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| Volume 6, Issue
6 |
22-25 April 2003 |
BRAZIL
Sweeping
promises, no action on the ground
MANY
human rights activists in Brazil and abroad greeted the
election to the Brazilian Presidency of Workers' Party
candidate Luis Inacio da Silva, known simply as
"Lula," as good news. For years, the Workers'
Party (as the leading opposition force at the national
level) had played a key role in the defence of human
rights. The party's platform in the 2002 elections,
among other things, emphasised fundamental rights and
the need for policies designed to ensure their
implementation.
While
the discourse of the highest level officials in the Lula
administration charged with human rights continues to
provide hope that positive change will occur, they have
been far too timid in taking concrete measures to
guarantee the efficacy of those promises. While the
government has had less than four months to address
these issues, the record to date leaves much room for
concern.
Bold Promises
In
February and March 2003, newly named National Secretary
for Human Rights Nilmario Miranda travelled to
Washington (seat of the Inter-American Commission on
Human Rights of the Organization of American States),
San Jose, Costa Rica (the seat of the Inter-American
Court of Human Rights) and here to Geneva for the
session of the UN Commission on Human Rights.
Before
each of these bodies, Miranda outlined the ambitious
human rights agenda of the Lula administration. In the
presentations in Washington, San Jose and Geneva,
Miranda explained that the Lula government would address
a broad range of areas in which rights groups have
documented chronic abuse. Among these were police
violence, conditions in centres of detention for
juveniles and adults, rural violence and land reform,
indigenous rights and forced labour.
Before
these international bodies and international civil
society, Miranda has promised to make federal transfer
of tax revenues contingent on respect for human rights.
Miranda's sweeping promises and pledge of federal
efforts to compel the states to adhere to human rights
standards came as music to the ears of rights defenders
in Brazil who have struggled to make local authorities
more responsive to their international obligations.
Yet
without clear guidelines, federal promises of
conditionality may ring hollow in practice. What
criteria should be used to determine whether a
particular state has failed to meet minimum human rights
standards? What rights would be emphasised? Who would
make the decision? To date, unfortunately, the federal
government has yet to achieve substantial progress in
either designing or implementing this considerable and
novel enterprise. At the same time, it has failed to
take concrete steps to advance the defense of human
rights in ways that have been tried and tested
elsewhere.
A National Human Rights
Commission?
Unlike
virtually all of its neighbors in South America, Brazil
does not have a national human rights commission modeled
on the Paris Principles. In Central and South America,
termed ‘defensores del pueblo’ (literally,
"defenders of the people" in Spanish), these
bodies have played a critical role in the oversight of
state bodies charged with rights abuse throughout Latin
America. Yet while human rights commissions abound
within Brazil's legislative and executive bodies at the
city, state and federal level, no independent body
exists that would meet the guidelines endorsed by the UN
Commission on Human Rights.
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Existing
Bodies Inadequate
In
Brazil, a series of human rights commissions and
other official entities have sought to fill the
gaping void created by the government's failure to
establish a national human rights commission.
While several of these have been effective, none
measures up to even the minimal requirements of
the Paris Principles.
Within
the executive branch, President Fernando Henrique
Cardoso established a National Human Rights
Secretariat in 1997. The post of Human Rights
Secretary has been occupied by leading rights
figures, among them, most recently UN Special
Rapporteur Paulo Sergio Pinheiro. As a gesture to
demonstrate the importance afforded to human
rights in his administration, Lula has elevated
the status of the Secretariat to cabinet level and
named long-time rights activist and former
Congressman Nilmario Miranda to occupy the post.
While an important advance, the Secretariat, by
virtue of its intimate ties to the executive
branch, will never constitute an independent human
rights body. A similar problem is faced by the
Human Rights Commission of the Federal Chamber of
Deputies, the lower house of Congress. (see
box).
These
developments should press the Lula administration
to work towards creating an independent, national
human rights commission. Instead, they have led to
intensified efforts - both by the government and
civil society - to restructure yet another rights
body tied to the executive branch, the Council for
the Defense of the Human Person. |
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A
Shaky Platform
For
eight years, since its creation in 1995, the
Human Rights Commission of the Federal
Chamber of Deputies has served as a vital
platform for the defence of human rights
throughout Brazil. Because of its
prominence, many activists routinely relied
on it to amplify their rights concerns.
This, in turn, stymied efforts to create an
independent, national human rights
commission.
Yet
the Congressional Human Rights Commission
suffered from the politics of its very
creation. Because it is tied to its elected
president, the Commission has been dependent
on that person's political agenda, which may
or may not coincide with rights defence. As
long as the Workers' Party was an opposition
force, its defence of human rights could
often serve its political agenda - to
critique the central government's policies -
while advancing human rights at the same
time.
This
year, however, Enio Bacci, a member of
Congress not tied to the Workers' Party
sought and obtained election to the
presidency of the Congressional Human Rights
Commission. Unfortunately, Bacci has used
the pulpit of the Congressional Human Rights
Commission to promote a series of views
clearly contrary to the promotion of
fundamental human rights. Among these are
the reduction of the age of full criminal
responsibility (from 18 to 16, in violation
of the Children's Rights Convention) and the
death penalty (a violation of a number of
instruments, most directly the American
Convention on Human Rights). |
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The
Council, tied directly to the Secretariat of Human
Rights, includes several members of civil society. While
enhancing civil society participation may be a
worthwhile goal, because the Council is tied to
executive branch through the Secretariat, it also will
never achieve the requisite level of independence. The
clear, though politically difficult solution, is to
create a fully independent national human rights
commission.
Will
the Lula administration be able to overcome internal
resistance to external oversight to assure adequate
oversight of rights abuse?
International
Oversight
For
many years after Brazil's transition to democracy,
rights activists derided Brazil's failure to recognize
the jurisdiction of oversight mechanisms established by
the United Nations and the Organization of American
States. Through early 2002, while Brazil had ratified
the six core UN human rights treaties, it had failed to
recognize the jurisdiction of any of the four oversight
committees to receive and process individual complaints
(ICCPR, CERD, CAT, CEDAW). Brazil's record on compliance
with the Committees' reporting requirements may best be
characterised as highly deficient. Within the UN system,
one bright spot has been Brazil's acceptance of the
oversight of the Commission's special mechanisms.
Within
the OAS, Brazil resisted recognition of the jurisdiction
of the Inter-American Court until 1998. In December of
that year, however, that practice changed. Then, in the
final months of the administration of President Fernando
Henrique Cardoso, Brazil recognized the individual
petitions procedure in the Optional Protocol to CEDAW
and in article 14 of CERD. Unfortunately, the Lula
administration has not made further progress, failing to
ratify the Optional Protocol to the International
Covenant on Civil and Political Rights or to recognise
the jurisdiction of the Committee Against Torture.
Within
the inter-American system, while Brazil has accepted the
jurisdiction of the Commission since ratifying the
American Convention Human Rights in 1992 (and even
before, though only pursuant to claims made under the
American Declaration on the Rights and Duties of Man)
and of the Court since 1998, its compliance with the
judgments of these two bodies has been poor.
In
particular, Brazil has not only failed to give effect to
many of the decisions of the Commission in cases
litigated before it, but has also failed to respond to
the injunctions issued by the Commission and the Court
(called precautionary measures) in matters of life and
death. This lack of engagement in the system has caused
immense concern among human rights activists in Brazil,
in part because those on whose behalf such measures are
requested are often rights activists themselves.
While
it may be too early to detect a clear pattern in terms
of Brazil's engagement in the inter-American system in
litigation of individual cases of rights abuse, four
months provides a significant basis to evaluate its lack
of compliance with judgments in requests for
precautionary measures - judgments which should be
heeded in a matter of days if not hours. Unfortunately,
the Lula administration has not taken adequate concrete
steps in the cases in which the Commission and Court
have ordered precautionary measures on behalf of persons
threatened with death.
This
month, one such person, Luis Tomé, died in
circumstances that could have been prevented, had Brazil
respected the precautionary measures order of the
Inter-American Commission. Others for whom such
protection had been granted in the same matter in
Paraiba state have yet to receive adequate protection
from federal authorities.
In
Espirito Santo state, Alexandre Martins de Castro Filho
a courageous judge who had investigated organised
criminal activity's invasion of the public sector was
murdered on March 24. The Inter-American Commission had
ordered precautionary measures for others involved in
rights defence in Espirito Santo state, and Castro Filho
had been identified as requiring protection.
Unfortunately, federal authorities failed to provide
full police protection.
Rights
activists have welcomed the sweeping pro-human rights
discourse of the new Lula administration. But as time
has passed, it has become increasingly clear that little
- other than that discourse - has changed.
It
is time for Brazil to take concrete measures to improve
the country's severe human rights situations. Creating a
fully independent oversight body at home and engaging
fully and respecting the judgments of oversight bodies
abroad, would be a good place to start.
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