Justice for cities

Image: Caroline Cagnin


A theory for justice mixed with citizenship: citizen justice and fair citizenship

"Just what is true? I cannot tell, cannot feel.”[I]

This text is intended to be a brief discussion on the topic of justice — as a practice and value, on the one hand, and as an institution, on the other —, with the aim of formulating proposals or a project for justice for the city.

I try to understand the reason for the lack of a justice structure closer to citizens, and propose something that can be constituted and implemented by, and in the city, with the participation of the people and exercised by the people themselves. And that it serves as public equipment (which can be implemented without much cost, in existing municipal facilities, such as schools, libraries, parks and cultural centers) and educational and cultural experience to renew their daily experiences — which have been of injustice constant, at home, on public roads, in transport, at schools, at work and even in leisure activities – for reciprocal trust, for the creation of bonds of coexistence and co-responsibility for the security of common life.

This citizen justice project also includes the implementation of spaces, times and mechanisms for face-to-face and virtual meetings to discuss the most varied local and regional issues, which can be expanded by the creation of a public social network, which serves not only to the people are frequently called upon to decide issues through plebiscites and referenda, but also to debate issues of community and common interest. I think the ability to come together and debate topics is important. More important, however, is that these debates generate decisions, the responsibility or co-responsibility of the people who participate in the discussion. It is an investment in autonomy with responsibility, training and empowerment, especially for young people, but for everyone who has the desire to do and participate, to change the way things have been presented, which enables the construction of citizenship, in its truest form, perhaps unique, meaning.[ii]

Next, I therefore proceed to theoretically justify the proposal that forms the core of this work.

It includes the project of a citizen justice system, instruments for participation in government, governance and control of power, and a discussion and proposals regarding municipal councils and councils of representatives.

A theory for justice mixed with citizenship: citizen justice and fair citizenship

Justice is the engine of citizenship.[iii] Citizenship is not just synonymous with political, but, in truth, it is its replacement, in modernity, which preferred to keep the Latin name of the civitas for what the Greeks called polis. Politics is the quality of the polis, which gives it life, through the presence of people who occupy its space and time, carrying out activities linked to its constitution as a place and time of common experience. Therefore, in our time, it is the citizenship that plays this constitutive role, thus becoming the quality of the city.[iv]

This ability to experience things with others, in the conjunction of the city's material and immaterial space and time, is what links justice to citizenship. This is because the relationships that are established between people and things in the city touch the sensitivity of those who participate in them, in addition to being understood as fair or unfair according to criteria that coexistence itself leads and expresses. For culture to move towards understanding what it means, in everyday practice, there needs to be a mechanism that interprets the signs of relationships in the city, to say what is fair and what is unfair. It is necessary that the word takes the place of force and imposes itself in the differentiation of experiences that lead to a better life, therefore more fair, for everyone, and not just for a minority that appropriates rights and constitutes them in privileges, which they deny effectively public duties and policies.

Justice, therefore, appears in the demands even more than equality,[v], or even freedom. Even more so today, when there is a search for the affirmation of differences, seen as signs of identity and diversity,[vi] which is opposed to universality, which is considered false, insofar as what is different is placed outside the environment for exercising rights. This is for historical reasons that have become part of a perverse culture of discrimination and prejudice, generating hierarchies, in addition to constant violence, aimed at protecting those who have against those who have not. This cultural perversity of relationships and the real and symbolic violence that accompanies and characterizes it are the biggest factors of public insecurity: witnessing and suffering injustice and violence every day and not seeing solutions, feeling that things do not change leads to social disintegration, destruction of ties that connect and give confidence to common living.

Justice, therefore, is a factor of social and political aggregation, because it is an indication of trust and comfort, of feeling good with others — alongside them. Therefore, it brings security[vii] the city. It is as if, in the social environment - without us materially perceiving this presence -, a compensation mechanism for day-to-day frustrations was installed, which allowed us to recover energy lost due to the obstacles that oppose it - in an unjust society, not just because it is unequal. to the extreme, but also for the most diverse reasons of constant dissatisfaction, generating conflicts that cannot be resolved — and allowing the exercise of thought and activities to solve these obstacles, to untie the various knots of coexistence. This immaterial presence of mechanisms is captured by private enterprises, which seek to make use of these accommodation and satisfaction needs almost exclusively for profit purposes: it is the origin and engine of social networks, which can exert an even greater attraction than eating popcorn in front of the television or at the cinema.

This is how justice occurs between people. Not just because there is no justice in isolation. – in itself unfair, due to the gregarious human condition -, but because justice occupies this moment and this empty space between all people, all of us. It is like a force that brings people together (when it feels that the situation is fair) and brings people closer together (when, on the contrary, the perception is that what is happening is unfair). What is unfair bothers you. What is fair accommodates. This is all in the constant tensions of human relationships.

Specifically, justice constitutes a social or public political network, as opposed to private networks, in which there is a single sense of constant exploitation. Communicating without being exploited, oppressed, subjected, deceived is fundamental to a happy existence. Justice is and can be this healthy means of communication, not because it is perfect, but because it allows each person to feel that the solution to problems is in their power, in their hands. And that each person is not alone with their problems and setbacks, they can count on others, through concrete mechanisms. To this end, the justice institution cannot be left solely in the hands of the State and its agents (judges, male and female judges, male and female judges, ministers, in the collection of hierarchical words of this institution). In fact, this taking over of justice by a social group is synonymous with privatization and violence, as it takes away from people — all of them, but especially the most common ones — the ability and vision of the ability to solve problems with others, to be able to decide your destiny, each destiny and the common destiny.

Human beings are not fair in isolation, but in relationships with others. It is necessary to think of justice, then, as a presence and as an encounter. And think about public time/space (experience/approximation/coexistence/citizenship) not as res publica, but as a city, politics/citizenship.

Thus, doing justice means creating an appropriate time and space for the meeting: the social practice of coming together to discuss and resolve a problem — as in “dr” - O (discuss the relationship), which both excites some and scares others, among couples. If the dr it is an experience in intimacy, which allows dissatisfactions to be expressed and differences accommodated, problems resolved between couples, therefore social problems, in their smallest aspect, and not just personal, which require exposure, expression, courage to say what you dislike or may dislike, practiced, not without difficulties, in human relationships, it is necessary to create a moment and a space for the relationships of plurality to express themselves and expose themselves, to compose a solution that improves the lives of the people involved, all people. This moment and this space authentically form justice as an institution (political) and allow us to realize justice, good and value (political). And from this we see how harmful it is to play all our cards in an institution of justice that alienates people from their ability to say and improve common experience, sensation, and feeling.

Just as politics takes place through the creation, occupation and communication of the city's public space/time, justice takes place and is constructed through the creation of meeting time/space and collective agonistic decisions.

Politics and justice are created with the originality of creating new spaces and times

Institutions are not recovered, which are also refractory to any process of change, even small reforms. A justice project for the city must be original: the people will occupy/create public time/space, build mechanisms of understanding, orchestration, composition, cooperation, government, governance and control of what is available in this new space/time ( say, decide, do, carry out, how praxis e poíesis).

It starts from the evident idea that there is an absence. An absence that is not unintentional, the result of carelessness with what is public. The absence is intentional. It aims to justify the usurpation of justice by those who own power and impede awareness and action through mechanisms that allow understanding the reality of injustices, their reasons and motivations. I remember the important moment of the occupation by school students, in the fight for participation and better education. They began to look at the school environment and reflect on what was missing there: education — the schools denied themselves and denied their subjects a future. There was also a look at the surroundings of the schools, the context in which they were absent: students climbed onto slabs and the few trees in the schools and saw the neighborhood in which they lived, its precariousness, the absences that were dramatically present there to the eyes. young and eager to transform the violence to which they were subjected, as subject-subjects.[viii]

This creation is constant, it is made and remade, it is continually invented and reinvented, because it is not only action/emotion (movement), but reaction/passion (countermovement), resistance and opposition to the permanence of attacks by the few holders of power. , who want exclusivity, in their literally oligarchic projects of greed and violence.

Justice is participation and sharing

By definition, justice is participatory: it shares and shares goods (material and immaterial) and places values ​​in the circuit of relationships (networks) that oppose those of the material circuit to which we are accustomed as consumers of goods and services. Justice is a trade (circulation, flow, exchange) of values. It contrasts and challenges the alleged naturalness or normality of the predominant, almost exclusive commercial practice and discourse, with which it is intended to impose the illusion of a public space/time, occupying people's hearts and minds with the presence of the market. Marketing it is the constant, repetitive and intimidating constitution and reiteration, which demands repetition and generates permanent, anti-cathartic dissatisfaction of invented needs. The market is noise[ix] which interferes and almost prevents the public from hearing the call. The music of presence, which has the capacity to energize encounters, and the desires that animate these encounters and the exchanges they generate. Thus, justice is not only, much less mainly, an institution that provides (supposedly) goods and services, it is not a commercial store that sells products, which, in fact, rarely delivers and, when it does deliver, it does so for those who do not need it. , mostly.

This trade in values, contrary to the trade in products, allows reproduction or imitation, mimesis (mimesis) and satisfaction of desires – catharsis (catharsis): feel and make coexistence more fluid, pleasant, rewarding. Imitation of what is actually relevant. Satisfaction with the production of movements of encounter rather than disagreement: relationships between equals who respect each other in the pursuit of their interests, and not relationships of inequality, in which very few gain at the loss of many.

And this circuit must lead to fair participation and sharing of goods: not almost everything for the few and almost nothing for the many. The discrimination of a justice institution that protects those who have and increases their assets, with decisions that are true expropriations of goods and lives, causes helplessness and increases the degree of injustice, in a hypocritical way, most of the time. It is the (in)justice of the few, who form their soldiers to shelter their ideas, their interests and allow them to continue exploiting those who have nothing or little.

Therefore, it is not enough to take representatives of the poorest and the outskirts, the discriminated genders, the majority of the people, black people, and the true owners of the land, indigenous people, to occupy places in the traditional justice institution. Of course, it is necessary to see in court what corresponds to the profile of the Brazilian people. However, what is more important is to found public spaces/times so that the people can effectively occupy and take care of what belongs to them and recover the experiences that emancipate them from the perverse tutelage of those who say they do it for them, but do it against them.

An example of what I call usurpation is the work covered by the law, but truly of an administrative nature, that the justice institution has been carrying out — as a legacy, in fact, of its colonial and slave origins — through which it seeks to administratively frame the people and their territory and not provide justice — cases of so-called CEJUSC[X] and due diligence and “policies” from the CNJ.

They say “citizenship"and "public politics,” however denying agency and subjectivity — agency and subjectivity that should actually be citizenship and provision of public service to those who are holders of rights and not objects of control and administration.

A truly citizen justice would restore to the city and citizens the responsibility of building the capacity for participation and understanding rights, practicing duties and demanding, composing and controlling public policies.

A citizen justice project, in short, starts from the idea of ​​participation that is fully practicable, as well as desirable, as a way of realizing justice, and the fair sharing of values, goods and services, as the content and result of being part of people's lives and to make people part of it.

The experience of doing justice allows the sensation and feeling of deciding, an action that most satisfies what is understood by having citizenship, that is, having the ability to act together with others to concretely solve conflicts and problems — most of them presenting themselves as individual, but actually constituting themselves as symptoms of collective and complex issues. Understanding this is within the reach of a constitution of a local justice, which thinks and acts on the collective.

To exercise the role of judge there is no need for formal legal education. The judge needs to have social sensitivity and the ability to understand the context in which conflicts and problems occur, thus observing the relationship between the conflict and the people involved, which, in general, goes beyond those who directly present the problem. It is necessary to understand this relationship, as well as realize the influence that the solution given to the issue presented in the environment itself, in addition to the consequences it will generate in the broader context of the community, society, the city. There is a complexity to conflicts, which is understandable using methods easily developed from the experience of judging. The capacity for judgment belongs to each and every one. When exercised collectively, it allows the exchange of experiences and understanding, further qualifying the solution offered.

Linking justice and security in the city

“Who blew this song/ That I covered with rounds/To follow my journey/And with a cloudy view/ See hell and wonders”[xi]

Justice, seen in this way, which links it to citizenship - and rejects the ready-made and flawed formulas of experts, who want to monopolize knowledge and the handling of law -, when practiced in a democratic, therefore, participatory way, allows suffering to be reduced, because those who judge live, observe and understand injustices, which are many in everyday life: home, transport, school, work, leisure and in the public space itself, which presents itself as a place of refusal of presence and imposition of exclusivity and privileges. In fact, all these experiences of injustice are like emanations from the house (oikos, domus), in which the structure of the need for survival and the pressures of exploitation experienced around the need for survival end up imposing experiences of inequality and constant tensions. It is a structure in which there is no recognition of equality, in which rights and duties are not fully understood, which ends up acquiring a hierarchical character, including through the imposition of an anachronistic model of coexistence, roles that can no longer be developed without frustrating expectations. their own and those of others, inhumane work demands, and fragmentation in relation to the understanding of their own domestic and family way of being. The house ends up becoming the first model of rupture, which dissociates, instead of allowing the first impressions of welcome and care. Here, cultural issues interact and influence based on claims of universality and anachronisms, such as, for example, religion and the prejudices of unreflective tradition, in addition to the vulgar lessons of an economy that subjects and limits, in the demand for subservient roles, arising from of a culture bent under the prey of disconsolation of structural slavery. It is the experience of the domestication of discipline. In addition to being the experience of the oppression of abandonment, when differences are expressed, especially among young people.

Politics does not enter the house, but allows the house to enter politics, making the public, domestic space an extension of the house and its anti-political contradictions.

What enters politics and enters the house and allows the solution of these contradictions and these problems, is the legal, the law, therefore, justice. If they are well managed, towards citizenship, they allow the knots of coexistence to be untied. In the current model of institutional justice, what is happening is an aggravation of conflicts, always resolved in one direction and in one direction, which is the deactivation of citizens' political powers. The present justice institution wants to take care of the issues — and it does so in a very precarious way, it wants to impose inadequate and discriminatory knowledge on relationships. He acts superbly, without social sensitivity.

Where there is discrimination, prejudice, constant violence, a society is created and reproduced that refuses to be social, that becomes unsociable, that attacks itself. More serious is that illegitimate power structures are in place — such as the case of institutional justice — which privilege and extend power networks to all places, imposing the domestication of society, in the multiple senses that I explored here as domestic. Therefore, the current justice institution is an anti-civilizational element.

Contrary to this experience posed and imposed by the legal mainstream, citizen justice is done as a call to participate. Take the case of juries, for example, or social participation in the administration of the electoral process. These are two experiences seen as anomalous by traditional jurists — in which there is a lot of ignorance and prejudice. Something like “the Brazilian people are not prepared to vote” (sic), which extends to “the people do not know how to judge,” in short, the people cannot do anything, they simply cannot. In other words, the denial of the very democratic character enunciated by the Constitution, which, in opposition to such unjustified and unjustifiable discriminations, states that “all power belongs to the people.”[xii]

Citizen justice can then take place in many places, which are institutionalized for participatory pluralization, for the care of what is fair, against what is unjust.

Justice is not, but it is done or given. That is, it results from the experience of exercising it. At present, in the illegitimate situation of monopoly of knowledge and power over the justice institution, there is no way to experience justice. And injustice is perpetuated, with one or another exception, here and there, which does not undo the structural knot of a system aimed at producing and reproducing injustice, under the pretext of doing right. It is not noticeable, but the practice of traditional and current justice-institution is accompanied by many excuses: “forgive our mistakes, but things are like that, we are obliged to decide that way.” Ultimately, it is the usual superb statement, corporatist, on the one hand, but aware that it is necessary to keep things as they are, pretending to be neutral to maintain hierarchies and privileges. Parodying the old saying, it can be said that whoever wants it, gets justice, whoever doesn't want it, finds an excuse.

Having no owner, justice belongs to everyone. Law is something that must also be occupied by everyone, whose knowledge can and should be shared, especially because it deals with objects that are common, such as laws and judicial decisions. This does not simply mean that laws or law must be written for people to understand, or that legal vocabulary must be simplified. What matters is that law and justice are occupied by the people, with the aim of belonging, not consumption. In the sense of making law and doing justice and not being the object or recipient merely of one or the other.

The usurpation justice-institution model is exhausted.[xiii] It generates nothing, it just keeps situations as they are and does not wish to participate in their change, of which the people are the agents and not law or justice. We are agents of justice.

This participatory justice, which shares and shares, is a feeling and action against greed and violence. Compassionate and non-arbitrary.

Practical aspects and a project: justice for all

Based on the experience and conceptual assumptions presented briefly, it is possible to forward some proposals for citizen justice, that is, city justice, which can only be developed in the city and based on a democratic government, which thinks about governance structures and control that free themselves from administrative constraints and become truly constitutional.

I present this proposal below, also briefly, to allow the establishment of a more fruitful debate and the implementation of mechanisms that transform the experience and way of being of the justice institution.

The basic idea is that creating mechanisms of participation and control means doing and constituting justice.

A) There is an institutional and democratic void that needs to be filled with a consistent project of citizen justice: thus creating mechanisms of (participatory) justice in cities and metropolises.

Justice, therefore, local — for neighborhoods and so-called administrative regions, municipal justice and metropolitan justice, in a country that structured its judicial power in the form of distancing and alienation of the legal capacity of its citizens — taking away from them, therefore, such quality, by leaving them merely subject or subjects — euphemistically called “recipients” of the service of justice.

It is precisely for this reason that Brazil has only established federal and state courts. Also, that it has conceived its system and its judicial structures — justice merely an institution — based on the monopoly of the exercise of the function of judgment by representatives of the State 9and not, as required by the Constitution, of citizenship). It was also for this reason that the “Citizen Constitution” decided to alienate the capacity — therefore, the power — of the people to act on their collective and diffuse interests, establishing the legitimacy of a state body — delegitimized by the absence of popular choice, violating yet another aspect of the constitutional democratic principle — for public civil action .[xiv]

The creation of a citizen justice system, as a mechanism for discussion and decision-making regarding local, municipal and metropolitan issues — even as a gateway, in the case of metropolitan justice, to the jurisdiction of the States — makes it possible to cover the design gap institutional justice system in Brazil.[xv]

The neighborhood and the city need justice. 

I think that the structure of this citizen justice must have the people themselves as agents, through the institutionalization of participatory councils.[xvi]

In this model, the community itself, under the guidance of the City Hall, would choose people, from the most varied backgrounds and experiences, to exercise the role of judges of local conflicts. The issues brought up for discussion and decision by these democratic councils of justice would necessarily have collective appreciation, in its double meaning.

On the one hand, the discussion of the solution and the preparation of the decision would be carried out by a collegiate body. It would therefore involve the participation of different people, professions and life experiences.

More important, however, would be the adoption of a second way of understanding the term collective. In this case, members of democratic justice councils would have to observe apparently individual conflicts, which were brought to their attention, from a contextual perspective, that is, something like a sign or symptom of a collective problem, which presents itself as individual. To do this, they would have to carry out studies of the place where the individual issue arose, seek contact with residents or users of a particular service, carry out research or praise themselves in work carried out by credible institutions, with institutes and universities - the number and The quality of these institutions is notable and commendable, especially in São Paulo, as there is the availability of people and instruments to help understand the social problems surrounding conflicts.

These councils would have the task of building relevant databases about communities and the city, in general, allowing not only citizen participation, but also citizen control over the presence and quality of goods and services existing in regions of the city and of the metropolis.

The vast majority of issues that are, today, submitted to the justice institution for consideration — and which apparently involve so-called available rights — could be submitted and assessed by these democratic councils of justice: local, consumer, neighborhood, family conflicts , crimes of lesser offensive potential (which would undergo a decriminalization process, to be understood as civil and no longer criminal matters), problems relating to the provision of services by private or public bodies, granted, permitted or exercised in a public-private partnership, use of public facilities, their dissemination and protection and care, more rigorous environmental protection, including the effective preservation of natural resources, mobility, etc.

Ultimately, most issues could be assessed by these councils, receiving either a definitive decision — in the case of conflicts that are limited to the local scope — or an assessment and a proposal for an initial decision — in the case of conflicts that are complex to the point of involving interests beyond the local, involving other spaces in the city, or the metropolitan space.

In these cases of interlocal complexity, a mechanism for interaction between the various councils could be institutionalized — which would be more recommended — or the submission of the decision to a review by Administration and justice-institution bodies could also occur, binding the system of citizen justice to the traditional — above all to allow the opening of democratic spaces in the latter.

At the same time, to prevent local anti-political or oligarchic forces from taking over the initiative, there would be a mechanism of constant rotation of participants, with frequent elections, as well as supervision, through resources by the justice-institution system, such as male and female judges. .

The collective and contextual understanding of conflicts would provide the general justice system with more effective instruments to understand the Brazilian social reality. They would be mechanisms closer to everyday reality and placed within the reach of citizens' understanding and decision-making power. In this aspect, they would contrast with the way in which the National Council of Justice operates, insofar as the projects carried out by this body — which, constitutionally, only has the function of (internal) control of the judiciary — are fragmentary and suffer from the vice of detachment. and the alienating nature of the present justice institution.

These councils would operate in existing public facilities, such as schools, cultural centers, parks, libraries, and would work at alternative times, allowing everyone to carry out their work. For this, also, a cost allowance, aiming to facilitate access, mobility and time availability, could be established. These resources could come from the municipal and metropolitan budget, or be obtained through partnerships or resources from national and international institutions.

An additional virtue would be to see existing public facilities also transfigured into centers of justice: de-peripheralizing the current perverse culture of exclusivism, establishing the pluralization of centralities; and giving the institution of justice greater legitimacy, by placing it within the reach of people and under their care and control.

Deperiphering and creating centralities is an important process of inclusion and integration, constructive in itself of active citizenship.

Justice has this important ability to not only be able to increase participation, expand the way of understanding social reality, but, above all, to allow the exercise of the ability to decide issues that are relevant to each person and to everyone. Choose and indicate collective paths of action, to serve as an example, imitation for other different and multiple actions. Provide catharsis from social tensions.

Other details can be discussed when reflecting and implementing this mechanism.

Two important issues, however, must be analyzed here.

The first concerns the way of arranging the people who will be judges and judges within the scope of the Council. I take, here, as models, not only the experience of the Legal and Social Advice and Guidance Sector (see above), but also the way in which the magistrates courts, in the United Kingdom. There, to be a magistrate, synonymous with a lay judge, there is no need for any formal legal education. The person must be between 18 and 74 years old (they must retire at seventy-five, if they are providing this service), and must demonstrate that they have certain skills — which are those necessary to be a judge, in any circumstance, even a judge, within the justice institution: be aware of social issues, maturity, understanding of people and a sense of justice, be trustworthy and demonstrate a vocation to serve the community, have an understanding of documents and intuition about the meaning of evidence, logical thinking and the ability to effective communication, respecting other people, with a feeling of equality, horizontality, building arguments and reaching a fair decision. Of course, people who apply must demonstrate certain experience, at work, at school, in the community, in activities aimed at building good relationships and having built trust with colleagues and the community. Furthermore, it is necessary to demonstrate that you have not committed acts (actions and omissions) that undermine this bond of trust in the past, or justify a plausible, sustainable or durable change in the basis of such behaviors that undermine trust, as well as having repaired the errors committed , in action of reparative empathy and compassion, admittedly.

It is necessary to establish a mandate to fulfill the function of judge, with the prohibition of staying for more than a certain period of time, avoiding the perpetuation of the exercise of the mandate, as well as there being fair mechanisms of recall, in case there are incompatibilities that arise in the exercise of the function, in the sense of mischaracterizing its purpose of building truly citizen justice.

There must be no conflict of interests, that is, that candidates (who present themselves for election) or judges (after election) do not have interests that conflict with the purpose of exercising the function and with the cases that affect them. are subjected to analysis and judgment. Special care, regarding prohibitions, must be given, with prohibition of exercise, to civil and military public servants. Furthermore, at present, it is necessary to establish safeguards so that there are no people linked to, or financed by, factions and militias, who exercise the role of judge.[xvii]

An important issue is the establishment of a cost allowance for carrying out the role, during periods in which sessions and research work and visits to communities are carried out.

It is necessary to emphasize that municipal justice and its exercise are characterized as activities of public interest, thus distinguishing themselves from other activities with a predominance of private interests, linked to the universe of what, at the international level, are called means and methods in alternative dispute resolution, experimented in Brazil under the name of mediation and arbitration, which have been built under some regulation by the National Council of Justice and private institutions, in which the economic and rather timid institutional sense prevails, in devaluation before the justice institution, for a hand, in the case of mediations (highly regulated, with the decharacterization of their autonomy and removing their link with citizenship, to make them auxiliary bodies of state justice, for remuneration), and overvaluation, on the other, in the case of arbitrations, in which the creation of an expensive and differentiated private justice system has been sought, resulting in the deepening of social, economic and political inequalities in Brazil.

B) The second important question concerns the institutional framework of such democratic councils of justice.

Here, it is necessary to analyze and interpret the Municipal Organic Law and other laws that help in understanding this legal-normative framework.

The democratic principle in the Federal, State and Organic Law Constitutions

The Municipal Organic Law of São Paulo – LOMSP, by saying, in article 3, that “municipal power belongs to the people,” extends and deepens the implementation of the democratic principle, provided for in the Federal Constitution – CF, which refers to popular power as a emanation that legitimizes political representation, through voting. The CF already affirms the capacity for direct exercise of power by the people, through, for example, sovereign councils and juries, in addition to participation, by call, in the administration and supervision of elections, and provides for the mechanisms of semi-direct democracy, thus popular initiative of laws, plebiscites and referenda.

This democratic extension and deepening occurs, firstly, through the way in which LOMSP enunciates the city's fundamental values, seeking to make them more than values, through the use of direct and less abstract language than that chosen by the CF. The Organic Law then speaks of “I – ​​democratic practice, sovereignty and popular participation, transparency and popular control in government action, respect for the autonomy and independence of action of associations and social movements, guarantee of access to all , in a fair and equal manner, without distinction of origin, race, sex, sexual orientation, color, age, economic condition, religion, or any other discrimination, to the goods, services, and living conditions essential to a dignified, welcomed and equal treatment to all who, in compliance with the law, come to the Municipality, defense and preservation of the territory, natural resources and environment of the Municipality, preservation of the historical and cultural values ​​of the population, and the suitability of agents and public servants.” (article 2 and paragraphs).

Through this incisive language (the principles are set as guidelines), LOMSP provides citizenship with intangible assets, capable of ensuring that the policy develops, within the city and in its communication with the other components of the federation – through “programming and systematic planning,” combining and articulating the “full exercise of municipal autonomy” with “cooperation with other federated entities.” (items V, VI and VII of the same article) -, in association with citizenship.

LOMSP insists on saying that the “people exercise power” and adds non-abstract specifications to the list of fundamental rights and guarantees provided for in the CF and the State Constitution of São Paulo — CESP: “it is the duty of the Municipal Power, in cooperation with the Union , the State and other Municipalities, ensure to everyone the exercise of established individual, collective, diffuse and social rights... and those inherent to the conditions of life in the city, included in specific municipal competencies, especially with regard to a humanized environment, healthy and ecologically balanced, an asset for the common use of the people, for present and future generations, decent housing conditions, transportation through adequate public transport, at an affordable rate for the user;, protection and access to historical, cultural, tourist and artistic heritage , architectural and landscaping, supply of basic necessities, elementary education and early childhood education, universal and equal access to health, access to cultural, recreation and leisure facilities.”

Very well, based on these value-assets and rights-guarantees, the city creates concrete mechanisms for the effective participation of the people in the exercise of power.

Councils in municipal democracy

Municipal autonomy encompasses the capacity-competence to create, by law, councils “composed of elected or designated representatives, in order to ensure the adequate participation of all citizens in their decisions.” LOMSP's diction is perfect when referring to the purpose of the Councils: the participation of all citizens in decisions taken within the city.

When we talk about Councils, we also touch on the topic of decentralization.[xviii]

I think that decentralization should be seen as an instrument not only of government participation, governance and political control, but also as a means of rationalizing the composition of plans, budgets,[xx] projects and decisions on the sharing of material and immaterial goods, actions, services, interventions etc., involved in politics. This means that it is not just about thinking about the city from an administrative point of view, but above all about raising the reflection and action of governments and partners in society to an effectively constitutional or political-legal level. Make administration, combined with the constitution, a truly political activity.

This means that there is a citizen objective in the creation of Councils, and that the subject of care of the Councils created is as broad as possible, in order to effectively fulfill the value-assets and guarantee rights provided for in the CF, the EC and at LOMSP. I insist that the competence with which the Councils are endowed covers the realization of citizenship, through the achievement of rights, duties and public policies constitutional(a term that covers the three normative scopes that I mentioned, that is, federal, state and municipal, of course with regard to the life of the Municipality and its articulation e cooperation with other federative entities, which covers not only the Union and States and other Municipalities, but also the idea of ​​metropolization).

Therefore, it can be seen that the creation of municipal justice mechanisms, through councils, is not only accepted, but also recommended by LOMSP, which is fully recognized by jurisprudence (a set of judicial decisions, within the scope of institutional justice) and , as I will explain below, with validity and effectiveness not only for the Municipality of São Paulo, but for all Municipalities in the country.

Justice is, first of all, understood as a right (of broad access and to a fair decision, with quality and at the appropriate time), also as a duty (which neither the State nor individuals can evade, therefore which public authorities and the private sector are subject), in addition to a public policy for achieving other rights, duties and public policies. It is with these characteristics and functions that the traditional justice institution should be concerned. And it is for these purposes and with these qualities that the creation of citizen justice must be carried out.

Article 9 of the LOMSP establishes matters of mandatory treatment in the laws that create Councils, without, however, limiting their competence to the management of such matters.

The normative and institutional space of the Councils is that suited to the configuration of democratic councils of justice, in short.

Don't worry about that, though. There is an issue that received a favorable decision after a long judicial debate, in which several obstacles caused by prejudice and the oligarchic conception of politics were overcome. This is the issue of the so-called Councils of Representatives, which I will deal with briefly below.

The institutionalization of Councils of Representatives and their legal-political validity

LOMSP provided, in its articles 54 and 55, for the creation of Councils of Representatives, as follows: “each administrative area of ​​the Municipality, to be defined by law, will correspond to a Council of Representatives, whose members will be elected in the manner established in the said legislation; The Councils of Representatives are responsible, in addition to what is established by law, for the following duties: participating, at local level, in the Municipal Planning process and in particular in the preparation of proposals for budgetary guidelines and the municipal budget as well as the Master Plan and the respective revisions ; participate, at local level, in monitoring the execution of the budget and other acts of municipal administration; forward representations to the Executive and the City Council, regarding issues related to the interest of the local population.”

In other words, it established a sophisticated and very current mechanism of shared government, decentralized governance and city control – participatory government, governance and control.

The city's two constitutional articles were regulated by Municipal Law 13881/2004.

From the combination of the interpretation of the LOMSP articles and the regulatory law, it is observed that the Councils of Representatives have a public character, being autonomous bodies of civil society, recognized by the public authorities. They are bodies representing society, from each region of the city, designed to exercise the rights inherent to citizenship of social control, monitoring public actions and expenses, as well as expressing demands, needs and priorities in the area of ​​their coverage (article 1 of Law 13881 ).

The law also talks about the coordination of Representative Councils with other Municipal Councils, Management Councils and other forums created by the Federal Constitution, Federal or Municipal Laws.

Thus, the legal provision considers the very exercise of political, administrative and, I would add, judicial functions of the city, as a participatory constellation, which is articulated, with autonomy and complementarity with state public functions. This is an important innovation, generating repercussions on the city's own design.

The Councils of Representatives must also observe the value-assets provided for in the constitutional documents, especially in the LOMSP, which, as we have seen, broaden and deepen the conception of the Democratic State of Law, making it a body subject to perception and appropriation/occupation by the society. Article 2 of the Law reiterates these value-assets: “defense of raising the standard of quality of life and its fair distribution to the population living in the region of the Subprefecture, defense and preservation of the environment, natural resources and historical and cultural values ​​of the population of the Subprefecture region, collaboration in promoting the urban, social and economic development of the region and access for all, in a fair and equal manner, without any form of discrimination, to essential goods, services and living conditions to a dignified existence, development of its activities and decisions guided by democratic practice, transparency and guarantee of public access without discrimination and concealment of information to the population of the Subprefecture region, support for various forms of organization and representation of local interest in defense issues of human and social rights, urban, social, economic and security policies, non-overlapping the action of councils, forums and other forms of organization and representation of civil society, developing integrated and complementary action to the thematic areas of each council, zeal so that the population's rights and public interests are met in the region's public services, programs and projects, with quality, equity, effectiveness and efficiency, popular participation, respect for the autonomy and independence of action of associations and social movements, systematic programming and planning .

The emphasis is on the fundamentals of carrying out government and control activities, in the form of participation, decentralization, with the repetition of the term “subprefecture” several times, and rationalization, planning, as if there were a complex and complementary game of relaxation and contraction, decentralization and centralization.

The legal provisions are virtuous precisely because of this careful integration between representation and participation, not forgetting the political-partisan configuration of public space, along with the territorial division under criteria that are, therefore, more than administrative, geopolitical.

The Law was regulated, within the period established by it, by Municipal Decree 45551 of the same year.

I cited the law because, until now, the municipal public authorities have acted as if it did not exist. I also note that it is difficult to find its text, and, in most search sites, there is the wrong note that both Law 13881 and articles 54 and 55 of the LOMSP would have had their effectiveness suspended, as a result of a decision of the Court of Justice of São Paulo, which would have unanimously judged a direct action of unconstitutionality promoted by the Public Ministry of São Paulo, through its Attorney General, declaring them unconstitutional.

Even though the Public Prosecutor's Office had, in fact, proposed such an action and won the case, in the São Paulo Court, there was an appeal by the Municipal Prosecutor's Office to the Federal Supreme Court, which by a majority vote (six to five) revoked the decision of the São Paulo Court of Justice, declaring both the LOMSP articles and the Law that regulated them constitutional, in 2020.

It can be seen that it was a long and protracted legal battle, which began with the granting of an injunction by the São Paulo Court, at the request of the São Paulo Public Prosecutor's Office, suspending the application of the two democratic Laws, based, regrettably, on an oligarchic understanding — of anti-constitutional order — that there could be no legal provision for democratic participation in the government and control of public management, under the justification — absolutely anti-legal — that this management would be exclusive to the municipal executive power. An obvious nonsense, given all the norms that refer to popular participation as the foundation of Brazilian democracy, which are based on the CF.

The final decision of the Federal Supreme Court was given sixteen years after the publication of the Law, which was suspended for this entire period due to an injunction granted by the São Paulo Court.

In 2020, however, the ruling, the definitive decision, was published. Not only did the Supreme Court understand that LOMSP and Law 13881/2004 were valid, it also extended this understanding to all future cases, therefore understanding that similar predictions can occur in any Brazilian municipality and, without asking too much for interpretation, in any orbit of our federation , including the states and the Union itself.

In a separate article, I will comment on these laws and court decisions. Here, it is enough to know that they are fully valid and it is the right of citizens of São Paulo to see them implemented, just as it is the municipal government's duty to comply with what they determine.

However, observing the experience of the succession of municipal governments, it is to be expected that compliance with municipal constitutional law and its regulation will only occur as a political program of a truly democratic government.[xx]

This is actually what I propose, since the mechanisms relating to the Councils of Representatives serve to cover the exercise of the other municipal Councils with a constitutional-democratic cloak, thus, as a matter of achieving citizen justice.

I observe, in this way, that citizen justice is undertaken through the cooperation of an effectively constitutional and democratic regime with the people, determining the integration of mechanisms and instruments, in order to facilitate not only civic life, citizenship, but also unlock the search for achieving what the Constitution determines. The opposite is to confuse what is stated in the Constitution, to oppose it with all sorts of obstacles, pretexts for systematic non-compliance, and to harm people's lives, excluding them from the vision and exercise of power.

From 2004 to 2020, an attempt was made to stop a constitutional and democratic initiative, with an erroneous legal device, a mere expression of oligarchic discrimination — a constant reaction from the mainstream legal to the quest to build democracy in Brazil and put an end to the slave order once and for all. By a hair's breadth, this anti-constitutional enterprise was defeated: six to five: Ministers Marco Aurélio, Dias Toffoli, Luís Roberto Barroso, Edson Fachin, Ricardo Lewandowski and Celso de Mello voted in favor of democracy and the Constitution; voted against the validity of LOMSP and Law 138881/2004, Ministers Alexandre de Moraes, Rosa Weber, Luiz Fux, Carmen Lúcia and Gilmar Mendes, in addition to the Judges who made up the Special Body of the Court of Justice of São Paulo, at the provocation of Attorney General of Justice of São Paulo, representing the Public Ministry of São Paulo.

Given the decision that confirmed the validity of the Laws, from 2020 until today their implementation is expected.

The LOMSP provisions and Law 13881 give unprecedented strength to the democratic principle and the capacity for democratic participation in government, governance and control.

C) Do justice through the reality and equality of opening space for people to express their desires and plans for the occupation and transformation of collective spaces and public space

Opening space for voice is, in itself, doing justice and building citizenship. It is one of the oldest concepts and experiences of democracy: isegoria, equal right to use your voice, stand up and present your opinion, your suggestion, your vote.

As part of a citizen justice project, it is also necessary to introduce plebiscites and referenda so that citizens are encouraged to present their opinion on projects and legal instruments, frequently.

To do this, it is enough to make use of the instruments that already exist for this type of active citizenship, of semi-direct democracy, which establishes a constant dialogue between legislative and administrative activities and the people, who, according to the Constitution, would have to hold power.

From a normative point of view, it is necessary to mention that these instruments are provided for in the LOMSP and are regulated — despite the extensive and partial veto that the Executive Branch imposed on the Bill initiated by the then Councilors Soninha and Paulo Teixeira, both representing, in time, the Workers' Party.

To allow us to observe the distance between the law and the project, I quote its texts below:

The project:

BILL 01-0151/2005 “Regulates the Organic Law of the Municipality regarding plebiscites, referendums and popular initiatives. The São Paulo City Council DECREES: Art. 1st. This law regulates the provisions of the Municipal Organic Law, referring to plebiscites, referendums and popular initiatives. Art. 2nd. The people decide sovereignly in a plebiscite, in the specific interest of the Municipality, the city and neighborhoods on: I – the fulfillment of the duty of the Public Powers, to guarantee to everyone the exercise of individual, collective, diffuse and social rights, referred to in art. 7th of the Organic Law of the Municipality; II – the implementation of public policies relating to the matters contained in Titles V and VI of the Organic Law of the Municipality; III – the administrative concession of public services, in any of its modalities; IV – the change in the classification of public goods for common use by the people and those for special use; V – the alienation, by the City Hall, of control of public companies;
VI – carrying out works of high value, or which have a significant environmental impact.
Single paragraph. The plebiscites mentioned in sections IV and V of this article are mandatory, and will take place prior to the enactment of laws or the execution of the acts indicated therein, under penalty of invalidity. Art. 3th. The initiative of the plebiscites indicated in art. 2nd, I, II and III are the responsibility of the people themselves, or one third of the members of the City Council, and will be addressed to the President of the latter. Single paragraph. The popular initiative referred to in the caput requires the subscription of the people's request for demonstration by at least one percent of the electorate, in compliance with the provisions of art. 11, paragraphs 1 and 2. Art. 4th. The plebiscite mentioned in art. 2nd, VI, will be carried out on the initiative of the City Council or the Municipal Mayor, in accordance with the provisions of art. 10 of the Organic Law of the Municipality, in light of statements from the Municipal Audit Court and the Municipal Council for the Environment and Sustainable Development/CADES, established under the terms of articles 22 of Law no. 11.426, of October 18, 1993, attesting that the works to be undertaken are of high value and cause great environmental impact. Art. 5th. The object of the plebiscite will be limited to a single subject. Art. 6th. Depending on the result of the plebiscite, proclaimed by the Electoral Court, the competent Powers will take the necessary measures for its implementation, including, if applicable, with the enactment of a law. Art. 7th. Through the referendum, the people sovereignly approve or reject, in whole or in part, the text of laws or normative acts issued by the Executive Branch. Art. 8th. The referendum is carried out by popular initiative, or by initiative of one third of the members of the City Council, addressed, in both cases, to the President of the latter. Single paragraph. The popular initiative referred to in the caput requires the subscription of the people's request for demonstration by at least one percent of the electorate, in compliance with the provisions of art. 11, paragraphs 1 and 2. Art. 9th. Once the request for a plebiscite or referendum has been received, the City Council will call on the people, within one month, to express their opinion within a maximum period of six months, with this period being able to be extended up to twelve months, so that the popular consultation coincides with the elections. Art. 10. Once the result of the referendum has been proclaimed by the Electoral Court, it is up to the City Council, by means of a legislative decree, to declare that the normative text, the object of the popular decision, has been confirmed or rejected by the people. Single paragraph. The revocation effects of the referendum begin on the date of publication of the legislative decree. Art. 11. The Organic Law of the Municipality can be amended at the initiative of citizens, who represent at least five percent of the Municipality's voters. § 1th. Signatories must declare their full name and date of birth, without requiring any other additional information. § 2th. The amendment proposal cannot be rejected due to formal errors, and the City Council, through its competent body, is responsible for correcting any improprieties in legislative technique or writing. Art. 12. The initiative of bills, of specific interest to the Municipality, the city or neighborhoods, can be carried out, together with the Municipal Chamber, by the subscription of at least five percent, as the case may be, of the Municipality's, city's electorate or the Sole Paragraph neighborhoods. The provisions of paragraphs 1 and 2 of the previous article apply to the popular initiative covered by this article. Art. 13. Proposals for amendments to the Organic Law of the Municipality, as well as bills that are popularly initiated, have priority in their processing over all other proposals for amendments to the Organic Law, or bills. Art. 14.

And what was left of it, after the vetoes, was the Law:[xxx]

“LAW No. 14.004, OF JUNE 14, 2005 (Bill No. 151/05,

Regulates the Organic Law of the Municipality regarding plebiscites, referendums and popular initiatives. JOSÉ SERRA, Mayor of the Municipality of São Paulo, using the powers conferred on him by law, makes it known that the City Council, in a session on May 11, 2005, decreed and I promulgate the following law:

Art. 1 This law regulates the provisions of the Municipal Organic Law, referring to plebiscites and popular initiatives. Art. 2, items and single paragraph (vetoed); Art. 3 and sole paragraph (vetoed); Art. 4 (vetoed); Art. 5 The object of the plebiscite will be limited to a single subject. Art. 6 Depending on the result of the plebiscite, proclaimed by the Electoral Court, the competent powers will take the necessary measures for its implementation, including, if applicable, with the enactment of a law. Art. 7º Through the referendum, the people sovereignly approve or reject, in whole or in part, the text of laws or normative acts issued by the Executive Branch.

Art. 8 and sole paragraph (vetoed); Art. 9 (vetoed); Art. 10 and sole paragraph (vetoed);

Art. 11 The Organic Law of the Municipality can be amended at the initiative of citizens who represent at least 5% (five percent) of the Municipality's voters. § 1 (vetoed); § 2 The amendment proposal cannot be rejected due to formal defects, and it is up to the City Council, through its competent body, to provide for the correction of any improprieties in legislative technique or writing. Art. 12 and sole paragraph (vetoed); Art. 13 Proposed amendments to the Organic Law of the Municipality, as well as bills that are popularly initiated, have priority in their processing over all other proposed amendments to the Organic Law or bills. Art. 14 The amendment or repeal of a provision of the Organic Law of the Municipality or of a law, whose proposal or project originated from popular initiative, when made by amendment or project that did not have the initiative of the people, must be submitted to a referendum popular."

Regardless of knowing the reasons behind the veto reasons, it is clear from the comparison that the law was emptied of precisely the democratic content that the project wanted to give to the instruments of indirect democracy. That is, it removed from the people's vision — to whom power belongs and who exercises it, and what it makes exercised through elected representatives, too — precisely their ability to perceive the concrete existence of this power in their hands, which was the objective of the LOMSP.

However, due to the laconic nature of the remaining regulations, perhaps contrary to what was intended with the vetoes, the constitutional instruments remained intact and capable of being used, by an authentically democratic regime, in the broadest and most comprehensive way, touching all matters relating to life in the city.

In this case, in order to create a fair experience of citizen coexistence, governments will encourage participation, opening channels and calling, with unique frequency and intensity, on the people to give their opinion, to choose, to decide, to cooperate, in short, to govern. and to control.

And this experience of decisive participation generates exactly the clarification necessary for the presence of citizenship. This would definitively improve the ability to understand public affairs, the causes, consequences and possible solutions to problems and conflicts.

Therefore, it is enough that instruments are created for popular demonstration and that the call for this demonstration is constant, repeated until enough is enough. Copying the insistence of those who desire unbridled consumption and bombard consumers with offers and advertising. The offering of good government, when it beckons with advertising and calls for public participation, is the feeling of responsibility for common space and time.

D) Education, Culture and Environment as means of government and governance: the construction of a agora expanded, including through the means of information and communication technology

Through these means, education, culture and the environment are made not only ends of the activity of governing, but means by which the values-goods and constitutional rights-guarantees are achieved. Rights are exercised as duties. Public policies are constructed as achievements.

In this sense, reinstating the participatory budget seems to be an indispensable duty of a democratic regime. Even as a tribute to the history of this innovative instrument, for which Brazil is very responsible, as recognized by international society.

Even the budget becomes an instrument of justice. And the experience can be improved by using articles 54 and 55 of the LOMSP and Law 13881, as mentioned above.

Therefore, one look at the past, another, at the future, so that the present becomes effectively constitutional: fulfillment of the desires that the people expressed in their constitutional documents and expression of the constitution of a liberating transformation. A constitution always in motion.[xxiii]

The space and time of politics must be seen as objectives to be constructed and achieved persistently. This means opening channels and networks of consultation, repeated, constant dialogue: participatory schools, participatory cultural and sports centers, participatory libraries, participatory leisure activities, participatory work spaces.

In order for the space and time of politics to be reconstructed as public, in the form of assemblies as a conception of what it means to participate — assemblies thought of in a material and immaterial way, as well as real and virtual presence and encounter, it is necessary to employ instruments more than just mediation, but more sophisticated approaches.

I am thinking, here, of the constitution of a public network of social interaction, or, simply, a public social network, as a means for participation to flow without us, obstacles and private interests: without greed and without symbolic violence.

A public social network will only depend on simple and direct investment in the production of a technologically designed space that allows the convening and holding of simplified assemblies, in the form of proposing problems and projects, which can be created or offered by the so-called public authorities. traditional, or by popular public power and its social movements — that is, by representatives and represented and intermediate bodies.

In this assembly space and time, opinions would be collected and disseminated, debated, until the moment a joint decision was reached. Thus reproducing the experience of in-person assemblies.

Virtual and in-person would not be excluded, as there are topics more appropriate for deliberation in an e-mail. another means. The virtual serves, evidently, to overcome the mysterious issue of the exhaustion of energy to meet others, to exchange experiences, act and react, arrange interests, reasons and passions. But wouldn't the exercise of speaking and being heard, even through a public social network, help to unlock the forces that lead to true meetings and contacts?

There is much more to suggest and provoke. At other times we can do this together, as there is no need to exhaust a topic and leave nothing for the reflection of those who read and participate in its constitution.

For all?

The album by the group Metallica “…and Justice for all”, from 1988, sold almost ten million copies in the United States alone. On the gray cover, it featured the image of justice, whose universal character was ironized in the title track. Reality made justice a servant of money, lies and the naked force of violence, a prey to vanity and the will to power, helping to oppress and confuse the truth. The success of the album defined the band's destiny, until then underground, making it paradoxically more enjoyable to the mainstream musical. The institution of justice and its feminine image – called Doris by the band, who displayed their replica in shows around the world — they were placed as executioners of justice itself, vilified of their virtues by the assault of the powerful.

In this critical image of justice, the blindfold is removed from his eyes and placed in his mouth. She starts to see the world and observe it in a discriminatory, prejudiced, and ultimately unfair way. And she can no longer speak. Her words are taken away by the one who starts to dictate the rules in her name, the money. Those who need justice are attacked by wolves, who devour them mercilessly, following their appetite alone. An attack made at the courthouse door, under the pediment, on which the parodied motto is traditionally inscribed.

The expression justice for all, placed on the frontispiece or in the decoration of North American courts, probably derives from the text of the pledge of allegiance,[xxiii] composed at the end of the 19th century and legally adopted, with the addition of the words “Under God”,[xxv] during the Cold War.

The text, the reference to divinity, as well as the obligation to recite this text, a kind of prayer of submission to national unity, would have been the subject of controversy for a long time in the United States. Two compositions competed for the preference of North American institutions at the beginning. One of them, authored by a Civil War veteran and auditor of the New Board of Education, the institution responsible for the dissemination of public schools in the era that followed the end of the internal conflict in the United States, envisaged the engagement of hearts and minds in the unity of the country. and the Christian religion: a single country, one language, a single flag – We give our heads and hearts to God and our country; one country, one language, one flag! — It is the educational system that will be challenged during the struggle for Civil Rights, in the 1950s and 1960s, due to its exclusionary nature. In fact, the implementation of public educational principles was not only a result of the concern to forge the unity of the country, after the fratricidal conflict, but, equally, it aimed to impose a political-cultural-educational conception of the world on all inhabitants of the United States. , whether indigenous people, black people and immigrants. The second version of the national engagement prayer, which ended up prevailing, was written by a Baptist reverend with socialist convictions – I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all. The weaving of unity and indivisibility became more careful, by establishing the link between the Republic and its symbol, the flag. But Francis Bellamy took the initiative to justify both the indissoluble union of the State and the engagement of its components, by establishing the principles of justice and freedom as universal. However, he resisted the temptation to refer to the equality and fraternity, among such values, because he considered them unattainable in his time. It is significant that the text constituted one of the initiatives aimed at establishing the Christopher Columbus Day Columbus Day — as a national holiday, which further accentuated the exclusionary nature of Native Americans, and established the inauguration of America — whose name the United States exclusively appropriated — as the starting point of its own history. This equally forced all those who came after the colonizers to adapt to a nation project in the constitution of which, without a doubt, they did not participate. This is one of the original vices of the national conception, which had its history erased, due to the insistence on the founding character of the War of Independence and the Declaration and Constitution that it generated. Of course, this focus on the independence movement is important. But the invisibility of the national construction of inequality and exclusivity, submerged in propaganda around the revolutionary claim that “All Men are created equal, and endowed by their Creator with certain Unalienable Rights, that among them are Life, Freedom, and the Pursuit of Happiness”Every man is born free and endowed by his creator with certain inalienable rights, including life, liberty and the pursuit of happiness, in the elegant Jeffersonian formula. That is, as William Douglass had already observed in the 19th century, not all people were included in the expression “every man”, and especially the enslaved were completely removed from it. Metallica's criticism not only referred to this hypocrisy of the expression of universality, but indicated that, even among those endowed with inalienable rights, there were the most powerful, who, endowed with the right, took justice and freedom as their assets.

The existence, use and obligation of this civic prayer were always contested before the North American justice institution, which never faced the issue with the radicality that a constitutional conception would demand. This demonstrates the incapacity of a justice system conceived as a State body, solely capable of deciding the most fundamental questions of citizenship, or even encouraging it.

It demonstrates, in conclusion, that justice does not and cannot be exhausted in an institution. As I have already said, the vision of the tripartition of powers is false because it precisely takes away from justice its autonomous character, of being an institution of society and not a state one. What is outside the arrangement of the so-called powers allows the constant exercise of autonomy in the face of the State, which repeatedly seeks to alienate people's political-legal capacity.

It is the old conflict between citizenship, which creates and occupies spaces of sociability, inventing politics as democracy, and the usurpation of those who desire the illusion of public space, a disguise for private violence and greed, guardian of prejudices, discrimination, exclusions, privileges and hierarchies.

It is therefore necessary to rethink Law and Citizenship linked, as a constitution, so that it is possible to once again capture and practice the links between the people, between peoples.

As much as for All It's not for everyone, lining not for All.

The term lining, which qualifies this proposal, by designating not only a cultural experience, but also a genre of music – which combines some species or styles, such as baião,[xxiv] o xote and the xaxado — was mistaken, in the history of its interpretation, as a corruption of the English expression “for All”, which would have been printed at the entrance to dances open to the general public, by the North American troops established in Rio Grande do Norte, during the World War. The history of this version, in fact, says a lot about who would have built it, that is, a culture of devaluation of Brazil and its language vis-à-vis the English language, along with an inherent authorization for the invasion of public space by parties held by occupants of the territory. , which privatize it to the point of being able to manage the key to what opens or closes in the presence of everyone.

Against this hierarchical, exclusivist and fallacious cultural vision, of course, stands the presence, in truth, of African culture in Brazil, which coined the term forrobodó for popular festivities and joy, in a shared and populated space — against the noise of privatization and the market (greed and exclusion) and the militarized (violence and militiaization of territories): two signs, as I explained here, antidemocratic, thus antipolitical — also popular songs and rhythms.

Forró, therefore, is the experience of presence and encounter that I would like to see as a representation of justice and politics revitalized by what is most authentic in human coexistence and things (nature, the environment). The words circulating with the lightness of music, and the thoughts and gestures lulled by the rhythms that accelerate and calm, sometimes there is silence, in the pause given in the passionate tensions, which make us want to get up, free our movements and take charge of our common destiny.

By the same impulse, I think that a commission to review the city's memory and change the names of streets, squares, avenues, public spaces and schools in São Paulo would do good for the city's spirit. In times of gps, google maps, waze etc., it is no longer justified that the names of known slave owners, of jurists who defended relations of cruel human submission, of slave owners and their families and clients, of landowners-squatters, despots of all types and from various eras, icons of acts vile dictatorships, continue to observe the sad condition of our fellow citizens in the streets, from signs that keep their names from the judgment of history, in the sad conditions of the spaces that they continue to invade, in perpetuation of the possession that they imposed, through their unjust instruments of power, mere force in disguise, conditions for which they are responsible, before any other person or occasion. What kind of stance should we have in relation to our history? What kind of memory do we want to preserve in truly public spaces? What impression of time do we want to build? The construction of democracy involves intense re-discussion of a past that denies us the possibility of continuing.

“Il n'est pas indifferent que le peuple soit éclairé. Les prejugés des magistrats ont commencé par être les prejugés de la nation”[xxv]

*Alfredo Attié He is a Judge at the São Paulo Courts. Author, among other books, of Constitutional law and comparative constitutional rights (Tirant Brazil). [https://amzn.to/4bisQTW]


[I] Precisely, what is the truth? I can't say, I can't feel. Metallica. “And Justice for All” in And Justice for All: Album. Los Angeles: Elektra Records, 1988.

[ii] The opportunity for the debate that I propose lies in the possibility of a democratic government for São Paulo, represented by the alliance led by Guilherme Boulos, a recognized political activist for fundamental political causes for the construction of citizenship, in the search to implement policies that are already part of the set of citizenship rights and duties provided for in constitutional legal instruments (Constitution, International Treaties, International Jurisprudence, State Constitutions, Municipal Organic Laws). May the text also serve those who are concerned, in other effectively democratic projects, with the achievement of justice, in the form of popular participation and control.

[iii] In Classical Antiquity, the most important subject of life in city (polis) was justice. Plato, for example, wrote an entire treatise to discuss its meaning and how it could be implemented. This treatise was called Constitution (Politeia), although tradition has reserved for him the name of Republic. Aristotle defines that what moves political life is justice, expressed in the treaty that was transmitted under the name of Politics.

[iv] ATTIÉ, Alfredo. Brazil in Accelerated Time. Politics and Law. São Paulo: Tirant, 2021.

[v] Today we talk about equality for its negative: anti-racism, for example. It is necessary to implement the Inter-American Convention against all forms of discrimination in the city: active and constructive equality.

[vi] It is important to value social demands as they present themselves. If the dialectic, which moves social life, opposes classes, it is necessary to know not only how those who have power want and act, but, above all, how those without power desire, suffer and react. It is the result of this clash that constitutes the subject of law, especially laws, but also theoretical texts and the very exercise of justice-institution and its decisions, jurisprudence. See ATTIÉ, Alfredo. Brazil in Accelerated Time: Politics and Law. São Paulo: Tirant, 2021; Towards International Law of Democracy: a Comparative Study. Valencia: Tirant Lo Blanch, 2022; The Reconstruction of Law: Existence, Freedom, Diversity. Porto Alegre: Fabris, 2003.

[vii] Security is freedom: being at ease with others and feeling the social bond present — not as an emanation from a common root (abstract and invented, therefore, fictitious), but as a bond that accepts others and adapts to constant changes, building connections , connections, without allowing the establishment of nodes that concentrate power, nor nodes that impede information and communication. It's needed build political (and not private) digital networks.

[viii] See the Seem which I offered to the Inter-American Commission on Human Rights, in 2016, regarding the right of students to occupy schools.

[ix] See ATTIÉ, Alfredo. Towards International Law of Democracy. Valencia: Tirant, 2022, about this concept of the public environment as noise.

[X] O Cejusc it is the appropriation and distortion of an experience that I undertook in the interior of São Paulo and that I will talk about when stating the proposals.

[xi] Chico Buarque. “Paratodos” in Paratodos: album, Rio de Janeiro: BMG/RCA, 1993.

[xii] Even though the formula, as we will see, is abstract and mitigated from “emanate.”

[xiii] ATTIÉ, Alfredo. :Exhausted Justice” in Portal 247, 14/July/2023, accessible at https://www.brasil247.com/blog/justica-esgotada

[xiv] ATTIÉ, Alfredo. “State and Societal Corporatism: statute of the Public Ministry and Proposal for a National Defender of Justice” in

[xv] This case, which also occurred in the context of security and, to date, prevents the establishment of security (more than public) that is citizen, but close to people, especially in the context of cities and metropolises — and as a national project for the worrying and current security issue. The debate about the municipal and metropolitan Civil Guards, their duties and the way they operate, exemplifies this problem.

[xvi] Along the lines of the experience I developed in the interior of the State of São Paulo, through SAOJUS — Legal and Social Guidance and Advisory Sector. See: ATTIÉ Jr, Alfredo. “The Legal and Social Advisory and Guidance Sector (SAOJUS: Control Proposal, Public Policies and Judgment by the Municipal Ombudsman)” in Brazilian Journal of Electoral Law, n. 9, Fortaleza, June 1996, p. 23-28.

[xvii] See paragraph 2 of article 8 of the Municipal Organic Law of São Paulo, on the prohibition of participation in Councils for people condemned to ineligibility, for example.

[xviii] Vivente Trevas, when recounting, in a brief and important text, the history of decentralization in the city of São Paulo, states, in my opinion, correctly, that “Governing a city like São Paulo requires a public administration that is capable of dealing with socio-territorial dynamics at their different scales. This need becomes relevant in a city marked by inequality. A city that develops by reproducing socio-spatial segregations. Decentralization is an imperative not only to manage competencies, policies and public services, but a premise to enable democratic, participatory and effective governance. The decentralization of Government, Management and Governance is an irrevocable political agenda, at the same time a dormant agenda. The question to be asked is whether the decentralization agenda will be relevant in municipal elections and will be assumed by the new ruler.” (The challenges of decentralization: text for debate in the Superior Council of the São Paulo School of Sociology and Politics Foundation, aApril 2024)

[xx] On the fundamental issue of budgetary rationalization, in criticism of the highly harmful practice — from a political and administrative point of view — of “secret budgets” — whose legal invalidity has already been declared by the Federal Supreme Court, Carlos Alberto dos Santos Cruz and Tarso Genro wrote an important and brief text, highlighting that “It is time to put an end to the absurd growth in amendment values ​​originating in the “secret budget” and revert resources to government actions such as emergency aid and reconstruction plans. It is not possible for Brazil to continue to see an increase in the value of amendments as a way of accessing public money and political pressure. The rapporteur's amendments, so called, were created to buy political support. Due to the difficulties in identifying responsibilities, distributing and monitoring execution, they received the nickname “secret budget”. Inadmissible when dealing with public money. Unacceptable. In the Brazilian environment, where the practice of diversion is historic and well known, it was irresponsible. Even though it was extinguished by the courts, the “secret budget” inspired a dizzying increase in values ​​across all of the amendments. The billions in this portion of the budget are dispersed and produce nothing visible, with a concentrated positive impact. It is simply a huge dispersion of public money. It is time to reverse this situation, with cancellation or contingency and reversal of resources for the federal government to apply to emergency aid and a reconstruction plan for Rio Grande do Sul and other similar cases that may occur. Distribution and accountability follow the federative organization — concentration of resources in the federal government and distribution to states (in this case, RS) and municipalities. Inspection in Brazil needs to change and involve more civil organizations and society. All projects with their details and budgets need to be monitored by society, with broad disclosure and transparency. The control and investigative bodies have their responsibilities defined, but they are deficient for several reasons, including excessive politicization, politicking and even long-standing inefficiency. It’s time to improve oversight by society.” (Rio Grande do Sul: Emergency and Reconstruction, May 2024).

[xx] In the jargon of oligarchic politics and the corporate press, governments that comply with the Constitution are called “left-wing”. Those who do not comply and even militate against it are called “right-wing.” I think that the right terms for qualifying these governments are, respectively, constitutional regimes e anti-constitutional regimes. Corporate and oligarchic prejudices try to naturalize practices of contempt for democracy and the rule of law in our country. Governments that take democratic and constitutional duties seriously constitute a minority among São Paulo's municipal experiences. Before the 1988 Constitution, we had Mario Covas — Mayor appointed by Franco Montoro, at the beginning of the country's redemocratization, after the civil-military dictatorship of 19641985-86/1988 — and Luiza Erundina. After XNUMX, only Marta Suplicy and Fernando Haddad.

[xxx] With the veto justification being more extensive than the text of the norm itself:

“despite its noble intention, a partial veto is imposed on the approved text, reaching, in its entirety, articles 2, 3, 4, 8, 9 and 10, § 1 of its article 11, and article 12 , for unconstitutionality, illegality and contrary to the public interest, in accordance with the considerations outlined below. The text being sanctioned, although without indicating the provisions of the local Major Law addressed by the aforementioned regulation, establishes the matters subject to popular consultation, regulates the exercise of citizens' legislative initiative, provides rules for carrying out related procedures and provides for powers, conferring new powers on bodies of the Executive Branch and the Legislative Branch, in addition to determining new requirements, deadlines and conditions for manifestations of popular sovereignty. However, by standardizing procedures and removing requirements considered unjustified by its creators, the proposal ends up contradicting, and even modifying, in several of its provisions, the corresponding norms of the Organic Law of the Municipality of São Paulo that govern the matter, at the same time in which it fails to comply with constitutional precepts of mandatory observance by Municipalities, as well as provisions set out in applicable federal legislation, incurring unconstitutionality and illegality. In fact, the plebiscite, the referendum and the popular initiative constitute important instruments of people's participation, "ex vi" of the provisions of article 14 of the Federal Constitution, whose execution is regulated by Federal Law nº 9.709, of November 18, 1998, which regulates the subject, establishing the concepts, requirements and general rules to be observed by Municipalities, States, Federal District and Union. It should be noted that the aforementioned federal law explains, in its article 2, that the matter subject to referendum and plebiscite is one that has marked relevance, of a constitutional, legislative or administrative nature, also determining, in its article 6, that in the questions within the jurisdiction of the Municipalities, the call will be made in accordance with the respective Organic Laws. At the municipal level, the topic is already regulated by the local Major Law which, in its articles 10, 14, item December 36, 37), provides for the hypotheses, requirements and conditions, in line with the constitutional commandments and legal norms referred to above. It turns out that the approved bill, when listing the matters subject to plebiscite in its article 2, included practically all those of exclusive competence of the Executive, without, however, establishing any parameter or criteria that would allow defining under which conditions they would effectively be subject to popular consultation. From this it can be inferred that almost all of the actions of the Municipal Administration would be subject to it, which, naturally, is not in line with the specific purpose of this institute. Thus, it disregarded both the rule provided for in article 2 of the aforementioned federal law, which allocates only matters of marked relevance to the plebiscite and referendum, and the norms of the local Organic Law, which admits them in cases of works of high value or that have significant environmental impact, as well as issues relevant to the Municipality's destinations or of relevant interest to the city or neighborhoods. However, it also determines, in the sole paragraph of its article 2, that in cases of change of destination of public assets for common or special use and of alienation of control of public companies, plebiscites will be mandatory and carried out prior to the enactment of laws. or the execution of the acts indicated therein, under penalty of invalidity. On the other hand, considering the long deadlines stipulated in article 9 of the proposal for the people to demonstrate in the plebiscites, the actions of the Municipal Administration would inevitably remain compromised, leaving the implementation of public policies for health, education, environment, housing, supply, public transport, social assistance and urban policy, administrative concessions of public services and decommissioning of public assets, which is unfeasible in a city with demands of the size and urgency of São Paulo, denoting the patent non-compliance of these devices with the public interest. It is even seen, with regard to works of high value or that cause environmental impact, referred to in section VI of its article 2, that the approved text no longer conveys the relevant regulations, which, in the express terms of article 10 of the Law Organic of the Municipality, must be established by law. Thus, instead of stipulating the necessary criteria, definitions and parameters, article 4 of the proposal was simply limited to attributing to the Court of Auditors of the Municipality of São Paulo and the Municipal Council for the Environment and Sustainable Development – ​​CADES the burden of certifying, respectively, that the works to be undertaken are of high value and cause a great environmental impact, failing to consider, however, the normative elements essential to this measurement, which makes its application unfeasible. Furthermore, the responsibilities now conferred on the two bodies do not fall within the legal competences of the Municipal Court of Accounts or CADES, in accordance with the respective Laws No. 9.167, of December 3, 1.980, amended by Law No. 9.635, of September 30, 1.983, and nº 11.426, of October 18, 1993. In this sense, in addition to the impropriety mentioned above, the referenced article, in this aspect, suffers from a defect of initiative, as it legislates on a subject related to administrative organization and public services, imposing new attributions and procedures on municipal bodies, a matter whose legislative impulse falls exclusively to the Executive, by virtue of the provisions of article 37, § 2, item IV, combined with articles 69, item XVI, and 70, item XIV, all of the local Major Law, violating, at the same time, at the level of the Federal Constitution, the principle of independence and harmony between Powers. The provisions contained in article 3 and the sole paragraph of article 8 of the proposal, which establish a single minimum percentage of 1% (one percent) of the electorate, required for the holding of any plebiscite or referendum, given that they end up modifying, by improper means, the minimum percentage determined in article 45 of the LOMSP (as amended by Amendment nº 24, of 2001), according to which, “Issues relevant to the destiny of the Municipality may be submitted to a plebiscite or referendum at the proposal of the Executive, by 1/3 (one third) of the councilors or by at least 2% (two percent) of the electorate, decided by the Plenary of the Municipal Council . In addition to dealing with an issue that does not involve regulation, it is important to consider that the rules contained in the Organic Law of the Municipality can only be changed through amendment, in the express terms of its article 36, never by ordinary law, which is hierarchically inferior to it. On the other hand, the provision contained in the “caput” of article 8 excludes the possibility of calling the referendum by the Executive, as it only provides for the popular initiative and that of 1/3 of the Councilors of the Chamber, which also violates the “caput” of article 45 cited above. Likewise, article 10 of the approved message contains other unavoidable improprieties.

The second emerges from the provisions of the sole paragraph of the aforementioned article 10 which, indirectly, attributes repealing effects to the aforementioned legislative decree, valid from the date of its publication, because, in addition to the hypothesis that it does not involve the publication of this normative type, it is devoid of revocatory effects. It is worth remembering, by the way, that Federal Law No. 9.709, of 1998, provides in its article 3 for the issuance of a legislative decree to call the plebiscite and the referendum, not contemplating, naturally, any provision similar to that of the device in question, the same applies to the local Major Law. In turn, although the “caput” of article 11 exactly reproduces the command contained in item III of article 36 of the LOMSP, its § 1, by expressly prohibiting the requirement of any information other than the declaration of the full name and date of birth of the signatories, removes the need to present an electoral card, leaving the possibility of measuring the Municipality's voter status, an indispensable element, since, as Alexandre de Moraes points out, “because it is an exercise of sovereignty, only those who hold active electoral capacity will be allowed to participate in both consultations” (“Constitutional Law”, Ed. Atlas, 16th edition, 2004, p. 238). It therefore disregards not only the local Major Law but also the precept set out in item XIII of article 29 of the Magna Carta, which is mandatory for Municipalities to observe, running up against irremediable unconstitutionality. Furthermore, as the sanctioned text applies the same rule provided for in § 1 of its article 11 to other types of consultation and popular participation, as stated in the sole paragraph of its articles 3, 9 and 12, such provisions also incur the same obstacle. It should also be noted that the “caput” of article 12 is in disagreement with both item XIII of article 29 of the Federal Constitution and with item I of article 44 of the local Organic Law, which require the manifestation of , at least 5% of the Municipality's electorate in any case, whether it is the specific interest of the Municipality, the city or neighborhoods, and cannot, therefore, be maintained. Therefore, it remains unequivocal that the contradiction to the Organic Law of the Municipality of São Paulo and the constitutional precepts that govern the matter undermines the aforementioned provisions not only of unconstitutionality, but also of illegality, given the infringement of article 6 of Federal Law No. 9.709, of 1998, according to which, in matters within the Municipality's competence, the plebiscite and referendum will comply with the rules established in the local Organic Law. Therefore, given the reasons given, which demonstrate the obstacles to sanctioning the indicated provisions, I find myself in the contingency of vetoing, in their entirety, articles 2, 3, 4, 8, 9 and 10, § 1 of article 11 and article 12 of the approved text, based on § 1 of article 42 of the Organic Law of the Municipality of São Paulo.”

[xxiii] ATTIÉ, Alfredo. Constitutional Law and Comparative Constitutional Rights. São Paulo: Tirant, 2023.

[xxiii] Pledge or guarantee of fidelity or obedience.

[xxv] Under God. Incorporated into Flag Code — Code of the Flag -, on the day dedicated to it, June 14, in 1954, to, it was said, distinguish the America of all other countries, it was said. It was, evidently, a mark of the radicalization of the confrontation with the Soviet Union and the secular and universal character of international socialism/communism. This intended religious alliance was questioned several times before the Judiciary, culminating, despite back and forth, with the determination that children could not be forced to adhere to the pledge, in public schools, although it was not prohibited for teachers and school management to have it recited in school rituals. This, in truth, meant a declaration of indifference, the washing of the Supreme Court's hands in relation to the issue, by stating, in an evasive way - against the authoritative opinion of a jurist and judge like William Douglas, who said that this possibility was unconstitutional — that the issue should be resolved on a day-to-day basis — by force and not by law or justice. Justice also failed to resolve the dilemma of a nation, which claimed to be secular in its constituent documents, employing a religious formula in the education of citizens. By the way, Brazil experienced the same constitutional misunderstanding of the institution of justice, in relation to the permanence of crucifixes in public, school and judicial offices, and, due to this lack of affirmation of effective interpretation and application of the Constitution, it lives with the serious conflict surrounding the unconstitutional presence of religious and discriminatory education in schools and public institutions and political representation.

[xxiv] ATTIÉ, Alfredo. “From Machado de Assis to Gilberto Gil” in Público, April 8, 2022, accessible at https://www.publico.pt/2022/04/08/opiniao/opiniao/machado-assis-gilberto-gil-2001775

[xxv] It is not indifferent that the people are enlightened. The prejudice of the magistrates began to be the prejudice of the nation. MONTESQUIEU. From l'Esprit des Lois. 1748.

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