For reasons beyond the control of the Editorial Board, this issue of the Journal is being published somewhat late. But chance sometimes proves convenient. A providential delay.
Because this delay, however brief, will allow us to reflect, in a single editorial, on two upcoming turning points that herald (or not) new and promising times. New times for Brazil's political history. New times for the institutional history of the Labor Court (and its main tool of action, embodied in the process/procedure binomial). Let us see.
1. From political history, it's worth discussing what the Brazilian population—and, in what concerns us most closely here, the working masses and the business community—can expect from Dilma Vana Roussef's government. One would say that, of the three main candidates who emerged as viable candidates for the national election, the population would have chosen the ideologically more left-leaning candidate. In recent years, however, "left" and "right" have become ambiguous, if not semantically empty, expressions. What concretely can we anticipate?
During the campaigns, very little, if anything, was said about this (perhaps preordainedly, it should be said). But there are already signs scattered throughout the media. Recently, in the newspaper Folha de S. Paulo, former minister Roberto Mangabeira Unger—who will be part of the transition team and is very close to the PMDB—expressed his understanding that, in the relationship between capital and labor, the Brazilian legal system "demands changes in the laws to rescue approximately 40% of the economically active population from informality and to protect the growing proportion of wage earners in the formal economy in precarious work situations: temporary, outsourced, or self-employed." Adopting these premises—recognizing, for example, that rampant outsourcing (despite the legitimacy it enjoys, to varying degrees, in the jurisprudence of the labor courts themselves) is, also an oblique way of making human labor precarious—the new government will do well. This universe includes temporary workers, through the formal route (Law No. 6,019/74), and also the "self-employed," through the informal route (often fraudulent: cooperatives under strict subordination and personal status, "pejotização," fake sales representatives, etc.). Along the same lines, one can read, among the thirteen points of the then-candidate's government program,
the purpose of dedicating "special attention to workers and the vulnerable in society," as a specific action within the larger goal of "strengthening political, economic,
and social democracy." Furthermore, the resolution on the 2011-2014 program guidelines submitted to the Superior Electoral Court states:
• “intensification of efforts to expand social security inclusion and strengthen formal employment, continuing to reduce bureaucracy, improve services for retirees and pensioners, and strengthen public pensions” (item no. 19, j);
• “commitment to defending a 40-hour work week, without salary reductions” (item no. 19, p).
With the popular choice complete, all that remains is to hope for the new President of the Republic's strict fidelity to what was announced in the months leading up to the election. Advance social achievements. Enforce, at the legislative level, the principle of prohibiting social regression (which, regrettably, has been, in these parts, little more than a doctrinal concept and a trigger for academic debate). And, of course, resist the neoliberal impulses still swirling in Brasília, including among sectors close to the winning coalition.
2. Regarding institutional history, it is worth remembering that Bill No. 166/2010 (Sen. José Sarney) is currently being processed by the Federal Senate, establishing the new Brazilian Code of Civil Procedure. Once enacted, it will clearly have significant repercussions for the Labor Court system, given the provisions of Article 769 of the CLT and the inexplicable legislative inertia that has long hindered the progress of Brazilian labor law. The bill has its merits and demerits, it is true. But the former cannot be overlooked in the wake of the latter.
Recently, the XXXIII College of Subsection Presidents of the Brazilian Bar Association (São Paulo) published a "Manifesto for Mobilization of Resistance against the Approval of Bill No. 166/2010," anticipating the alleged creation of a "new authoritarian civil procedure," for the following reasons (among others):
"1. The possibility for the judge to 'adapt the procedural phases and acts to the specifics of the conflict' (art. 107, V). 'When the procedure or acts to be performed prove to be inadequate to the specifics of the case, the judge, after hearing the parties and observing the adversarial system and full defense, must make the necessary adjustment" (art. 151, § 2).
(...)
3. The possibility of granting injunctions, generally without demonstrating periculum in mora, in the form of "evidentiary relief" or "urgent relief" (Article 285, III),
once again representing excessive powers for single-judge courts.
4. The requirement that judges, when applying the law, "...always observe the principles of human dignity, reasonableness..." (Article 6), which represents a dangerous expansion of jurisdictional power through the possibility of noncompliance with the
law under the pretext of implementing constitutional principles of a highly abstract nature.
(...)
"10. The possibility of granting precautionary measures ex officio."
Now, these, among the various innovations proposed by the bill, would be precisely those that would most certainly allow the Judiciary to provide higher-quality jurisdiction—i.e., faster, more effective, and more tailored to the specific case. Isn't that what lawyers hope for?
It is important not to confuse instrumentality with instrumentalization. There is nothing "authoritarian" or "corporatist" about a reform that aims to build a proactive, post-positivist Judiciary, more attuned to the needs of the case and equipped with mechanisms that allow it to adapt the instrument to the task. It is important to think of jurisdictional activity no longer as a mere "enactment of the concrete will of the law" (Giuseppe Chiovenda), but, above all, as a function of effectively protecting substantive rights (especially those endowed with fundamental rights, as is the rule in labor proceedings). In this regard, Bill No. 166/2010 seems to follow the most avant-garde doctrine, in Brazil (Ovídio Baptista, Guilherme Marinoni) and abroad (Proto Pisani, Wolfgang Grunsky — and the “Stuttgart Model”, which developed the doctrine of the judge’s “assistance powers” —, art. 265-A of the Portuguese Code of Civil Procedure itself, etc.).
The Romantic poet Lord Byron (1788-1824) famously stated that the best predictions come from reading the past ("the best of prophets of the future is the past"). If the past of civil procedure tells us anything about our future, it is that self-sufficient formalism, internal polemics, and excessive bureaucratization of the procedure impede a reasonable duration of the process and hinder the realization of citizens' rights. Will we resort to this model again?
Let us learn, after all, to read the lessons of the times.
Editorial Board