Brasil: The Judicial "Traffic Jam"
Certainly one of the most difficult tasks of jurists is to specify, mathematically, the boundary between the right to sue and the duty not to unduly constrain rights of defendants by allowing unreasonable exercise of that prerogative.
The culture of applying to the judiciary to resolve disputes is the result of a slow process of changing values from a previous situation, in many societies, where exercising the right to sue was seen as unseemly. In a civilized society, it is not possible to conceive of members not having ways to compose controversies. The dynamization of the means of communication and technological evolution have eliminated distances between the members of society, making juridical relations more complex and malleable. The justice system, in turn, must accompany the needs of the population and fulfill its role of evenhandedly arbitrating the opposing parties’ interests in the provision of justice.
Although it cannot be said that society is overly politicized, the massification of access to information has spread awareness of rights and the need to resolve disputes through the courts rather than by extralegal means. But society’s habits are now being formed more by the communications media than by educators and role models. This situation has clearly contributed to the profusion of matters that are judicialized these days that do not really need intervention by the judiciary for resolution.
The access to justice should enable popular indignation to prompt the government to give materiality to the purposefully programmatic constitutional principles rather than expand the propagation of merely individual and pecuniary demands that result from the unworthy idea that the judiciary is source of income for plaintiffs through the “industry of pain and suffering”.
It is curious to note, to say the least, how many people can show no indignation when viewing their peers abandoned in the streets without any governmental support, and at the same time seek to disfigure the power of the State in service to less relevant interests, such as to obtain astronomical damage awards due to, for example, the simple lack of a telephone signal. This observation, of course, does not mean to say that access to the courts should be impeded. What is necessary is to prevent the courts from being discredited or from being used in pursuit of frivolous claims, in detriment to situations with high social relevance.
The explosion of reckless lawsuits, without any filter for access to the courts, impairs the quality of the justice meted out and is incoherent with the ideals of democracy. Allowing the submission of suits without a shred of evidence or even logic is not the same as satisfying the constitutional command for unrestricted access to justice. Instead, it violates the collective interests in having a fair and reliable justice system.
According to the theory of the weighing of principles, the inviolability of access to justice and prohibition of the abusive exercise of the right to sue stand in opposition, and must be examined in parallel to deliver adequate judicial redress. The judiciary must be receptive to citizens and allow them to use all mechanisms to exercise the legitimate right of action, while on the other hand identifying possible abuses that “clog” the courts and judicial measures that are used for obviously illegitimate purposes.
The access to justice is a fundamental guarantee, but this cannot be confused with stimulus to exaggerated litigiousness. It is necessary always to strive to safeguard the right to seek relief in the courts, while also defending procedural equality, through mechanisms to protect defendants against totally unjustified claims.
Requiring suits to be submitted to a serious prior examination of admissibility, based on a minimum level of evidence or judicial precedents, as specified in the Civil Procedure Code, does not mean barring free access to the courts. Rather, it denotes defense of the equally fundamental procedural guarantees and the search for a judiciary based on the constitutional principles of morality, legality and efficiency of government.