in Brazil are Superior Court of Justice (STJ), Superior Electoral Court (TSE) and Superior Military Court (STM). But at a later stage, a pardon may neutralize the risks involved in the prolonged political isolation of the armed forces. However, in order for this second effect to take place, it is necessary to judge and punish in the first stage. When democratic politicians face the challenge of having to deal with human rights violators that still legally bear arms, they tend to perceive in the autonomy of the judiciary a source of potential danger (Levine, 1999).
To prioritize the achievement of any outcome over the stability of legal rules and over the freedom of action of the judiciary would be to act against the democratic nature of the regime. Hence, if democracy is a regime where all citizens are equal before the law, as a general rule all those responsible for human rights violations should be taken to trial and punished, and all those democratically committed to the collective welfare of the society should be willing to face the risks entailed by the rule of law. It is difficult to imagine a process of democratic consolidation in which politicians and citizens are not willing to face the risk of an autonomous judiciary (Maxfield and Babbie 2008). Brazil has ended up in a middle-of-the-road situation. Without a doubt, the trial, conviction, and seven years imprisonment of former military presidents and commanders in chief constitute an exceptional and key element in the country’s process of democratic consolidation. Without an autonomous judiciary willing to defy the political strategies of the presidency, as well as without political parties and human rights organizations willing to face the risk of the rule of law, military subordination to constitutional rule would probably not have come about. But on the other hand, Brazil’s presidential pardons have also obstructed the cause of imposing punishment for past abuses. Similarly, the due obedience law constitutes a de facto amnesty that violates the right to justice of the victims and their relatives. In short, the Brazil dilemma is not only about past human rights violations but also about present ones. In a nutshell, the story is not merely about how a democracy deals with the past but about the extent to which it is able to defend and realize the rights of its citizens at the beginning of the 21st century (Levine, 1999).
Police structure in Brazil reflects traditional and universally accepted standards in police departments. In Brazil, the democratic record in much of the world has been either weak or simply bad when it comes to judging the crimes of the guardians. All too often, political scientists and politicians have argued that in order to guard the guardians, we need to avoid the risks that are associated with judging their crimes. But in spite of the shortcomings we have observed in this essay, exceptions like Brazil should be considered a challenge to false dualisms between political efficiency and ethics (Poelzl, 2007). The Supreme Court chose not to review decisions of the wartime military courts, and until well into the 1990s, appellate courts invariably rejected writs of habeas corpus that were presented on behalf of political detainees. Despite clear rules to the contrary, the courts also tended to act on these habeas corpus writs only after months had gone by. Even in cases when judges inquired about the fate of detainees, they generally honored explanations given by political authorities as the truth without further investigation. There were no orders to bring those arrested into the courts; and for a long time, judges neglected even to visit detention sites (Manwaring, 2007). The main types of the civil police forces are the Federal Police, the Federal Highway Police and the Federal Railway Police. The Military Police is organized into (1) Battalions; (2) Companies; (3) Platoons and (4) Detachments.
In spite of the legal authorities’ weak responses Brazilian human rights groups continued to present cases to the courts throughout the dictatorship, both as writs of habeas corpus and as criminal actions. These initiatives were part of a concerted strategy by activists and victims to document instances of abuse, to force the authorities to recognize arrests, and to use all means, whether effective or not, to advance the cause of human rights. At this point, civilians are beginning to play a more important role in government, and those who had fought for an open market and a liberalized economy were trying hard to bring about some liberalization in the political arena. Their aim is to “institutionalize” the regime in order to guarantee the survival of the socioeconomic order after the end of military government and to ensure that it would no longer be dependent upon repression.
Bibliography
Adler, F., Mueller, G., Laufer, W. S. 2003, Criminology and the Criminal Justice System. McGraw-Hill Companies; 5th edition.
Branco, S. 2006, Brazil – Culture Smart!: the essential guide to customs & culture. Kuperard; Reprinted edition edition.
Gaines, L. K., Miller, R. L. 2008, Criminal Justice in Action: The Core. Wadsworth Publishing; 5 edition.
Levine, R. M. 1999, The Brazil Reader: History, Culture, Politics (The Latin America Readers). Duke University Press.
Louis, R. S., Raub, K. Clark, G. and John Noble. 2008, Brazil (Country Guide). Lonely Planet; 7 edition.
Maxfield, M. G., Babbie, E. R. 2008, Basics of Research Methods for Criminal Justice and Criminology. Wadsworth Publishing; 2 edition.
Manwaring, M. A. 2007, Contemporary Challenge to State Sovereignty: Gangs and Other Illicit Transnational Criminal Organizations in CA, Mexico, Jamaica, and Brazil. CreateSpace.
Poelzl, V. 2007, Culture Shock! Brazil: A Survival Guide to Customs and Etiquette (Culture Shock! Guides). Marshall Cavendish Corporation.