sexta-feira, 16 de março de 2012

Jurisdição Sul Africana

1. The debate about the South Africa's Supreme Curt and it's role in

promoting social transformation is an interesting perspective to a

comparativa analisys of the same phenomenon in Brazil. Here, when it comes

to political determinants, we won't find a "de facto single-party system" -

using Ran Hirschl's words; so a proposition of a deep change in the Court's

powers won't be that easy to handle. Also, the Brazilian Supreme Court has

sometimes presented itself as an important arena for mediating conflicts

among political forces, acting in those cases really as a

countermajoritarian force - so it could be seen as a sometimes usefull last


On the other hand, Brazilian's Courts role im promoting socio-economic

rights is growing exponentially (one should take into account that judicial

review could be exercised in each and every level of jurisdiction in the

brazilan systema); rullings being held in a large spectrum of rights that

goes from health to education, and most recently, housing. The Brazilian

Supreme Court has affirmed that, when it comes do enforce constitutional

commitments, the Judiciary is allowed even to formulate public policy.

One can predict reaching a stalemate in this subject, with the

miltiplication of judicial decisions that assure goods and services that

may be classified as a socio-economic right. The decision's path in

Brazilians Courts has not yeat dealed with two major effects: the

budgetary's implications, but also (if not mainly), the risks to reaching

or increasing equality, promoting distributive justice. After all, in the

Brazilan system, a claim for obtaining socio-economic rights is normally

articulated in individual lawsuits, and those could not be converted in

class actions. As a result, Judiciary contribution to social transformation

is limites to the minority that could promote a lawsuit.

Progressive implementation, as a parameter to control public choices

related with socio-economic rights seem to be unbearable to the

South-Africa's government, probably because it allows the Court to examin

the so declared reasons why a constitutional rights is not beeing

implemented. In the Brazilian's system, it seems like a lack of equality is

a low price to pay for keeping in the shadow distributive criteria that

determinates current public policies related with promoting socio-economic


Vanice Lírio do Valle, PhD.

Estacio de Sá University

Rio de Janeiro - Brazil

Nenhum comentário: