Oscar UCLA Public Interest Law

PUBLIC INTEREST LAW: A BRAZILIAN PERSPECTIVE
Oscar Vilhena Vieira

This article is focused on explaining how the Brazilian legal community has structured its own public interest law landscape in the field of human rights law over the last decade. This article argues that the current Brazilian public interest law initiatives and institutions are largely a consequence of three major forces: 1) the existence of liberal and progressive segments of the legal community since the abolitionism movement of the mid 19''' century; 2) the adoption of" the 1988 Constitution, with its generous bill of rights, and the ascension of the Ministerio Pblico and the Defensoria Pblica as public institutions responsible for representing "the public interest" and the interests of the most vulnerable people before the Brazilian judicial system; and 3) the globalization process, viewed from the perspectives of the internationalization of the human rights discourse and the expansion of international standards ofprivate legal practice to cope with new market demands, which includes the consideration of some pro bono practice. The conclusion argues that even a fragile legal system can provide mechanisms that, when appropriately used, will enhance the protection of rights and the equal recognition of legal subjects.
' Oscar Vilhena Vieira, BA, Catholic University of Sao Paulo, 1988, LLM, Columbia University, PhD., University of Sao Paulo, 1998, and Post-Doctor, Center for Brazilian Studies, Oxford University, 2006, is a Professor of Law at Fundao Getlio Vargas Law School in Sao Paulo, where he coordinates the Masters Program in Law and Development, and is Legal Director of Conectas Human Rights. 1 would like to thank several colleagues that contributed to the elaboration of this essay: Louise Trubek and Scott Cummings, besides the generous invitation to take part in this project, made indispensable suggestions to the paper; my associates Flavia Scabin and Thiago Amparo, were, as usual, extremely generous helping with the research and footnotes; Paulo Popovic, editor of the SUR Intemational Human Rights Journal, rhade my poor English more readable. Finally I would like to recognize the enormous support received from Fundao Getlio Vargas School of Law, Law and Society Association, and specially JILFA. This essay is dedicated to the memory of Luiz Gama (1830-1882), former slave, abolitionist, self-taught lawyer, and founder of the idea of public interest law in Brazil.
219
220
13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

220 223 223 225 228 230 230 231 234 237 238 241 243 244 245 247 248 249 253 256 259
Introduction I. The Emerging Public Interest Law Experiences in Brazil A. Abolitionist Movement B. Grand Liberal Lawyers C. Radical Church Lawyers IL The Impact ofthe 1988 Constitution on Public Interest Law A. Constitutional Process B. The Generous Constitution of 1988 C. Creating New Identities D. The Involvement of Public Agencies with Public Interest Law [ 1. The Ministerio Pblico 2. The Defensoria Pblica ; 3. Ministerio Pblico vs. Defensoria Pblica III. Two Sides of Globalization and Public Interest Law A. Human Rights Advocacy 1. Conectas Direitos Humanos 2. Artigo 1 3. Redressing Violence 4. Accessing the Supreme Court B. Economic and Social Responsibility ofthe Legal Community: The Development of Instituto Pro Bono Conclusion
INTRODUCTION
The use of law to promote social justice and protect the rights of the most vulnerable groups in society is viewed as part of the American legal and political tradition, at its zenith during the Warren Court era.' Viewed as a progressive tool within the liberal realm, it has been exported by many liberal academics, civil society organizations and philanthropic foundations to several developing countries as a counter-weight to the "rule of law and good govemance orthodoxy industry."^ The objective of this piece is neither
' See STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS (Yale University Press 1974); B. Z.
TAMANAHA, LAWS AS A MEANS TO AN END 156-171 (Cambridge University Press 2006); Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. Rev. 1 (2004).
^ YVES DEZALAY & BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS 127-
141 (Univ. of Chicago Press 2002); MARY MCCLYMONT ET AL.. MANY ROADS TO JUSTICE:
THE LAW RELATED WORK OF FORD FOUNDATION GRANTEES AROUND THE WORLD (Mary
McCIymont & Stephen Golup eds.. Ford Foundation 2000); for a critical analysis of the present of use of the idea of rule of law, especially by development agencies, see Frank
Public Interest Law: A Brazilian Perspective
221
to challenge American pioneerism in the field of public interest law, nor to criticize attempts to export American concepts of public interest law to promote social justice movements abroad. Rather, the main focus of this piece is to understand and explain how the Brazilian legal community has structured its own public interest law landscape in the field of human rights law over the last decade. As an exploratory work, this piece deliberately draws a large map of the evolution of public interest law in Brazil, while sacrificing a more detailed analysis of particular legal strategies and their evolution. Additionally, while a comparative perspective would certainly lead to a better understanding of the development of public interest law in Brazil, this essay does not articulate a comparative perspective simply because the author lacks sufficient knowledge on the evolution of public interest law in other countries to provide such an analysis. Regardless, it is hoped that this overview of the Brazilian experience, in conjunction with the other cases presented in this volume, will contribute to a broader picture of the developments of public interest law around the globe. This piece argues that the current Brazilian public interest law initiatives and institutions are largely a consequence of three major forces: 1) the existence of liberal and progressive segments of the legal community, at least since the abolitionism movement (mid 19"' century), that traditionally resisted oppression through legal means and used legal strategies to promote rights and advance social justice; 2) the adoption of the 1988 Constitution^ with its generous bill of rights, and the ascension of the Ministerio Pblico and the Defensoria Pblica as public institutions responsible for representing "the public interest" and the interests of the most vulnerable people before the Brazilian judicial system"*; and 3) the globalization process, viewed from the perspectives of the intemationalization of the human rights discourse and, concomitantly, the expansion of intemational standards of private legal practice to cope with new market demands, which includes the consideration of some pro bono practice.
Upham, Mythmaking in Rule-of-Law Orthodoxy, in PROMOTING THE RULE OF L A W ABROAD
75 (Thomas Carothers ed., Carnegie Endowment for Intemational Peace 2006). ' Constitution of the Federative Republic of Brazil, 1988 OR Constituio Federal [Constitution] (Braz.) [hereinafter CF. 1988; the Constitution is organized in Articles numbered in Arabic (ex. art. 5o.), items numbered in roman numerals (art. 5o., XXL), and paragraphs also in Arabic, preceded the sign (ex. art. 5o., 3o.)]. * The Brazilian Constitution obliges each Member-State and the Union to organize their own Ministerio Pblico, CF. 1988, art. 128. and their own Defensoria Pblica, CF. 1988, art. 134; each institution is independent from each other, but submitted to the same constitutional principles and general Federal Law.
222
This essay outlines the public interest law landscape in Brazil, identifying the main events and ideas that shaped the contemporary structures that underpin public interest law. As this paper argues, the Brazilian public interest law environment is a result of several forces and traditions; however, its current configuration was primarily shaped by the 1988 Brazilian Constitution. The Constitution was established through an endogenous political process that ran contrary to the legal and economic orthodoxies that predominated in the eighties and nineties. It contains an extensive bill of rights and establishes a large number of state agencies with responsibility to implement these rights, including special agencies entrusted with powers to promote public interest litigation, such as the Ministerio Pblico and the Defensoria Pblica. This paper is divided into three main sections, followed by some conelusory remarks. The first section revisits a series of Brazilian experiences in using law as an instrument to protect rights and promote social justice. It first provides an overview of the anti-slavery movement, which made extensive use of litigation, public opinion mobilization and lobbying to overcome slavery at the end ofthe 19"' century. This section then discusses the legal strategies employed by the labor movements, under the influence of leftwing parties and progressive Catholic doctrines, to advance labor rights. Finally, it analyzes the role of the liberal legal profession and the Catholic Church in organizing legal strategies to protect the human rights of political dissidents during the Estado Novo (1937-1945) and the Military regimes (1964-1985). The second section focuses on the adoption of the 1988 Constitution, both as a product of new social and political forces that came to prominence during the process of transition to democracy, and as an institutional document that provides a fresh frame of reference for rights and social goals that forged the identity of newly-emerging social actors. This section also explores the impact ofthe 1988 Constitution on the Ministerio Pblico and the Defensoria Pblica around the country. Although both of these public institutions existed prior to adoption of the 1988 Constitution, their mission, autonomy and scope were restated by the new constitutional order, with a remarkable impact on the public interest law field in Brazil. The problems, limitations and challenges related to the involvement of public institutions with the protection of rights and the promotion of social justice are also examined in this section. The third section, which constitutes the central part of the essay, identifies the impact of intemational ideas, concepts and orientations on public interest law practice in Brazil today, giving special attention to how these
223
influences were absorbed and transformed by Brazilian legal culture, civil society organizations and govemmental agencies. Three main sources of this flow of ideas are analyzed: the United Nations conferences on environment, human rights, women and race; the funding institutions that supported and influenced civil society organizations in the region, in particular the role of the Ford Foundation; and the growth of a domestic corporate legal practice to attend to the demands of a more globalised business community, that, by adopting intemational standards of lawyering, included pro bono advocacy as part of its activities. The last section of the essay focuses on the main challenges to public interest law and strategic litigation, mostly in the field of human rights, posed by the Brazilian reality. To understand these challenges, it is necessary to explore the central obstacles for a rule of law system to operate in a society built on extreme and durable social and economic inequality.
1. THE EMERGING PUBLIC INTEREST LAW EXPERIENCES IN BRAZIL
A.
Abolitionist Movement Brazil was one ofthe last countries in the world to abolish slavery. Abolition only occurred in 1888, after a long stmggle in Parliament, the courts, and on sugar cane farms and in city streets. The naive, traditional view is that the end of slavery, proclaimed by Princess Izabel, was a humanitarian act, promoted by liberals with the support ofthe royal family.' Marxist historians revised this official version in the last century, showing the incompatibility of this form of labor with the demands of capitalism. They reinterpreted the numerous legislative acts granting partial emancipation in the nineteenth century as part of a scheme to postpone abolition for as long as possible.^ Although this interpretation offers a more accurate description of the process, the series of statutes enacted before the final abolition in 1888 offered several opportunities for lawyers and political activists to fight for the freedom of individual slaves, reinforcing the cause of abolition. It is important to mention that the legal battles occurred in parallel with rebellions.
' JosELi NuNES MENDONA, CENAS D A ABOLIO: ESCRAVOS E SENHORES NO PARLAMENTO E
NA JUSTIA 101-107 (Editora Fundacao Perseu Abramo 2001).

' See generally FERNANDO HENRIQUE CARDOSO, CAPITALISMO E ESCRAVIDAO NO BRASIL
MERIDIONAL: O NEGRO NA SOCIEDADE ESCRAVOCRATA DO RIO GRANDE DO SUL (1977); FLORESTAN FERNANDES, A INTEGRAO DO NEGRO NA SOCIEDADE DE CLASSES (1978).
224
mass escapes and the formation of Quilombos^ around the country, and their importance should not be underestimated. The intemational pressures on the Brazilian govemment for the abolition of the traffic of African slaves started in 1807, following the prohibition of slavery by the British Govemment.^ It took almost three decades for the enactment of a law forbidding this activity in Brazil. According to the statute edited in November 7, 1831, slaves subsequently smuggled into Brazil were to be set free.^ However, the responsibility for such a decision rested with a jury, composed of white men, who were normally sympathetic to slavery. Only on September 4, 1850, was another statute, called Eusebio de Queiroz, after the member of the House of Representatives that presented it, enacted'", transferring this power to the legal offices of the Navy, and making it more effective. ' ' The next step in the abolition process was the enactment on September, 28, 1871, of a statute'^ establishing that children bom from slaves after 1871 should be considered free.'^ However, the state was required to reimburse the slave owners for each child emancipated by this act. The statute also created the possibility for slaves to buy their own freedom from their owners. Slaves were allowed to establish bank accounts in official institutions in order to save money to attempt to purchase their freedom from their owners. If the price the slave proposed to pay for his freedom was not accepted, an arbitration committee would decide the issue. In many cases the value set by the arbitration committee was not accepted either by the slave or by the owner. Thus, the only altemative was to settle the dispute in the judiciary.'* The former slave Luiz Gama, who had received some informal legal education from Conselheiro Furtado, his mentor, was fred from his job as a clerk for the Secretary of Police in 1868 because of his political agitation for
' Quilombos were communities formed by freed and escaped black slaves in the interior of the country during Brazilian colonial and imperial times. Many of these communities are still alive today. Thomas Flory, Fugitive Slaves and Free Society: The Case of Brazil, 64 J. Negro Hist. 116, 117(1979). ^ An Act for the Abolition of the Slave Trade, 1807, c. 36 (Eng.). ' http://www6.senado.gov.br/legislacao/ListaPublicacoes.action?id=85334. '" Lei No. 581, de 4 de setembro de 1850 (Braz.). " It is estimated that until this period more than three million Africans were brought to Brazil
as slaves, JOS MURILO DE CARVALHO, CIDADANIA NO BRASIL: 0 LONGO CAMINHO 19 (2004).
'^ Lei No. 2040, de 28 de setembro de 1871 (Braz.). ''Id

''' JOS REINALDO LIMA LOPES, RAFAEL M . QUEIROZ & THIAGO S. ACCA, CURSO DE HISTORIA
DO DiREiTO 353-391 (2006).
225
abolition and his involvement with the Republican Party.'^ In 1869 he started to place advertisements in several newspapers announcing his activities as a pro bono solicitor in cases linked with the liberation of slaves: "the signatory agrees to promote, free of charges, before tribunals, all cases of liberty that the interested are willing to trust him with. Luiz Gonzaga Pinto da Gama. "'* This represented the founding moment of public interest lawyering in Brazil. Several other liberal, radical lawyers, like Amrico de Campos, Olympio da Paixo and Antonio Jos Ferreira Braga Jr., also offered free legal services in "questions of freedom", at that time.'^ Luiz Gama worked in partnership with these and other liberal lawyers until his death in 1882.'^ Although a severe critic of the so-called emancipatory legislation, Luiz Gama used this fragile legal framework to win the freedom of Africans illegally brought to Brazil after 1831, bom to slave parents after 1871, and who tried to buy their freedom pursuant to the 1871 statute. He also represented hundreds of slaves and former slaves in criminal cases. In addition to his partnership with other lawyers, Luiz Gama was part of a larger network of anti-slavery movements that raised funds to promote freedom. He also made extensive use of the liberal press to report his cases to the public and to embarrass police officials, slave owners and judges who undermined justice.'^ Luis Gama's death on August 25, 1882, brought thousands of former slaves to the streets, and generated several laudatory editorials and obituaries in major newspapers. Slavery was finally abolished six years later. B. Grand L iberal Lawyers With the end of slavery and the proclamation ofthe Republic in 1889, new challenges were posed to the liberal legal community forged during the struggle to overcome the ancient regime. Ruy Barbosa was perhaps the most prominent figure of this time, not just as an advocate for freedom, but also as a lawyer, politician and statesman who contributed to the establishment of the new constitutional order.^ He was bom in 1849 in Salvador, Bahia to an educated family. He studied law in Olinda and Sao Paulo, and very soon got involved with liberal ideals represented by the abolitionist campaign and the stmggle for the establishment of a federal republic in Brazil. As the first
" ELCIENE AZEVEDO, ORFEU DA CARAPINHA ch. 4 (2005).
'*//. at 193. " For an evaluation ofthe involvement ofthe legal community in the anti-slavery movement
see AGOSTrNHO MARQUES & PERDIGO MALHEIROS, A ESCRAVIDAO NO BRASIL ( 1944).
'* AZEVEDO, supra note 15, at 189-204. " M a t 193.

^ LUIZ VIANA FILHO, A VIDA DE RUI BARBOSA (1977).
226
Minister of Finance in the new Republican regime that he helped forge in 1889, Ruy Barbosa had to face compensation claims made by the former slave owners. These claims prompted one of his most controversial measures: Barbosa ordered the incineration of the slavery archives, so that former slave owners had no proof against the govemment.^' Today this act is strongly criticized both by historians and by the Afro-descendent community, because it also destroyed a precious documentary database of slave traffic. After leaving his ministerial position. Barbosa began to use the courts, newspapers and his position as a Senator to promote the rights of dissidents, including those of his opponents. He also represented rural workers and women in their struggle for equal salary and labor conditions. As a solicitor at the Supreme Court, Barbosa contributed to the expansion of the use of habeas corpus as a remedy against any kind of discrimination and the arbitrary use of power, in what became known as the "Brazilian Doctrine of Habeas Corpus." '^^ Through an expanded version of the use of Habeas Corpus, Ruy Barbosa obtained several judicial decisions invalidating fraudulent electoral results, and promoted the right to freedom of expression and religion. Among hundreds of cases represented by Barbosa before the Supreme Court, his efforts to overcome restrictions to civil and political freedoms imposed by the systematic use of the state of siege during the first Republic (1881-1930) are particularly noteworthy. Following his advocacy, the Brazilian Supreme Court overtumed the American doctrine of "political question"^^ that had been used extensively by the judiciary to avoid its responsibilities to invalidate laws and administrative acts that constrained fundamental rights. It was also through his initiative that the Supreme Court, under the leadership of Justice Pedro Lessa, (known as the "Brazilian Marshall"), accepted the idea of constitutional review, granting to every judge in the country the power to declare the unconstitutionality of a law in clear-cut Ruy Barbosa set the standard for the ethical commitments of the legal profession, which were incorporated in the statute of the Bar Association, enacted in 1930.'^^ Important jurists followed his example, such as Sobral Pinto, Evaristo de Moraes and Evandro Lins e Silva, during the authoritarian
^' JoAO FELIPE GONCALVES, RUI BARBOSA: PONDO AS IDEIAS NO LUGAR 74 (2000). '" LEDA BOECHAT RODRIGUES, HISTORIA DO SUPREMO TRIBUNAL FEDERAL 19 (vol.1, t.4
1965). " M a t 172. ^'' S.T.F.J., Denuncia No. 7 (1896), available at http://www.stf.gov.br. " Decreto No. 20.784, de 14 de dezembro de 1931 (Braz.).
227
period ofthe Vargas administration, between 1930 and 1945.'^* These lawyers employed their prestige and abilities to protect political dissidents and union leaders against the pro-fascist regime. The defense made by Sobral Pinto, an orthodox Catholic, of Luiz Carlos Prestes, leader ofthe Communist Party in the thirties, with whom he completely disagreed, represents the most notorious case of this liberal heritage.^' A more organic experience of public interest and human rights advocacy appeared during the Military regime that reigned in Brazil between 1964 and 1985. In 1967 Pope Paul VI, under the influence ofthe Catholic Church doctrine of "preference for the poor" set by his predecessor John XXIII, created the Pontifical Commission of Justice and Peace.^^ In 1969 the Brazilian Confederation of Bishops created a Brazilian Commission of Justice and Peace.^' This occurred several months before the govemment enacted Institutional Act no. 1, which granted extensive powers to the Military regime to restrict civil and political rights.'"* Then, in 1973, the Sao Paulo Commission of Justice and Peace was founded under the auspices of Don Paulo Evaristo Ams, Archbishop of Sao Paulo. The Sao Paulo Commission was comprised of prominent Catholic progressive lawyers, such as Jos Carlos Dias, Jos Gregori, Dalmo Dallari and Fbio Konder Comparato. Dias and Gregori later became ministers of Justice under the Cardoso administration in the 1990s. As a reasonably young criminal lawyer, coming from a traditional family of lawyers and judges in the state of Sao Paulo (his father presided over the state Supreme Court), Jos Carlos Dias represented more than four hundred political dissidents at the Military Courts, which were responsible
^* See generaiiy, JOHN W.F. DULLES, SoBRAL PrNTO "THE CONSCIENCE OF BRAZIL"; LEADING
THE ATTACK AGAINST VARGAS ( 1930-1945). ^' JOHN W.F. DULLES, RESISTING BRAZIL'S MILITARY REGIME: AN ACCOUNT OF THE BATTLES OF SOBRAL PINTO 6 (2007).
^* Pontifical Council for Justice and Peace, http://www.vatican.va/roman_curia/pontifical_ councils/justpeace/documents/rc_pcjustpeace_pro_20011004_en.html (last visited Mar. 13, 2009). ^' The Justice and Peace Commission was created by Cardinal Ams in Sao Paulo with the objective of providing legal and political protection to dissidents. For an analysis of the work
ofthe Commission, see generally RENATO CANCIAN, COMISSO JUSTIA E PAZ DE SO PAULO:
GENESE E ATUAO POLTICA (1972-1985) (Editora da Universidade Federal de So Carlos

ed., 2005); see aiso LAWERENCE WESCHLER, UM MILAGRE, UM UNIVERSO: O ACERT DE CONTAS COM OS TORTURADORES (1990).
"' Ato Institucional No. 1, enacted in April 9, 1964, by Supreme Command ofthe Revolution, avaiiable at http://www.senado.gov.br.
228
for the enforcement of the Lei de Segurana Nacional, enacted in 1969.^' The Justice and Peace Commission created a network of lawyers, all around Brazil, to defend, on a pro bono basis, the rights of political prisoners and their families. The cases would arrive through more than two hundred and fifty Centres for the Defence of Human Rights, founded by the Catholic Church during the seventies and eighties. Many of them are still active and form the basis for the human rights movernent today. The Archbishop of Sao Paulo used the pulpit and restricted sectors of the media to denounce torture. He also kept an archive with all cases of torture and disappearances, which was later published as Brasil: Nunca Mais. The first Amnesty Intemational Report on Brazil, edited in 1979, relied substantially on the information collected by the Brazilian Catholic Church. Philanthropic Church groups called Caritas were the major founders of these Catholic Church legal defense organizations. Radical Church Lawyers The progressive sector of the Catholic Church was also very active in the rural areas of Brazil. MST (Movimento sem Terra), a movement of landless peasants, still very active in the Brazilian political scene today, was also a brainchild of the left and progressive religious groups.''^ It emerged as a response to the strict limitations imposed by the military regime on social movements. In the early days MST based its activities on occupations of large farms in the interior of Brazil. In the late eighties and early nineties, MST created an in-house legal department to give support to its activities, and to protect its leaders who were systematically involved in confrontations with the police and landowners. The Catholic Church also fomented the creation of a network of radical lawyers, called RENAP, under the leadership of Jacques Alfonsin, Luiz Eduardo Greenhalg and Plinio the Arruda Sampaio. This network is still very active, and is responsible for the settlement of legal strategies and the provision of legal assistance to the MST movement all around Brazil. AJUP {Apoio Jurdico Popular), created by Miguel Presburger, a lawyer with a Marxist orientation, had strong links to MST, helping as an educational branch for grassroots lawyers acting far from the larger urban centers. The Human Rights sector ofthe MST produces publications, disseminates infonnation, brings cases within the Brazilian judicial system, and also brings cases to the Inter-American Human Rights
" This statute was enacted by the Brazilian military junta, defining crimes against national security and against the political and social order, through Decreto-Lei No. 898, de 29 de setembro de 1969 (Braz.), available at http://www.senado.gov.br.
" Joo PEDRO STDILE, A REFORMA AGRARIA E A LUTA DO MST (Editora Vozes 1997).
229
System." The creation of RENAP, and the establishment of in-house legal services at MST such as its Human Rights sector, represents the tip of the iceberg of numerous other grassroots legal services created in Brazil in the seventies and eighties to promote social rights such as housing, health services and others.'''' Finally, another important segment of the public interest legal movement that gained prominence before the 1988 Constitution is represented by the establishment of CUT {Central nica dos Trabalhadores)^^ under the leadership of Luiz Incio Lula da Silva, current President of the Republic, then President of the Union of Metal Workers, from Sao Bemado do Campo. CUT was a result of the fusion of several unions dominated by progressive sectors of the Catholic Church and the Communist Party. Their main objective was to overcome political and legal restrictions that prevented the free manifestation and organization of the labor forces at the end of the seventies. At the beginning of the decade the Frente Nacional do Trabalho (National Work Front), which had links to progressive Catholic leaders, organized a series of strikes at Perus, a community on the outskirts of Sao Paulo.''* These strikes set a new pattern of relationship between capital and unions. In the past, conflicts had been avoided by the submission of unions to the state. The Perus strikes set a new standard of labor independence in Brazil. The Frente Nacional do Trabalho was headed by Mario Carvalho de Jesus, and was composed of more than sixty labor lawyers who gave assistance to independent unions all over Brazil. Many of these lawyers contributed to the organization of an in-house legal department at the Sao Bernardo Union, and later at CUT. Jos Siqueira Neto, a young lawyer with communist sympathies, but not a member of the Brazilian Communist Party, became responsible for the organization of the Brazilian New Labor Movement, legal services. His first mission was to create a network of protection for union leaders. The second challenge was to organize elections at unions so that members of the New Labor Movement could have a chance to control new unions around Brazil. The third mission of the coletivo jurdico (legal collective) was to
^' For a comprehensive analysis of the Inter-American human rights system, see generally Jo
M. PASQUALUCCI, THE PRACTICE AND PROCEDURE OF THE INTER-AMERICAN COURT OF HUMAN
RIGHTS (Cambridge University Press 2003). Celso Campilongo, Acesso a Justia e Formas Alternativas de Resolucao de Conitos servios Jurdicos em Sao Bernardo do Campo, 315 REVISTA FORENSE 3 (1991). ^' For the Brazilian new labour movement, particularly the role of CUT, see generally IRAM
JCOME RODRIGUES, SINDICALISMO E POLTICA: A TRAJETRIA DA CUT (1997).
* * For an overview of the legal strategies advanced by the Frente Nacional do Trabalho see
generally MARIO CARVALHO DE JESUS, A GRVE DE PERUS NOS TRIBUNAIS ( 1967).
230
strategize over legal disputes taking place at the labor courts and to protect salaries against losses provoked by economic adjustment plans to control hyper-inflation. The experiences obtained during this period were crucial for the labor movement during the debates to establish the 1988 Constitution, and especially its chapter on labor rights.^' In summary, until 1988 there were three major waves of lawyers which made use of law as an instrument of rights protections and social change: 1) the first wave (1850s to 1950s) was basically composed of liberal segments of the legal community, especially active during the Vargas Era, that kept close relations with broader political movements that challenged the established order; 2) the second wave came during the Military Regime (19641985), and was formed by liberal and progressive lawyers with connections to progressive segments of the Catholic Church and its large network of human rights centers around the country; and 3) the third wave was composed of more radical lawyers, acting through labor unions and landless peasant movements, also in connection with the Catholic Church, but now its left-wing sectors, largely influenced by liberation theology,^^ and with left-wing political parties. These forces still influence public interest law in Brazil, but the current configuration of public interest law is largely a product ofthe new institutional environment built after the adoption of the 1988 Constitution.
II. THE IMPACT OF THE 1988 CONSTITUTION ON PUBLIC INTEREST LAW
A.
Constitutional Process After a long process of transition to democracy, Brazilian society adopted a new constitution in October 1988. This long process, called "abertura" (opening), was proposed by the military regime. It started with the adoption of an amnesty law in 1977, which benefited both sides of the political spectrum and allowed the retum of left-wing dissidents to Brazil.''' The regime also restructured the party system, liberalizing the creation of new political parties and the reestablishment of the parties that had been abolished by the military coup in 1964. This "distension" ofthe political sys" ALMIR PAZZIANOTTO PINTO, 100 ANOS DE SINDICALISMO (Lex Editora S.A. 2007).
'* One of the most influential ideologues of this confluence between radical Catholicism and left-wing ideology still is Leonardo Boff, a Franciscan friar; for an overview of the "liberation
theology" see generally LEONARDO BOFF ET AL., A TEOLOGA DA LIBERTAO: BALANO E
PERSPECTIVAS (Joao Guizzo ed., Editora tica 1996).

^' ALFRED STEPAN, OS MILITARES: DA ABERTURA NOVA REPBLICA (Adriana Lopez & Ana
Luza Amendola trans.. Editora Paz e Terra 4th ed. 1987).
231
tem caused the fragmentation of the opposition parties. In this new environment, civil society organizations became more vocal and critical of the military regime. The Brazilian Bar Association (OAB) and organizations like the Justice and Peace Commissions in Sao Paulo and Recife were determined to denounce human rights violations and to pressure for democratization and a new constitution.''" During 1983 and 1984 an alliance between opposition parties and major social forces mobilized the whole country to advocate for the reestablishment of the right to vote for the presidency in a free and direct election, called "diretas ja." Congress, however, failed to approve the necessary amendment to the 1969 Constitution. This failure resulted in a compromise between the moderate sectors of the military regime and some of the opposition parties, which permitted the election of Tancredo Neves and Jos Samey, as President and Vice-President, by the Electoral College. The enormous social energy raised during this process was finally released through the 1987-1988 constituent assembly. The first draft of the Constitution was produced by a "commission of notables," presided over by Afonso Arinos de Mello Franco, a liberal politician. This first draft was abandoned by the Assembly, which chose to develop an entirely new draft from the ground up. Representatives from thirteen political parties, in a very fragmented environment, comprised the Assembly. The majority of the politicians that had been united in opposing the military regime had, however, distinct perspectives of how a new constitutional order should be organized. The participation of social movements, civil society organizations and interest groups was massive. More than twenty thousand people attended the Assembly every day, in a process that is considered the most democratic moment of Brazilian political life.'" B. The Generous Constitution of 1988 The result of this process was a Constitution that reacted against the immediate experience of arbitrary rule and a long history of social injustice and inequality. Unlike the constitutions forged in Eastem Europe after the fall of the Berlin Wall, or even the post-apartheid Constitution of South Africa, the Brazilian Constitutional Assembly was insulated from major intemational infiuences."*^ Perhaps the only foreign model taken into account in a more systematic way during the Constitutional Assembly was the socially-oriented Portuguese Constitution of 1976. The result was a document that
'"'THOMAS SKIDMORE, BRASIL: DE CASTELO A TANCREDO 262,330-331 (ED. TERRA 1988).
"' Joao Gilberto Lucas Coelho, O Processo Constituinte, in O PROCESSO CONSTITUINTE 1987198843 (Milton Guaran ed, AGIL-UnB, 1988).
"^ P. BoNAViDES & p. ANDRADE, HISTORIA CONSTITUCIONAL DO BRASIL 449 (1991).
232
13 UCLAJ. INT'LL.&FOR.FF. 219(2008)
retained Brazil's traditional political model as a presidential and federal republic. Moreover, the Constitution adopted a clear aspirational and dirigiste drive, aiming to coordinate social, economic and political change. In this sense it attributed to the state a key role in promoting social welfare and economic development. The economic chapter of the Constitution would be reformed in the nineties to adapt to more orthodox economic thinking."*^ For the purpose of this essay, however, the most important innovation of the Constitution is its extremely generous and comprehensive charter of rights, composed of civil, political, social, economic and cultural rights, including the rights of vulnerable groups such as Native Indians,'''* the elderly ,'*' and children"**. The Constitution also recognized a new group of environmental and consumer rights, and is in full alignment with the intemational bill of rights,''^ developed after 1948. However, concerning its language and scope, it follows the tradition of the strong social state forged during the Vargas era (1930-1945). The Constitution, however, expressly incorporates the language of intemational human rights only in a few of its dispositions. Article 4 establishes that the Brazilian Govemment should take human rights into account when establishing foreign policy; Article 5, Paragraph 2 proclaims that the rights expressed in the text of the Constitution do not exclude other rights that derive from the principles and the regime adopted by the Constitution, or those rights inscribed in treaties to which Brazil is a party, opening a door for the incorporation of intemational human rights law into the Brazilian legal system. This formulation, however, created a large discussion regarding the status of intemational human rights in the Brazilian legal system. This issue became more dramatic given the fact that the Brazilian Govemment ratified most of the significant intemational human rights treaties after the adoption of the 1988 Constitution as part of its legitimization strategy vis--vis both the intemational community and domestic civil society organizations. Therefore, Brazil is today part of the major intemational human
" Oscar Vilhena Vieira, Realinhamento Constitucional, in DiRElTO GLOBAL 3 8 ^ 3 (Carlos A. Sundfeld & Oscar V. Vieira eds., Max Limonad 1999). '"'1988C.F. art. 231 and 232. "^ 1988 C.F. art. 230. "* 1988 CF. art. 227. "" See generally The Intemational Bill of Rights consisting of three intemational documents: Universal Declaration of Human Rights, G.A. res. 217A (111), at 71, U.N. Doc A/810 (Dec. 10, 1948), oni/Intemational Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), at 52, U.N. Doc. A/6316 (Dec. 16, 1966), I/Intemational Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), at 49, U.N. Doc. A/6316 (Dec. 16, 1966).
233
rights mechanisms at the global and regional levels. These treaties have a direct effect on the Brazilian legal system. The question is with which status: as constitutional law or as federal law? This debate was only partially solved in 2005, with the 45th Amendment to the 1988 Constitution, which, among other things, stated that intemational human rights treaties would acquire constitutional status if approved by a majority of 3/5 of both Houses of Congress.''^ Besides the Treaty of Rome, which established the Intemational Criminal Court, all of the major human rights treaties were ratified before 2005 by ordinary procedure. So, at the present point in time, they formally have the status of ordinary legislation. However, this question has already arrived at the Supreme Court, and there is no consensus regarding how it will be decided. There are some important characteristics of the Brazilian fundamental rights regime that should be mentioned here. In accordance with Article 5, Paragraph 1, all fundamental rights have immediate application, overcoming a traditional constitutional doctrine, also proclaimed by international human rights law, that social and economic rights should be viewed as programmatic and incremental. Read in conjunction with Article 5, XXXV, which establishes that the law cannot exclude from judicial examination any threat or violation of a fundamental right, it becomes clear why the judiciary became such an important political player after the adoption of the 1988 Constitution. People can claim a violation of fundamental rights by an action of the legislative or executive branch, or by an omission in implementing or regulating these rights. Another important feature of the fundamental rights regime is the special protection these rights receive against constitutional reforms. Today they cannot be abolished, even by constitutional amendments, which make them the core values ofthe Constitution, the reserve of justice of the Brazilian legal system. A third peculiar characteristic of the 1988 rights regime, at least in the areas of the rights to health and education, is the fact that the Constitution provides that binding percentages of the amount of taxes collected by all spheres of the federation must be spent on health and education."^ By this instmment the 1988 Constitution tried to create some budgetary conditions to sustain the aspirational clauses. Finally, it is important to mention that the 1988 Constitution created some new remedies to promote the implementation of such an extensive bill of rights, such as the mandado de injuno and habeas data, and expanded the scope of traditional remedies, such as the mandado de segurana and the
"* 1988 CF., art. 5o., paragraph 3o. '"1988C.F. art. 212.
234
ao civil pblica, while also recognizing the traditional remedies such as Habeas Corpus.^^ The mandado de injuno was designed to be a remedy against legislative or administrative omissions that would jeopardize the fulfillment of a fundamental right.'' In practice the judiciary has resisted implementing this remedy for more than nineteen years. Just after the renewal of the Supreme Court in the last few years, it started to grant the first group of positive decisions on cases o mandado de injuno.^^ The Habeas Data was clearly designed as a reaction against the unlawful procedures of collecting and keeping data organized under the military rule. Today it is showing its importance in relation to the new forms of data banks in an informational society. Mandado de segurana is a general remedy created in the fifties to protect against infringements on all rights not protected by Habeas Corpus. It bears some similarities with the juizo de amparo, found in other Latin American countries. The major novelty brought by the 1988 formulation is the possibility of using this instrument in cases involving collective interests. Ao Civil Pblica was created in 1985, but strengthened by the new Constitution. The purpose o Ao Civil Pblica was to establish a class action instrument to protect the environment, consumer rights, and historical and cultural heritage.'^ Over time the Ao Civil Pblica became widely used to protect public interests, or fundamental rights of discrete groups including children, native Brazilians and others. The Ministerio Pblico has been the main actor utilizing this remedy, but civil society organizations also employ this instrument in their daily work. C Creating New Identities
On the heels of the new constitutional movement, the same progressive social and political forces that were active during the Constitutional Assembly pushed Congress to produce a series of complementary pieces of legislation in the field of human rights. These infra-constitutional statutes addressed important issues sUch as: children and adolescents' rights (1989)'''
'" See 1988 C.F. art. 5o., from items LXVll to LXXIl. ' ' As an example: a person has a constitutional right to pension, but Congress does not enact a statute regulating this right, so the person can claim a Supreme Court decision that will implement the constitutional rights without the necessity to wait for legislation. 1988 CF., art. 5, LXXI. " 5ee Mandado de Injuno No. 721-7, de 30 de Agosto de 2007 (Braz.), available at http://www.stf.jus.br/portal/inteiroTeor/obterInteiroTeor.asp?numero=721&classe=MI. " f e e C . F . 1988. art. 129, IIL ''' Lei No. 8069, de 13 de julho de 1990 (Braz.), available at http://www.senado.gov.br.
235
rights of people with disabilities (1989)", crimes of racism (1989),^* consumer rights (1990)," health system (1990),^^ social security (1991),^' educational rights (1990),* free access to HIV drugs (1996),*' torture (1997),*^ and agrarian reform (1993),*^ among other relevant issues. This new and vast framework of constitutional, intemational and statutory rights was a direct consequence of civil society movements and progressive politics, which grew in strength during the transition process and through the first years of the new democratic regime. The infraconstitutional legislation was also a response to the intemational mood created by the large United Nations conferences that took place in the nineties, starting with ECO-92 in Rio de Janeiro, which will be analyzed in the next section. At the same time, in a dialectical process, this fresh rights framework contributed to shaping the identity of new civil society organizations. Children's rights, environmental, consumer, HIV, disabled and many other organizations were added to a more traditional network of human rights, women, labor, or Afro-descendants rights organizations, making Brazilian civil society much more complex, but also more fragmented in political terms. Environmentalists and consumers were extremely well organized during the Constitutional Assembly and became the most active constituencies in using the new legal instmments established by the Constitution to advance their causes. For example, the IDEC (Instituto de Defesa do Consumidor), a consumer rights organization created during the Constitutional Assembly, and the ISA (Instituto Socio Ambiental), an organization devoted to protecting the rights of native Brazilians and the environment, both made extensive
" Lei No. 7853, de 24 de outubro de 1989 (Braz.), available at http://www.senado.gov.br. ^' Lei No. 7716, de 5 de Janeiro de 1989, available at http://www.senado.gov.br. " Lei No. 8078, de 11 de setembro de 1990, available at http://www.senado.gov.br/sf/ atividade/Materia/verDiario.asp?dt=13062007&p=19437 (last visited Mar. 11, 2009). '* Lei No. 8080, de 19 de setembro de 1990, available at http://www6.senado.gov.br/ legislacao/ListaPublicacoes.action?id=134238 (last visited Mar. 11, 2009). ^' Lei No. 8213, de 24 de julho de 1991, available at http://www010.dataprev.gov.br/ sislex/paginas/42/1991/8213.HTM (last visited Mar. 11, 2009). *" Lei No. 9394, de 20 de dezembro de 1996, available at http://www.planalto.gov.br/ ecivil_03/LEIS/19394.htm (last visited Mar. 11, 2009). *' Lei No. 9313, de 13 de novembro de 1996, available at http://www.planalto.gov.br/ ccivil_03/LElS/19394.htm (last visited Mar. 11, 2009). *^ Lei No. 9455, de 7 de abril de 1997, available at http://www.planalto.gov.br/ ceivil/LEIS/L9455.htm (last visited last visited Mar. 11, 2009). *' Lei No. 8629, de 25 de fevereiro de 1993, available at http://www.planalto.gov.br/ Ccivil_03/Leis/L8629.htm (last visited Mar. 11, 2009).
236
use of litigation to implement those rights recognized by the Constitution and the complementary legislation enacted afterwards.^"* IDEC was founded with the mission of representing consumer rights before the judiciary. Making use of class actions, created in 1985 and expanded by the 1988 Constitution, IDEC became a national and regional resource for those seeking to enforce consumer rights. In the last twenty years, IDEC has championed several campaigns and promoted hundreds of strategic litigations to implement the Consumer Code and the Constitution. IDEC's successful initiatives include: the struggle to improve govemmental control over the quality of services and products in Brazil; the prohibition of commercialization of over one hundred pharmaceutical drugs; the prohibition of transgenics (which was later allowed by legislation); the establishment of more strict sanitary rules for food products; the enforcement of the Consumer Code for Bank services; and more strict controls over health insurance plans. IDEC has also been extremely successful in bringing pressure over recently privatized public services such as water, telephone and electricity. Besides traditional funding from intemational foundations, such as the Ford Foundation, IDEC has raised funds from its associates, and has also received money from victories obtained in the judiciary. Access to multiple funding streams gives IDEC much more independence than that enjoyed by other civil society organizations in Brazil.*^ ;. The environmental movement is the other civil society segment strengthened by the 1988 Constitution. ISA has a broader mandate than traditional environmental organizations, which is a consequence of its creation, in 1994, as a merger between PPI (Programa Povos Indgenas), CED (Centro Ecumnico de Documentao e Informao), both organizations involved with the promotion of the rights of the Brazilian native Indian population, and a group of environmental lawyers. The idea behind the creation of ISA was that the struggle to protect the traditional native Brazilian lands was indissociable from the protection of the environment and the social and cultural rights of these populations. ISA's main focus, therefore, is the promotion and protection of the social, cultural and environmental rights of the traditional communities recognized by the 1988 Constitution. For the first time in Brazilian constitutional history, the rights of the traditional popula^ See ISA: Instituto Socioambiental, http://www.socioambiental.org (last visited Mar. 11, 2009). ^ M. Lazzarini, Implementacao dos Direitos do Consumidorcomo Fator de Construo da Cidadania, in DiREiTO E MUDANCA SOCIAL (Denise Dora et. al. ed., 2003); see also Instituto Brasileiro de Defesa do Consumidor, Parciero de Consumidor, http://www.idec.org.br (last visited Jan. 3, 2009).
237
tions were recognized, regarding their access to traditional land, legal emancipation and cultural traditions. However, the protection of traditional land continued to be the major challenge for these populations. Although recognized on paper, large parts of these traditional lands had been occupied by cattle and crop growers, as well as lumber companies. Mining on traditional lands has also been a problem in Brazil. In this sense ISA started to work with traditional populations to promote the demarcation of their territories. This is a very difficult and costly process, which demands anthropological reports, cartographical research, historical inventory of property rights, and finally a long litigation process. To face this challenge, ISA has a multidisciplinary team of more than one hundred professionals, including lawyers, in several regions in Brazil. The main strategy is to build relationships of trust with the community, giving support so that the community can represent itself. During this process ISA has helped several native Brazilian Indians to obtain a degree in law or other areas of knowledge. ISA also cooperates with the community by providing legal services and bringing law suits that favor their interests. The case of the Parans is paradigmatic of ISA's activities in the legal sphere. Evicted from their land in the seventies because of the construction of the Cuiab-Santarm road, the Parans decided to retum to their land in the nineties.** Unfortunately, the land had been invaded and exploited by farmers and timber extractors, and only a small part of the natural environment remained untouched. Following a law suit brought on their behalf; the Judiciary recognized not just their rights to the land, but also accepted their claims for moral and patrimonial damages.*^ Finally, ISA works to sensitize the Ministerio Pblico and the Judiciary to the issues of native populations and the environment. D. The Involvement of Public Agencies with Public Interest Law Besides providing new spheres of action for civil society organizations, the 1988 Constitution redefined the mission and scope of action ofthe Ministerio Pblico and the Defensoria Pblica. These changes put both institutions at the core ofthe public interest law arena in Brazil.
**http://www.socioambiental.org/nsa/detalhe?id=2550. " STF Ao Cvel Originaria n 323-7, 2003.
238 1. The Ministerio Pblico
The roots ofthe Ministerio Pblico in Brazil are ancient.*^ The presence of promotores dejustia (public prosecutors) can be traced to the beginning of the sixteenth century, during colonial times. Its role was to apply and monitor the enforcement of the law in the name of the crown. Traditionally the role of the Ministerio Pblico in Brazil is associated with the enforcement of criminal law, as in most countries. However, according to Ronaldo Porto Macedo, the Brazilian Ministerio Pblico gained new powers to protect the "weak and defenceless" under the 1871 statute that emancipated the offspring of slaves.*' The Ministerio Pblico was also charged with representing native Brazilians, orphans, the mentally incapacitated, and with monitoring prisons and mental health institutions, by several decrees and laws enacted during the Empire. During the Republic its mandate was broadened to include the protection of the interests of minors, absentees and a curatorial role of foundations. In 1939 the Civil Procedure Code attributed to the Ministerio Pblico the function of custos legis, which involves monitoring the implementation of the law, in the interest of the public.^" At that time, the Ministerio Pblico started to intervene in every case pending in the court system that presented a public interest aspect. With these new attributions, the Ministerio Pblico started to conceive a new mission, departing from the more orthodox prosecutorial function played in criminal cases. As pointed out by several former members of the Ministerio Pblico, it became a strategy of the institution to get closer to the judiciary, both copying the stmcture of judicial careers, with the same guarantees of independence and salary, and also helping judges by writing pareceres or memoranda related to cases pending in higher courts. Additionally, members of the Ministerio Pblico fought to amplify their mission as ombudsmen for the Brazilian society.^' In 1985, a law regulating class action lawsuits^^ for the protection of the environment, cultural and historic heritage, and the public patrimony.
' All my references to the history of the Ministerio Pblico were taken from the excellent essay written by Ronaldo Porto Macedo Jr., Ministerio Pblico Brasileiro: um novo ator poltico, in MINISTERIO PBLICO II: DEMOCRACIA (1999) and O Ministerio Pblico 500 anos depois do descobrimento, available at http://www.iedc.org.br/artigos/500anos/ronaldo.htm. *' Lei No. 2.040, de 28 de setembro de 1871. Decreto-Lei No. 1.608, de 18 de setembro de 1939. " Macedo, supra note 68, at 22 - 27. '^ The group of jurists that drafted this new legislation was deeply influenced by the Italian Professor Mauro Cappelletti. Problemas de Reforma do Processo Civil nas Sociedades Contemporneas, in O PROCESSO CIVIL CONTEMPORNEO 9-30 (Luiz Guilherme Marinoni
(coord.), Curitiba: Juru Editora, 1994).
239
strengthened the role of the Ministerio Pblico^^ This empowerment process was consolidated during the Constitutional Assembly of 1987-88. Through a very effective lobby and the key presence of Plinio de Amida Sampaio, a former member of the Ministerio Pblico in Sao Paulo, as the reporter for the chapter on the justice system at the Constitutional Assembly, the Ministerio Pblico saw its power expand to new heights. As stated in Article 127 of the 1988 Constitution, the Ministerio Pblico became "a permanent institution, essential to the jurisdiction of the state, being responsible for the protection of the legal order, the democratic regime, and social and nondisposable individual interests;" in other words, public interest and fundamental rights.''' Functional and administrative autonomy was guaranteed to the Ministerio Pblico^^ AU its members are public servants, selected through a public contest, for life, with the same guarantees of independence as the members of the judiciary. The President appoints the federal attorney general from a class of career members of the Ministerio Pblico, subject to the ratification of the Senate, for a mandate of two years. At the state level, governors have to choose the state attorney general from a list of three candidates elected by members of the state Ministerio Pblico. This position also requires ratification by state legislators, and is also for mandate of two years. The Ministerio Pblico sends its budget proposal for Congress consideration, as the executive and the judiciary. Consequently, the Ministerio Pblico is considered almost a fourth branch of power under the Brazil's new constitutional structure, with considerable independence from the other branches. The Ministerio Pblico numbers around twelve thousand attorneys, both at federal and state levels. The structure of the Ministerio Pblico follows the one adopted by the judiciary. The overwhelming majority of state
'* Lei No. 7347, de 24 de julho de 1985, available at http://www.planalto.gov.br/ccivil_03/ leis/17347orig.htm (last visited Mar. 11, 2009). '" 1988 C.F. Art. 127. ' ' Autonomy means in constitutional terms that the Ministerio Pblico is not submitted to the Executive or any other branch of the government. According to the Brazilian Federal Constitution "The Public Prosecution is a permanent institution, essential to the jurisdictional function of the State, and it is its duty to defend the juridical order, the democratic regime and the inalienable social and individual interests. Paragraph 1 - Unity, indivisibility and functional independence are institutional principles of the Public Prosecution. Paragraph 2 - The Public Prosecution is ensured of functional and administrative autonomy, and it may, observing the provisions of article 169, propose to the Legislative Power the creation and extinction of its offices and auxiliary services, filling them through a civil service entrance examination of tests or of tests and presentation of academic and professional credentials, the remuneratory policy and the plans of careers; the law shall provide for its organization and operation, d.
240
and federal attorneys are still involved in ordinary criminal prosecution, or working on other branches of law, such as family, tax, bankruptcy, administrative, etc., as custus legis, writing memoranda to the courts in all these cases.^^ Therefore only small fractions of this large number of legal professionals {promotores or procuradores) are directly responsible for the protection of fundamental rights. Within each state Ministerio Pblico there is a division directly responsible for environmental issues, consumer rights or fundamental rights in general. The same is true at the federal level. Thus the number of members of the Ministerio Pblico working with public interest cases is in effect only hundreds rather than thousands. Members of the Ministerio Pblico have the legal obligation to keep their doors open to the public.^^ They are also supposed to receive representaes, or petitions, from civil society organizations and the public at large.^^ In the last nineteen years of constitutional experience, members of the Ministerio Pblico have become involved with several networks of public interest causes, mainly in the fields of environmental, consumer, children's and Native Indian rights. Most public interest cases that arrived in the Brazilian judiciary have passed through these channels.^^ It is relevant to keep in mind, however, that members of the Ministerio Pblico have full discretion to decide which public interest law cases they will bring to the judiciary. In this sense, civil society organizations do not control the agenda of the Ministerio Pblico. The institution does not have the obligation to represent judicially the claims brought to its attention by civil society groups. It all depends on the relationship between the civil society and the members ofthe Ministerio Pblico in the particular place and time. In the first years of the Constitution there was great enthusiasm about the potential of the Ministerio Pblico to become the main representative of civil society organizations in the judiciary. This fact helps to explain why the great majority of civil society organizations abdicated from the task of organizing their own legal services to advance their causes. With the passing of time, this higher expectation of the role of the Ministerio Pblico, as the defender per esselence of public interest, has been mitigated among civil society organizations. In fact there is no accountability mechanism by which civil society organizations could pressure members ofthe Ministerio Pblico.
'^C.F. 1988, art. 127. " Art. 27, Lei No. 8.625, de 12 de fevereiro de 1993, available at http://www.planalto.gov.br/ ccivil_03/Leis/L8625.htm. "*W. at Art. 25. " Rogrio Bastos Arantes, Direito e poltica: o Ministerio Pblico e a defesa dos direitos
coletivos, in REVISTA BRASILEIRA DE CIENCIAS SOCIAIS 88-90 (1999).
241
Besides this problem, two other elements should be taken into account to explain why the Ministerio Pblico cannot be seen as the sole instrument for public interest law cases: First, the bureaucratic tendency of large institutions to become self-serving; and second, the problem of political partisanship among certain factions within the institution, both at state and federal levels. The most notorious case occurred in the state of Sao Paulo, where a group of promotores (members of the Ministerio Pblico) became affiliated to the PMDB, the largest political party in Brazil.^" One of these promotores was elected governor of the state; several of its secretaries were also promotores. This proximity jeopardized the independence of the institution to act freely on behalf of the public interest, both on human rights and corruption cases. The second issue of concem is related to the danger of cooption of the Ministerio Pblico by middle class demands, which explains why so much attention and time of the Ministerio Pblico is being dedicated to consumer and environmental issues. This threat to independence, however, should be mitigated in the sense that each member of the Ministerio Pblico has a great sphere of legal independence, not just from the other branches of power, but also from the Attorney General, since they act on territorial or thematic jurisdictions, with the same level of independence as judges. However, career interests and corporatist pressures can be very effective in dissuading promotores from acting more independently. The second element that will contribute to a more independent performance is the fact that promotores who joined the Ministerio Pblico after 1988 are not allowed to participate in party politics.^,' 2. The Defensoria Pblica The second set of public agencies directly involved in promoting public interest law in Brazil are the Defensorias Pblicas, organized after the 1988 Constitution. However, the idea of providing legal assistance to the poor is much older, and can be traced back to the Ordenaes Filipinas, enacted in 1823, and enforced until 1916, when a new Civil Code was enacted.**^ According to Book III, Title 84, Paragraph 10 of this statute, private lawyers
*" Antonio Visconti, O Ministerio Pblico e o Direito Informao (2008), at 2, available at http://www.mazzilli.com.br/pages/infonna/entrevistavisconti.pdf. "' According to the Brazilian Federal Constitution, "Supplementary laws of the Union and of the states, which may be proposed by the respective Attorneys-General, shall establish the organization, the duties and the statute of each Pubhc Prosecution, observing, as regards their members, II - the following prohibitions: e) engaging in political or party activities" 1988 C.F.Art. 128,115. ^^ Lei No. 3.071, de 10. de Janeiro de 1916, Col. Leis. Rep. Fed. Brasil, 10.1.1916.
242
should graciously represent in courts "those in misery and defencelessness." In 1890 the Ministry of Justice created a commission oflawyers to represent the poor for free, by Decree number 1030/90.^^ In 1930 the Statute ofthe Bar Association, in its first article, established that members of the legal profession have a duty to represent the poor, reinforcing the tendency of transferring to private lawyers the onus of legal assistance.^"* A constitutional right to legal assistance appeared in the 1934 Constitution, which was the first socially oriented Brazilian constitution (it only lasted for three years).^^ The organization of public legal assistance services only started in the fifties, when a federal law stated its main structure and principles.^^ According to this law, the state should provide services to all those who could not afford to pay a private lawyer without compromising their family's sustainability. Under this federal regulation, states started to organize their services. In the state of Sao Paulo, the largest member of the federation, a legal assistance service was created in 1954, attached to the Procuradoria Geral do Estado (noi the Ministerio Pblico), which is the institution, composed of a large body of state lawyers, with the responsibility of giving consultancy to the administration and representing the state in the judiciary. These legal assistance structures were strongly impacted by 1988 Constitution. Article 5, LXXIV of the Constitution determines that the "states will provide integral and free juridical assistance to those who can prove the insufficiency of their resources." To secure this right, the Constitution ordered the states and the federal govemment to create Defensorias Pblicas. They are considered "essential to the jurisdictional function of the state, being responsible for the juridical orientation and defence, on all levels, of those in need, in the form established by Article 5, LXXIV." The Constitution also provides for some guarantees for the public defenders' independence. At the present moment, Brazil relies on a little over four thousand public defenders distributed around the country.^^ The only state that has not fulfilled its obligation to constitute a Defensoria Pblica is Santa Catarina, in the south of Brazil. Sao Paulo, the largest state in the federation, took sixteen years to fulfill its obligations, which it finally accomplished in 2005.
^' Decreto No. 1.030, de 14 de novembro de 1890, Col. Leis. Rep. Fed. Brasil, 14.11.1890. ^^ Luciana Gross Siqueira Cunha, Acesso justia e assistncia jurdica em Sao Paulo, in S ADEK, Maria Tereza (org.), Acesso justia. Sao Paulo: Konrad-Adenauer 156 (2001 ). *' For the most comprehensive history of Brazilian Constitutional Law, see Bonavides & de Andrade, supra note 42, at 317. ^* Lei No. 1.060, de 5 de fevereiro de 1950, Col. Leis. Rep. Fed. Brasil, 5.2.1950. *' Ministerio da Justia, Secretaria da Reforma do Judicirio, // Diagnstico Defensoria Pblica Brasil 2006.
243
Under the Brazilian legislation, a person is considered in need for the purpose of receiving free legal services if he or she does not make more than three minimum wages a month.^^ Given that over seventy million people^^ receive less than this limit in Brazil, and therefore are eligible for free legal services, the structure offered by the, Brazilian states is insufficient to secure access to an attomey for all those in need. Besides, since the right to a free attomey is not limited to specific areas of law or kinds of cases, most of these attomeys' time is consumed by ordinary individual cases (divorce, evictions and criminal cases), and not by public interest or human rights litigation. In many states private lawyers enlisted by the Bar Association supplement the limited number of defensores pblicos. Public funding is provided to the Bar to pay for these legal services. In many states this is a large operation. In Sao Paulo, more than forty thousand lawyers receive some public resources to represent the poor every year. These services received extremely low evaluations by the users, as described by Luciana Gross Cunha in her dissertation on access to justice in Sao Paulo.'" 3. Ministerio Pblico vs. Defensoria Pblica Several differences between the mission and every day work of these institutions should be highlighted. The Ministerio Pblico is a much stronger and larger institution. It has a wider constitutional mandate, and is entitled to bring cases of public interest to the judiciary on its own behalf." It can conduct investigations, demand information from public authorities, and propose terms of adjustment of conduct for those not complying with the law.^^ This quasi-judicial instrument has been very useful in convincing the administration and private parties to change their behavior regarding the implementation of their constitutional duties. The Defensorias Pblicas, on the other hand, are mainly involved in providing legal assistance to the poor. In some circumstances they can represent NGO's or collective interests before the judiciary, but there is al-
^* According to the Brazilian Federal Constitution, "the State shall provide full and free-ofcharge legal assistance to all who prove insufficiency of funds." C.F. 1988 art. 5, LXXIV. In Sao Paulo, the Defensoria Pblica established that to prove the insufficiency of funds a person should earn until three minimum wages, among other criteria. Deliberao CSDP n 89, de 08 de agosto de 2008.
*' Pesquisa Nacional por Amostra de Domicilios, 26 INSTITUTO BRASILEIRO DE GEOGRAFA E
ESTATSTICA 1 (2005). '" Cunha, supra note 84, at 155. " 1988 CF., art. 129. 'M988C.F. art. 129, VI and VIL
244
13 UCLA J. I N T ' L L . &FOR. AFF. 219 (2008)
ways the possibility that their representation will be questioned if they do not prove that they are representing those in economic need. Currently, both institutions are arguing before the Supreme Court and the Congress over the expansion of the role of the Defensorias Pblicas. The Supreme Court is about to decide if th Defensorias Pblicas can propose, in their own right, collective actions, like aes civis pblicas, before the judiciary.'^ The argument of the Ministerio Pblico is that this competence was exclusively granted to it in 1988. The struggle over the expansion of the role of the Defensoria Pblica is also on the agenda of Congress, which is deliberating over a constitutional arnendment that will grant more power, legal instruments, equal salaries and guarantees of independence to the Defensorias Pblicas?^ Despite all the problems and limitations mentioned above, after nineteen years of constitutional experience it would not be improper to say that these two public agencies have become the core pieces of Brazil's public interest law litigation system.
III. Two SIDES OF GLOBALIZATION AND PUBLIC INTEREST LAW
The full spectrum of the public interest law movement in Brazil cannot be understood without identifying the impact on civil society organizations of the intemational debate in areas such as human rights, the environment and development. Although dominated by public agencies after 1988, several civil society legal programs were created in the last decade, fulfilling a subsidiary but relevant space in the sphere of public interest law. While the previous section described the experience of public interest law groups that were influenced by the 1988 Constitution, this section presents experiences that, although deeply embedded in the Brazilian tradition of legal resistance to arbitrary rule, originated as part of a more intemational movement. It is a truism to say that the flow of ideas has been constant in legal history. The appropriate course of action, therefore, is to detect special moments when defmed sets of ideas made a difference in a specific field of legal practice. The aim here is to find the stream of concepts and ideas, formulated in the intemational sphere, which had an impact on the practice of public interest law in Brazil. This search, however, has to be done within a limited time frame. Therefore, this discussion will be limited to the impact of
'^ S.T.F.J. ADI, No. 3943, Relator: Min. Carmen Lucia, This case has not been decided yet. For further information, see http://www.stf.jus.br/portal/processo/verProcessoAndamento. asp?numero=3943&classe=ADI&origem=AP&recurso=0&tipoJulgamento=M. "'C.F.PECNO.487-A/2005.
245
intemational ideas on public interest law practices during and after Brazil's re-democratization during the late eighties. A. Human Rights Advocacy It is best to start with the intemationalization of human rights. Even though this movement gained strength after the end of the Second World War with the establishment ofthe United Nations in 1945, the adoption of the Universal Declaration of Human Rights in 1948, and numerous human rights treaties that gave legal standing to its objectives, in Brazil the intemational human rights language was not used until after the end ofthe military period. This can be explained by the insularity created by the authoritarian regime, and also by the effects of the Cold War.'^ Liberal democracies, especially the United States, not only neglected human rights violations infiicted by right-wing govemments in the region, but in fact supported some of these regimes.^* It was only during the Carter administration that some pressure started to be exerted on human rights violators in the northem hemisphere. At the United Nations level, Cold War logic contributed to immobilizing most human rights movements. The only intemational mechanism present on the American continent was the Inter-American Human Rights Commission, established by the Organization of American States. It is important to mention that at that time Brazil had not ratified any major human rights instmment, not even the American Convention on Human Rights of 1969. It was only with the end of the military regime in 1985 and the indirect election ofthe first civilian president that the Brazilian govemment started to sign important human rights treaties. Ratification of these treaties came only after the adoption of the new Constitution. The whole movement to pressure the Brazilian govemment to adhere to these treaties and the contact with intemational human rights organizations that started to be active in the country at the end of the military period, inspired new organizations with a clearer human rights vision, such as the Comisso Teotnio Vilela, formed in 1989, by a group of high profile intellectuals, supra-partisan politicians and
''
YVES
DEZALEY
&
BRYANT
GARTH,
GLOBAL
PRESCRIPTIONS:
THE
PRODUCTION,
EXPORTATION, AND IMPORTATION OF A NEW LEGAL ORTHODOXY 153 (2002).
'* For a critical analysis of U.S. support to the Brazilian military regime, see Maria Helena Capelato, O "Gigante Brasileiro" na Amrica Latina: ser ou nao ser Latino-Americano, in ViAGEM INCOMPLETA: A EXPERIENCIA BRASILEIRA (1500-2000) 308 (Carlos Guilherme Mota ed., 2000).
246
artists. This organization aims to cope with rights violations perpetrated against common inmates and criminal suspects under civilian rule.^^ With the ratification of the American Convention on Human Rights in 1992 and the acceptance of the jurisdiction of the Inter-American Court of Human Rights in 1995, many organizations, both domestic and intemational, started to use this mechanism to overcome the inertia of the Brazilian legal system to deal with systematic human rights violations inflicted by the new
98
democratic govemment. Perhaps Justia Global is the organization most emblematic of the move to utilize intemational human rights mechanisms to force the Brazilian govemment to take action on local human rights issues. This organization was created with the main purpose of using the intemational human rights system to deal with violations that occurred in Brazil after the end of the military regime. Established in 1999 by a group of former members of international and domestic human rights organizations,^^ Justia Global founders merged their experiences of working in close contact with grassroots organizations and the intemational human rights system to serve as a bridge between these two spheres. In these fruitful years of existence, Justia Global set a new standard of professionalism, taking dozens of cases to the InterAmerican Court of Human Rights and sending numerous reports to the United Nations. It also led a massive effort to develop human rights activists and advocacy in Brazil. Justia Global promoted the first Brazilian human rights cases accepted by the Inter-American Court of Human Rights, and obtained several victories in the area of human rights, some of which even led to the incarceration of the culprits.'^'' Several United Nations conferences held in the nineties were also responsible for a new flow of intemational ideas that impacted social movements and public interest law practice in Brazil. The 1992 Conference on the Environment, the 1993 Conference on Human Rights, the 1995 Conference on Social Development, the 1995 Conference on Women, the 1996 Confe" Ford Foundation backed some of these initiatives. For further information about the Comissao Teotnio Vilela, see PAULO SERGIO PINHEIRO,DEMOCRACIA X VIOLENCIA: COMISSO
TEOTNIO VILELA, SAO PAULO: PAZ E TERRA (1986).
'^ See Cecilia McDowell Santos, Transnational Legal Activism and the State: Reflections on Cases Against Brazil in the Inter-American Commission on Human Rights, 7 SuR-lNT'L J. ON HUM. RTS. 29, (2007). " Sandra Carvalho, who worked with Teototnio Vilela Comission and also with the PT (Workers Party), and James Cavallaro, who worked with Human Rights Watch. For historical information on Justia Global, see http://www.global.org.br/principal.asp?id_menu=85. ""' Linha de Frente: Defensores de Direitos Humanos no Brasil - 2002 - 2005, JUSTICA GLOBAL (2005), available at http://www.global.org.br/.
247
rence on Human Settlements, and the 2001 Conference on Racism all provoked distinct kinds of exchanges, and encouraged the flow of intemational ideas among social movements, organizations, and even state officials from across the globe. These intemational conferences, unlike those held previously, mobilized thousands of civil society groups and advocates around the globe, not just to attend the meetings, but to articulate civil society proposals and pressure govemments to take a position on these issues. During these preparatory encounters, domestic organizations and advocates started to interact with actors from different countries and regions, opening new channels of dialogue, and also creating the perspective of engaging in a different model of intemational politics, which was not monopolized by states and, at the civil society level, was not coordinated by large trans-national organizations from the North."" Also of importance were the successive encounters of the World Social Fomm, starting in 2000, as a counter-weight to the Davos World Economic Forum. These encounters, held first in Porto Alegre, then in Delhi and Caracas, created the possibility of a more open and less hierarchical dialogue among small organizations from the South. They were supported by cheaper and more accessible means of communication, and inspired several groups to create intemational networks, fomms and platforms. 1. Conectas Direitos Humanos Conectas Direitos Humanos, a nonprofit human rights organization founded in 2001, is certainly tributary to this new momentum in civil society intemational dialogue. It was created after the idea that the intemational human rights agenda was dominated by Northem trans-national organizations, academics and states. It also adhered to the belief that it was necessary to strengthen the human rights infrastmcture'"^ in the South, as well as to improve the protection and promotion of human rights in the South. The organization was created in 2001 in Sao Paulo by human rights advocates"*'' with intemational and domestic experience, both working with
"" See Lucia Nader, The Role of NGOs in the UN Human Rights Council, 7 SUR-INT'L J. ON HUM. RTS. 7 (2007). '"^ The Conectas founders understood human rights infrastructure to mean stronger civil society organizations, sustainable sources of funding, and independent human rights thinking and information; see Conectas Human Rights, Background, http://www.conectas.org/en/ historico.html (last visited Mar. 11, 2009). '"^ Malak Popovic has worked for many years at UN High Commissioner for Refugees, and also as an adviser for Brazilian First Lady, Ruth Cardoso, on Comunidade Solidaria; Oscar Vilhena Vieira, a constitutional law and human rights professor, has worked at Comisso Teotnio Vilela, at the UN institute For Crime Prevention (ILANUD), and also worked as a
248
state and civil society organizations, and a with new generation of intemational affairs and law students. Conectas's mission is "to promote human rights in the global South by strengthening the capacity of local organizations to work internationally, and by exploring legal means to protect human rights both in local and intemational spheres."'"'' In its global South program, Conectas invested in mobilization and capacity-building exchange programs. Through its annual human rights colloquium. Conectas has directly affected more than six hundred young advocates, from more than fifty developing countries. Through its academic initiative, SUR,'"^ it formed a network of researchers and human rights professors across the global South, which publishes the SUR Joumal, which circulates in more than one hundred countries. Conectas has also been involved in advocacy, and in monitoring the human rights foreign policies of Southem countries, as well as the international human rights debates that take place at the United Nations. In 2001, Conectas created a Justice Program that works on Brazilian cases at the national and regional levels to protect victims of human rights violations. The Justice Program uses strategic litigation and pro bono legal services to support vulnerable groups and the civil society sector at large. These activities are carried out by two separate but complementary initiatives: Artigo I and Instituto Pro Bono. 2. Artigo r Artigo 7 "consists'"^ of a very small legal team that specializes in constitutional and intemational human rights law and operates with the support of several law students and pro bono lawyers. The team has broad discretion in selecting cases. The chief criteria is that the case offers an opportunity to produce decisions that can alter institutional practices that violate rights and generate public policies conducive to promoting the human rights of vulnerable groups. Although autonomous in regard to case selection. Artigo 1 works in close collaboration with community and grass roots organizations that represent the rights of vulnerable groups. Artigo 7 also works closely with the Defensoria Pblica, the Ministerio Pblico and with the pro bono community in order to increase the reach of its activities. Although Artigo 1
State Attomey in Sao Paulo. Conectas Human Rights, Who We Are, http://www.conectas. org/equipe.php?idioma=en. '"" Coneetas, supra note 102. '"' Sur is "south" in Spanish, and is just a name ofthe network, not an aeronym. * ' ** The information on Article lo derived from my experience working with the group and interviews with some ofthe current team, specially Eloisa Machado, its legal coordinator; see also Coneetas, supra note 102.
249
uses both domestic and intemational human rights mechanisms, its main objective is to challenge domestic institutions to implement both the new framework of rights that resulted from the 1988 Constitution as well as rights defined in the intemational treaties ratified by the Brazilian Govemment. Artigo 7"acts on three major fronts: at state courts in cases related to institutional violence, mostly against adolescents; at the Brazilian Supreme Court in all cases conceming human rights issues; and at the intemational level, as a subsidiary forum, in situations in which the domestic legal system is not responding adequately. 3. Redressing Violence Violence and the arbitrary use of force are entrenched in Brazilian law enforcement agencies' practices.'"^ The extra-judicial killing of suspects, torture and poor prison conditions have been repeatedly reported by human rights groups and by intemational bodies.'"^ One of the worst cases of disregard for human rights occurs in the field of juvenile detention, which is why Conectas decided to concentrate its efforts on this issue through Artigo 1. The Sao Paulo juvenile detention system, known as C A S A ' ' , is the site of ongoing egregious human rights violations directed against juveniles as young as 12 years old. Poor living conditions and ill treatment are regularly punctuated by occurrences of torture and extra-judicial executions. The dire conditions have sparked national and intemational condemnation during the last two decades and prompted special reports by Amnesty Intemational and Human Rights Watch. " While Artigo 7 works on a variety of human rights subjects, this issue has come to dominate its caseload, due to the severity and institutional nature of the abuses and the profound vulnerability of the victims. Working hand in hand with AMAR (Mothers of Juvenile Inmates in Risk), one of the few domestic organizations focused on the problems of CASA, Artigo 7 is dedicated to using the courts to reform the juvenile detention system and curb its most destructive practices.
'"' See generally United Nations Human Rights Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, U.N. Doc. A/HRC/ll/2/Add.2 (Aug. 28, 2008). '"* See generally U.N. Commission on Human Rights, Report on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/54/426 (Oct. 1, 1999). "" Formally FEBEM. "" See generally Letter from Jos Miguel Vivanco, Human Rights Watch Executive Director, to Claudio Lembo, Governor of Sao Paulo (May 11, 2006), available at http://hrw.org/ english/docs/2006/05/ll/brazill3362.htm.
250
Contrary to what might be assumed, CASA in Sao Paulo State is well funded. Material resources are not the root cause ofthe problem. Rather, it is an institutional culture that values punishment over rehabilitation and fails to hold its personnel accountable for abusive acts.'" The situation is reinforced by the widely held view in Brazilian society that the young people housed in CASA are dangerous and require the most brutal methods to keep them in check. In fact, young people convicted of minor infractions are mixed in with those convicted of more serious offences; the one common denominator is that all come from poor backgrounds. Affluent youth are seldom relegated to CASA. During the last three years. Artigo 1 has lodged over 60 lawsuits on behalf of adolescents in CASA detention, aimed at ensuring redress for victims of abuse, penalties for the perpetrators, and changes in institutional practices. Each of these suits requires legal action at the civil, administrative and eventually criminal levels."^ An exemplary case filed, which was recently ruled on in a Sao Paulo State court, concerned an adolescent killed inside a CASA detention unit. When his mother sought information from the authorities about her son's killing, they refused to provide any details. After an initial negative finding at the lower court level. Artigo /"won on appeal the mother's right for-full disclosure of all information related to her son's death (based on the Constitutional right to full access to information), thereby reversing the lower court's ruling."^ Furthermore, the Court found that the State had failed in its responsibility to protect her son's life. In the line of moral damages, related to extra-judicial killings and torture inside CASA, Artigo I "has won eight cases so far. The important fact here is the amount of damages the defendants were ordered to pay. In the first case, the judiciary sentenced the state to pay only R$ 30,000 (US $15,000) to the family."" Since then the values have increased to an average damages reward of R$ 300,000 (US $150,000)."^ The objective of giving such damages awards is to send a pub-
' " Justia de SP Afasta do Cargo a Presidente da Antiga Febem, FOLHA DE S. PAULO, Sept. 4, 2008, available at http://wwwl.folha.uol.com.br/folha/cotidiano/ult95u441475.shtml (noting that the President of CASA/FEBEM has been suspended from her post several times by the judiciary, at the trial level, and then reinstated by the State Supreme Court). "^ ^ee BONEVIDES & DE ANDRADE, supra note 42. "' Apelao Civel no. 121.447-0/2, Tribunal de Justia, Sao Paulo. "'' Ao Ordinaria de Indenizao no. 053.03.800403-0, 8" Vara da Fazenda Pblica, Sao Paulo. " ' Ao Ordinaria de Indenizao no. 583.53.2005.031461-5, 5" Vara da Fazenda Pblica, Sao Paulo.
251
lie message that these lives are not worthless. In each of these cases. Artigo r is collaborating with the Ministerio Pblico in bringing perpetrators to justice. Another representative case, which is now underway at the intemational level, resulted in an official condemnation of the Brazilian State by the InterAmerican Court on Human Rights in December 2005."* Brought jointly by Artigo 1 and a group of other NGOs, this intemational class action complaint was filed on behalf of 4,000 adolescent detainees in CASA's Tatuap detention unit, notorious for its inhumane conditions and treatment, including extra-judicial killings. After the Brazilian govemment failed to comply with measures prescribed by the Inter-American Commission (including redress for the victims, the closing of the facility, and holding the perpetrators to account), the case was brought before the Inter-American Court. The Court prescribed the same actions and is waiting for the govemment of Brazil to respond. By bringing suits such as these, Artigo /"has been able to shine a light on the urgent problem of CASA conditions, the high incidence of abusive practices, and the denial of basic health and education provisions inside these facilities. In terms of actually promoting reforms to the system, judgments won related to the abuse and deaths of adolescents in detention at the CASA have resulted in the adoption of preventive policies that include improved hiring guidelines for CASA personnel, architectural guidelines for the construction of detention units, the closing or reform of existing units, firings of those responsible for the abuses, and improved health services on ihe premises of the detention facility."^ At least one third of the more than 60 lawsuits lodged by Artigo 7 thus far have been positively decided at the trial judge level {primeira instancia). Two-thirds remain open, all of which are at different stages in the litigation process. Justice is not swift in Brazil. All cases demand intensive investigation work prior to submission and require equally intensive follow-up as each case moves forward. Artigo /"legal strategies rely on a constant stream of information provided by victims' families, in cooperation with AMAR and other community-based organizations. AMAR's staff and members have first-hand knowledge of CASA conditions because they are allowed to visit inmates once a
"* Case 12.328, Inter-Am. C H. R., Resolucin Nov. 17, 2005, and Resolucin Nov. 30,2005, available at http://www.corteidh.or.cr/pais.cfm?id_Pais=7. ' " The following suits were proposed: Ao Civil Pblica no. 583.053.2003.03.031614-9, 7" Vara da Fazenda Pblica; Ao Civil Pblica no. 583.53.2005.023387-7, 14". Vara da Fazenda Pblica.
252
13 UCLA J. INT'L L. & FOR. FF. 219 (2008)
week. Their direct involvement in Artigo 7"efforts is critical to the organization's ability to sustain a program that provides pressure for effectiveness and accountability, and can iel media coverage of the issues it wants to illuminate. In 2005, Artigo 1 instituted regular capacity-building activities for community organizations and family members. Twice each year, the Artigo 1 legal team, together with pro bono lawyers, offers a two-day course to some 100 participants on how to monitor conditions and practices in CASA: This includes information on the legal rights of juvenile inmates, as well as the judicial and non-judicial paths to guarantee those rights, and how to obtain redress when those rights are violated. These capacity-building activities have had dramatic results. They have improved the quality of infonnation provided by families, raised awareness of the important role community organizations and individual families can play in transforming the detention system, and have led to a significant increase in the human rights violation claims submitted to the Attorney General's Office (after one recent course, the state prosecutor received in a single day the number of claimsabout 30usually submitted during an entire month). "^ Besides cases of violence against adolescents under the custody of the State, Artigo 7 is also dealing with a few cases of extra-judicial killings of adult suspects by state officials or death squads acting under police protection. As has been reported by human rights groups, and even admitted by the Federal Govemment, the Brazilian state has not been able to curb police brutality and extra-judicial killings in the last two decades. In May 2006, a major prison gang known as PCC organized an unprecedented riot in the state of So Paulo. The riot consisted of attacks against police stations and prison guards all over the state, and resulted in the killing of 42 police officers and prison guards. In the aftermath of these bloody events, the police allegedly killed 492 suspects. The state argued that those killings were the result of conflicts between criminals and the police. Artigo 1, jointly with other organizations, called for more investigations, since there were reports and some evidence that a large number of these killings occurred not in a legitimate conflict, but as a result of summary executions."'
"* Interview with Conceio Paganelli, President of Association of Mothers of Adolescents in Risk, (Sept. 20, 2007). ' " Vannildo Mendes, Conselho constata execues em SP, O ESTADO DE S. PAULO, June 30, 2006, at 2, available at http://pfdc.pgr.mpfgov.br/clipping/pdfs/docs_boletins_anteriores/ pfdc-30-de-junho-de-2006.pdf.
253
Several legal measures were taken to guarantee that medical evidence could be collected before the burial of the corpses. These measures were successful and the Ministerio Pblico is now initiating an investigation.'^" Besides following the investigations. Artigo 7 is prosecuting several lawsuits on behalf of the families of those summarily executed. In another case of extra-judicial killing by a death squad with police participation, the judiciary granted R$ 697,200 (US $350,000) as moral damages, the largest sum ever granted in a case of police abuse in Brazil.'^' In summary, the main objective of Artigo 7 is to reattribute value to human lives that are despised by state officials. By bringing their stories to the judiciary. Artigo 1 has an opportunity to attract public attention to institutional practices that systematically violate the human rights of invisible and demonized groups within Brazilian society. It also aims to bring the perpetrators of these crimes to justice. 4. Accessing the Supreme Court The second strategy adopted by Artigo 7 consists of contributing amicus euriae in human rights cases pending at the Brazilian Supreme Court. In the last 18 years, the Brazilian Supreme Court has become one ofthe major domestic fomms for advancing the protection of fundamental and human rights. The Brazilian Supreme Court occupies both the position of a court of last resort, similar to the US Supreme Court, and the position of a Constitutional Court, in the European sense.'^^ That means that you can get to the Court either through an appeal on an individual case, or through a direct action of unconstitutionality {ao direita de inconstitucionalidade). The problem is that only a few political and social actors, as determined by Article 103 of the Constitution, are allowed to go directly to the Supreme Court.'^'' Thus, there are very strict standing rules that keep much of civil society out ofthe constitutional debate.
' ^ See Nader, supra note 101. '^' Ao Ordinaria de Indenizao no. 583.53.2003.026543-9, 12" Vara da Fazenda Pblica, Sao Paulo.
'^^ SCAR VILHENA VIEIRA, SUPREMO TRIBUNAL FEDERAL: JURISPRUDENCIA POLTICA 143-147
(Sao Paulo: Editora Revista dos Tribunais, 1994). '^^ President of the Republie, directive board of the Senate, House of Representatives, and State Assemblies, State Governors, General Attomey ofthe Republic, National Council ofthe Brazilian Bar Association, Political Parties with representation at the Congress, confederations of unions. 1988 C.F. Art. 103.
254
To democratize this arena. Congress passed a bill in 1999 allowing third parties to present amicus curiae briefs to the Court.'^'' In countries such as the United States, amicus briefs have been shown to have considerable influence in Supreme Court decisions,'^^ but this mechanism for civil society participation remains largely unexplored in Brazil. Conectas, through Artigo 1, holds the record for the largest number of amicus briefs submitted to Brazil's Supreme Court28 so farfiled on behalf of a wide variety of causes, including affirmative action, rights of people with disabilities, gun control, abortion, freedom of religion, contemporary forms of slavery, funding for public education, research with stemcells, and the federalization of human rights violations.'^^ Artigo 7"has developed two main approaches regarding the presentation of amicus briefs at the Supreme Court. The first one is a monitoring process that checks every direct action of unconstitutionality docked at the Supreme Court. When an action has a significant human rights component. Artigo 7 "either prepares an amicus curiae on the plaintiffs behalf, or contacts a significant social organization involved with the protection of the particular right under dispute. The idea is to encourage other organizations to present amicus curiae. Artigo 1 also makes legal support available when necessary. The second, rarer, strategy is to pressure political or social actors with standing at the Supreme Court to bring a direct action of unconstitutionality to the Court, sometimes preparing the cases for them, and then presenting an amicus brief To date. Artigo 7"has obtained three important results. The first one is related to the question of standing to present an amicus brief There was a debate among the Supreme Court Justices about how open the Court should be in accepting amicus briefs from civil society organizations. In a case presented by Artigo 1, the Court decided that a human rights organization like Conectas, with the broad mission to promote human rights, should be given standing in all cases related to fundamental rights.'^^
'^^ Lei No. 9.868/99, de 10 de novembro de 1999, D.O. de 11.11.1999 (Brazil), available at http://www.planalto.gov.br/ccivil_03/LElS/L9868.htm. '^^ Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743 (2000). '^ fee Conectas, 5w/7r7 note 102. '^' Adin 3268, MIn. Celso de Mello, Decision issued on October 22nd, 2004, available at http://www.stf.jus.br/portal/processo/verProcesso Andamento.asp?numero=3268&classe=ADI &origem=AP&recurso=0&tipoJulgamento=M.
255
The second positive result was also procedural. In a case conceming stem-cell research, which involved a significant debate over scientific issues. Artigo 1 proposed to the Justice in charge of reporting the case that he should call a public hearing and invite scientists to testify before the Court. This resulted in the first public hearing of non-lawyers allowed by the Court in its history.'^^ The only substantive victory so far occurred in a case over gun control, which is an extremely important issue due to its impact on homicide rates.'^^ Brazil has an extremely high homicide rate, with small weapons used to commit most of these killings. After a long parliamentary debate. Congress approved a gun control bill with several restrictions on individuals carrying guns.'^ This bill, however, had a provision prohibiting any kind of trade in guns, which would only enter into force if approved in a national referendum. The result ofthe referendum was negative.''" Consequently, today the sale of guns is legal, although several restrictions on carrying a gun are still in force. Against these restrictions a direct action of unconstitutionality was proposed by the PTB, a right-wing party, on several charges. The Supreme Court decided the case in May 2006, upholding the legislation, with minor adjustments, on procedural matters.'''^ Until this moment, this is the only Conectas case decided on the merits. Three conclusions can be drawn from this extremely short experience. The first is that civil society organizations should be better prepared if they want to have a voice in constitutional debates. Being a forum of principle,'^^ it is very important that social organizations make their points heard at the Supreme Court. A more general conclusion is related to the agenda of the Supreme Court for the next few years. Brazil adopted a very progressive Constitution in 1988. After adoption. Congress approved numerous bills to implement the
'^^ Supremo Vai Realizar a Primeira Audiencia Pblica de sua Historia em ADI que Contesta Lei de Biossegurana, NOTICIAS STFSUPREMO TRIBUNAL FEDERAL, Mar. 23, 2007, available at http://www.stf.jus.br/portal/cms/verNoticiaDe talhe.asp?idConteudo=69419&caixaBusca=N. '^' S.T.F.J., ADl/3137, Relator: Min. Ricardo Lewandowski, 224 D.J. 23.11.2006, (Brazil), available at http://www.stf.jus.br/portal/principal/principal.asp (enter "3137" in Numero de STF search). ''" Lei No. 10.826/03, de 22 de dezembro de 2003, D.O.U. de 23.12.2003, (Brazil), available fli http://www.planalto.gov.br/ccivil/Leis/2003/L10.826compilado.htm. '^' Referendo da Proibio do Comercio de Armas de Fogo e Munio, Historia das Eleies no Brasil (2005), available at http://www.tse.gov.br/institucional^iblioteca/site_novo/ historia_das_eleicoes/capitulos/referendo/referendo.htm. 132 gjp^ Ao Direta de Inconstitucionalidade no. 3137, supra note 129. ' " This concept is used in the same sense illustrated in RONALD DWORKIN, A MATTER OF
PRINCIPLE 33-71(1986).
256
13 UCLA J. I N T ' L L . &FOR. AFF. 219 (2008)
Constitution's aspirations. These bills are under attack by conservatives that were defeated in the political arena, yet they are using the Supreme Court to undermine acts of Congress.'^" Today, the challenge for civil society organizations involved in the promotion of human rights is to defend this progressive legislation at the judicial level. A third lesson is related to political legitimacy. Although the Supreme Court has accepted the participation of Conectas in all the cases in which amicus briefs have been presented so far, in order for these cases to make a political statement, other organizations that are directly involved in the issue under debate must also represent themselves before the Court. B. Economic and Social Responsibility of the Legal Community: The Development of Instituto Pro Bono
At the beginning of the nineties, with the election of Femando Collor de Mello for President and the hegemony of the new liberal economic policies taking hold at the World Bank and the Intemational Monetary Fund, Brazil started to open its economy to intemational traders and investors. Several amendments to the 1988 Constitution were promoted by subsequent administrations, abolishing the privileges of Brazilian companies, promoting the privatization of state-owned companies, and creating regulatory agencies to obtain a more stable and predictable legal environment for intemational investors. Brazil also became committed to intemational trade regulations through full engagement with the World Trade Organization.'^^ This more westem economic atmosphere created a new demand for legal services capable of navigating intemational waters. The Brazilian Bar Association, however, created several obstacles for intemational law firms trying to establish branches in Brazil. These constraints opened a space for Brazilian law firms to meet the growing needs of the business community. In order to do this, law firms had to develop new legal skills and expertise, and also had to adapt their professional culture to new sorts of demands. The intemationalization of the Brazilian legal profession brought with it the notion that promoting pro bono legal services was part of the package. Many intemational companies and large Brazilian enterprises began to state their commitment to social responsibility, creating a demand that all participants in their chains of production also act with social responsibility. As law firms were increasingly viewed as important actors in the economic scene, they also had to show commitment to social responsibility, which meant, primarily, undertaking
'^'' See generally Luiz WERNECK VIANNA ET AL., A JUDiciALiZACAO DA POLTICA E DAS
RELAES SOCIAIS NO BRASIL ( 2 0 0 5 ) .
" ' See Vieira, supra note 43.
257
pro bono work. The idea of promoting pro bono is also a consequence of the exchange of clients and personnel with intemational law firms in the North, and the influence of a new generation of Brazilian law students that started to be trained in American universities. So, although there was a long tradition of involvement of the legal profession with voluntary services and public interest law in the Brazilian legal profession, a new rubric began to be used to designate these services. Under such conditions, and with the support of the Ford Foundation in Rio de Janeiro, Conectas Direitos Humanos fonned a group of top So Paulo lawyers to organize a pro bono initiative in Brazil. Public Counsel, a pro bono organization based in Los Angeles, was of great help in establishing the initiative.'^* The Instituto Pro Bono (IPB) was created in 2001, but faced severe criticism from the local Bar. The ethical committee of the So Paulo section of the Bar questioned some of the founding members, accusing them of promoting unfair competition and co-opting clients.'" Following a large debate, pro bono activities were regulated through very strict rules in the state of So Paulo.'^^ The reaction ofthe Bar to IPB's creation shows a complete shift of the Bar regarding the role of the legal profession vis--vis the poor and disadvantaged. Its Ethical Code of 1930 established free services to the poor as an obligation. Now, following the impoverishment of large portions ofthe legal profession, the Bar began to view its mission as the protector of market spaces for the legal profession.'^' Today Instituto Pro Bono mobilizes over 400 attorneys from So Paulo's major law firms that volunteer their time and expertise in support of civil society organizations, and consequently helps a broad range of human rights and public interest causes.''"' IPB works on three major fronts. First, it acts as a clearinghouse for pro bono opportunities. The program has an open door policy for NGOs seeking legal assistance. The IPB team receives the
'" Daniel Grundfeld, former executive director of Public Counsel, came three times to Brazil in this period. It is also important to mention Ellen Chapnik, from Columbia University School of Law, who has been a frequent interlocutor of IPB. ' " Gilberto Dimenstein, OAB Cria Polmica Sobre Prestao de Advocada Gratuita, FOLHA
DE SO PAULO TEMPO REAL, Jan. 9, 2002, available at http://wwwl.folha.uol.com.br/folha/
dimenstein/temporeal/gd090102.htm.
'"* RESOLUO OAB - CONSELHO SECCIONAL DE SO PAULO DE 19 DE AGOSTO DE 2002 (2002),
avcH'/aWea/http://www.oabsp.org.br/tribunal-de-etica-e-disciplina/legislacao/resolucao-pro-bono. '" F.N.R. Almeida, A advocacia e o acesso a justia no estado de So Paulo (Dec. 27, 2006) (unpublished masters dissertation, FFLCH University of Sao Paulo), available at http://www. teses.usp.br/teses/disponiveis/8/813 l/tde-26062007-155516/. , ''"' See Instituto Probono, Parcieros, http://www.institutoprobono.org.br (follow "Parceiros" link) (last visited Jan. 4, 2009).
258
requests from civil society organizations, checks the potential beneficiaries, and frames the cases. After this initial procedure, IPB makes the request available to its network of volunteer lawyers. IPB's experience shows that in less than 12 hours a lawyer will volunteer to take the case. Rare are the circumstances when IPB does not receive an immediate and positive response from the legal profession. Even though the Brazilian legal experience has produced several public interest initiatives throughout its history, there is still some skepticism about whether private lawyers from the corporate world are fit to represent human rights and public interest cases. Therefore, most ofthe requests IPB receives from NGOs for pro bono legal assistance deal with intemal administrative, tax or labor concems, rather than the use of legal strategies to advance their missions and the interests of their constituents. Other factors that contribute to the lack of NGO initiative in this realm include the dearth of public information about the Court's deliberations and decisions and NGOs' limited experience and technical expertise when it comes to "working" the judicial system. To counter such negative models and address the very real need for NGOs to push the limits of the judicial system, IPB is shifting from a largely reactive to a more proactive orientation, geared to identifying and recmiting NGOs with whom to partner on human rights cases. In line with this, IPB is identifying leading groups in the state of Sao Paulo working in three areas where Coneetas has professional relationships and a track record of working on the issue: HIV/AIDS; adolescents in conflict with the law; and women's rights. A second front is the organization of specially-tailored programs, designed to respond to a more systematic demand. Perhaps the best example is the agreement made between IPB and the Casa da Saude da Mulher (Women's Health House), by which IPB in-house lawyers and volunteer lawyers provide systematic consultancy and assistance for women victims of sexual violence. IPB has organized other tailored programs, like the one with ABONG (Brazilian Association of NGOs), to respond to the most common legal themes facing NGOs, or the program with Fundacao Palmares, built to facilitate the certification of traditional land occupied by communities of former slaves' descendants. The third front is related to the expansion o pro bono initiatives in other regions. As IPB has gained visibility and experience, it has received a growing number of requests for legal assistance from NGOs and social movements located in faraway regions in Brazil and even abroad (Turkey, Portugal, Peru, among others), where pro bono services have not yet been instituted. It is important to note that IPB is part of a larger intemational
259
network o pro bono initiatives, which in Latin America are mostly supported by the Ford Foundation. To respond to these demands, the organization believes that the best form of expansion is to promote local initiatives with local personnelin other words, to encourage the creation of autonomous institutions rather than affiliates of IPB.
CONCLUSION
In new democratic regimes, such as Brazil and many other developing countries, constitutions tend to be a reaction to a past of authoritarianism and major social injustices, and are designed to foster social cooperation and legitimacy. New constitutions normally bring a generous bill of rights, which recognize civil and political rights, and also a large range of social rights.'"' They also recognize the major institutional elements of the rule of law and representative democracy. More than that, these post-authoritarian constitutions create new institutions, like ombudsmen. Ministerio Pblico, Defensoria Pblica, or human rights commissions and public ministries to monitor compliance with the rule of law and to protect the constitutional rights of individuals and vulnerable groups. This reconfiguration of legal systems around the developing world has also been a consequence of pressure from civil society. Forged during the struggle against arbitrary rule, and strengthened throughout democratization, civil society organizations are key players in denouncing abuses, making governments more accountable, and providing altemative polices to alleviate major social problems. For example, the number of non-profit organizations in Brazil has more than doubled in recent decades. Of the 338,000 civil society organizations legally established in the country, thirty five percent are allegedly dedicated to the promotion and protection of rights.'"*^ The question, therefore, is how these new players are using their institutional and social power to challenge the formal legal systems to become more impartial and to overcome their inability to protect rights and apply the law equally to all citizens. It would be naive to attribute to legal systems the capacity to produce their own efficacy, but it would also be inadequate to disregard the potential''" For a general view of transformative constitutions and their implementation through
courts, see the impressive volume ROBERTO GARGARELLA, COURTS AND SOCIAL
TRANSFORMATION IN NEW DEMOCRACIES (2006).
'''^ IPEA and IBGE, As Fundaes Privadas e Associaes Sem Fins Lucrativos no Brasil (2005), available at http://www.ibge.gov.br/home/presideneia/notieias/noticia_impressao.php ?id noticia=1205.
260
ities of new actors to promote social change through the employment of legal strategies. Even a fragile legal system can provide mechanisms that, when appropriately used, will enhance the protection of rights and the equal recognition of legal subjects. Public interest law, human rights advocacy, strategic litigation, pro bono and public defense offices, like the Ministerio Pblico and the Defensoria Pblica, can mobilize legal resources in favor of less-empowered interests or against over-represented interests. This move from within the legal system to empower the weak, protect the demonized, and destabilize entrenched privileges, should not be viewed, however, as a new panacea, but only as part of a larger effort to construct more reciprocal societies, where human rights and the rul of law can take hold.''*'' This effort is based on the presumption that the legal system occupies a special intermediary position between politics and society. As a product of social relations and political decisions, legal systems are also a vector for these relations and decisions. Law should not only mirror the distribution of power within society. It is far more important that modem legal systems are characterized by fair rules and procedures aimed at obtaining legitimacy and coop144
eration. Therefore, the question for those civil society organizations and public agencies concerned with rights and social justice is how to mobilize legal instruments to promote these values. How can the legal system enhance the position of those who are below the law, breach the comfort of those above the law, and recover the loyalty of those who are against the law? Lawyers and judges cannot do much to change society; in fact they are normally interested in reinforcing the status quo. But they can have some impact when challenged by other social actors. As the recent experience of many extremely unequal countries like India, South Africa, Brazil and Colombia show, the legal community can, in some circumstances, be responsive to the demands of the poor when they seek redress through the legal system.'''^ Therefore, any attempt to make use of law to improve the rule of law itself presupposes that there is political and social mobilization backing it. Due to the same egalitarian characteristics of the rule of law, as discussed above, interests that would be squashed in a purely political arena can gain
'""^ Oscar Vilhena Vieira, A desigualdade e a subverso do Estado de Direito, 6 SUR. REVISTA
INTERNACIONAL DE DIREITOS HUMANOS 29 (2007), available at http://www.surjoumal.org/
conteudos/re vista6.zip. ""* Stephen Holmes, Lineages ofthe Rule of Law, in DEMOCRACY AND THE RULE OF LAW 47 (J.M. Maravall & A. Przeworski eds., Cambridge University Press, 2003).
"*' COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE
FOR THE POOR? (Roberto Gargarella et al. eds., 2006).
261
some status through a legal system. Although legal institutions are also vulnerable to subversion by the powerful, they can eventually balance out inequalities in the political system. In translating a social demand into a legal demand, we move from a pure power competition to a process in which decisions are justified in legal terms. The need for legal justification reduces the space for pure discretion, which tends to be to the disadvantage of the weaker members of society. In these circumstances the legal system can give public visibility, in terms of rights recognition, to those who are disregarded by the political system and by society itself In the same direction, it can trap the privileged, bringing them back to the realm of law.

Oscar UCLA Public Interest Law

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Oscar UCLA Public Interest Law

Hochgeladen von

Copyright:

Verfügbare Formate

PUBLIC INTEREST LAW: A BRAZILIAN PERSPECTIVE

Oscar Vilhena Vieira

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

' JosELi NuNES MENDONA, CENAS D A ABOLIO: ESCRAVOS E SENHORES NO PARLAMENTO E

NA JUSTIA 101-107 (Editora Fundacao Perseu Abramo 2001).

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

'^ Lei No. 2040, de 28 de setembro de 1871 (Braz.). ''Id

DO DiREiTO 353-391 (2006).

Public Interest Law: A Brazilian Perspective

'* AZEVEDO, supra note 15, at 189-204. " M a t 193.

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

GENESE E ATUAO POLTICA (1972-1985) (Editora da Universidade Federal de So Carlos

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

PERSPECTIVAS (Joao Guizzo ed., Editora tica 1996).

Luza Amendola trans.. Editora Paz e Terra 4th ed. 1987).

Public Interest Law: A Brazilian Perspective

'"'THOMAS SKIDMORE, BRASIL: DE CASTELO A TANCREDO 262,330-331 (ED. TERRA 1988).

13 UCLAJ. INT'LL.&FOR.FF. 219(2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

**http://www.socioambiental.org/nsa/detalhe?id=2550. " STF Ao Cvel Originaria n 323-7, 2003.

238 1. The Ministerio Pblico

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

(coord.), Curitiba: Juru Editora, 1994).

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. I N T ' L L . &FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

EXPORTATION, AND IMPORTATION OF A NEW LEGAL ORTHODOXY 153 (2002).

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. FF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. I N T ' L L . &FOR. AFF. 219 (2008)

RELAES SOCIAIS NO BRASIL ( 2 0 0 5 ) .

" ' See Vieira, supra note 43.

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

Public Interest Law: A Brazilian Perspective

13 UCLA J. INT'L L. & FOR. AFF. 219 (2008)

FOR THE POOR? (Roberto Gargarella et al. eds., 2006).

Public Interest Law: A Brazilian Perspective

Das könnte Ihnen auch gefallen