BRAZILIAN SUPREME COURT TO DECIDE KEY CASES THIS

UNCLAS SECTION 01 OF 02 BRASILIA 001923

SIPDIS

SENSITIVE

DEPT FOR WHA/BSC

E.O. 12958: N/A
TAGS: PGOV KJUS ECON SOCI BR
SUBJECT: BRAZILIAN SUPREME COURT TO DECIDE KEY CASES THIS
SESSION

REF: A. BRASILIA 1076


B. BRASILIA 1144

C. BRASILIA 1670

D. BRASILIA 1834


1. (SBU) Judge Nelson Jobim, who in May rotated into a
two-year stint as Chief Justice of the Brazilian Supreme
Federal Court (STF),is already putting his stamp on the
court's way of doing business (ref A). On July 30, Jobim
marked the end of the July recess by doing something no other
Chief Justice has ever done: he announced the court's agenda
for August. As expected, several key cases are in line for
decisions this month, ranging from a ruling on taxing
pensioners that could unhinge the administration's pension
reform plan to challenges to the recently unveiled Energy
Model.


2. (SBU) Jobim's announcement of the court's agenda not only
offers transparency and predictability to the press and
public, but to the other ten Justices as well. One
prerogative of each judge is the right of "review" a case,
i.e., to pull it from the docket at any time, including while
the other justices are issuing their rulings. These
"reviews" may last several weeks or months and generally
occur on the most important cases when judges are under
particular pressure. Chief Justice Jobim hopes that by
announcing the agenda well in advance, he will reduce the
number of time-consuming "reviews". Jobim plans to issue
weekly updates to the agenda.


3. (SBU) Key cases on the Supreme Federal Court's docket this
session:

- ENERGY MODEL. Set to be heard August 4, two constitutional
challenges filed by the opposition PSDB and PFL parties to
the GoB's Energy Model that was enacted by Presidential
Decree in December 2003. That Decree is now pending
Congressional ratification. The petitions charge that the
new rules for the energy sector violate consumer rights. The
Court's discussions have been suspended by a judge's request
for a review.

- CLOSING BINGO PARLORS. Scheduled for August 5, a petition
filed by the Federal Prosecutor-General challenging states'
authority to reopen bingo parlors nationwide. The high
court's ruling will decide parallel cases in eleven states.
The issue derives from February's "Waldomiro Diniz" scandal,
in which an advisor on Lula's staff was caught soliciting
bribes from a numbers racketeer. In response, Lula issued a
Presidential Decree closing all bingo parlors nationwide, but
the Senate rebelled on May 5 and refused to ratify the
Decree, so several states allowed the gaming parlors to
reopen (ref B).

- CONGRESSIONAL INQUIRIES. A petition filed by the
opposition PFL party seeks to open a congressional inquiry
(CPI) into the Waldomiro scandal. At the scandal's height,
Lula's Workers' Party (PT) and its allies successfully spiked
the inquiry by simply not nominating any members, preventing
it from forming for lack of quorum. The PFL's petition on
the legality of this tactic was set to have been heard last
June when the scandal was on the front pages, but one judge
requested a "review", so the case is now slated for August.

- TAXING RETIREES. Scheduled for August 18, a decision on
whether retirees' pensions can be taxed. If the Court rules
against taxing retirees, it could reverse the most important
element of Lula's pension reform plan, under which the GoB is
expected to garner an estimated R$ 1 billion (about US$ 330
million) in annual revenues. This case could also have
wide-ranging impact on whether the constitution can be
amended in other areas with fiscal consequences. The
11-member Court was in the middle of voting on the case in
June when several judges requested a "review", suspending the
vote, which was running 3 votes to 1 against Lula's reform.

- AUTHORITIES OF THE PROSECUTOR'S OFFICE. Set for September
is a ruling on the investigative authorities of the Public
Prosecutor's Office (Ministerio Publico). The Constitution
gives the Prosecutor's Office near-total autonomy to pursue
cases but expressly grants investigative authorities only to
the police. In the wake of several high-profile, and
allegedly politicized, investigations by the Prosecutor's
Office, the high court is being asked by a Federal Deputy who
is under investigation for corruption to limit prosecutors'
investigative authorities. In a similar case last October,
Judge Jobim ruled against the prosecutors.

- ABORTION. Set for late September is a full court decision
on a high court judge's preliminary ruling on July 1 that
would open a narrow exception in the abortion ban to allow
women carrying fetuses with anencephaly (not having a brain)
to legally obtain abortions (ref C).

- GUN CONTROL. The high court also has pending four
challenges to the December 2003 "Disarmament Law" that
enacted tough limits on citizens' rights to own and carry
firearms (ref D).

COMMENT
--------------

4. (SBU) Judge Nelson Jobim appears to be more dedicated to
transparency and efficiency than his insular predecessor as
Chief Justice, Mauricio Correa, with whom he often clashed.
After seven years on the high court and three months as Chief
Justice, Jobim is building a reputation as a modern jurist
committed to improving both the functioning of the judicary
and the quality of its decisions. The simple act of
announcing in advance the court's agenda is emblematic of his
style. Jobim also presided over the Supreme Electoral
Tribunal that deftly handled the 2002 national elections. A
Judicial Reform bill that would enact significant, if not
sweeping, changes to the Brazilian judiciary is now in the
Senate and set to become law in the coming months, and Jobim
has pronounced himself favorable to this bill.
DANILOVICH