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In
spite of the potential new policies for advocating
children’s rights, established by the ECA (Statute of
Children and Adolescents), concrete implementation has been
compromised by the lack of interest on the part of the
government. The
division of responsibility between the Government, the states
and counties is still confused and subject to conflict – the
various spheres fleeing from responsibility. On the other
hand, the population is not well informed or organized to
propose, subsidize, demand and evaluate social policies.
At
Fifteen:
The
Statute of Children and Adolescents in the Neo-liberal Era
Maria Helena Zamora
Walter Benjamin (1991) claimed that historians should be
capable of identifying in the past the seeds of another story,
that which might have been and that which might still be.
To save the past in the present is to transform both:
the past escapes oblivion, which would be as if it had
never existed at all, and as if the lives of the thousands of
people who have suffered and fought had been useless.
The Statute, which is now fifteen years old, was one of
the first results of the International Convention of the
rights of Children and Adolescents, 1989, when Brazil, like
all of Latin America, adapted its legislation.
The ECA was the result of the activities of several
organized segments of civil society during the 70’s and
80’s. These groups are active in promoting human rights,
especially for the most vulnerable populations who, because of
their youth, are unable to fully protect themselves. Our
current legislation is the result of the participation of
several organizations that have worked to guarantee full
rights for children.
The
“other history”, that of peoples in resistance, in
organized struggle, or open revolt, cannot be excluded from
our memory. Let us think strategically, by asking: what are
the true difficulties currently preventing our Statute from
existing not only on paper?
I will list here some elements, but with no intention
of exhausting the realm of possibilities.
Brazilian
society has strong authoritarian roots.
It lives with injustice, limited freedom, and torture.
Brazil was the last country to abolish slavery and, in
some regions, maintains the practice to this day.
The country has oppressed its women, initially through
disenfranchisement – and now, through unequal compensation.
The Brazilian republic was founded through a military
coup, and has experienced several others.
In
spite of the new possibilities for policies advocating
children’s rights, opened by the ECA (article 86), concrete
implementation has been compromised by the lack of interest on
the part of those in government.
The division of responsibility between the Government,
the states and counties is still confused and subject to
conflict – the various spheres fleeing from responsibility
for the social sector. Effective mechanisms have still not
been put into place – nor is the population well enough
informed or organized – to propose, subsidize, demand and
evaluate social policies.
Attention to poor children in Brazil has always been
biased toward punishment, charity, and philanthropy whose goal
has been to control and induce the poorer segments of our
population to accept as natural the historical situation of
exploitation. All of the trends pointed out herein should be related to the
re-philanthropization of neo-liberal social assistance.
In other words, it is expected that business
communities, NGOs, volunteers, and well-intentioned people
maintain social programs, leaving the State free from this
obligation. There
is nothing wrong with the participation of several sectors,
but it does not substitute public policy, even when it
proposes and carries out interesting initiatives.
According
to Passetti (2000), the Statute, in proposing co-management of
service policies among governmental and non-governmental
organizations, recreates a space for purported
service-oriented practices that in fact perpetuate
inequalities. Even
if, at the national level, the State supervises activities, it
decreases its own action.
This virtual “out-sourcing” of the social realm
leads to an abdication of the State’s responsibility and
constitutional obligations.
Although NGOs come up with creative and economic
proposals to solve social problems, these actions do not
constitute guaranteed rights and, in general, serve the
population only partially and selectively, not in its entirety
(Sartor, Martins and Silva, 2002 and Gonçalvez, 1996).
As
mentioned above, historically the role of civil movements,
including NGOs, has been fundamental to guarantee the ECA.
Nonetheless, today many NGOs, in establishing
partnerships with the State, become dependent on its financial
support in order to survive and thus loose both their ability
to perform critically and their capacity to mobilize the
population.
In
summary, the final consequence of this new play of forces is
that outdated models of purported assistance that maintain
social inequality continue to exist.
The type of services commended by the Statute, based on
universal rights, are still a long way
from implementation.
Policies that are focused and selective, aimed
exclusively at the poorest families and children predominate.
In Brazil, young people are considered responsible for
the upsurge in violence – when they are its greatest victims
(Waiselfisz, 2004). The
media amplifies each and every crime committed by teenagers
and the Statue has been the target of criticism, aimed at its
supposed leniency with “inveterate criminals”.
Legislative bills for reducing the legal age to be
tried as an adult and increase prison terms have been notably
prevalent. People
are not given any other elements to encourage debate of
greater depth, nor are solutions presented aside from those of
repression.
The
Statute is a boat running against the tide of our punitive
times, whose sails are filled with the winds of “zero
tolerance” blowing from the United States ideology.
The Statute clearly states that the process of having
young people take responsibility for their infractions is of a
socio-educational and pedagogical nature and not penal.
The law should be attacking the causes of
delinquency – through basic social policies, special
protection, and through the socio-educational system (Gomez
Neto e Diaz, no date; Arantes, 2005).
Confinement
should be, in fact, the last socio-educational measure to be
resorted to, and always founded on the greater interest of the
adolescent and his or her reintegration into the family and
community. It is
inconceivable, for example, that 15% of the adolescents are
serving time in confinement, often in inhuman conditions, for
petty theft, not including cases of repeated transgression
(Silva and Gueresi, 2003).
In addition, any involvement with drug trafficking on
the part of boys and girls, contact with these activities, and
the use of narcotics has been criminalized, and is an
important factor in determining measures for confinement.
We
observe two distinct discourses (and practices) in the
socio-educational universe. One of them is linked to repression and tends to criminalize
the drug user.
There
is another discourse, based on the model of reintegration the
drug user into society. Its
aim is to provide health services, and community services in
general. The
predomination of the repressive paradigm, which persists in
the conservative mentality of many judges, has filled
correctional institutions, transforming them into terrible
spaces for young people.
About
71% of Brazilian correctional facilities are inadequate (Silva
and Gueresi, 2003). The reform in the correctional system (Article 259) has yet
to become a reality. Besides the numerous denouncements of
brutality, these institutions lack a pedagogical policy.
The correct implementation of the
Statue requires that each municipality establish
socio-educational programs. It is necessary to promote integration of the Juciciary,
Public Ministry, Public Defense, Public Safety, and Social
Assistance, preferably in the same location, in order to
facilitate initial services for adolescents who have been
accused of infractions.
To
finalize this evaluation, we emphasize that the law needs to
relate with effective institutions, with social practices. The
battle now should be to guarantee that legal principles are
translated into policy. We should recall how much we, or those
who came before us, have fought for what we have today.
We must honor this fight; we must deserve our past.
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