The Right
to education, Public Hearing and Strategic Litigation in Brazil
On December, 16th,
2013, the Higher Court of State of São Paulo delivered a landmark judgment in a
civilian action (“ação civil pública”)
against the Municipality of São Paulo, which aimed to provide education for 736
children and to expand the supply of childhood education by building school
units to meet the demand officially registered, and also to compensate those
missed for moral and material damages, due to the State Omission. The right of
children to education has been regarded as priority obligation of the
Municipality, provided for by the Brazilian Constitution in a judicial review (Appeal
n. 0150735-64.2008.8.26.0002).
The Municipality of
São Paulo was compelled to create new vacancies in nurseries and pre-schools
sufficient to attend the number needed within the assigned period. It was
compelled to provide for the expansion of
the childhood education services in the budget law and to present, within the
stipulated time, a plan to increase the enrollment of children and the
buildings for education. In addition, it was required to present full reports
on the measures taken to comply with the judicial order, every six months.
The civilian action
was filed by several NGOs, as part of the self-styled “nurseries for all movement”. For first time the Court of São Paulo
State called a public hearing to listen to litigants, experts on education,
prosecutors and public defenders.
In its reasons, the
Court made reference to the Brazilian Supreme Court (“Supremo Tribunal Federal”) case on right to education for children
(RE 410.715-5) construing article
208, IV of the Brazilian Constitution (a duty to provide education to children
up to six years old). The education of
children had been conceived, at that time, as an “indispensable constitutional
prerogative”, “one of the most expressive social rights” and as a limitation to
political-administrative discretionary nature of municipal entities.
Importantly, it not subject to the “reserve of possible” doctrine (This
doctrine is normally invoked by State in order to avoid compliance with certain
programmatic provisions on the grounds of lack of resources. However but that this is a uniquely Brazilian interpretation
of the doctrine, that is quite different from the German conception of the
doctrine (BVerfGE 33, 303, Numerus
Clausus).)
The following
articles of the Federal Constitution were mentioned: art. 205 (education as a
right of the citizen and a state duty), 208, IV, 211, § 2o (municipalities
duties on elementary school) and 227 (children priority and state, society and
family duties). Also the following precedents of the Supreme Court related to
education non-retrocession were invoked: RE
n. 639337 and RE 464.143.
The non-retrocession
principle is a prohibition on a reduction in administrative measures and laws
cannot providing for social rights. The Constitutional Court of Portugal was
the first to invoke this principle and it influence In Brazil can be traced to
the influence of the German form of the doctrine.
The prohibition of
social regressivity principle (principle of the retrocession prohibition) which
was invoked in this case had also been invoked in other cases involving
unconstitutional administrative omission, such as the case regarding expansion
and improvement in public service for pregnant women (RE 581352).
The Court of the
State of São Paulo took into account the fact the management of the City of São
Paulo had signed a commitment of creating one hundred fifty thousand new places
at the education services as part of its budget planning goals (In Brazil, the
Executive Branch has to send to Parliament its proposal for Multiannual
Plan, every four years).
The municipality was
compelled to create these places, between the years 2014 and 2016 for children up
to five years old, to include in the budget proposal the expansion of education
services and to present every six months reports on the measures taken to the
Youth and Children Section of the Judiciary, which may call prosecutors, public
defenders and civil society, in general, to monitor the compliance with the judgment.
On the question of education
subject matter, the Supreme Court of Brazil had stated that article 211, §2o of
the Federal Constitution is a programmatic rule which finds achievement by means
of laws intended to implement public policies (RE 401880).
In a case regarding
the failure of the President to eradicate illiteracy, the action was dismissed by
the Supreme Court (ADI 1698), since
specific statutes had been enacted and according to social indicators the
illiteracy rate had been reduced.
In addition,
according to the criteria established by OAS Permanent Council Resolution n.
1022, the states parties must submit periodic reports, with quantitative and
qualitative information with progress indicators in the area of economic,
social and cultural rights - article 19 of OAS San Salvador Protocol.
Public hearings, budget
process and social indicators, including human rights indicators, should also
compose the reasoning of judges.
Marcelo Figueiredo
and Konstantin Gerber, IACL Social Rights Research Group - Latin American
Subgroup.
Thank´s to Professor
Adrienne Stone for the review.
