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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[1]

         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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[1] Maria Helena Zamora is a professor at PUC Rio de Janeiro.