Children's Involvement in the Making of a New Constitution in Brazil
Brazil's is among the world's ten largest economies, but poverty is widespread. The World Bank (1997) reported that Brazil has the worst income distribution among more than 60 countries for which data is available. The richest 10 percent of the population effectively control 51.3 percent of total income, while the poorest 20 percent have access to just 2.1 percent of total income. Children and youth in Brazil bear the burden of poverty disproportionately. It is estimated that some 40 percent of those 14 years and under survive precariously in households whose total monthly income is less than one-half Brazil's minimum salary (U.S.$65) (IBGE 1997), with serious consequences for health, education, and access to basic services. Infant mortality rates (44 per 1000 live births) are much higher than for other countries with a comparable gross domestic product. (UNDP 1998) About 30 percent of children never reach the fifth grade of primary schooling and only 22 percent of 15 to 17 year olds are in secondary school. (UNDP 1998) Moreover, these indicators mask tremendous geographic differences. For example, in the South of Brazil 30 percent of 15 to 17 year olds are in secondary school as compared to 17 percent in the Northeast.
It is both ironic and hopeful that within this context, laws characterized by former UNICEF Director James Grant as "the best child protection legislation in the world," emerged. (O Globo 1992) These laws were the direct outcome of a national social movement focused on the rights of the child, resulting in the adoption of a constitutional clause proclaiming the rights of the child and adolescent in 1989 and the subsequent Child and Adolescent Statute in 1990. These laws mark a significant change in an historic evolution of thinking about the place of children and adolescents in Brazilian society. This evolution can be characterized as moving from a focus on the correction and control of delinquency to the provision of social assistance to needy children, and, more recently, to an emphasis on the rights of the child and the need for special protections and guarantees to ensure those rights. In this paper we will briefly outline the evolution of the child rights movement in Brazil, with special attention to children's participation in that process.
From the 1950s to the 1970s: Assistance and Repression Intertwined
The first national institution for poor children, focusing on those abandoned or delinquent, was the Assistance Service to Minors (SAM) created in 1941. SAM was supposed to assess the needs of these minors and to develop and administer institutions to provide assistance. From the beginning, a repressive, penal approach to abandoned and delinquent children, in which they were seen as threats to social order, was taken. The correctional facilities that were created have been described as "branches of hell." (Costa 1990) In the 1950s and early 1960s, frequent press reports exposed rampant corruption and often violent treatment of children.
In 1963 the democratically elected government of President Joao Goulart set up a commission to radically revise SAM, but the 1964 military coup ended, or at least redirected, that effort. The military regime did replace existing legislation with what it characterized as "anti-SAM" reforms, setting up the National Foundation for the Welfare of Minors (FUNABEM) directly under the President of the Republic to administer the new system. While the rhetoric was to move toward policies that provided assistance to those marginalized, the reality was that the new system inherited the culture, institutions, staff, and the punitive incarceration model of SAM. Moreover, under the military dictatorship the "problem of the minor" came to be seen as a question of national security, legally institutionalized in the Minor's Code of 1979. (Vogel and Rizzini 1995)
Under the new laws of the military regime, the government was empowered to intervene in the lives of children and adolescents in "irregular circumstances." This provision grouped together abandoned children and youth, children and youth who congregated in public places for recreation and informal commerce, and young people involved in criminal activities. The result of the policy was to criminalize the activities of millions of young people in so called "irregular circumstances," even when they were on the streets seeking a means of survival.
Established under the direction of FUNABEM, state government child welfare institutions (State Foundations for the Welfare of Minors, FEBEMs) held young people deemed to be in irregular circumstances. These institutions housed both children who had committed crimes and those rounded up in actions to remove children from the streets. They quickly developed the same reputation as the earlier SAM "hellholes." The new system continued to be corrupt and violent, characterized by frequent instances of beating and torture of children by police and others, horrible living conditions, and little in the way of actual "assistance."
Silva (1990), a public prosecutor well-known for his participation in formulating the Child Statute, points out the almost Orwellian euphemisms that became an integral part of the structure: children were not prisoners, they were "interned"; they were not punished, they were "protected"; they were not accused, they were "guided." To many critics, the use of the word "minor" itself became indicative of this approach. Seeing street and working children as "minors" emphasized their inferior legal status as individuals with proscribed rights.
The Early 1980s: Organizing for Change
By the late 1970s and early 1980s, these conditions, combined with the political abertura (opening) led an increasing number of grassroots non-governmental organizations (NGOs) to seek alternative means of meeting the needs of children in "irregular circumstances." Proponents of the alternatives stressed that the conditions in which children were forced to seek their survival, rather than the children, should be viewed as "irregular." While alternative programs developed with few resources and in isolation from each other, the correctional model was increasingly recognized as inadequate. In the early 1980s, a group of government officials from FUNABEM, the Social Action Secretariat, the Ministry of the President and Social Assistance, and UNICEF in Brazil signed an agreement to study the problem of street and working children -- the Alternative Services for Street Children Project.
These groups conducted a nationwide examination of the situation of children living and working on the urban streets, recognizing that this was the "point of the lance" that might open up examination of the problems facing poor children throughout Brazil. One of the most important outcomes of what came to be called the "Alternative Project" was that individuals and programs that had worked in isolation now had a channel for sharing experiences and networking.
These early steps toward an organized movement culminated in the First Latin American Seminar on Community Alternatives to Street Boys and Street Girls in Brasilia in November 1984. This event, widely reported in the media, placed the children's movement, now openly critical of the intertwined assistance and repressive-correctional model of the state programs, in a recognized position of leadership within the entire movement of popular groups advocating alternative social policies.
One of the most significant activities of this growing mobilization was to bring together groups of street and working children and their advocates into a more visible national political movement. Local and state commissions were established and, in 1985, a directorate was elected for what came to be known as the National Movement of Street Boys and Street Girls.
The National Movement captured Brazil's attention when the First National Meeting of Street Boys and Street Girls was held in Brasilia in May 1986. This national meeting was attended by some 500 street children delegates from all over Brazil and was conducted with tire participation of the children themselves. It drew widespread attention to the conditions of their lives and the underlying forces that had driven them to the streets. The theme most constantly and vigorously denounced by the children was violence, and their testimony eventually led the Brazilian Congress to hold special hearings concerning organized violence against street children. The country, saturated with media coverage of the meeting, was astounded by the ability of these children to articulate their concerns and demands. This was an intensive learning experience both for the street and working children involved and for the nation as a whole.
The Mid - 1980s: The Transition to Democracy and the Rights of the Child
The national movement to address the problems of street children coalesced at a time, in the mid-1980s, when Brazil was beginning a transition back to civilian democracy. The movement sought to reframe the issues surrounding the lives of street and working children from a "charity" model to a focus on children's "rights," explicitly building on the International Declaration of the Rights of Children promulgated by the UN. The convocation of a national assembly to draft a new national constitution presented a unique opportunity to incorporate the rights of children into the new legal system.
The National Movement of Street Boys and Girls was one of several organizations that evolved during the 1980s and took up the struggle to incorporate the rights of children into the legal foundation of a new democratic government. The National Movement joined with the National Front for the Defense of Child and Adolescent Rights, the National Council of Brazilian Bishops, the National Order of Attorneys, and other organizations to mobilize public opinion in favor of constitutional language protecting children as well as to elect members to the Constitutional Assembly sympathetic to the cause. Universities were active participants in this process and research centers were established to focus specifically on these issues.
In the late 1980s, a variety of government Ministries, NGOs, and other organizations joined in a process that led to the formation of the National Commission on the Child and the Constitution in order to coordinate various advocacy efforts and to help draft a constitutional clause on children's rights. The mobilization of interest, discussion, and support was massive. Drafts of the clause were submitted with petitions signed by more than 200,000 adults and 1,300,000 children. John Danahue, Representative of UNICEF in Brazil at the time, describes his awestruck reaction in this way,
We went into a hall with just over 400 people sitting in it and by the time we finished we realized we were sitting in a room with more than 1,600,000 Brazilians. For me that was a point in the process that made the clear statement that this was not just a repeat performance of a legislature writing out a constitutional text -- the seventh in Brazil's history. This part of the text on children and adolescents had really involved people in ways that no one would have imagined possible even a year before. (Swift 1991)
On November 20, 1988 Article 227 of the new Brazilian constitution was approved. The article incorporates and extends the basic content of the International Convention on the Rights of the Child: "It is the duty of the family, the society, and the State to guarantee to the child and adolescent, with absolute priority, the right to life, health, nutrition, education, leisure, professional training, culture, dignity, respect, liberty, and community and family living, as well as protecting them from discrimination, exploitation, cruelty, and oppression." (Brazilian Constitution 1988; art. 227)
With the victory of constitutional protection for children and adolescents, the efforts of advocates now turned toward the elaboration of the detailed implementing legislation that would be necessary to put the constitutional principles into action. To do so, many NGOs working in the areas of child protection and defense joined together in an umbrella organization known as the Child and Adolescent Rights Forum. The Forum held thousands of meetings and seminars throughout the country seeking input from the public into the new legislation. Despite considerable opposition from conservative forces, a broad coalition was able to push through very progressive legislation. On July 13, 1990, implementing legislation for the Child and Adolescent Statute was signed into law.
The struggle over the actual implementation of the Statute continues. The Statute calls for sweeping changes in rights accorded to children, the way in which children in trouble should be helped, and in decision making about these issues. Child rights councils are mandated to enforce the Statute at every level, from the local to the national. Of course, it is easy to romanticize and exaggerate the successes Brazil has achieved. Government enforcement of the Statute remains very weak, with little political or fiscal power being brought to encourage implementation. Public attitudes may have changed some, but violence against children continues at alarming rates. Laws have changed but practice is very show to do so. Progressive change continues to be a challenge.
Nonetheless, a broad-based social movement for children's rights has coalesced in Brazil. It changed the law and helped to topple a repressive military dictatorship. Children were involved in significant ways throughout. Children who lived and worked on city streets became more visible as human beings with rights instead of as criminals to be punished. Furthermore, they became the centerpiece of a wide ranging alliance of individuals and organizations.
Some argue that the children were, and continue to be, manipulated and politicized instead of pursuing practical reforms to improve their lives. Others argue that politicization is essential to achieving these reforms. What is clear is that children's own agency can be critical. Brazil's recent history teaches us that when children organize and speak out about the physical and social violence they face and contribute to crafting the necessary reforms to improve their situation, their voices can become a powerful force in the movement for social transformation.
References & further reading
Costa, Antonio Carlos Gomes da, Agop Kayayan and Ayrton Fausto. (1991). "Do Avesso ao Direito, de Menor a Cidad...o," in O Trabalho e a Rua: Crianças a Adolescentes no Brasil Urbano dos Anos 80. Fausto, A., & Cervini, R., Eds. Sao Paulo: FLASCO/UNICEF.
Costa, Antonio Carlos Gomes da. (1990). A Mutaçao Social. Brasil Criança Urgente: A Lei 8060/90. Sao Paulo: Columbus Cultural, p 38.
Instituto Brasileiro de Geografia e Estatística. (1997). Indicadores Sociais. Rio de Janeiro: IBGE.
O Globo. (1992). Diretor da UNICEF Elogia Estatuto da Criança Brasileira, 6 Sept, 27.
Klees, S., Rizzini, I., & Dewees, A. (2000). "A New Paradigm for Social Change: Social Movements and the Transformation of Policy for Street and Working Children," in Brazil, in Children on the Streets of the Americas. Mickelson, R. A. New York: Routledge.
Rizzini, I. & Pilotti, F. (Ed). (1995). A Arte de Governar Crianças. A História das Políticas Socias, da Legislaçao e da Assistência â Infâneia no Brasil. Rio de Janeiro: IIN, EDUSU, AMAIS.
Rizzini, I. (1997). O Século Perdido: Raízes Históricas das Políticas Públicas para a Inância no Brasil. Rio de Janeiro: EDUSU/AMAIS.
Silva, A. F. do Amaral e. (1990). "Mutaç...o Judicia," in Brasil Criança Urgente: a Lei 8060/90. Sao Paulo: Columbus Cultural.
Swift, A. (1991). The Fight for Childhood in the City. Florence: Innocenti Center.
United Nations Development Program (UNDP). (1991). Human Development Report. New York: United Nations.
Vogel, A. and Rizzini, Irma. (1995). "O Menor Filho do Estado: Pontos de Partida para urea Histório da Assistência á Infância no Brasil," in A Arte de Governar Crianças. A História das Políticas Socias, da Legislaçao e da Assistência â Infância no Brasil. Pilotti, F., & Rizzini, I., Eds. Rio de Janeiro: IIN, EDUSU, AMAIS.
World Bank. (1997). World Development Report 1997: The State of a Changing World. New York: Oxford.
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