Impressions of a Judicial Impasse
(Amended November 3, 2012)
What had promised so much, in the end, delivered little. Litigation, procedural processes and hearings regarding whether or not a Brazilian state had the constitutional right to take unilateral action on asbestos, contrary to federal law, had been in the pipeline for years. Yesterday (October 31, 2012), the Supreme Court was expected to deliver its decision. As expectations continued to grow, the share value of Eternit (ETER3), Brazil's major asbestos conglomerate, fell by over 10%. The unusually high volume of trading in Eternit's shares and the lower valuation put on the company's worth were explained by the fact that asbestos sales account for 50% of corporate revenue.
In the run-up to the Supreme Court's decision on asbestos, Brasilia was flooded with media, lawyers and industry fat cats. In Minaçu, the location of Brazil's sole chrysotile asbestos mine, October 31 was declared a holiday. Fifteen buses were provided to transport Minaçu workers and residents to the Brazilian capital. The day before the hearing, the atmosphere was exceedingly tense with widespread speculation regarding the procedures to be followed. It was known that a long list of speakers from various Amicus Curae (Friends of the Court) had been approved; concern was high over whether or not the time available would suffice to get the job done. We were right to be concerned.
At 2:30 p.m. eight Supreme Court Judges took their places. This in itself was problematic as a quorum of eight judges (from currently only 10 Supreme Court Judges, with one appointment pending) is required to rule on issues relating to the constitutionality of laws. Prior to joining the Court, one of the judges present had been Brazil's Attorney General; in that capacity he had supported the constitutionality of the federal asbestos policy. For this reason, he was disqualified from ruling on the federal law but could rule on the two cases relating to the asbestos bans in the States of São Paulo and Rio Grande do Sul. So, from the very start of the day it was clear that there would be serious constraints imposed on the process.
The time between 2:30 p.m. and 7:30 p.m. was taken up with procedural issues and submissions by the Amicus Curae. My sense of what was presented by the lawyers, and my Portuguese is far from reliable, was that old ground was being covered. There had been time aplenty in the years gone by to make these arguments and ample opportunity for doing so. The asbestos hearings at the Supreme Court on August 24 and 31 were the most recent and high-profile occasions for the pros and cons to be aired.
Finally at 7:30 p.m. voting started. Chief Justice Carlos Ayres Britto, who will retire on November 18, was the first to vote. As the reporter on Case ADI 3357/2004 regarding the Rio Grande do Sul State ban on asbestos, Britto explained his reasons for supporting the constitutionality of that legislation. The next judge to speak was Minister Marco Aurélio, the judge who had presided over the asbestos hearings in August. When I attended the August 31 hearing, from the questions he asked and comments he made, I had the sense that Aurélio was in favour of ending asbestos use in Brazil. I could not have been more wrong. Brazilian friends who were at the Court on October 31 commented that Aurélio had indeed changed his "posture" but not his "pro-asbestos industry position." Concluding his long-winded analysis of issues related to Case ADI 3937/2007 regarding the São Paulo State ban, Aurélio ruled that as constitutional responsibility for the regulation of trade and interstate commerce resides with Federal and not State authorities, the São Paulo ban was unconstitutional. With Britto in support of a State's right to ban asbestos and Aurélio against, the vote now stood at 1:1.
As the time evaporated, frustration levels were growing. Two more judges unofficially expressed their views even though the time constraints prevented them from stating their full opinions. Once again the vote was split for and against. Of the ten current Supreme Court Judges, the votes of four were now known. At 10:00 p.m. the session was concluded and there was no talk of when or if it would be reconvened. With the upcoming retirement of the two pro-ban Justices - Chief Justice Carlos Ayres Britto (November 18) and Judge Celso de Mello (March 2013) - there are concerns about the impact that a long delay will have on the outcome of these cases.
October 31 was a day which found the Supreme Court wanting; a day when the hopes of so many were crushed against the financial rock and political pressure brought by a discredited industrial force. Once again, the interests of industry stakeholders took precedence over the rights of ordinary citizens in Brazil and abroad whose lives will be damaged by exposure to Brazilian asbestos. Brazil, a country with the world's 2nd highest asbestos exports, was on the verge of achieving an unprecedented victory for human rights and public health. Whether this victory will come eventually, only time will tell.
November 1, 2012