Recognition, Redistribution and Popular Participation: Towards an Integrative Judicial Policy

Strategic Planning Forum Justice 2020

13 February 2020

On January 30th, the strategic planning meeting of the Justice Forum took place, with the objective of reflecting on the challenges and opportunities of the 2020 context, defining actions in each axis of work and agreeing on a new operational arrangement. The program included a debate on the conjuncture of the Brazilian justice system and the trajectory of the Justice Forum, with a view to proposing actions, considering the context and the accumulations in 2019. It was also foreseen to propose a new arrangement for the organization of the FJ, in that new coordination and the incorporation of new partners in the management group was approved. Check out the main considerations.

Debate: The current situation and the Justice Forum (FJ)

From left to right: Arlanza Rebello, DPRJ; Adriana Britto, DPRJ; Rebeca Sena, intern FJ; Lia Manso, Criola; Mariana Imbelloni

  • There is a setback that is being experienced at the present moment, and it is difficult to understand it in all its dimensions. When the 100 Rules of Brasília were published, they translated the political moment of Ibero-America. It was a time for progressive governments and reflections focused on the possibilities for changing the system. At the time of the FJ's emergence, there was a close relationship by affinity of guidelines and projects with the Ministry of Justice, in particular, with the Secretariat for Reform of the Judiciary and Legislative Affairs (SAL) and with sectors of the justice system, notably , the National Council for the Public Prosecution (CNMP). In addition, it was a situation in which the Maria da Penha Law was taking place, based on the Judiciary, which made it possible to increase the dialogue with the feminist movement and beyond. With impeachment[1], there was a radical divergence of guidelines and projects between these sectors with which we spoke.
  • When we look at the FJ in perspective, since 2009, in the seminars that preceded it (in 2009 and 2010), there is an oscillation, moments in which we bet more on macropolitical articulations and others when we bet more on micropolitical articulations. Today the Brazilian macro-political scene has many closed doors. Therefore, it is necessary to look for cracks. In this sense, micropolitical articulations can be great opportunities. Resuming the concept of awareness[2] contained in the 100 Rules of Brasilia, which differs from training, it would be important to sensitize the actors of the justice system in this democratization agenda. The challenge is to do this without being confused with partisanship. In this sense, it is necessary to work on raising awareness in a supraparty way, as a synergy that connects different forms of politics.
  • The possibility of active listening is being lost a lot. We are experiencing the mourning of what was lost as a possibility. People cannot hear. Strength is lacking from those in the daily confrontation. Art comes as a possibility to speak through images / feelings. People are very armed, which means thinking about strategies to develop politics with affection.
  • It seems that we have lost the ability to look at the colleague next door. The alternation of the government passed the baton to a group that in practice has always existed. Our privileges did not allow us to see the need for dialogue with ourselves. These rising groups in the government have always existed. We lost the timing to look at the institutions themselves. It seems that anger has been legitimized, we currently experience one with a resentment policy. We thought that at some point everything was fine and the agenda was touched. There is a need to self-criticize and think about planning, admitting that we could have acted in other ways. What would they be? This reflective exercise opens the way for innovations.
  • There is a need to broaden reflections on what has been happening for a while on the political scene of the justice system. The FJ has been working from an academic perspective based on research groups that aim to better understand the context of judicial policy, observing the production dynamics of this policy and the elements that inform it as more inclusive or more conservative. Likewise, the FJ considers the empirical accumulation of state agents and social movements involved in processes of democratization of the justice system.

Disputes over judicial policy in the justice system

  • Is it necessary to think about politics not only in terms of public policies, not only within the scope of the Court, the institutions of access to justice, but about which actors produce justice policies? It is necessary to understand the groups active in the justice system that seek an inclusive democracy and that dispute spaces in the institutions of that system.

In this sense, it is important for the Justice Forum to facilitate the production of an integrated judicial policy, in a way of close communication with those inside and outside the justice system. In this sense, the FJ can be a field of opportunity to strengthen, identify and support groups within and outside the justice system committed to its democratization. Thus, with the confluence of contributions from these groups, basic judicial policy would flourish with strength to move forward with the process of installing the integrative justice model provided for in the Declaration of the 100 Rules of Brasilia.

Mônica de Melo, DPESP; Patrícia Magno, DPRJ; Ana Paula Sciammarella, Executive Coordinator-FJ

  • The moment of construction of Brasilia's 100 rules was a time of great hope for the democratization of the justice system. Along these lines, debates began to constitute meaning for the expression of the integrative justice model. Since then, work has continued with this objective of embodying this model, with proposals for a new judicial architecture, introducing democratic mechanisms for popular participation, such as external ombudsmen and public conferences. Since then, the FJ has been engaged in building a platform for recognizing situations of vulnerability and a suitable platform for justice. In principle, paying attention to listening to who was being served - individual / collective. It was a period of recognition of the vulnerability of the other. Currently, in the justice system, there is the emergence of groups formed by those who started to recognize their own vulnerabilities, such as the fact of being a woman defender, and the vulnerabilities associated with this condition. This is the time to create empathy and dialogue with groups and on these topics in the different institutions of the justice system.
  • There is an internal dispute between the institutional political spaces (management positions / professional associations in the justice system) evidenced by antagonisms between more conservative groups and more guaranteeing groups, including with identity guidelines for the institutions. Identity groups are fighting for space based on the need to recognize the vulnerabilities of the actors in the justice system itself and the deficit of gender and race diversity in institutional spaces. On the one hand, this agenda provides the opportunity for the creation of identity groups formed by free initiative within the institutions, but on the other hand, they are also used so that these groups do not reach places of power that are in dispute. There is an ambiguity in this recognition of identity and the resulting inequalities. Affirming an identity illuminates the issue within institutions, but that same argument can be used to prevent success in disputes over spaces of power. One hears, for example, phrases such as: “this woman will be president and will come with this feminist agenda”, which causes concern to those who accompany / experience institutional disputes within the scope of the justice system.
  • For this reason, training has an important impact, recognized by public defenders. It is essential to check opportunities within the scope of the Public Defender's Office and other institutions of the justice system. In this sense, there are many challenges for 2020. In the past, some training / awareness courses stand out, such as the Sankofa Forum - model of intersectional and advocacy networked. It is also essential to conduct research to produce disaggregated data, using necessarily the racial cut. In competitions, we try to see the theme of quotas, but just having quotas does not solve the problem. In this sense, there is a working group with the Defensoria do Rio, in order to raise and overcome the difficulties related to the effectiveness of this compensatory measure. Another challenge for the FJ consists of forwarding and implementing the research recommendations on institutional racism and carrying out the respective monitoring.
  • It is important to take care of who is speaking. It is necessary to work internally in the institutions to raise awareness. This conservative discourse of reducing rights and disqualifying the other is also found within organizations. The institution of PD must be taken care of, even if it will be managed by a group that moves from an inclusive position.
  • Prevailing concern: it is not just the moment we are living in, but the total demonization of any idea that is not being given as a single truth (post-truth?). How to act without receiving labels, without having our lines canceled?
  • In this sense, one of the proposals that emerged recently, was how to discuss internal disputes in the justice system. Understand why women depart from lists formed in electoral moments, as happens, for example, in the Defender's Office. In this sense, the FJ envisions two lines: mapping the political groups of conscience formed by women (gender and race) that have emerged in the justice system in recent years, see how these groups are moving, what the agenda is. This could be done in partnership with JUSTA[3]. It is important to map from now on, to see what happens to these women 10 years from now, so that we can have feminist management in the future. After all, meritocracy is long-lived. If we consider, as a hypothesis, the age of a person who enters the system at twenty-five years, in theory we have fifty years of experience in the system, since compulsory retirement happens at seventy-five years. So it is strategic to start mapping now to see what happens over time, to see if diversity will make a difference. In this sense, it is essential, for example, to understand the difficulties for the eligibility of women in positions of power in the justice system. Along these lines, a partnership could be developed with the group of women and political violence coordinated, among others, by teachers from FGV - Direito Rio, NUDERJ / UERJ and DIGNA / UNIRIO.

Law, legislative changes and impact on the institutions of the justice system

  • The Moro package is impacting the performance of DP. Is it the case of the FJ to focus on some actions?
  • After the coup, there is a growing confessionalization of state policies. Groups outside the state begin to find an echo in the state and are strengthened to impose their confessional policies as public policies. This has an impact on the reduction of rights.
  • With the pension reform, actors and actresses in the justice system are caught in moments of vulnerability. It is not known what the reaction will be, if they will position themselves from their privilege as part of the justice system. The pension reform raises the question that these actors and actresses can also be reached, that they are not above all.
  • An analysis of the layered processes is suggested. The first layer that appears most is to name people in the justice system as progressive. This idea ends up failing because it restricts which sectors one looks at in the conjuncture. Putting black women, who are producing politics, in the progressive box, limits. In the 80s, with the institutionalization of movements, belief in institutions spread. This prevented seeing democracy as agonistic, conflicting. The second layer would be the taking of democracy not as a space for conflict, but as normalized, institutionalized. Thus, democracy always appears crossed by protocols, norms. This consolidated the fall of President Dilma. If we analyze institutionally, the protocols were complied with. The third layer would be consensus, institutions and people composing political spaces. The way we do it right, our performance, is a political choice. This is revealing and liberating: there are other possibilities of choice. Choose as a collective agreement, which makes it possible to transform the political space given by law. The justice system, as a political space, was taken over by consensus, by those who may or may not speak. The Moro package means the extension of the penal status. The incarceration of women has increased. The militarization of the state began under the Lula government, even the confessional state began under these governments.
  • It is necessary to identify the limits. Even in situations where the law is in favor of a view considered progressive, it is clear that the law is not enough. Law is also used to demobilize politically, within political parties, for example. It is important to read the strategic use of the law. It is important to take political training courses. People are suffering violence, they are getting sick. It is important to see how to work this out collectively. Training courses are needed to provide tools, diagnostics and strategies to compete for spaces. In addition to caring for everyone involved in this challenging political process.

Rebeca Sena, intern FJ; Juanita Cuéllar, Latin American GT Ibero, FJ

Partnerships, internalization, internationalization, expansion of FJ activities

  • Volta Redonda's experience shows the relationship between civil society and the justice system. The FJ is a militancy space, it offers possibilities to reflect for those inside the justice system. It is important to understand what collective tutelage in the Defender's Office means. It is necessary to have FJ in other places, to build joints in other places. It is an important point to include in the planning. It is important to exchange experiences in other places to strengthen the justice system and respond to collective needs. The FJ in Volta Redonda and in the municipalities of the region has played a fundamental role in articulating with the Public Defender's Office, which has a fundamental role in defending individual and collective rights. However, it is important to know how to dialogue with the DP so that these rights are guaranteed. The theme of training is necessary, it is necessary that the FJ does training. Criminalization is getting closer and closer to activism and it is important to see how to protect everyone. It is important to bring the people to the FJ, to see training strategies, dynamics, methodologies, to raise awareness.

The FJ is a space that allows / facilitates the construction of consensus to advance judicial policy, it is a space for encounter, political convergence and political construction. In this sense, training seems to be essential. But it is important to think of training not as something restricted, but something powerful, that allows to link and create networks between collective subjects that work in the field of the justice system and civil society. The challenge is to build a critical formation. Think about making a political action calendar, an agenda, linking through the commitment to receive training and to influence politically.

  1. Axes of action: priorities and actions.

After the first part, related to the discussion about the Brazilian justice system and the challenges of the FJ for the year 2020, the thematic axes that group the activities developed by the FJ in recent years were mentioned:

  1. Institutional racism
  2. Gender in the justice system
  3. Cities incidence
  4. GT- ILA
  5. Participation in the Ombudsman
  6. Art in the justice system

The debate revolved around the need to better define the thematic axes. The facilitator mentioned the importance of maintaining the concept of thematic axis, but including the fluidity that characterizes FJ. The risk of, when changing the name of the thematic axes, impacting on the production of the FJ's work was considered. The thematic tradition reflects the historical experience of FJ.

Resuming the FJ's mission, related to Recognition, Redistribution and Popular Participation for the construction of an integrative policy, and considering that the Forum is based on the tripod of State agents, social movements and academia, the following thematic axes were defined:

  • Recognition
  • Redistribution
  • Participation
  • Networks and joints

Lígia Fabris, FGV Direito Rio; Rosane M. Reis Lavigne, DPRJ and FJ; Maria Gabriela Vianna Peixoto, founding group FJ.

Participants mentioned the need to include the methodology of active and artistic listening in the activities to be developed. On the other hand, emphasis was placed on the need to listen at different levels: between the defenders themselves and the population with which they work. Finally, mention was made of the importance of articulating thematic axes with universities, through extension courses. This would allow to have another institutionality and therefore, the activities of the FJ would not depend on the cooperation resources.

In the afternoon, a smaller group of nine people, in addition to the facilitator, discussed the actions to be developed, based on the defined thematic axes.

Some of the proposals were as follows:

  • Encourage dialogues with the Collective - a group formed by Defenders, in expansion, currently almost 200 members. It is important to reflect with ColectivA on what is expected when a woman arrives in a certain space of power. It is necessary to think about an awareness raising exercise.
  • Internalize 100 Brasilia Rules, involving partnerships with AJUFE Women (Federal Judges group - race and gender), Criola and others. The STJ, through some Ministers, expressed an interest in internalizing the 100 Rules of Brasilia.
  • Promote, stimulate and enthuse the creation of awareness groups, such as the Collective. Buenos Aires colleagues are interested in creating a Collective. In other spaces of the justice system, other groups of conscience have emerged, mainly women, based on feminist theories and practices. It is important to observe what is happening in these spaces and work with them. It is important to pay attention to how an autonomous group, such as the Collective, is impacting the decision making of the legal structure.

    Group of assistants during the strategic planning meeting.

  • Strengthen ties with the DP of Mexico. Think about the possibility of articulating some activity around women victims of violence, considering the accumulation of ColetivA.
  • Based on the experience and evaluation made at the end of the year on FJ in Sul Fluminense, the need to give visibility to this work and develop activities of this nature in other locations in the interior was defined. The FJ helped to strengthen popular struggles in the Southern Fluminense Region. The priority themes are: selective collection, youth and public education, street population and quilombolas.
  • Try to articulate the activities of the Ibero-Latin American Working Group (GT ILA) in a transversal way. The ILA WG was held in November 2019 at the international seminar “Democracy and Public Defender in Latin America: An analysis of e (in) development in the current historical context”, which highlighted the need to continue articulating spaces and strengthening partnerships with public defenders and other institutions of access to justice in the region. Likewise, it is necessary to deepen the cross-cutting and regional reading on the implementation of the 100 Rules of Brasilia, to follow the discussions that are taking place within the scope of AIDEF, as well as the discussions in the JSCA and in other spaces, such as the IACHR, which allow the identification of advances and restrictions for the construction of an integrative justice system. The ILA WG's actions should also contribute to communicating to the partners in other countries the actions carried out under the FJ.
  • With regard to indigenous peoples and traditional communities, it is considered necessary to resume the referrals that resulted from the workshop held at the 2015 seminar “Justice Reform in Brazil. A decade of challenges and achievements from a Latin American perspective ”. The guidelines refer to legal training and the training of legal professionals, seeking to raise the awareness of the agents of the justice system in relation to the theme of the rights of indigenous peoples; recommendations for the performance of different organs of the Justice System and their professionals in dealing with and resolving conflicts involving the rights of traditional peoples; formation of articulations and interinstitutional working groups; promoting public debates and collecting data on conflicts involving the rights of traditional peoples, as well as on violations and threats from traditional communities and indigenous peoples. Based on these general guidelines, the FJ could contribute by promoting dialogue between institutions in the justice system, academia and indigenous peoples.
  • To be able to communicate in the best way the activities that are being developed by the FJ, as it is much more than what is being shown. Improve communication.

The need to define actions for each thematic axis was listed. A first approach to this exercise was made based on the actions that the FJ has taken:

  • Recognition: unfolding of research on institutional racism, referrals and concreteness regarding research. Commitments to the Collective around training activities.
  • Participation: commitment to the National College of Ombudsmen for Public Defenders to monitor and facilitate dialogue so that organized civil society disputes this space;
  • Networks and articulation: strengthen and expand partnerships. Work has already been done to identify contacts in Latin America.

Mention was made of the need to generate a work agenda and a dynamic of conversation for the next meetings and, in them, to continue the debate.

Attended the meeting:

  • Adriana Britto- Public Defender of the State of Rio de Janeiro. Master in Procedural Law from the Faculty of Law of UERJ. Member of the Justice Forum.
  • Ana Paula Sciammarella- PhD and Master by the Post-Graduate Program in Sociology and Law at UFF. Professor at Unirio. Member of the Justice Forum-founding group.
  • Arlanza Rebello- Public Defender of the State of Rio de Janeiro. Member of the Collective Women Public Defenders of Brazil and the Justice Forum.
  • Domingos Armani- Sociologist and Master in Political Science (UFRGS). He acts as an independent consultant in social and institutional development.
  • Josinete Pinto (FJ-Volta Redonda) - Graduated in History from Universidade Gama Filho. Popular educator. Specialist in Municipal Public Management by UFF. Member of the Justice Forum.
  • Juanita Cuéllar- PhD student in Social Sciences in Development, Agriculture and Society, UFRRJ. Member of the Justice Forum.
  • Lia Manso (Criola) - Master in Human Rights and Innovations by UFJF. Advocacy and strategic litigation coordinator at Criola organization.
  • Ligia Fabris- Professor at the Law School of FGV Direito Rio. PhD student at the Humboldt University in Berlin.
  • Maria Gabriela Vianna Peixoto- PhD in Criminal Law from UERJ. National Ombudsman for Criminal Services of the National Penitentiary Department - DEPEN, of the Ministry of Justice - MJ, for the term of 2015 to 2019.
  • Mariana Imbelloni. Master in State Theory and Constitutional Law at PUC-Rio. Graduated in History from UFF and Law from PUC-Rio.
  • Mônica de Melo- Public Defender of the State of São Paulo. PhD in Law from PUC / SP. Feminist. Member of the Collective of Women Public Defenders of Brazil and the Justice Forum.
  • Patrícia Magno- Public Defender of the State of Rio de Janeiro. Doctoral student in Law at UFRJ. Head of NUSPEN- Center for the Defense of Human Rights. Member of the Justice Forum.
  • Rebeca Sena- Graduated in law at UFRJ. Feminist. Member of the Justice Forum.
  • Renata Tavares- Public Defender of the State of Rio de Janeiro. Master in International Human Rights Law from the University of Buenos Aires. Coordinator of the Criminal Sciences Laboratory - Baixada Fluminense.
  • Rosane M. Reis Lavigne- Public Defender of the State of Rio de Janeiro, MBA and Master in Judiciary from FGV Direito Rio. Feminist, member of the Collective of Women Public Defenders of Brazil and the Justice Forum.
  • Vinícius Alves- PhD student in law at the University of Ottawa. Master in Theory and Philosophy of Law at UERJ. Bachelor of Laws from UERJ. Member of the Justice Forum (skype).

[1] The process of illegitimate impeachment in Brazil implies a dramatic rupture in institutional stability, intensely weakens the democratic order and accelerates the processes of political decomposition. Political anomie establishes itself in daily life, leading to a very rapid degradation and a loss of confidence in the representative bases of Brazilian society. There is a fragmentation of the party and of a conservative political matrix, lack of respect for the democratic process are factors that have intensified the political crisis, in parallel to the economic crisis that the country is going through and which is another fundamental factor to understand the Brazilian social malaise. On the other hand, the abuses of a hyperinflated and militant judiciary, which extrapolates its functions and invades the balance of powers by judicializing politics, and the lava-jatist dynamics of the criminal justice of the spectacle, in a moralistic, populist and punitive struggle against corruption and that respecting criminal guarantees, become important anti-democratic risk factors. (SOLANO, Esther. Democracy crisis and right-wing extremism. Friedrich-Ebert-Stiftung Brasil, 2018, P. 3, nº 42, São Paulo, May / 2018. Available in: https://library.fes.de/pdf-files/bueros/brasilien/14508.pdf)

[2] According to the 100 rules, the awareness and training of professionals should be oriented towards appropriate care for people in situations of vulnerability based on the concepts in the document, integrating these concepts into the training programs for professionals in the justice system (Chapter IV, item 4 ).

[3] JUSTA is a platform that facilitates access to data, maps and systematizes information about the justice system and the behavior of the courts. To see: http://justa.org.br