Citizenship and Human
Rights in Brazil
ÁLVARO FILIPE OXLEY DA ROCHA*
Abstract: The article seeks to approach the citizenship’s concept, and the judicial and social basic conditions, necessary for its achievement, while highlighting the position of the Brazilian Judiciary. Therefore, some of the most important points of the 45th Constitutional Amendment and the “new rights”, seen as instruments for facilitating the judicial task of seeking to balance individual and collective interests, are presented. Key-words: Judiciary – Reform – Citizenship – New Rights
SUMMARY: 1. Introduction; 2. What/Which citizenship? 3. Citizenship in the Constitution; 4. Some remarks/notes on the Constitutional Amendment nr 45; 5. The “new rights” of the Brazilian citizen; Conclusion.
Introduction
The present article aims to shed some light on the topic that
has been developed in research, concerning the problem of achieving
citizenship in Brazil, its relationship with the national judicial1 reform,
and the way/form in which the modifications proposed by the 45th
Constitutional Amendment can be understood/comprehended in
relation with the need to implement the so called “new rights” 2 of the
* Doctor in Government (State Law) (UFPR), Master in Political Science (UFRGS). Professor and researcher at the Pontifícia Universidade Católica - PUC - RS. 1 AGRA, Walber de Moura (Coord.) et al., Comentários à Reforma do Poder Judiciário. Rio de Janeiro: Forense, 2005. 2 Note that the Federal Constitution, due to the influence of German constitutional theory, uses the term “Fundamental Rights” within the debate on human rights.
citizens3, seen herein as legal instruments in the judicial task of
balancing the individual and collective interests within the social
dynamic, implicit in the republican objective of promoting the well-
being of all, in accordance with the first part of the Inciso IV of the
third article of the Federal Constitution of 1988.
To achieve this, it is necessary to know the content of the 45th
Constitutional Amendment, which has produced extremely significant
modifications to the structure of the Judiciary, and that will
necessarily be reflected in the way in which judges will pautar their
actions in the near future. For the limits of this article4, we propose to
present and tecer considerations/ideas on only some of the points
contained in the 45th Amendment, those that we consider most
directly relevant to the achievement of citizenship in its broad/wide
sense. The points we detect are: a) the reasonable duration of the
case/process, b) the establishment of a Conselho Nacional de Justiça
- CNJ (National Council of Justice), c) the obligation that a candidate
for the position of judge proves to have been engaged in judicial
activities for at least years, d) the linkage effect of Direct Actions of
Unconstitutionality, e) Itinerant/Mobile Justice, f) the placing of
Crimes against Human Rights within the jurisdiction of the Federal
Justice System, g) the creation of specialist courts for fundiarias
matters/issues, and h) the autonomy of the Public Defenders.
Consequently, given that the achievement of the wide/broad
citizenship in a broad sense includes the “new rights”, or “citizen’s
rights”, which instrumentalize the balance between individual and
collective interests, which, in turn represent the constitutional task of
the Judiciary, we also propose highlight and comment on these
rights, in particular those of children and adolescents, women,
indigenous peoples, the problem of racism, the rights of the elderly, 3 See WOLKMER, Antonio Carlos and LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil: natureza e perspectivas: uma visão básica das novas conflituosidades jurídicas. São Paulo: Saraiva, 2003. OLIVEIRA JÚNIOR, José Alcebíades (Org.). O novo em direito e política. Porto Alegre: Livraria do Advogado, 1997. 4 For a complete commented view of the EC nº45, see AGRA, Walber de Moura, et al. (Op. cit., nota 3).
consumer law/rights, environmental law/rights, biolaw and the impact
of the spread of information technology and the dynamic of a new
information society on the new rights. Finally, we propose to briefly
consider the sense in achieving citizens rights through the judicial
route, with its advantages and limitations, since one of the
assumptions/suppositions of common sense with regard the
achievement of such rights, which is typical of the dynamic of
transition of conception from a liberal State to a social State, is that
of the avoidance of/flight from this complex problem of social
transformation in Brazil and in Latin America, in which the
responsibility for achieving such rights is transferred, almost entirely
to the Judiciary alone. This arises/emerges as a problem5, as it
merely contributes towards strengthening the old idea of a systemic
autonomy of the law6, resulting in the traditional immobilist
responses – the Judiciary is not the place for innovation, but the
Legislature is – and also in an unnecessary and repetitive effect of
legitimization of judges and lawyers/judicial, passando-se ao largo de
efetivas mudanças na ação desses agentes, no sentido da
concretização dos direitos de cidadania7 no país.
2. Which citizenship?
The concept of citizenship, from the traditional juridical point of
view, and therefore Brazilian, is linked primarily with the condition of
living within a city, and by extension, within a country, so
demonstrating the effectiveness of residence. Accordingly, the
individual born within a national territory has natural citizenship and
can participate in the political life of the country, in contrast to the
foreign/er individual, in a special situation in the territory, but also
5 See SAAVEDRA, Giovani A. Jurisdição e Democracia: an analysis base don the theories of Jürgen Habermas, Robert Alexy, Ronal Dworkin and Niklas Luhman. Porto Alegre: Livraria do Advogado, 2006, p. 67. 6 LUHMAN, Niklas. Legitimação pelo Procedimento. Brasília: Editora da UnB, 1980, 202 p. 7 See FLICKINGER, Hans-Georg. Direitos de Cidadania: uma faca de dois gumes. In: Em nome da Liberdade: a critique of contemporary liberalism. Porto Alegre: EDIPUCRS, 2003, p. 153.
the holder of rights, though limited, including that of obtaining
Brazilian citizenship, denominated legal citizenship, though many
positions and rights remain reserved to the so-called born/native
citizens. This meaning of the word citizenship is, them, linked to the
exercise of political rights, such as voting and the right to stand for
election8. In this rather limited sense, it is common to cite the case of
illiterate individuals that become active citizens when registered as
voters, but are unable to become passive citizens as they are not
electable, which means they cannot stand for political office. Many
juridical conceptualizations close exactly at this point in the debate,
and so fail to offer a broader discussion of the concept.
How is it possible, then, to arrive at a broader concept of
citizenship? Today it is common to hear this expression used when
participation in the decision-making processes that affect the
collectivity are mentioned, especially before large popular
rallies/gatherings. The notion appears to be spreading, especially
through the media9, that citizenship is a kind of right to immunity
against authoritarian actions. At the same time, this problem remete
on the problem of income distribution, establishing, based on merely
economic criteria, an idea of hierarchical social “classes”, in reality
only two, one the holder of income, political power, and the good life
linked to these conditions, and the other “class” not only in relation to
these two factors, but to everything that affects the possession of
financial resources, such as housing, health, etc., and more
fundamentally, without access to suitable education and, therefore,
without access to the social life of a citizen10.
8 Cfe. FERREIRA FILHO, Manoel Gonçalves (op. cit., nota 10). 9 The social and politica role of the media is, therefore, quite questionable. See ROCHA, Álvaro F. O. Direito e Mídia: uma convivência difícil. In: Revista da AJURIS – Associação dos Juízes do Rio Grande do Sul. N°93, março de 2004, p.25. 10 The social and political role is of the media is, however, quite questionable. See ROCHA, Álvaro F. O. Direito e Mídia: uma convivência difícil. In: Revista da AJURIS – Associação dos Juízes do Rio Grande do Sul. N°93, março de 2004, p.25.
With due proportion, debate on this concept has existed since
the formation of the roots of European thought. While remembering
that the meaning of democracy in ancient Greece was not the same
as that given to the word today11, we can cite the work of Aristotle12,
in which the he questions who might be a citizen, stating that “a
citizen is that person who has a legal part in the deliberative
authority and in the judicial authority of the city”, given that the
Assembly in which the citizen participates has the power to decide as
well as legislate and judge. Participating in an assembly meant being
seen by others as one among equals, enabling the participant to
make use of the word in order to criticize, propose and give opinion,
transmitting by all means his concern/interest in the present and
future of the city. Similarly, it would be possible to assume positions
in the public administration, as part of the condition of being a
participant, while not meaning, in reality/truth that, he would have
rights that might limit the power of the Assembly, but merely that,
upon accepting to participate, he would also accept the duty of
submitting to decisions, in any meaning, that might be made by the
collective13. With the Romans the concept of citizenship (civitas) was
broadened, beginning with the recognition of pares/spouses and all
the other rights of civil life, including, in the private sphere, the rights
of property, family, contracts and, in the public sphere, the right to
political participation14.
At the beginning of the 18th century, however, the definition of
citizenship again became important, because as fruits of the
Enlightenment, the French Revolution and the Declaration of
Independence of the United States of America recognized the equality
of rights of all men, establishing the ideal of liberty as a basic concept
11 FINLEY, Moses I. Democracia antiga e moderna. Rio de Janeiro: Graal, 1988. 12 ARISTÓTELES. A Política. [Trad. Roberto Leal Ferreira]. São Paulo: Livraria Martins Fontes Editora, 1991. 13 Cfe. HABERMAS, Jürgen. A Inclusão do Outro. São Paulo, Edições Loyola, 2002, p. 272. 14 See GILISSEN, John. Introdução Histórica ao Direito. Lisboa: Calouste Gulbenkian, 1995, p. 82.
upon which all other rights would be established, as Kant15 was later
to state in his work. This author sought to base the Law upon liberty,
proposing the issue/problem of achieving harmony between individual
liberty and that of the others, which continues, therefore, in debate.
Habermas16 takes up the debate once more, in affirming that it is not
possible to achieve citizen rights without a sphere of liberty,
opposing, however, that this can only be opposed by the existence of
a community that holds means of political participation.
The broad concept of citizenship only comes to acquire the form
that we know today in the central countries with the establishment of
a new paradigm: the idea that there is a social element17 inserted
within this concept, which originates with the transition of the Liberal
State to the Social State, which occurred in Europe from the 19th
century to the beginning of the 20th century. This element included,
from minimum economic welfare/well-being to participation in the
social inheritance, and especially that of having the life of a civilised
being, in accordance with the standards of the current society; and
points to/indicates institutions more linked to this element such as
the public education system and social services. The effect of this
notion on social thought was to make it apparent that there is no
citizenship in a broad sense without the existence of a set of
democratic mechanisms, backed by a solid judicial order, which
permit the individual, or subject, to be included in all spheres of
social life.
It should be pointed out, however, that these historical facts
have had little effect in Brazil, and as a consequence, Brazilian law
firmly retains the traditional strict concept and, although many jurists
recognise the need to broaden the interpretation of the citizenship
15 Kant, Immanuel. Fundamentação da Metafísica dos Costumes. Lisboa: edições 70, 1995. 16 HABERMAS, Jürgen. Direito e Democracia: entre faticidade e validade. Rio de Janeiro: Tempo Brasileiro, 1997. p. 124. 17 MARSHALL, T.H. Cidadania, Classe Social e “Status”. Rio de janeiro, Zahar, 1969, p. 64.
rights18,in the country, it can be seen that the discussion on the
broad concept has not yet modified the legal texts, that continue
associating the term citizen mainly with political participation. This
terminological limitation, nevertheless, is unable to close the debate.
On the contrary, a sociological approach19 makes it possible to note
that, generalising the broad concept, it is likely that the legal texts,
and even the constitutional norm come to be adapted in the future,
as the resistance is in large part due to the particularities of the
legal/judicial field20, which even in order to maintain its legitimacy,
will find ways in which to adapt, appropriating the results of this
social dynamic within its dicourse21, coming to impose them
“normalising them” and making them implicitly understand with their
own, of always22.
3. Citizenship in the Constitution
The Brazilian Federal Constitution of 1988, however, does not
adopt a single sense for the term “citizenship”. The meaning/sense
given in the text can be strict, as described above, or broad, as was
attempted to show. In the former sense, it is restricted to the
condition of elector, by the exercise of the vote, or by candidature for
an elected political post. With the exclusive adoption of this sense,
the sceptical statements of some political scientists can be considered
well founded when they suggest that currently there is only
democracy on election day. This instrument is known as suffrage or
the vote. It is necessary to suppose that the citizens believe that
political representation will be exercised, that is, that the elected
18 See, for example, VIEIRA, Oscar Vilhena. Direitos Fundamentais.(op.cit., nota 12). 19 See ROCHA, Álvaro F. O. O Direito na obra de Pierre Bourdieu: os campos jurídico e político. In: Revista Estudos Jurídicos – UNISINOS. V. 38, n° 1, janeiro-abril 2005, p.46. 20 See ROCHA, Álvaro F. O. A linguagem jurídica. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 42. 21 BOURDIEU, Pierre. O que falar quer dizer. In: A Economia das Trocas Lingüísticas. São Paulo: Edusp, 1998. 22 BOURDIEU, Pierre. A força do Direito. In: O Poder Simbólico. Lisboa: DIFEL, 1983, p. 209.
representative will always place the interests of his/her electorate
above those of any other group or individual, including his/her own.
This belief is the basis of the legitimacy of the system, which places
puts the representative posts in a hierarchy, from Mayors and
councillors, who should act in the municipal chambers, to the
Governors and State Congressmen in the State Assemblies and
arriving at the Presidency of the Republic, Senators and National
Congressmen. The vote, then, is the “jurisdicisation” of the
citizenship, that by this means legitimates the State through its
system of democratic political representation23, without which this
would not be possible. This system is adopted by the Brazilian
constitution, which in this way also seeks an “educational” effect on
the population, given our authoritarian tradition and little affection for
democratic debate. The exercise of the vote has legal requirements,
such as Brazilian nationality, military service, a minimum age of 16
years in the case of optional vote, and 18 years in the case of the
compulsory vote. Some debate has arisen around the possibility of
making the vote non-compulsory, the risk of which have not been
sufficiently clarified. At the same time, the value of the vote is
relativised, as due to the limitation of the political representation of
each state within the National Congress (minimum of 8 and a
maximum of 70 congressmen), the most populous and developed
states find themselves artificially levelled to the least populous and
developed states, for which reason there are many hindrances and
problems faced by the national Legislative. The Law also establishes
the conditions for the candidature of the above mentioned political
positions, excluding illiterate individuals, and independent
candidatures. This means that each candidate must be affiliated to a
political party. Accordingly, the political parties are established as
agents of the social forces, having the duty to, independently of their 23 For a far from idealist view of this system, see BOURDIEU, Pierre. A representação política: elementos para uma sociologia do campo político. In: BOURDIEU, Pierre. O Poder Simbólico. Lisboa: DIFEL, 1989, p.163.
ideological positions, play the role of mouthpiece of the social
interests.
In the second sense, the broad concept of citizenship can be
seen as an entitlement of fundamental rights, the preservation of
dignity as a human being, and the participation in the political
processes, based on/supported/backed by reciprocal duties in relation
to the other citizens. These terms are not, however, referred to in the
constitutional text, which leaves the concept of citizenship open, of
the second clause of the first article of the Federal Constitution,
without conditioning it to any of the above mentioned requirements.
It is also necessary to note that, beyond the fundamental rights
foreseen in the 5th Article of the Constitution, and the material
conditions for the exercise of citizenship, it also depends on other
rights and obligations that, as mentioned above, seek to provide a
balance between the interests of each individual citizen and those of
the collectivity of citizens: the “new rights”, that we will deal with
below.
4. Some remarks regarding the Constitutional Amendment Nr
45/04
For years the proposal for a general reform of the judiciary has
been debated within the country, the theme even being considered as
a compulsory item to be dealt with by the Constituent National
Assembly, responsible for proposing and approving the then new
Federal Constitution of 1988, which in fact did not occur. On the
contrary, the most urgent changes were
duly/promptly/accurately/punctually dealt with, as points of
consensus, while some of the main points of controversy regarding
the reform were delayed/putt off/avoided, such as the establishment
of an external administrative control mechanism for this Power, and
facing up to the ethical, administrative and procedural problems
related to the slowness or morosity of the judicial services, with
particular emphasis on the proposal for jurisprudential linkage, the
so-called linkage summula. In 2004, the 45th Constitutional
amendment was finally passed, bringing with it a large number of
alterations, especially in relation to the Judiciary and the institutions
related to the administration of Justice.
Since then, it is legitimate to question the effects of those
modifications on the achievement of the “new rights” and, for the
achievement of citizenship in its broad sense, though it can be said
that little time has gone by, in legal/judicial and social terms, since
the legal implementation of the above mentioned modifications. At
the same time, due to the fact that many interests have been
affected, there are a number of points of view regarding the reform of
the Judiciary, and the manner in which the modifications proposed by
the 45th Constitutional Amendment relate to the need to implement
the so-called “new rights” 24.
Here, we seek to make some observations regarding the
modifications that we consider most relevant for the achievement of
citizen’s rights in Brazil, while not stressing that we do not seek to
exhaust the debate, as it is really very wide and complex in nature,
and also because it is not possible to fully explore the theme within
aq single article25.
The first theme that we deal with concerns the reasonable
duration of the judicial processes, that is established/contained in the
clause 78th (LXXVIII) of the Federal Constitution of 1988. Although
time limits are not established, because of practical
impossibilities/difficulties, the reasonableness concerns refer to the
idea that there cannot be any loss of sense/meaning or of procedural
objective due to excessive delay of the case/process. There is room 24 See WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Op. cit., nota 4). 25 For more detailed information on this specific topic, see AGRA, Walber de Moura (Coord.) et al., Comentários à Reforma do Poder Judiciário.(op. cit., nota3).
for great controversy, given that the time of the law26, and its need
to understand and ponder/consider ideas does not fit with the
perception of the accelerated world we live in today. There is also the
need for the legitimisation of the judicial/legal field and, therefore, of
the influence/strength of its agents27, who, by this mechanism tend
to reject any external pressure, forgetting that the legitimisation of
this group no longer occurs merely among public agents, but to a
great degree is conditioned upon the achievement of citizenship. This
means a Judicial service of quality, performed quickly/in due/good
time. The other measures contained within Constitutional Amendment
45/04, such as itinerant justice, decentralisation of the Federal
Regional Tribunals/Courts and Justice Tribunes/Courts, as well as the
creation of specialised courts for agrarian issues and the autonomy of
the Public Defenders, go along the same lines.
The creation of the National Council of Justice, in clause I-A of
article 92 of the Federal Constitution of 1988, represented a great
advance in institutional terms, given that the supervision of the
Judiciary was, until then, in the hands of the Judiciary itself, with all
the risks inherent in that type of situation. Many judges opposed the
establishment of this organ, alleging that it would undermine the
autonomy of the Judiciary, and would lead to political control of
judicial decisions. The corporativism contained in this discourse,
however, did not prevail, given the political context that included
some corruption scandals involving judges, which permitted that this
administrative and financial rationalisation measure entered the
statute books. It should be emphasised that it is not the role of the
National Council of Justice to interfere in the legal functions of the
judges, but to follow, so as to ensure the fulfilment of the functional
duties of the judges and that ethical standards are met. Although the
exact idea of what might be a suitable ethical standard for judges
26 See OST, François. O Tempo do Direito. Bauru, SP: EDUSC, 2005. 27 See BOURDIEU, Pierre. A força do Direito (op. cit., nota 29).
remains the subject of debate in Latin America28, and it is not the
main function of the National Council of Justice, it exhibits
role/functions along these lines. Its attributions include oversee the
legality of the administrative and financial acts of the Brazilian
Judiciary, as well as inspect the performance of the judges.
The requirement, contained in clause I of article 93 of the
Federal Constitution of 1988, that a minimum of three years of legal
activity be necessary in order to enter the magistracy is a healthy
measure that, though frequently attacked and delayed, corroborates
the democratic course of the judicial reform. The
opinions/thoughts/considerations regarding the “experience” 29
necessary in order to exercise the functions of a judge have been in
existence since antiquity, are repeated exhaustively among lawyers,
solicitors, and members of the Public Minister, and appear in detailed
surveys30. The lack of requirement went unnoticed prior to the
massification of education in Brazil, from the 1960s onwards, as the
small number of Bachelors in Law awarded each year and the very
high level required to pass, in the few Law schools ensured a more
mature profile among the candidates, and a greater number of
acceptances of candidates from traditional families, who had ignored
the legal requirements of age in order to ensure the effect of social
reproduction. However, with the enormous expansion in population in
Brazil during the same decade, the demands made on the Judiciary
naturally grew, and with it the demand for a larger number of judges.
Concurrently, this massification led to a brutal fall in the quality/level
of higher education, not only in Law, hindering still further the
acceptance of candidates with the minimum level of performance
required for the position of judge. The successive economic crises 28 See ZAN, Julio de. La ética, los derechos y la justicia. Montevideo: Fundación Konrad-Adenauer Uruguay, 2004. 29 It would be necessary to rescue the lost virtue of wisdom, so highly valued by the Greeks in the past, and that today is completely out of fashion: it consisted in knowledge tempered by experience over time and not merely filling out the memory. 30 See VIANNA, Luiz Werneck et al. Corpo e alma da magistratura brasileira. Rio de janeiro: REVAN, 1997.
during the 1970s and 80s also restricted the pool of options of the
recent entries into the universities, who began to prepare for public
examinations from a younger age in order to guarantee, immediately
following graduation, a place in the Judiciary, which represented a
position with a good financial and social prospects31. Thus, the
magistracy came to acquire an excessively young profile32 ,
inexperienced and frequently incompatible with the function33,
consonant with the standards of the Western judicial traditional34.
The result is that today it is possible to be a judge in Brazil at 23
years of age. At the same time, there is the problem of “nepotism”
within the Judiciary35, which appears with the occupation of position
of judge, though generations within the same family36, which also
represents a social strategy aimed at protecting the offspring
especially, but also the extended family and favoured individuals37
among the friends and family from the ferocious competition in the
restricted work market in the country. Fruit of the medieval view of
the State as private patrimony38, this remains a common practice,
contrary to democracy and the achievement of citizenship based on
31 The symbolic response/answer, in this case is the social “status”, and the material response/answer, money. See BOURDIEU, Pierre. As razões práticas: sobre a teoria da ação. Campinas – SP: Papirus, 1996, p.91. 32 See FARIA, José E., “Ordem legal x mudança social: a crise do Judiciário e a formação dos magistrados”. In FARIA, José E. (org.)In: Direito e justiça – a função social do Judiciário. São Paulo: USP, 1997. Furthermore, it is noted that there are other problems related to legitimacy: among some jurists/lawyers this generation of judges is referred to informally as the “nappy/daiper generation”. 33 This “novidade” had been noted by Platô in the 5th century BC, for whom “The judge should not be young, but aged”. See PLATO. República. Lisboa: Calouste Gulbenkian, 1990, III, 409 b. 34 See CAPPELLETTI, Mauro. Juízes Legisladores? Porto Alegre: Fabris, 1988. 35 This term is placed between inverted commas because its pejorative interpretation is not at all methodologically suited to scientific research. Its current meaning refers to “the practice of appointing relatives to public positions”. For further clarification, see ROCHA, Álvaro F. O. O Judiciário e o nepotismo. In: Sociologia do Direito: a magistratura no espelho. São Leopoldo, Ed. UNISINOS, 2002, p. 87. 36 Idem, nota 52. 37 See DA MATTA, Roberto. The family as value: non-familial remarks/considerations on teh Brazilian family. In: ALMEIDA, A.M. et al. (org.) Pensando a Família no Brasil: da colônia à modernidade. Rio de Janeiro: Espaço e Tempo/Editora da UFRJ, 1987. 38 See BOURDIEU, Pierre E PASSERON, Jean-Claude. La elección de los elegidos. In: Los herederos: los estudiantes y la
cultura. Buenos Aires: Siglo XXI Editores Argentina, 2003, p. 11 39 See BADIE, Bertrand and HERMET, Guy. Política Comparada, México: Fondo de Cultura Economica, 1993.
equality of opportunity among citizens. This aspect, nonetheless, is
ignored by those concerned and by most of the population, due to the
low level of education. It is necessary to observe that only a solid
education for democracy39 but, mainly, the establishment of a strong
market economy in the country, which would make private activity
more rewarding than positions within the State, will be capable,
perhaps, of modifying this manner of conceiving social relations in
Brazil, as well as the use of public patrimony. One of the indicators by
which it might be possible to perceive this change, should it occur,
would be the extinction of the so-called appointed posts in the
Brazilian public administration, at the municipal, state and federal
levels, and the adoption of the altruistic conception of the occupation
of public posts, which was never installed among us, in accordance
with its original European model40.
The introduction of the linkage effect in the Summuals of the
Federal Supreme Court, in article 103-a of the Federal Constitution of
1988, occurred as a result of the great pressure placed upon the
Judiciary due to slowness of its services, and high cost of its
administrative structure, among other problems. As a solution, many
jurists suggested establishing linkage between the rulings/decisions
made in the lower courts and those reached/recorded by the High
Courts. There was great controversy among the legislators and
judiciary, as this institution is not found within Brazilian judicial
tradition, though it appeared attractive as it seemed to offer hope of
“unblocking” the Judiciary, including the high Courts, of the excessive
number of cases related to themes upon which rulings had previously
been made. Approved as part of Constitutional Amendment nr 45/04,
it is fitting to remember, however, that such an institution is not
necessarily in line with the North American doctrine of stare decisis,
and appears to represent a step back in terms of classical
40 See AVRITZER, Leonardo. A moralidade da democracia. São Paulo: Perspectiva, 1996.
metaphysics. The cause of great debate, this measure may represent,
in this sense, a threat to the effective achievement of citizenship. The
situation remains unclear however, due to the short period since its
introduction.
Of the measures introduced in the Constitutional Amendment
45/05, Itinerant Justice and the decentralisation of the Regional
Federal Tribunals/Courts are of particular importance fro the
achievement of citizenship in the country, as they promise to break
the traditional inertia of the Judicial Power of the elite, making access
to judicial services much easier for the poor, while permitting some
members of the Judiciary and obliging others to have greater contact
with such citizens, who legitimate their functions and pay their
salaries, in order that such judges understand and attend to their real
needs. This project does not represent, however, only a policy of
bringing together Judiciary with isolated communities, but of creating
the expectation that an “educational effect” might occur among the
population, which would permit the bonds of social isolation to be
broken, so that they might become aware of their rights and, it is
hoped, of their duties as citizens.
The placing within the competence of the Federal Justice
System of cases of violation of human rights, contained in paragraph
5 of article 109 of the Federal Constitution of 1988, aims to fulfil the
constitutional commitments of the Brazilian State, in cases of serious
violation of human rights, attending to the fulfilment of obligations
contained within international treaties on human rights, for which the
country is severely criticised and harmed in terms of its image abroad
and consequent political and economic interests.
This measure has very positive repercussions for citizenship, as
it makes it possible to speed up and follow cases in a more neutral
manner, by limiting regional political influences and pressure.
The creation of specialised courts for agrarian issues, contained
in article126 of the Federal Constitution of 1988, also represents an
important step forward in institutional terms for the achievement of
citizenship, given that the problem of land reform has dragged on
over the decades without solution. Free of other demands, the judge
acting in this area will be able to be fully aware of the historical and
social context involved in the agrarian issue, which is based on the
entry within the constitutional text of the conception/interpretation of
the “social function of property”, which relativises the traditional
concept of property and, therefore, requires that it be
reconsidered/reviewed/re-assessed in completely different terms,
that is, in the sense of achieving the Democratic State of the Rule of
Law, which necessarily supposes the achievement of citizenship, in its
broad sense.
The financial autonomy of the Public Defenders (Legal Aid),
found in paragraph 2 of article 134 of the Federal Constitution of
1988, is one of the most positive measures for the achievement of
citizenship in its broad sense. Those citizens of little or no financial
resources are normally the most penalised by the
indifference/negligence of public agents, and often suffer losses or
even injustice in court cases because the are unable to pay for
private lawyers. In Brazil the situation is no different. The
establishment of the Public Defenders (Legal Aid) allows such citizens
to break through this barrier, and with the new financial autonomy,
the financial resources available should increase and with it the reach
and strength of this organ. Furthermore, with this measure it has
acquired greater protection against the direct or indirect interference
of agents from other organs of the State.
The elements of the Brazilian Judicial reform reviewed up to
here, are of particular importance as, from our point of view, they
can most collaborate towards the achievement of citizenship in the
broad sense in Brazil. However, it is not an overstatement to say that
the text of the reform as a whole has this objective, as the Judiciary
acquires more elements at its disposal that allow its agents to remain
focused on the their social function. However, in order to complement
this theme remains necessary to examine the “new rights”, the
development of which complement the contents of articles 5 and 6 of
the Federal Constitution of 1988, allowing, as stated above, the
individual interests of each citizen to be balanced with the interests of
the collective. It is not our intention to analyse them fully, for reasons
of space, and also because each one of them constitutes in itself a
new area of study, not merely juridical/legal but in all the social
sciences.
5. The “new rights”41 of citizenship in Brazil
The rights referred to here, which can also be included among
the so-called “human rights”, arise from the Federal Constitution of
1988, having been elaborated and proposed based upon a new view
of the State, that emerges from the displacement of the Liberal State
by the Social State. Although this transition among us encounters
many real obstacles, besides those that are properly juridical42, the
struggle for the introduction of these rights in the social and political
culture of Brazil is a fundamental part of the achievement of
citizenship, in which the Judiciary has a central role to play in guiding
this dynamic. Accordingly, we refer to those “new rights” that we
consider most relevant, which are the following: the rights of children
and adolescents, women’s rights, indigenous people’s rights, the
problem of racism, the rights of the elderly, consumer law/rights,
environmental law/rights, biolaw and the impact of the spread of
information technology and the dynamic of a new information society
on the new rights. It is true that a thorough/fuller/better approach to
these areas of law using the juridical dogma would require a review 41 See BADIE, Bertrand. L´État Importé. Paris: Fayard,1992. Referimos esse direitos entre aspas, pelo fato de muitos deles serem reivindicações antigas, e já estarem presentes no ordenamento jurídico nacional há anos, o que não significa, necessariamente, que tenham sido plenamente implementados. 42 These rights are referred to between inverted commas, due to the fact that many of them constitute old demands/claims, and have been in the national legal order for years, which necessarily means that they have been fully implemented. See CARVALHO, José Murilo de. Cidadania no Brasil: o longo caminho. Rio de janeiro: Civilização Brasileira, 2002.
of the theory of law43, the discussion of which, however, would not fit
in the limited space of this article.
Firstly, in referring to the rights of children and adolescents, we
can note that this does constitute a new right, as, since Brazil’s
independence there has been legislation, organs and public agents
dedicated to the subject. The relevance of the theme for the
achievement of citizenship is explained in detail in Law nr 8.069/90,
elaborated from the criteria/principiology adopted by the Federal
Constitution of 1988, we emphasize the doctrine of full protection44,
which means the option for the maintenance of special specific rights,
given that we are dealing with citizens in development and, therefore,
worthy of special attention not only from the Judiciary, but in all
aspects.
Women’s rights, which are still fragile in Brazil, arise from the
attempt to put into effect the constitutional principle of equality
before the Law/of rights. In historical and sociological terms, it can be
seen that the rupture with the traditional division of social roles
inherited from the western Judo-Christian tradition is very difficult.
The Brazilian constitutional and infra- constitutional legislation only
very slowly adopted the modifications that would culminate in the
equality currently existing in the judicial arrangement/order45, and
lead to the Judicial concern with the issue. It should be pointed out,
however, that social behaviour is altered by the modification of the
law, and much has yet to be done with respect the rights of women in
Brazil.
The topic of indigenous people’s rights is particularly relevant in
Brazil, as, since the period of the Portuguese colonisation there has
43 See CARVALHO, José Murilo de. Cidadania no Brasil: o longo caminho. Rio de janeiro: Civilização Brasileira, 2002. 44 See WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Introdução aos fundamentos de uma nova teoria dos “novos direitos” In: WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil... (op.cit., nota 4).Ver VERONESE, Joseane R. P. Os Direitos da Criança e do Adolescente. São Paulo: LTr, 1999. 45 See Ver VERONESE, Joseane R. P. Os Direitos da Criança e do Adolescente. São Paulo: LTr, 1999.
been concern with disciplining the relations with the native peoples,
though in the sense of organisation of the Portuguese colonial
society, with no interest in the establishment of rights or in the
cultural specificities of these peoples46. Later legislation, prior to the
Federal Constitution of 1988, dealt with the topic, but always with the
view of the Indian in a position of inferiority. With the new
Constitution, however, these views were modified, especially with the
aim of assimilating the native peoples, recognising their right to “be
different” 47, a relevant aspect of the Judiciary. Nevertheless, the
tradition of Brazilian State in dealing with these peoples is still very
retrograde/backward, and as a consequence, impedes the effective
application of this new posture, which also depends on social maturity
and the adoption of public policies, primarily in education, for a
citizenship that highlights the recognition of the indigenous peoples,
their rights and differences.
The problem of racism in Brazil encounters similar problems, in
its specificity, also linked to the Brazilian social tradition, until
recently based on slavery, therefore accustomed to the notion of
differentiation and privileges of social groups, as well as with a racial
aspect48. With the Federal Constitutions of 1988, the attempt to
implement affirmative actions, such as the policy of quotas49, has
produced great controversy, with radical arguments on both sides.
There appears to be, however, concern not to repeat the proposals
that are legally/judicially unsustainable, and that have already failed
in other countries50, and which would seem to have little chance of
46 See TABAK, Fanny, and VERUCCI, Florisa. (Orgs.) A difícil igualdade – os direitos da mulher como direitos humanos. Rio de Janeiro: Relume-Dumará, 1994. 47 See CUNHA, Manuela Carneiro (Org.) História dos Índios no Brasil. São Paulo: Companhia das Letras, 1992. 48 See SOUZA FILHO, Carlos Frederico. O renascer dos povos indígenas para o direito. Curitiba, Juruá, 1999. 49 See SKIDMORE, Thomas E. Raça e nacionalidade no pensamento brasileiro. Trad. Raul de Sá Barbosa. Rio de Janeiro: paz e Terra, 1976. 50 See SILVA JR. Hédio. Anti-racismo: coletânea de leis brasileiras: federais, estaduais e municipais. São Paulo: Editora Oliveira Mendes, 1998. See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109.
success in Brazil. Nowhere is the topic a simple one, and specific
studies are required for the specific51 reality of each country. On the
other hand, within the Brazilian tradition of cultural importation, and
possibly due to the lack of domestic literature on the subject, it is
possible to identify, in the few locally produced material published on
the subject currently available, traces of the influence of categories of
foreign thinking, especially that of North American authors, which are
not suited to the Brazilian case. It can be seen that the publication
and distribution of such literature in Brazil appears to be leading to
the importation of a discourse based “racial hatred” that is implicit in
these works, as it results from the intolerance characteristic of that
society, directed also at other ethnic groups, and not only towards
Afro-Americans. Brazilian racism is disguised, but not violent; it does
not contain, and does not need this element, that, nonetheless, has
been maliciously propagated by non-governmental organisations and
some politicians, apparently with the aim of gaining financial and
electoral benefits. Jurists, congressmen and intellectuals should be
aware, as the lack of both public debate and an extensive national
academic research into the subject, it appears to us, can lead to the
“invention” of non-existent conflicts, and greatly impede the
enhancement of social and juridical relations in racial terms in the
country.
The rights of the elderly became a reality with their adoption in
the text of the Federal Constitution of 1988. The Brazilian social
behaviour in relation to the elderly remains barely civilised, as there
has never been in our history a real concern with the aged, and until
recently the number of young people was large and always growing,
leading the subject to be forgotten, which appears to be new among
us. The recognition of the problem, following the constitutional
51 See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109. See BARZOTTO, Luis Fernando. Justiça social: gênese, estrutura e aplicação de um conceito. In: Direito e Justiça – Revista da Faculdade de Direito da PUCRS. V. 28 – ano XXV – 2003/2, p.109.
guidelines/guidance, led to the passing of a new Law, known as the
Statute of the Elderly, which aims to objectify the constitutional
guidance on the subject52. It is worth noting, however, that the
Brazilian population is reproducing itself at a slower rate53, and aging
considerably. This makes this right an important subject for reflection
by the Judiciary, and a relevant point to be developed and introduced
into the social and juridical/judicial/legal culture of the country.
Consumer Rights is one of the main “new rights” that came into
being with the Federal Constitution of 1988, well worked/elaborated
by the national doctrine and by jurisprudence, it has been
consolidated, by the Law 8.078/90, the “Consumer Code”, as an
instrument for the enhancement of the social and juridical relations of
consumption, which characterise complex modern societies, and
which represents a difficult subject, but one which it is necessary to
understand. Many authors note that today the population considers
consumption to be a major factor of social inclusion54. This definition
is extremely perverse in which the majority of the population are
poor, such as in Brazil. Being a citizen would mean having access to
consumption, which exposes the great part of the population,
unwittingly, to search for false satisfaction through the most
pathological aspect of capitalism, consumption55. It is in this sense
that the necessity to understand the relations of consumption and
their meaning for the State has led to the development of research
areas related to the subject, not only among jurists, but also among
anthropologists, sociologists and economists, as well as the
52 See BERTULIO, Dora Lucia de Lima. O “novo” direito velho: racismo e direito. In: WOLKMER, Antonio Carlos e LEITE, José Rubens Morato (Orgs.) Os “Novos Direitos” no Brasil... (op.cit., nota 4). 53 See RAMOS, Paulo Roberto Barbosa. Fundamentos Constitucionais do direito à velhice. Florianópolis: letras contemporâneas, 2002. See BERQUÓ, Elza. Algumas considerações demográficas sobre o envelhecimento da população no Brasil. In: Anais do I Seminário Internacional Envelhecimento Populacional: uma agenda para o final do século. Brasília: MPAS/SAS, 1996, p.16-34. 54 See BERQUÓ, Elza. Algumas considerações demográficas sobre o envelhecimento da população no Brasil. In: Anais do I Seminário Internacional Envelhecimento Populacional: uma agenda para o final do século. Brasília: MPAS/SAS, 1996, p.16-34. 55 See HIRSCHMAN, Albert. De consumidor a cidadão. São Paulo: Brasiliense, 1983.
development of transdisciplinary research. Of particular interest
today, in Brazil is a new research subject, Consumer Education56,
which is concerned with the problem of the awareness of the citizen
consumer, not only with regard their rights, but in relation to the
formation of the awareness of their real needs, in contrast to the
discourse of consumer media, which favours the profitable
consumism fo the firms and the collection of taxes, but which is
frequently harmful to the citizen. The subject is new in local terms
and needs considerable further development.
Environmental Law has also become an extremely important
subject among the “new rights/laws”, as it has become
practice/practical and necessary to develop social awareness of the
need to conserve the vast environmental patrimony of the country.
The discussion/topic is not new, but it is also highlighted in the
Federal Constitution of 1988. The emergence of this
issue/discussion/topic and, consequently its juridical/legal
objectivation is also linked to the deception of the new generations
with the traditional state and religious answers/responses in relation
to the social dynamic57. Accordingly, conserving the environment is
also to conserve a part of our humanity, especially against the
national and world capitalist vortex that justifies the destruction of
the natural and human environment by the increase in political and
financial profit58. In order to avoid that the Law becomes an
instrument of restraint or regression in the environmental issue is,
therefore, a fundamental task of the Judiciary59. It is particularly
important among us, for its great capacity to form citizens aware of
56 See CANCLINI, Nestor Garcia. Consumidores e cidadãos: conflitos multiculturais da globalização. Rio de Janeiro; Ed. Da UFRJ, 1996. 57 SENGER, Viviane. Educação e Cidadania no consumo: na busca de saberes docentes. UNISINOS, dissertação de mestrado, 2005, mimeo. 58 See OST, François. A natureza à margem da lei: a ecologia à prova do direito. Lisboa: Piaget, 1997. 59 CAUBET, Christian Guy. A irresistível ascenção do comércio internacional: o meio ambiente fora da lei? Revista Seqüência, v.39, dez. 1999, p. 58. SANCHES, Sydney. O Poder Judiciário e a tutela do meio ambiente. Arquivos do Ministério da Justiça. Brasília: Subsecretaria de Edições Técnicas, n°47, jan/jun 1994. p. 171.
the need for a solution that allows the environment to be conserved
today for future generations.
The so-called bio-law/right brings to light within the Brazilian
juridical/legal environment the debate on the ethics in relation to
human life60, as a result of the problems arising from the
development of genetic research and the advance of health
procedures for the preservation of life. This new branch seeks to
develop a new assessment of the social role of science and
technology61, raising questions regarding the basic rules of
democracy, while seeking to confront the rule of the majority, in this
precise case62. Issues such as euthanasia, the use of human embryos
in research, and other extremely controversial issues are worthy of
their attention, as discussion on such subjects instrumentalises the
Judiciary, making it possible to advance towards the achievement of
citizenship in the broad sense.
Finally, the repercussions of the diffusion of information
technology and of the dynamic of the new information society on the
new rights are highlighted. The notion of the network of information,
today known as the internet is already part of the public domain in
Brazil63, but its juridical implications, and its consequences for the
citizenship are not clear64. There is talk, for example about “digital
inclusion”, as it would be fundamental for the citizen to have access
to the internet/network, because of its power to inform and clarify.
On the other hand, the same internet/network is instrumental in
inciting the practice of offences/crimes, which makes it ambiguous in
this sense65, hence a great deal of attention is required on the part
60 SANCHES, Sydney. O Poder Judiciário e a tutela do meio ambiente. Arquivos do Ministério da Justiça. Brasília: Subsecretaria de Edições Técnicas, n°47, jan/jun 1994. p. 171. BERNARD, Jean. Da biologia à ética. Campinas: Psy II, 1994. 61 BERNARD, Jean. Da biologia à ética. Campinas: Psy II, 1994. BUNGE, Mario. Ética, Ciencia y Técnica. Buenos Aires; Editorial Sudamericana, 1996. 62 BUNGE, Mario. Ética, Ciencia y Técnica. Buenos Aires; Editorial Sudamericana, 1996. 63 OLIVEIRA, Fátima. Bioética: uma face da cidadania. São Paulo: Moderna, 1997. 64 CASTELS, Manuel. A Sociedade em rede. São Paulo: Paz e Terra, 1999. 65 FILHO, Adalberto. (Coord.) Direito e Internet: aspectos jurídicos relevantes. São Paulo: Edipro, 2000.
of society and in particular the Judiciary. More studies are required
within the country in order to clarify the relationship between this
technology and the public interest, in order that its characteristic as a
service is placed always in favour of the achievement of citizenship.
Conclusion
In the present article we have proposed/attempted to present
the issue/dilemma of achieving citizenship in Brazil in its broad sense,
through the perspective of the new constitutional role of the national
Judiciary, beginning with its reform, through achievement of the “new
rights/laws”. This is a very extensive subject, as the research that
gave origin to this article is destined to be used in a number of
papers, since they arise, as we believe we have shown, numerous
highly complex debates, for which it would be necessary a great deal
more time and dedication. We begin with the need to have present in
the juridical world, the notion that it is no longer possible to limit
citizenship to the strict concept, in the legal texts, but to understand
that its achievement in the broad sense is of fundamental
importance. This has implications for the understanding of the
constitutional fundamentals, and also in the social consequences of
the action of the State through its public policies, and through the
clear action of its agents, in this case the judges, but also all the
other public agents. Therefore, the fundamental role of democratic
political environment has been highlighted, without which this
objective would be impossible. It is necessary to understand the
reach of the democratic life in all this dimensions, among which the
juridical dimension is central. Accordingly, the constitutional aspect of
citizenship should be taken as a programme of social
achievement/accomplishment/performance. The idea needs to be
HINDLE, John. A internet como paradigma: fenômeno e paradoxo. Rio de Janeiro: Expressão e Cultura, 1997.
established, especially among jurists, that the achievement of rights
on paper means nothing: what is written/penned on paper or in
electronic files as legislation are merely ideas for standards of
behaviour. Furthermore, it is necessary to develop the awareness
that only human social action modifies reality in all its aspects. The
role of the Judiciary, then, gains importance/comes into high relief,
because of he force of the State represented by the judges. The
mechanisms of complacency of the agents that have permitted many
to neglect/avoid their social role need to done away with. It is with
this aim that the 45th Constitutional Amendment has been analysed,
with regard the aspects considered pertinent to the achievement of
citizenship, while noting that the content of the reform of the
Judiciary is directed along these lines. Nevertheless, the focus of this
new Judicial instrument is directed, in this initial stage of the dynamic
of the construction of citizenship in its broad sense in the country, to
the achievement of “Human Rights”, or of citizenship, here referred
to as the “new rights”. We believe that we have made it clear that
this objective is not accomplished with achievement of these rights,
but presupposes an extensive social transformation, in the sense of
the maturing of Brazilians as citizens, among whom the judges and
other jurists find themselves. We would like to note, however, though
laterally, that there is no sense in seeking social development without
emphasising that it is only possible with an economic development
that incorporates social justice, especially distribution of income. In
this sense, reform of the economy means permitting the growth of
the private work market, doing away with the State monopoly of the
function of offering the best positions and salariesin the job market.
This modification, that is lowly taking place, leads to real
development of the population, which achieves the conditions to
mature it needs, without the permanent nannying/tutelage of a body
of public agents, who can and should be concerned with the higher,
more complex, levels of the social dynamic, which are not achievable
among people with little or no education, who can aspire to only the
most basic levels of citizenship.
It needs to be remembered, still, that to place the
responsibility for achieving citizenship in the broad sense entirely with
the Judiciary, is to limit its possibilities for development, since, as
noted above, the judiciary is primarily an state agency for the
resolution of conflicts and maintenance of rights, with very little room
for innovation, the social space for which is in fact, the Legislative,
as it acts in the name of the population. The action of the Judiciary
for the achievement of citizenship is fundamental, Yet, this process
also demands the maturing of the society as a whole, and results
from the raising of the level of awareness of its citizens, mainly
through better economic and, consequently, educational conditions.
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