Elizabeth Sussekind
Viva-Rio
Justice not for all
One of the greatest dilemmas of democracy is the obligation to each and every citizen to exercise his or her civil rights guaranteed under the law. It requires proof that the state is upholding principles that, in egalitarian fashion, transmit guarantees and impose responsibilities. Nevertheless, we know that a large parcel of the Brazilian population are not able to set in motion the mechanisms of Justice in order to resolve conflict and defend their legitimate interests. The access to the Judiciary has become a privilege of those who can hire lawyers and grapple with the wait for a decision and the elevated cost of trial.
On the other hand, Justice is put into practice unnecessarily from the mere impossibility of the use of other simplified and direct recourses and mechanisms: small problems among neighbors, family misunderstandings, consumer complaints, workers' claims, debt and reparation collection among many others. Justice is excessively demanded and continues incapable of attending with promptness and efficiency truly grave conflicts. In order to have some idea of the gravity of the situation, note that just the Public Defender's Office alone in the state of Rio de Janeiro served more than 1,100,000 people in 1995, a number that was repeated in 1996. This amounts to more than one litigation for every five inhabitants of the state. On the national level, only in 1995, 4,700,000 cases went before judicial tribunals. These were presided over by acting judges, among 9,000 actually nominated. One must take into consideration the estimate that for each case that reaches the judiciary; another nine were rejected by the Public Ministry, generally for violations during the police investigation. Therefore, not only the judiciary suffers from the consequences of the demand for justice, but also and much more seriously, the police.
Together, these two spheres will carry out the undesirable role of promoting a rigorous selection of those who should- and can- receive mediation and a decision from the state. In response to these problems fall alternatives that these same problems must create, or that, imposed by questionable interests or by the local cultural, restrict the majority. Therefore, only recently we have been able to see some of the serious consequences of the distancing or the denial of intervention on the part of the organs of the state. Or, even more so, of its slowness, cost, discrediting and other difficulties verified in the search for justice. Perhaps the most preoccupying situation is the necessity of populations in needy areas to look for solutions to their immediate problems in local people and "authorities": many turn to the intervention and arbitration of local drug traffickers, who constitute a more objective, practical and economic reference that the organs of the state.
Recent research conducted in the state of Rio de Janeiro, obtained the following results:
Through the Penitentiary Census elaborated by the Ministry of Justice (1995), it was verified that only 15% of the prisoners that are serving a sentence could hire a private lawyer. This situation is worse than in the 1970's, when research conducted in the prisons of Rio de Janeiro verified that 28% of prisoners had a private lawyer.
Acting since 1994 in search of reforms in the administration of justice in Rio de Janeiro, the Viva-Rio movement, having the support of the National Secretary on Human Rights and the Ministry of Justice, implemented a project of service and protection of the rights of residents of needy communities. This service was chosen by the leaders of 25 communities who unanimously pointed out as priorities programs in the area of justice, that were linked "to rights" as they said.
The Balcões de Direitos project was implemented in December of 1996 in five shantytowns of Rio de Janeiro. Throughout the two years and seven months the project has been in existence, we have been able to expand the project to twenty communities; with ten small fixed nuclei, whose team is subdivided and serves more than one community, with daily office hours occupying buildings donated by local entities. One lawyer and various law students, as well as volunteers in the legal profession and a local resident provide the legal assistance in the project.
Since October of 1998 the Ford Foundation began a grant of financial support for a period of three years, with the objective of training local resident leaders of the communities now assisted, in order to maximize the effects of some of the services of the Balcão de Direitos project: orientation regarding civil rights, dispute resolution, the establishment of scenes and priorities, attraction and work with local volunteers and planning of new activities.
Approximating Justice
Our objectives have been both modest and audacious: on the day-to-day level, to make viable/facilitate the access to basic mechanisms of citizenship and defense of civil rights of the residents of needy communities, contributing to the diminishing of violence as an instrument for dispute resolution; to avoid the recourse to the justice system in cases where an agreement can be reached through simpler, more direct and economical mechanisms; to bring to the every-day experience of these regions the notion of citizenship, as an objective to be reached through the interaction between local groups, civil organizations and organs of the state; to contribute to the reduction of the frightful power of the narco-traffickers that are benefited by the abandon of the state to dictate norms, manage interests and execute "sentences"; to capacitate and to form new leaders that understand the mechanisms through which that can exert pressure and connect with the state bureaucracy; and overall, to facilitate the entrance of the economically underprivileged into the legal world and- remove them from the desperation of impotence.
In our daily experience in this project, we have verified that the necessities of the residents of these communities cannot always be resolved through available judicial mechanisms, that is, through procedural codes that are in effect for the whole country. Adaptations, simplifications, modifications, new legal interpretations and a discussion that enters into the life and culture of these regions is necessary. Or, in other words, and inverting the perspective, a discussion that permits that the life and culture of the residents of these regions enters into the justice system and its laws.
Each nucleus is prepared to offer the following services:
A necessary integration
The nuclei are simple offices, located within the needy regions. Each nucleus is composed of one or two rooms, in donated or rented buildings. They are available everyday, making themselves familiar to residents and easily accessible.
One of the most marked characteristics of the project is the integration with the local population, their lives, events, projects and even their tragedies. We have developed initiatives to get closer to the community in order to understand better the problems and issues that surround us. As a strategy of integration and better use of our resources, we: attend community meetings; discuss problems of other areas; represent the community in instances in which they need judicial status; promote opening our office hours on the weekends and at night; serve residents of the community in police stations; make prison visits, in other words, are present in those places in whose changes we wish to participate. We strive to contact community leaders, visit people, projects, local radio stations, cooperatives, churches, schools and many nuclei of activities designated to children, adolescents, the elderly, the religious, among others. In these occasions we provide services and make the necessary adjustments to the program.
The team is trained to provide practical, comprehensive service that produces immediate results. As part of the team, each nucleus includes a community agent that resides in and has leadership in the community. This agent has already developed promotional projects before the installation of the Balcão in his or her community. His or her function is the to promote the project internally, bringing in new users, making connections between the project, residents and other projects in the region.
The slant of the Balcão project supported by the Ford Foundation seeks to provide better fundamentals and tools for those people who work, reside and struggle in their communities for the betterment of all. A training project was begun in order to amplify and diversify their education through a series of classes, seminars, exchanges and other training instruments. These residents continue to followed up by this training and over time, their knowledge multiplies and is passed on to leaders of other communities, or helps to develop new supports in their own areas. They also come to act as para-legal agents, amplifying the services of the Balcão de Direitos and extending it to other localities within the same geographic area.
The great mobility obtained due to the condition of these residents and the due to the respect that the community grants the project are essential conditions to the success of this resource. A common language, the power of demystification, the approximation of the law to the local context are greatly facilitate by these local personages, who in this moment number sixty, distributed in various regions of the city.
This is the answer given to the inquiries of Elizabeth Leeds, from the desk of the Ford Foundation in Rio, who is profoundly familiar with the reality of the shantytowns, where she has conducted research throughout the years. She has asked: "After the Balcão project leaves the community, what positives will be left behind from all the work of the project?" We believe that the project's work will be transformed, and will continue to be constructed and transmitted by the local leaders.
The work of the Balcão de Direitos project
The most sought-after cases in the Balcão refer to family life- divorce, alimony and child support, child custody, division of property, domestic violence, paternity suits, denouncements of maltreatment. Other prominent cases are debt collection, consumer rights, elaboration of powers of attorney and certificates, declarations for other agencies, police violence, criminal defense for victims and their family members, and protection of crime witnesses. Disputes over possession of property and workers' rights have also been frequent cases.
Because of the constant complaint by elderly and handicapped residents in the communities served by the Balcão, we resolved to open a discussion regarding Social Security (Providência Social). This encompasses retiree pensions, worker's compensation, and retiree benefits, among various others. After attempting other means, we proposed to the National Social Security Institute (Instituto Nacional de Seguridade Social- INSS) that it allow an office of our team within some of their service offices. This service has been provided for more than a year and has such an important demand, being accepted also by the staff of the civil servants of the INSS. This happens because these civil servants recognize that even with full knowledge of the legislation, they are not able to adapt to concrete cases and resolve, in an efficient manner, the problems of their clientele.
Two exchanges were arranged in order to complement the general service of the Balcão project: one with the Psychiatric Institute of the Federal University of Rio de Janeiro and another with the Violence Clinic. Through these exchanges we send clients from the Balcão that are in need of treatment and we receive mental patients in need of legal assistance.
We have tried to promote a process of cooperation between the local governmental and non-governmental organs, with the goal of bettering the service in some areas, especially in the case of children and adolescents. The Clinic of Violence is a non-governmental organization specialized in the treatment of children who have suffered sexual abuse. It was proposed to use the Balcões de Direitos as a first center of referral of allegations and treatment for parents, at night and on the weekends. Later new services will be coordinated and implemented in special locations in order to receive and treat victims.
Our clientele is composed, exclusively, of persons in financial need. Our clientele in these past two years and 7 months have the following characteristics:
Many of those served reveal that they have had their problem "for a long time now", "did not remember anymore when it had happened" and that now, "that justice has arrived" are attempting to resolve it. Many others, however, reveal that they had sought out legal aid in public, state or municipal agencies, universities, without any type of resolution or without an acceptable resolution. Innumerable clients declare that they were now seeking the aid/intervention of a group of young narco-traffickers that dominate needy communities. In the last year and a half, we have verified an increasing number of clients that inform us, explicitly, that they are seeking the Balcão by suggestion/order of these local groups of narco-traffickers, and that they say that "this is a case to be resolved better in the Balcão". This is new information that brings diverse questions that we will soon have to confront, but cannot be addressed at present.
For now our plans are to continue to improve the quality of legal and mediation services, perfect our client data base and amplify the number of leaders trained and communities served.
Joseph R. Thome
University of Wisconsin - Madison
In this presentation, I focus on recent law reform processes in Latin America, in particular on the diverse premises, goals, and means that have been articulated by both international and national institutions and on the issues and problems that these reform efforts face. I will conclude with a few comments on the role that US based academics can play in collaborative research and policy formulation activities.
Responding to "global' and "national" pressures and forces, Latin American societies have in recent years embarked on a dramatic course of legal reform. The administration of justice in particular has been singled out as inefficient, if not corrupt, inaccessible to most, unable or unwilling to respond to human rights abuses, largely irrelevant to the needs of modern economies, and thus in need of drastic change. Of particular interest here is to examine issues and problems that emerge from the inter-relationship between the global and the national in these processes of legal reform.
In this dynamic relationship, both global and national actors seem to share two broad categories of concurrent, over-lapping and sometimes conflicting goals and needs:
a) Market Goals: an appropriate legal environment, such as uniform, predictable and enforceable rules securing property and contract rights, is perceived as important for modernizing the Latin American economies and incorporating them into a global economy characterized by free trade and market economies; and
b) Good Governance Goals: effective rule of law is deemed vital for consolidating democratic institutions; making legal systems more transparent, responsive to social needs and accessible to the disadvantaged sectors of society; and preventing human rights violations while simultaneously becoming more efficient in preventing and sanctioning criminal activity.
But this apparent harmony of interests and goals may mask tensions and contradictions between global and national actors, and even among one or the other. The World Bank, for instance, stresses the need for a legal framework capable of providing the predictability and security assumed to be necessary for market oriented economic development. But market stability could be threatened by the expansion of rights and access to justice goals of governance agenda. Similarly, judges facing reform may outwardly support it, but perceiving it as threatening to its status or role in the administration of justice, may operate behind the scenes to undermine it.
Two Approaches to Research on Legal Reform in Latin America: the "global" perspective and the National Perspective
The Global Perspective
As Boaventura Santos has stated, the current process of law reform can to a large extent be characterized as "the globalization of the local", insofar as it involves a significant transplantation of U.S legal institutions to other areas of the world. Research on legal reform processes should thus clearly document and analyze the role of "global players" in this process. Thorough analyses of goals and means formulation by a particular global player such as the World Bank are particularly important. In this perspective, relevant questions would include who defined the goals and for what purpose; to what extent were national concerns consulted and considered; and whether attention paid to the particular social and institutional context.
Also useful are studies which examine and evaluate global intervention on the basis of its own articulated rationale: what were the underlying premises and how were they derived -from careful, socio-legal studies, or from ideological or pre-conceived concepts? For instance, just how relevant is the legal environment for the development of free-market economies? Chile under Pinochet, for instance, would indicate that an authoritarian legal environment does not seem to affect economic growth and development.
On the other hand, research could focus on the implementation of a specific international agency project. The Lawyers Committee of Human Rights (Lawyers Committee) and the Venezuelan Program for Human Rights Education (PROVEA) 2, for example, recently completed an exhaustive study of the Venezuela Judicial Infrastructure Project. Launched in 1992, this judicial reform project was supported by a $30 million World Bank loan and its technical assistance. This study cites the Bank's recognition that certain basic criteria be taken into account in order to achieve a successful judicial reform. Nevertheless, when it put its policies into action in Venezuela, it ignored its own advice. The Project was not part of a comprehensive reform strategy. Moreover, the Bank failed to obtain broad government commitment to reform; its reform strategies failed to address crucial structural impediments to judicial independence; access to justice concerns were not addressed; and, there was no broad based participation in the design and development of the Project. Consequently, actual accomplishments were limited in scope.
The National Perspective
A national perspective, on the other hand, should provide a broader if at times overlapping set of questions and issues, more rooted in the particular social context. As already suggested, global concepts and programs, even if agreed upon, are mediated and often given new meaning or even diverted by national reality. Throughout Latin America, for instance, rule of law principles and processes are proclaimed in official documents and reiterated in substantive legal norms. But in practice they are often absent from or unevenly distributed, producing a gap between the ideal law in the books and the operative law in action. This gap is by and large due to the prevailing socio-political context and legal culture, which impact on the norms, processes, institutional structures and function of a given legal system.
The political context is particularly relevant in this context. In most of Latin America judicial systems are politicized, usually dependent on the executive. This is a model, which still reflects the centralizing, patrimonial, and non-participatory politico/legal culture inherited from Spanish colonial rule. As Moreno Ocampo puts it, "The law in this tradition is a means for the exercise of State power for the purpose of controlling its subjects".
Throughout Latin America, the judiciary is a civil service and often lifetime career. While the executive exercises political and budgetary control over the judiciary, it is internally organized as a closed system under the virtual total control of the Supreme Court, including the selection and promotion of lower court judges. Even after recent reforms, most Supreme Courts retained their discretionary powers in naming new justices or filling promotions, reiterating the importance of maintaining good relations with superiors, personal contacts or political connections.
In addition, structural problems prevail through most Latin American legal systems. Overcrowded dockets and an insufficient number of judges, in conjunction with procedures dominated by documentary, non-oral processes handled in chambers, encourages the resolution of cases by non-judicial staff, such as actuarios 3, or secretarios. Judges often barely skim over case dossiers prepared by law clerks, and sign the findings with little or no analysis of their own.
Hasty reform, however, could complicate matters. As of 1993, for example, an average of 790 civil cases was being filed each day in the 110 civil courts of the Federal District of Buenos Aires. As a result, scheduling even one oral hearing per case filed would postpone their ultimate resolution for years. Experienced judges fear that chaos would ensue unless adequate infra-structure and other complementary measures were in place prior to the adoption of oral trials.
Given common social-stratification, inadequate access to justice is a common result. In Chile, for instance, a 1993 survey indicated that only 1.5 out of every 100 officially reported criminal acts were fully prosecuted in court (keep in mind that plea bargaining was not legally recognized.) Hardly surprisingly, 71% of those who denounced a criminal act concluded that their recourse to justice had been a waste of time, and a full 68% of those who suffered a criminal act never bothered even to complain to any authority.
Many more such examples could be cited. Suffice it to say that this "legal culture" is clearly not particularly conducive to a participatory democratic discourse, at a time when Latin American societies are engaged in serious efforts of 'redemocratization.'
Conclusions
Given the above analysis, what are the prospects for the current and proposed legal reforms in Latin America? Despite or perhaps because of the enumerated problems, several Latin American nations are undertaking critical re-evaluations and reformulation of their legal systems and important changes can be observed throughout the region. Studies analyzing and evaluating these efforts are thus extremely important for both global and national actors involved in this process.
Traditional legal culture, for instance, is being challenged. In several countries NGO'S continue to play a leading role in civic and legal reform movements. Some Law Schools throughout the region are becoming more active in critical and policy oriented legal research and publications and slowly introducing non-traditional offerings, such as public interest clinics, into their curriculum. Indeed, some prominent Law Schools such as the Faculty of Law of the National University of Uruguay and the Diego Portales Law School in Chile have played a key role in the research, policy formulation, statutory drafting and even lobbying required for substantial code reforms and in the creation of new institutions such as the office of the independent prosecutor and of judicial academies for the training and selection of new judges.
Various types of alternative resolution alternatives have been introduced or are being promoted in Argentina, Brazil and other countries. In addition, various efforts are underway to improve legal aid and public defender programs. Moreover, several countries are introducing oral hearings into their civil and criminal procedures. Ideally, oral trial processes presided by judges would allow more active intervention by the parties and their counsel, and open the process to the public. Other goals include more transparent judicial processes, doing away with the undesirable practice of judicial resolution-making by non-judges, and making the legal process more understandable to the contending parties and to the public at large.
While oral trials and other innovative reforms can vastly improve the administration of justice, they require complementary structural improvements within the judiciary, as well as better links with other public administration services whose timely collaboration is essential for an efficient administration of justice, such as the investigatory police, process servers, and the like.
The rule of law and an efficient and fair administration of justice can be one of the essential building blocks for an effective democracy. But potentially adverse side effects from law reform projects cannot be ignored; a pure technical approach, for instance, can lead to a system that only serves the "haves". If the "have nots" are to benefit from an improved administration of justice, they must be provided with effective access to its services.
What then should be the role of US based academics in this process of reform? All of us could benefit from a re-reading of Law and Development (International Legal Center, N.Y., 1974.) Aside from pointing out the flawed focus of the Law and Development projects of the 1960s and 70s, this seminal report called for a more realistic view of the role of law. It stressed the need to go beyond formal rules to determine who has access to legal processes and how decisions are actually made, and it called for thorough socio-legal research which recognized that law can distort or even be an obstacle to development. To be sure, there is at present a much better understanding on the limits in using law, particularly when based on imported models, to bring about economic and social change. Still, international donors sometimes don't seem to pay much attention to this accumulated knowledge and understanding
More specifically, internationally financed law reform programs should include the full involvement of local lawyers, consultants and scholars. This participation is especially important as regards pre-implementation studies of existing situations and possible options for reform, as well as follow-up studies or continuing assessments of the projects in question. There is also a need to foster closer links between the academic and practitioner community in respect of law reform as a contribution to better governance, through such mechanisms as annual workshops involving both communities; the collaboration of academic and donor and other relevant institutions in creating and organizing non-degree training programs and teaching materials on aspects of law and development. Attention also should be paid to the growing phenomenon of 'legal pluralism', including both the legal systems of indigenous communities, as well as the so-called 'informal' systems of law that often emerge in shanty towns and other sectors where official legal system have little or no penetration. .
Where to start in this agenda? Many scholars suggest a renewed focus on comparative legal studies on the use of law and reform in both developed and developing countries and on indigenous institutions and how they evolve and adapt to modern functions. Finally, as also articulated by many observers, law reformers should always keep in mind the following:
Corinne M. Davis
University of Texas at Austin
This presentation today will describe my prosposed dissertation research, to begin in September of 1999. I will present some of my preliminary findings from research conducted over the summers of 1997 and 1998.
In any social setting, people rely on a number of ways to resolve conflicts among themselves. An understanding of how people resolve conflict reveals basic notions about the social order and the mechanisms for establishing that order.
Mechanisms for establishing order can be characterized as social control. Social control is generally perceived of as responses to deviant behavior or norm violations. Disputes represent a break in the "normal" functioning of human relationships and can hence be considered to be deviance. An assessment of the use of mechanisms for resolving disputes in that way pertains to social control.
Social control, although it has enjoyed prominence in sociology, suffers from lack of a coherent conceptualization and as a result few theories that attempt to predict and explain its use. Most research regarding social control has dealt with only one form of social control: law. An inordinate emphasis on law ignores the fact that most disputes are handled without recourse to law, but through the use of other forms of social control. Social control encompasses a wide range of behaviors, only some of which can be considered law. If law and other forms of social control are inversely related, then both must be considered. How and when people use the law to solve their disputes needs to be examined in conjunction with the use of non-legal mechanisms of dispute resolution.
A wider view of social control through an examination of disputes is particularly relevant in places with less access to law. Places with less law do not necessarily have less social order. It may be in these places that systems of non-legal social control are especially well established. An assessment of how disputes are resolved by non-legal means is important not only for understanding non-legal social control, but how law and other social control may be linked.
The urban shantytowns, or favelas of Brazil are a suitable setting in which to study the use of legal and non-legal mechanisms for resolving disputes. Residents of favelas in Brazil have less access to municipal and state services, including legal means of dispute resolution, than city residents in more established neighborhoods. However, unlike the tribal communities in earlier anthropological studies of law, these urban dwellers are not totally without access to the state legal system, providing a setting in which to compare use of legal and non-legal mechanisms. By the same token, unlike urban dwellers in other settings, they have a tradition of democratically elected residents' associations that organize in order secure public services, establish political power and resolve disputes.
The particular favela selected for the study contains a number of legal and non-legal third parties that residents can turn to resolve disputes. Preliminary work in the field site revealed the availability of the state small claims court and a federally funded legal aid project as legal means of dispute resolution. Like in other favelas, the residents' association is available as a local, non-legal means of dispute resolution. However, this favela also has the locally run municipal office, where many disputes regarding property can be resolved.
Mostly notably, this favela, like others in Brazilian cities, is the base of operations for organized criminal drug gangs. These gangs exert control over the territory of the favela and its residents. Given the power they exert through the threat and use of force, they are often called upon to settle disputes among residents and to maintain public order.
An extended look at disputes in this setting through ethnographic research provides an opportunity to examine the factors that affect the choice of legal and non-legal mechanisms for the resolution of disputes and the effectiveness of these mechanisms in resolving disputes. An examination of both legal and non-legal mechanisms also allows for a better understanding of the relationship between the two and how they are used either alternatively or in conjunction to resolve disputes.
Specifically, I have identified four distinct third parties that residents turn to for dispute resolution, two of them legal and two of them non-legal. The research will focus on determining those factors that influence the use of one of these mechanisms and the effectiveness of these mechanisms for resolving disputes. These four third parties are: the Juizado Especial Civil (a small claims court), the Balcão de Direitos (a legal-aid project), the Região Administrativa (the municipal office) and the quadrilha, or drug-trafficking gang.
The Juizado Especial Cível (JEC) was created on the 26th. of September of 1995 with the passage of federal law 9.009. This law expanded the scope of what were previously the small claims courts by increasing the possible monetary value of the cases, from 20 minimum salaries to 40 minimum salaries, (one minimum salary is R$130/month, approximately $113/month) and by creating a criminal division of the court handling minor offenses punishable up to one year in prison. The objective of these courts was to decrease the caseload in the regular civil and criminal courts and to speed up the judicial process for these minor cases. The process of the JEC is guided by "the criteria of orality, simplicity, informality, procedural economy and celerity, searching, wherever possible, a conciliation or transaction" (Federal Law 9.099, translation by author). The court hears a wide range of civil and consumer matters which do not exceed the monetary limit. Anyone can open a case, legal representation is only required for cases whose value exceeds 20 minimum salaries and there is no fee to use the court. The cases first are handled in a mediation hearing, advancing to adjudication if no resolution can be reached.
The 24th. JEC, which has jurisdictional authority over Rocinha, is located in Barra da Tijuca, a neighborhood about 15 minutes away by bus. In addition to Rocinha, the 24th. JEC also handles cases from four other neighborhoods. When Lei 9.099 was passed in 1995, there was a branch of the 24th. JEC located in Rocinha. This branch handled the initial interviews and conciliation hearings of all the cases originating in Rocinha. From February of 1998, this branch was closed and all operations of the 24th. JEC consolidated in the office in Barra da Tijuca.
The Balcão de Direitos (Balcão) is a joint-project of the Ministry of Justice and Viva-Rio, a local NGO financed by the Ford Foundation. It is a legal aid office that operates in seven favelas offering legal advice and representation in diverse issues in family, civil and criminal law. In addition to preparing the initial paperwork of a case and securing a public defender when necessary, the personnel at the Balcão hold mediation hearings for a number of disputes. These include cases of alimony and child support, amicable separation and divorce and property cases, either dealing with the transfer and sale of property or conflicts over construction or the use of common space. Any agreement that is reached in the mediation hearings at the Balcão can be sent to a judge for authorization and is legally binding under legislation which validates all non-legal documents which are signed by two separate witnesses. The Balcão itself cannot enforce any agreements between parties, these must be sent to either the JEC or the regular civil court system to request an order of execution in the case of non-compliance.
The Administrative Region office is located on the upper part of Rocinha and is run by the former president of the largest residents' association in Rocinha. As a division of the mayor's office, it coordinates the solicitation of public agencies such as COMLURB (the city trash collection), LIGHT (the city electric company) and GEORIO (a public works agency). It has an office devoted to addressing community concerns and it is to this office that residents bring disputes about construction and disturbances with their neighbors. When a resident brings in a complaint, the information regarding the dispute and the disputants is recorded and a site visit scheduled. During the visit, the personnel of the Administrative Region attempt to mediate an oral agreement between the two parties. Occasionally, a written document is drawn up later, at the request of the parties. If an agreement cannot be reached, the personnel of the Administrative Region seek out the relevant technical authority in order to solve the dispute. This authority is usually a municipal architect or city public works agency. The Administrative Region has the authority to call upon city agencies to enforce a decision regarding urban issues in Rocinha, such as the condemnation or demolition of a residence. The site visits, mediation and solicitation of technicians are done on top of the regular duties of the personnel at the Administrative Region.
Originally prison-based organized crime groups, drug trafficking gangs, or quadrilhas assumed control over the favela drug trade in the late 1970s, focusing on the sale and distribution of cocaine. The lucrative nature of the drug trade has fostered an atmosphere of competition both within and between the quadrilhas for control over the bocas de fumo, or drug distribution points. The quadrilhas have resorted to armed violence to maintain order within their organizations and control of the bocas de fumo. They ensure the cooperation of favela residents primarily through armed violence and intimidation against possible informants and by providing internal security against rival gangs. However, quadrilhas have also been known to provide financial assistance and serve as arbitrators in residents' disputes. Such activity implies that residents' cooperation with the quadrilha is not based solely on intimidation and the security the in quadrilha provides from outside threats of violence.
Preliminary analysis of disputes handled by each of these four parties has revealed that a number of characteristics determine disputant choice of a third party. The most important characteristics are the type of dispute and the social network of the disputants. Although there is some overlap in the types of disputes handled by the third parties, different types of disputes were handled by different third parties. The disputant social network serves as a source of information about available third parties and their effectiveness. Contrary to other studies of dispute resolution, the social network of the disputant seemed more important to disputant choice than the relationship between the disputants.
This is perhaps most evident in the case use of the quadrilha. Without exception, the quadrilha-resolved cases were all criminal in nature. Those who went to the quadrilha were residents who had conceito, or a reputation, with the them. However, friendships with personnel in the Região Administrativa, or friends who had used the court or legal aid were also influential in the disputant's choice of a third party.
Two interesting tendencies emerged in the preliminary research. The first is the use of non-legal third parties after the legal third parties had been exhausted. This is contrary to the logic that use of third parties escalates from non-legal to legal. It will be interesting to see whether this pattern persists during the dissertation research. The second trend to emerge, somewhat related to the first, is the use of multiple third parties, at times simultaneously in the resolution of the same dispute. This is not a new phenomenon, but often studies of dispute resolution imply that uses of third parties are exclusive. A closer look at how multiple third parties are used either alternatively or in conjunction may provide better insight into how disputes actually progress and are resolved.
Rapporteur: Meredith McCullough
(LBJ School of Public Affairs)
Discussion in this session began with a call to expand on corporate nature of legal institutions in Latin America. One conference participant wondered if these institutions exist for the benefit of the institutions themselves or for the individuals that the institutions are supposed to serve? With the new projects in the favelas, like Balcones, he wondered if some of this "corporateness" is being avoided? Along these same lines, another participant brought up the observation that many judges are not in favor of dispute resolution or other forms of informal justice because they don't want to lose power.
Joseph Thome agreed with these comments. He said that the corporate mentality of the justice system means that the courts want to "protect their turf," preserve their benefits and secure their jobs. He restated an example he had mentioned earlier in which the Chilean courts and Pinochet "cut a deal" during the military regime. He said that Pinochet agreed ensure the courts' perks and tenure as long as the courts agreed not to get involved in any "messy political questions."
Several questions referred to the notion of formal versus informal justice systems and the implications of having two separate systems. One participant wondered how separate the two systems really are and if there are any examples of cooperation between the two. He seemed to think that it was limiting to force individuals to chose between the formal and informal and wondered if there weren't some instances when the formal (like community police) could support informal dispute resolution.
Joseph Thome responded saying that he had heard of cases where collaboration existed between formal and informal justice systems. He referred to anthropological studies in Mexico and spoke of instances he had heard of in which traditional systems of dispute resolution in indigenous villages were recognized by formal systems. He said that while felonies were usually handled through formal justice, misdemeanor level charges were resolved within the community and these decisions were respected by the state. According to Thome, these situations are more likely to occur successfully in a unified, cohesive community. In a more diverse community, he said, it is more difficult to reach appropriate consensus.
Elizabeth Sussekind continued the dialog using her own example of how Balcones (an informal system) interacts with the public defender's office (part of the formal system). She explained that although Balcones is not connected to an official judiciary as the small claims courts are, they do facilitate litigation and work with the public defender's office to do so. She said that sometimes Balcones gives the office so much work that they complain about it, but she stressed that they do work in collaboration as needed. In addition, she said that the service provided by Balcones is well-respected and supported by formal legal institutions like the Minster of Justice.
Sussekind also emphasized that those individuals who use Balcones services do not choose between two systems. Rather, they go to other formal agencies and institutions first then go to Balcones when they have exhausted all other resources. It is not a question of choice, but a question of access.
Corinne Davis added that it is important in this discussion to understand the difference between legal pluralism and formal versus informal systems. She explained that in this case we are not talking about legal pluralism, which refers to systems based on completely different principles. Rather in the discussion formal and informal systems, we are looking at legal traditions and mechanisms based on the same principles, with different approaches to uphold these principles.
A follow-up question probed further. Considering that a program like Balcones exists outside of the formal system, the participant wondered how Latin American countries other than Brazil deal with these questions of formal and informal justice systems? She also wondered how are disputes between the law and demands that lie outside the law are addressed at Balcones?
Corinne Davis addressed the second question, explaining that a project like Balcones allows for great flexibility and encourages creative solutions. She said that many of the conflicts that they are asked to resolve do not exactly fit into legal code and therefore require solutions that might not be strictly within the letter of the law.
The questions of formal and informal systems lead to a discussion of drug traffickers in Rio favelas. A number of participants pointed out that since the drug traffickers have a monopoly on violence in the favelas, they are often the only "police" in the area. In this sense, the traffickers become their own kind of informal justice system. According to one participant, this creates a system of justice in which those administering justice have no knowledge or allegiance to the formal justice system, but act out of their own likes and dislikes. She asked how we might be able to create an alternative system of justice if the means of enforcement is through drug traffickers. This comment lead to a number of other questions and reflections.
One participant brought up the challenge of creating a culture of justice that is an alternative to the culture of violence. She asked if the traffickers see Balcones as a threat and wondered under what circumstances they come to Balcones for services?
Another participant likened the situation of drug dealers in Rio to the situation with the IRA in Northern Ireland. He said that there are areas in areas of Belfast where the official police don't go except on rare occasions and only when they are heavily armed. He said that in those areas the IRA puts itself at the service of the local community and is available to resolve disputes. He explained that through coercion and through claims of legitimacy, the IRA acts as the "real" police in these areas, including giving enforcing a "punishment system" that involves shooting "criminals" in feet and knees. He asked the panel, to what extent are drug dealers claiming policing power either through coercion or self-legitimatization
Elizabeth Sussekind explained that in the favelas and shantytowns one cannot discount the presence of the drug traffickers. In these areas dealers are "absolutely powerful" and play a significant role in the community. She said that drug dealers often provide loans (like for a family to buy a coffin to bury their dead) and invaluable services (like a taxi for a pregnant woman at night) that make the recipients completely indebted to the dealer. She said that a project like Balcones cannot cross the drug dealers. In every project, she explained, it is important that at least one of the paid staff is actually from the neighborhood and can understand the dynamic that is at play there.
Corinne Davis followed-up saying that the drug dealers sometime make referrals to Balcones and to the small claims courts. She said that a "tenuous coexistence" exists between these entities, and that it is clear that the drug dealers have the "upper hand."
A final discussion theme had to do with the impressive compliance levels at Balcones. While Balcones is an informal justice system with no real enforcement power, participants wondered why compliance levels are so high.
One individual asked if it might be the fact that when people are given the opportunity to participate in the justice system and are be heard, they are more likely to respect the decisions that are made. Similarly, Elizabeth Sussekind suggested that Balcones is able to enforce decisions because those who use the services feel like they are part of the process.
Another participant compared Balcones to an experience he had conducting interviews at forced labor camps in Brazil. During these interviews he said he was struck by the prisoners' respect of debt. He said they did not try to escape the camps because they felt they had to pay off their debt. He likened this to Balcones saying that in general the working class has a reverence for authority. He suggested that the act of signing documents might give the proceedings a level of formality that is respected and complied with.
Still another participant said that he did not think that coercion or respect for authority had anything to do with compliance levels. Rather, he compared Balcones to Chicago where local priests and other figures also have tremendous compliance rates. He attributed this to community efficacy or community coherence. Another individual referred to a sense of social responsibility.
1Translation of this summary by Corinne M. Davis. For a copy in Portuguese, please contact the author.
2 Lawyers Committee for Human Rights and Venezuelan Program for Human Rights Education and Action, Halfway to Reform: The World Bank And The Venezuelan Justice System, Lawyers Committee for Human Rights and Venezuelan Program for Human Rights Education and Action, New York, 1996
3 The actuario, or clerk, is a professional judicial functionary, often with a legal education. Traditionally, they have taken an active role in processing cases, sometimes deciding the whole process by themselves