Marcelo Figueiredo & Konstantin Gerber
IACL Social Rights Research Group
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.
By Marcelo Figueiredo and Konstantin Gerber, IACL Social Rights Research Group – Latin American Subgroup.