Legal Aspects

Legal aspects of youth participation in Brazilian urban development

To advance the debate about youth participation in land governance, it is important to note the legal possibilities for participation proposed by the Brazilian legal system, as we live in a State of Law where rules are one of the elements which structures human relations.

In this sense, these possibilities were analyzed from three main Laws. Firstly, the Federal Constitution (1988), the highest Law in the country, focusing on its regulations about public participation and urban development. Secondly, the Statute of the City (2001), emphasizing the regulations referring to the Democratic Management of the City, which legitimizes the public participation on the creation of urban, and finally, the newly established Statute of the Youth (2013), looking for the proposed mechanisms for youth participation and the urban issues presented in this law.

This way, it was made an approach between the legal aspects of public participation, especially regarding young people and the urban governance, aiming to find synergies and potentialities.

Constitutional Aspects: ways of public participation in the Brazilian democracy

After a dictatorship period of 20 years, Brazil’s new Federal Constitution (FC) was passed in the year of 1988.

Defining Brazil as a Federal Republic instituted under the Rule of Law, already in the preamble is possible to notice the legislators’ inspiration when expressed that the Federal Constitution aimed to “secure the exercise of social and individual rights, the freedom, the safety, the well-being, the development, the equality and the justice as supreme values of a fraternal, plural and without prejudice society, founded in social harmony, and committed, in the national and international law, to the pacific solution of controversies”.

This inspiration resulted in an extensive Constitutional text, encompassing not only principles, but also real rules for a wide range of subjects, including economic, social and environmental issues. These innovative characteristics contributed to the Brazilian Constitution become a law researched worldwide in different aspects.

Already on its article 1st, single paragraph, the so-called “the Citizens Constitution” defined that “all power emanates from the people, who exercises it through elected representatives or directly, in the terms of this Constitution”.

That way, a wide model of participatory democracy was established, including multiple mechanisms for public participation in order to guarantee the Democratic State. This model of participatory democracy includes two other models of democracy, namely, the “representative democracy” (or “indirect democracy”), which allows the direct election of political representatives, acting on behalf of population on decision-making processes and on the development of policies; and the “semi-direct democracy”, which a part of the mechanisms of the representative democracy also includes other instruments, such as referendum, plebiscite, the popular initiative and the popular lawsuit. Participatory democracy, on the other hand, as it is understood nowadays, combines the direct and semi-direct models, and looks further to narrow the relationship between citizens and the elaboration and surveillance of laws and public policies, being Its main tools the public debates, audiences and consultations.

Therefore the main characteristics of the constitutional tools for public participation are:

Election of political representatives

The election of political representatives is, as previously mentioned, the main manifestation of indirect democracy and is directly linked with “citizenship”, understood as the citizen’s faculty to make use of their political rights, which are the group of rights that regulate the forms of public intervention on the government. It is the main manifestation of the popular sovereignty, which, accordingly to article 14 of the Federal Constitution, is “going to be exercised through universal suffrage and through the direct and secret vote, with equal value to all, and, in the terms of law, through plebiscite, referendum and popular initiative”.

In the case of the election of representatives, the political right in question is exactly the right of suffrage, which consists in the ability to elect and be elected. It is, therefore, the right to vote and passive electoral capacity (eligibility), which is the right to be voted.

The elections of representatives are conducted following the Federative structure of the Brazilian State, that is, at Municipal, State and Federal (Union) levels, and at the Legislative and Executive spheres:

Legislative Executive
City City Councilor Mayor
Vice-Mayor
State State Representative (State Assembly person) Governor
Vice-Governor
Federal Union Congressman (Federal Deputy)
Senator
President
Vice-President

Finally, for both voting and being elected have minimum requirements to be achieved, including minimum age.

Right to vote

The right to vote is at the same time a right and a duty. Accordingly to article 14, §1º, I, the vote is obligatory to Brazilians older than 18 years (the civil legal age), while to vote is optional for Brazilians between 16 and 18 years, for those older than 70 years, and for the illiterate (art. 14, §1º, II).

Right to be voted

The eligibility conditions for Brazilian citizens are presented in article 14, §3º: 3: have Brazilian nationality; be in full exercise of political rights; voter registration; electoral domicile in the district; party affiliation; and minimum age variable accordingly to the competitive position. They are:

  • 35 years old: President and Vice-President of the Republic; Senator.
  • 30 years old: Governor and Vice-Governor of the State and of the Federal District.
  • 21 years old: Mayor and Vice-Mayor of the Municipality; Federal and State Congressman.
  • 18 years old: City Councilman/woman.

Plebiscite

The plebiscite is a consultation to the people about a determined subject and, depending on the majority answer, a legal or administrative measure is taken.

It was the instrument used in in 1993 (under Constitutional rule) to define if Brazil would adopt Monarchy or Republic, and consequently Parliamentarism or Presidentialism, after the dictatorial period. As is known, Republic and Presidentialism won.

Public Referendum

Differently from the plebiscite, which is a previous consultation, the referendum, as its name indicates, is a public consultation to ratify or not a rule already approved; in other words, it is subsequent to the act.

It was the instrument used for the Disarmament Statute.

The popular initiative is defined by article 61, §2º, and it regulates the possibility of the people to forward a project of a law to the Legislative Power. When it is about an issue that must be regulated at the Federal level, the project must be presented to the Parliament after being endorsed by at least 1% of the national electorate and distributed by at least in 5 States, with not least than 0,3% of the electors in each of them.

Laws at Municipal level might also be proposed by the people, accordingly to article 29, XIII. In this case, the project must be on an issue specifically concerned to the Municipality, to the city or neighborhoods, and must be endorsed by at least 5% of the municipal electorate.

Popular Initiative

The popular lawsuit is defined by article 5th, LXXIII, and is regulated by the Law Number 4717/65. It is a lawsuit that can be proposed by any citizen up with his political rights for the defense of the collectivity.

It can be used to null an injurious act against the public heritage, the administrative morality, the environment and the historical and cultural heritage.

Popular Lawsuit

Public debates, audiences and consultations are the constitutional instruments closest to the “participatory democracy” envisioned today. These instruments aim to include the people directly into the decision-making processes, instructing and hearing their opinions on specific cases.

With all that was presented, it is possible to notice that a key aspect of democracy is to define itself as an ongoing process, a constant construction involving different goals, desires and demands.

In this sense, it is natural that the participatory democracy pursues different methods to guarantee the public participation – both as individuals and groups of interest in the various policies – which in this occasion is reflected to the search of youth participation in urban development policies.

The National Policy for Urban Development and the Public Participation

The National Policy for Urban Development has its roots on two major legal diplomas: the Federal Constitution and the Statute of the City.

The following will present introductory aspects to the understanding of the topic, focusing on the public participation as a dimension of urban governance.

Foundations of the Urban Development Policy: the Federal Constitution and the Statute of the City

As mentioned above, the 1988’ Federal Constitution is a wide legal diploma, which includes several topics that reflects the society needs and aspirations in a post-dictatorship period. In this sense, it was proposed, by public initiative (SAULE, 2007), the inclusion of the cities in its text, which resulted in one constitutional chapter dedicated to the Urban Policy, in articles 182 and 183. This was the first Brazilian Constitution to directly include this type of guidelines “and maybe it is the only one in the world to address it directly” (PINTO 2010, p.117).

This Constitutional provision reflects the concerns with urban issues (housing, transportation and sanitation) that gained importance in the 1940’s, when the urban areas in Brazil started to progressively and rapidly grow, since that, initially, “the urban growth wasn’t understood as an issue, but rather a reflection of the country’s development[1]” (JORGE, 2009, p. 749). Brazilian urbanization was so intense that already in the beginning of the 21st Century about 80% of the population was living in cities.

In the constitutional sphere, article 182 defines that urban development policies must be conducted by the municipalities and must aim to order the full development of the social functions of the city and to guarantee the well being of its citizens. Accordingly to the Constitution, the urban development policy has two essential elements: the property and the master plan, in micro and macro scales, respectively. That way, the Master Plan was established as the main instrument of the Brazilian urban development policy, obligatory to cities with more than 20 thousand inhabitants. It is worth saying that the master plans is an instrument that focus on assuring the interest of collectivity through, primarily, the spatial ordination of the city.

At the other side of urban development, in the micro scale, is the fundamental right to property, defined on article 5th caput, item XXII, of Federal Constitution, that deals with guarantees and individual rights. Regarding it, two observations must be done. Firstly, defining the property as a fundamental right means it is possible to citizens to be “owners”. That means, the property is protected as a private asset: it is possible to acquire and freely manage it; and this possibility is what the Constitution protects as fundamental. The second remark refers to the extension of this right. On its historical roots, the property was associated to the individual exploitation of determined space; even its Latin origin mentioned the landowner was its owner “up to the sky and down to hell” [2], being totally free to use this space. The rule of individual will was what prevailed.

With the growing development of cities, the “collective” started to be highlighted and so was the comprehension that individual acts, in regard to the property, are, under certain limits (like building and use, for example), co-responsible for the collective well being [3]. These limits given to the use of property right concerning the collective interest are called social function. It is the social function of property, defined at both article 5th, XXIII, and 182, the responsible factor to balance the public and private interests in Brazilian urban development policy. Objectively, the article 182, §2º, establishes that “the urban property achieves its social function when comply with the fundamental demands of the city ordination defined by the master plan”.

To rule what is defined by the Federal Constitution, in 2001, was approved Law No. 10257, called the “Statute of the City” [4], which establishes, at the national level, the urban development policy. Its article 2nd defines that the urban policy goal is to ordinate the full development of the social functions of the city and the urban property and to do so, establishes goals, guidelines and instruments [5] to be applied at municipal level. However, more than a Law, the Statute of the City is, accordingly to Maricato (2010),

a social achievement whose conduct extended for decades. Its history is therefore an example of how sectors of various social strata (popular movements; professional, syndicalist and academic institutions; researchers; NGOs; parliamentarians and progressive mayors) can persist many years in the defense of an idea and achieve it, even in a difficult environment. It gathers, through a holistic approach, in the same text, various aspects of the democratic government of the city, urban justice and environmental balance. It brings out the urban question and inserts it in the national political agenda in a country until recently, marked by the rural culture.

In this sense, it is possible to say that the Statute of the City aims to accomplish the “Right to the City”, a cultural and political notion which is getting stronger at the national and international debates about the urban challenges of an urban world, and at international institutions such as UN-HABITAT.

The Right to the City

The Right to the City is a relatively recent concept, mainly made known by the speeches of the geographer David Harvey, which has been internationally built through different sources, specially by four documents:

(i) Treaty “For Fair, Democratic and Sustainable Cities, Towns and Villages”, prepared during the Civil Society Conference on Environment and Development, at the United Nations Conference on Environment and Development – ECO-92, in Rio de Janeiro in 1992;

(ii) The Habitat Agenda, drawn up at the Global Conference on the United Nations Human Settlements-Habitat II in Istanbul in 1996;

(iii) The European Charter on Human Rights in the Cities, compiled by the Forum of Local Authorities in Saint Dennis, in 2000; and,

(iv) The World Charter of the Right to the City, a process initiated by the World Social Forum in 2004.

In these documents it is possible to identify conceptual steps that serve as a basis for the Right to the City which is, as it is worth stressing, a concept in formation and transformation. Firstly, on ECO-92, the right to the city was manifested as the right to citizenship, that is, the right of citizens to participate in the conduction of their destinations. In the Habitat II Agenda, signed in 1996, one of the highlights was the establishment of the “right to housing” as an international human right, today already accepted by the international legal community. In the third step, that is, in the European Charter of 2000, it was affirmed a list of individual human rights that must be ensured to the inhabitants of cities.

With these steps, and taking advantage of other experiences, such as the Brazilian systematization of its national urban law, the World Social Forum has articulated the elaboration of the World Charter of Right to the City, in which the Right to the City is defined as “the equitable use of cities within the principles of sustainability, democracy, equity and social justice”.

  • The democratic management of the city;
  • The social function of the city; the social function of the property;
  • The full exercise of citizenship;
  • Equality and non-discrimination;
  • Special protection of vulnerable persons and groups; social commitment of the private sector; and
  • Incentive for the solidary economy and for progressive policies.

In short, what the Right to the City proposes is, through the international highlight of the cities and of the positive impact of the international sphere in the development of national and local policies, mainly in developing countries, to provide a change of perspective for the management and planning of contemporary cities, focusing on the individual –especially the ones made most vulnerable [6].In this sense, the Right to the City is seeking to position itself as an emerging right in the sphere of collective human rights (e.g., the Right to the Environment), and thus stimulate the adoption of this concept by the countries, aiming the construction of more fairs, human, democratic and sustainable cities. To this end, it proposes eight fundamental principles:

In addition to that conceptual approach, the right to the city issue appears explicitly among the general guidelines [7], which are meant to guide the implementation of urban instruments provided by law. Of these, two stand out: the guarantee of the right to sustainable cities (Article 2, I.) and the democratic management of the city (Article 2, II).

The article 2º, I, defines that the guarantee to sustainable cities must be understood as the right to urban land, to shelter, to environmental sanitation, to urban infrastructure, to transportation, to public services, to work and to leisure –for present and future generations. Although there is still no consensus regarding precise technical parameters for the sustainable city (RUANO 2007; SOUZA 2010), the Brazilian legislation presents this new right with the support of other consolidated guarantees –housing, sanitation–, reaffirming those and fostering debates about how to think the city we want. Additionally, the right to the sustainable city –that means, a “step beyond ‘the right to the city’”– as the name itself indicates, looks more strongly for the inclusion of the environmental dimension (and social, and economic) into the urban policy and production of the city.

If by one side urban spaces have been, by a long time, understood as a separated structure from the “natural environment” –it was the “built environment”– the Federal Constitution, on the other hand, in its article 225 affirms clearly that the population has the right of an ecological balanced environment, being its goal precisely to secure their quality of life: “everyone has the right to an ecologically balanced environment, an asset of common use and essential to a healthy quality of life, which imposes to Public Authority and to the collectivity the duty of defending and preserving it for the present and future generations”.

To that extent, there is no doubt about the necessity of applying these environmental criteria to the places where the majority of the population live: cities. This is what the Statute of the City aims to include.

A part of it, the constitutional regulation regarding the environment defines that the responsibility for its protection is both responsibility of the Public Authority (legislative, judiciary and executive) and the collectivity. By including the collectivity in this mission we have what Nalini (2010) suggests as a “rehabilitation of the ancient democracy”, that means, to “stimulate the democracy of participation” in a true “task of environmental citizenship”, which, in consonance with the international provisions regarding sustainable development, highlights the intergenerational responsibility –something also present in the Statute of the City.

Because of that, according to Osorio and Menegassi (2002), it is equally important to consider that “the sustainability of a city is also defined by the quality of its governance, [because] only a transparent and responsible process of urban governance will be able to assure the sustainable development of cities with social justice and environmental preservation”.

In this sense, whilst to different social groups are attributed different environmental costs, the processes of democratization of cities’ management must recognize the particularities of the relationships between citizenship and territories (OSORIO, MENEGASSI 2002), what implicates in the understanding of its territorial dynamics: the analysis of the territory from a social dynamic point of view, considering the dynamic between stationary and moving assets (FIORILLO 2008). And accordingly to Fiorillo (2008), are exactly the moving things that give value to the stationary things –which it is the case of the money and the people, in regard to the establishment of social relations.

It can be said, therefore, that the democracy of participation is inherent to sustainability and to the constitutional rules about the environment, and also to urban management. The Federal Constitution on its article 29, XII, transforms the right to participation in a constitutional requirement for the establishment and control of master plans’ implementations, both in the Executive and Legislative Power, and also article 2, II, of the Statute of the City reaffirms it, when defining “the democratic management by the public participation and by representative associations from the various segments of the community in the formulation, execution and monitoring of urban development plans, programs and projects”.

That way, this principle –the Democratic Management of the City–, calls the population to directly take part in the urban management, both individually and collectively (through neighborhood associations, environmental protection organizations etc.), participating in projects and plans related to the city.

More than that, it concretely manifests the democracy of participation proposed by the Federal Constitution, being its comprehension vital to advance in popular participation.

The Democratic Management of the City

Knowing that people’s participation in public management is an essential element of Brazilian democracy that the Federal Constitution outlines, and of the importance that urban areas have urban have today to the achievement of personal, community and political development, the Statute of the City, in addition to providing popular participation as a guideline for the urban policy, also devotes an entire chapter to the subject that, although short, is “full of meaning” (NALINI 2010).

By breaking apart with the technocratic view of disciplining the city based in rules imposed only by the Public Administration (FIORILLO 2008), the notion of the democratic management proposes the idea of a new territorial pact, in which the city effectively become a space for coexistence and full development for all its citizens (BUCCI 2003). With that, the public participation goes from being a “principle” to becoming an “instrument” of the urban policy.

In this sense, chapter IV –The Democratic Management of the City– in its articles 43 to 45, presents how the direct public participation in urban governance may happen, by establishing the instruments to guarantee the democratic management, the participatory budgetary management and the public participation for the management of metropolitan regions.

Regarding the instruments proposed to be used on the democratic management of the city, article 43 lists:

(i) collegiate bodies for urban policy, at the national, state and municipal levels;
(ii) public debates, audiences and consultations;
(iii) conferences about urban issues, at the national, state and municipal levels; and
(iv) popular initiative for laws, plans, programs and projects for urban development.

The first proposed instrument refers to the establishment of collegiate bodies (“councils”) of urban policy at different political levels (federative spheres). It’s understood by collegiate bodies that the urban policy bodies must have representatives chosen by the government and members chosen by civil society (FRANCISCO 2003), creating the “urban development councils”, which, by the own logic of the Statute of the City, are more effective at the municipal context. The composition of these councils is of great importance for its effectiveness: it is necessary not only to have a balance between representatives of government and civil society but also between civil society itself.

Regarding the representation of governmental, accordingly to Bucci (2003, p.329): “it is necessary that the government be adequately represented; not too much –what would transform the council in a mere space to ratify the decisions made by the government–, not too little –what would make the representatives of the City Hall in the council in mere “messengers” from the higher levels, without the power to negotiate solutions and create constructive alternatives inside the council”.

In relation to the civil society representation, this can be even more complex, once there is not one single opinion that represent collectivity; instead, it varies greatly accordingly to different groups of interest which might be, for instance, representatives of neighborhood associations, of housing movements, NGOs, environmental organizations, professional bodies of architects and engineers or even real estate developers and builders –the members of the business sectors linked to the production of urban space.

This fragile balance between groups of interest is fundamental to assure that “there is no over representation of one sector –what could suffocate the power of the others– or under representation –what could weaken the representativeness of the council” (BUCCI 2003, p.329). Under the legal view, the councils must be established by Law defining its composition, mandate periods, way of appointment or election of representatives, their attributions and the definition of having advice or deliberative powers.

The second instruments established for the democratic management of the city are the public debates, audiences and consultations, which must be used in the processes of elaboration, assessment and control of urban policies. These are instruments that are gaining importance in Brazilian Law as grows the understanding of public policies as processes (with constant actions and reactions) (BUCCI 2003). Additionally, as previously mentioned, these tools might be used also in order to raise the public awareness about specific issues, especially those related to collective rights. As mentioned before, they are constitutionally established and used for public opinion collection on specific issues, especially those related to collective rights. On the other hand, the conferences about urban interest issues, at the national, state and municipal levels, which are also part of the list of instruments of the democratic management of the city, are important instruments to update the population about government actions and to raise awareness on specific issues.

Despite the importance of the various instruments proposed in these items, the big innovation is in item IV. Inspired by the constitutional provision that guarantees the people the right to present Bills, the Statute of the City included the possibility of public initiative for urban development plans, programs and projects. Therefore, as Francisco (2003) points out, it is noticeable the intention of making the public participation not merely passive, in agreement or not with the Municipality’ proposals, but proactive, by the presentation of alternative solutions to the proposed by the administration; and also, not only a one-off participation, but a wider process, of true urban projects.

Concerning the municipal planning in general, the article 44 included the participatory budgetary management, which includes “the execution of public debates, audiences and consultations about the propositions for the multiannual plan, the budgetary guideline law and the annual budget, as an obligatory condition for its approval by the City Council”.

This means that instead of the government by itself deciding the priority areas –and consequently the amount to be invested– in the various municipal issues (such as health, education, etc.), such decisions become a result of a sharing between government and civil society, which is, that way, called to express and choose what they understand to be the priorities and necessities through meetings and discussions that take into account not only the areas of the city but as well as the policies that have to be conducted by it (FRANCISCO, 2003, p. 269).

Finally, the Statute of the City understands the urban phenomena beyond the physical space of the city-municipality and includes the metropolitan regions, which are already a considerable part of the Brazilian reality, defining that these regions also need to incorporate participation in its management: “bodies in charge of metropolitan regions and urban agglomerations must obligatory include the participation of the population and its representatives associations of the various segments of the community, in order to secure the direct control of its activities and the full exercise of citizenship (article 45)”.

Explains Francisco (2003, p. 273) that “this article of the Statute requires to the Federated States, to whom bears legislate metropolitan and urban areas, that the managing bodies have direct participation of people in decisions and monitoring of their determinations ie, there should also be public participation in the development of metropolitan or regional development plans, as well as in monitoring be. ”

Through this strategies it is possible to notice that in the way the democratic management of the city was proposed there is a clear evolution in order to assure a permanent citizens’ participation in the urban development processes (FRANCISCO apud CENEVIVA 2003). If by one side such definitions are important tools for the democratic and sustainable urban management “as a process resulting in citizenship practices aimed at eliminating social inequalities and obstacles to the realization of the right to the city” (SAULE JUNIOR, 2002, p.89), on the other, it is important to keep in mind that the mere opening channels for participation does not guarantee the participatory quality.

It is necessary that civil society is aware about the public participation in politics and take place in such processes, pushing the governments to recognize their importance and in fact consider what have been proposed by such means.

In 2010, in a cycle started in 1990 with the Statute of the Children and Teenagers (Law No. 8069/90) and reaffirmed with the Statute of the Elderly in 2003 (Law No. 10741/03), Brazil advances again in the intergenerational legal-political agenda by the inclusion of Youth in its Federal Constitution through the constitutional amendment n° 65/2010. 

The Statute of Youth

Such amendment establishes that both the Federal Government and the State may legislate on the protection of childhood and youth (article 24, XV), and, in article 227, that “is the duty of the family, society and the State to ensure to the child, the adolescent and the young people, with absolute priority, the right to life, to health, to food, to education, to leisure, to professionalization, to culture, to dignity, to respect, to freedom and to family and community living, besides putting them safe from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression”.

The amendment also defined that the law should establish the Statute of the Youth, intended to regulate the rights of young people, and the National Plan for Youth, with a duration of 10 years, to articulate the various governmental spheres for the implementation of public policies for youth (art. 227, § 8, I and II).

Three years later, in August 5, 2013, it was approved the Law No. 12852, named the Statute of the Youth, seeking to highlight a strategic role for youth in the development of the country. It demands not only the development of youth policies at the different governmental levels, but also the inclusion of young people themselves in the elaboration of such public policies, noting them as a group of rights, represented by people between the ages of 15 (fifteen) and 29 (twenty-nine) years of age (art. 1º, §1).

In this sense, the Section I of the Statute of Youth set as its guidelines, also applicable to other youth policies (art.2):

(i) the promotion of the autonomy and emancipation of the young people;
(ii) the valorization and promotion of the social and political participation directly and by means of representatives;
(iii) the promotion of the creativity and participation in the development of the Country;
(iv) the acknowledgment of the young as an individual with universal, generational and specific rights;
(v) the promotion of the well-being, the experimentation and the full development of the young people;
(vi) the respect to the identity and the individual and collective diversity of the youth;
(vii) the promotion of a safe life, the culture of peace, the solidarity and the non-discrimination; and
(viii) the valorization of the dialog and the close companionship of the young people with the remaining generations.

It is possible to notice, therefore, that the Statute has a dimension that regards to the political inclusion of youth. Principle II, which provides for the “valorization and promotion of the social and political participation directly and by means of representatives”, is a clear indicator of this purpose, which appears also other parts of the text: in the need of youth participation in society’s life (which is, ultimately, the Rule of law and politics), their participation in the development of the country (where participation in policy-making is fundamental to the development), and in the valorization of intergenerational dialogue and interaction. These principles are supported equally by the guidelines for the development of public youth policies (art. 3), as by the development of an intersectional approach of structural policies, programs and actions; the encouragement of wide participation of the youth in their formulation, implementation and evaluation; and in the expansion of the alternatives of social insertion of young people and their active participation in decision-making spaces (article 3, I, II and III). These guidelines also include important other aspects, by defining that public youth policies must ensure public resources and the necessary facilities to promote territorial mobility (art. 3, V) and promote the territory as a space for integration (art. 3, VI). In this way the Statute of the Youth introduces urban issues as an interest of young people, bringing an innovative inter-thematic link, and extending it in Chapter II, when regulating the so-called “youth rights”.

The Right to Social and Political Participation and the Strategies to Youth Inclusion

Within the logic proposed by the Statute of Youth the so-called “youth rights” deal with a range of subjects, such as: education, work, health, equality, culture, sports, communication and freedom of expression, public safety and access to justice. Interpreted in harmony with the entire legal system, it is possible to understand that the Statute of the Youth does not propose the creation of new rights, considering that everyone is equal before the law. However, in some way, it is possible to say that when providing a compilation of themes that were considered as a priority for the Brazilian youth in this beginning of 21st Century, the Statute provides a new and affirmative approach that might contribute to near the Brazilian youth to these important aspects of life in society.

In this list of youth rights brought by the Statue of Youth, it was included the “Right to Citizenship, to Social and Political Participation and Youth Representation”, which can be understood as the workhorse for the consolidation of all other rights. Accordingly to article 4, this means “young people have the right to participate in social and political activities and take part in the formulation, implementation and evaluation of public policies for the youth”.

In the Statute of the Youth, youth participation is understood in four main areas:

I – The inclusion of young people in public and community spaces from the conception as they being an active, free and responsible person dignified to occupy a central position in political and social processes;

II – The active involvement of young people in actions of public policies that aim their own benefit, or the benefit of their communities, cities, regions and the Country;

III – The individual and collective participation of young people in actions that include the defense of the rights of youth or subjects related to them; and

IV – The effective inclusion of young people in public spaces of decision with the right to voice and vote.

By such definitions it is noticeable the public interest in strengthening the citizen participation of young people, who shall be understand as an important actor in political and social processes, and must be formally heard and respected. In this sense, these processes must not refer only to public policies for youth, but also for themes that affects the young, as individual or collective members, in the various administrative governmental spheres. Those are, therefore, measures seeking the multidimensional participation of young people in formal spaces of participation.

To this end, article 5 provides that the dialogue between youth and public authorities will be held through associations, networks, movements and youth organizations. This means young people who recognize themselves as part of the collective and seeks to represent the collective interests; social engagement is required.

As a mean to facilitate this dialogue, it was defined that each government must point a specific government agency for the management of public policies for youth and the encouragement for the establishment of youth councils at the different governmental levels.

Regarding the subject, the Statute of Youth is the creation of Youth Councils, since it is a successful format of public engagement in different areas of social rights, such as health, environment and urban development. Defined in the articles 45 to 47 of the Statute, it established that youth councils are permanent and autonomous bodies, non-judicial, responsible to deal with public policies for youth and to ensure the exercise of the rights of the young.

The Statute sets yet nine goals for the Youth Councils: (i) assist in the preparation of public policies for youth that promote the full exercise of young people’s rights established in this Law; (ii) use instruments so that the State ensures to young people the exercise of their rights; (iii) collaborate with administration bodies in the planning and implementation of youth policies; (iv) study, analyze, develop, discuss and propose the development of means of cooperation, aiming at the development of programs, projects and actions to youth; (v) promote studies related to youth, in order to subsidize the planning of youth policies;          (vi) study, analyze, elaborate, discuss and propose public policies that allow and ensure the integration and participation of the young people in the social, economic, political and cultural processes in the corresponding federative entity; (vii) propose the creation of forms of participation of the youth in the bodies of the public administration; (viii) promote and participate in related seminars, courses, congresses and events to debate issues related to youth; (ix) develop other activities related to public policies for youth.

In addition, it was assigned to each entity of the three levels of the Federation to define the organization, functioning and composition of its Youth Councils, which must observe a parity criterion between representatives of public authorities and civil society.

The Youth Councils have, therefore, a structure that provides wide possibilities of action, and, following the proposal of the democratic management of the city, have a proactive conduct and are able to propose means to advance the participation of youth in regard to the rights listed in the Statute, in accordance with the reality and the activities of each governmental level.

The Right to the City, a Right of Youth

Funneling the social and political activity of young people under the Statute of the Youth, there are the already mentioned “rights of the young”.

As pointed out before, these refer to a wide range of subjects, which now earn new approaches, and, among them, is The Right to the City.

The Right to the City appears more clearly on the Statute of the City in two sections: Section IX – the Right to the Territory and Mobility (articles 31 to 33), and Section X – the Right to Sustainability and the Environment (articles 34 to 36).

Although the right to the city encompasses a variety of rights that are expressed within the urban space, the territory –where we “occupy”– and the sustainability –that is part of the Statute of the City’s “right to the [sustainable] city”– are essential aspects of urban development.

The Statute of the Youth at first presents the “right to territory and mobility” (art. 31) that unfolds in the promotion of public housing policies, mobility and public facilities (i.e., schools, kindergartens, hospitals, etc.) at both rural and urban areas, presenting greater emphasis on mobility, from the viewpoint of the possibility of the youth make use of public transport systems –that is, by financial means, tariff reduction, with a view to reducing inequality in access to these services– and not exactly the reformulation of such systems, what have been so questioned now a days.

It is worth noting that, if by one side the claims regarding the possibility of decent housing in Brazilian cities are historical –but not necessarily directly identified as a youth cause–, by the other side the claim for better mobility by young people is a newer phenomenon, bringing an interesting symbiosis of contemporary youth’s vision.

Regarding the “right to sustainability and the environment”, the Statute repeats the established in the Federal Constitution, emphasizing that “young people have the right to sustainability and an ecologically-balanced environment, a good of common use by the people, which is essential to a health and quality life, and the duty to defend and preserve it for the present and future generations” (art. 34). It also addresses the necessary environmental education (art. 35) and emphasizes different parameters for the elaboration, implementation and evaluation of public policies that incorporate the environmental dimension (art. 36), pointing to a vital breakthrough in the understanding of the environment, in a sense to approximate the human being from the subject.

In this sense, public authorities should consider: the encouragement and strengthening of organizations, movements, networks, and other youth collectives that act within the framework of environmental issues and sustainable development; encourage the participation of young people in public policy-making about the environment; the creation of environmental education programs targeted for young people; and encourage the participation of young people in projects of job creation focused on the sustainable development of rural and urban areas.

It is possible to identify that way a synchronicity between the main elements of the right to the city proposed by Statute of the Youth and the concept of the right to a sustainable city brought by the Statute of the City: the right to urban land, housing rights, environmental sanitation, to the urban infrastructure, transport and public services, to work and leisure, for the present and future generations.

Including youth in urban development. Synergies between the Statute of the City and the Statute of Youth

By all the presented, it is clear that the Statute of the City and the Statute of the Youth, based on the Federal Constitution, have synergies.

These are undeniable when considering its essential pillars: the democratic management of city –social participation in decision-making– and the right to the sustainable city –right to territory and mobility and the right to sustainability and the environment).

If on one hand the Statute of the Youth is explicit in the inclusion of urban issues, the Statute of the City, an older law, is not so clear about the youth. So where would precisely lie the rights of the urban youth?

Therefore, when it comes to governance, it is unacceptable nowadays to think about excluding society from the decision of key issues. Regarding sustainability, expecting to reach it without the inclusion of children and youth –who largely respond by the present and future generations– is a contradiction itself. In addition, if Urban Development Councils must be representative of the various sectors of the population, it is mandatory to also think about young people representativeness in such spaces.Considering the propositions made by the Statute of the City, urban management must be responsible for an ongoing inclusion of the people, in a more generic way, without the presentation of special groups of interest, to discuss and decide about the space where they wish to live in a sustainable way. And it is precisely in this point where youth lies: sustainability was born from an understanding of intergenerational responsibility, to ensure the natural resources for present and future generations.

There is, however, the ever-present prejudice when working on the inclusion of emerging major groups of interest. In such cases, the Statute of the Youth is indeed the element of change, since it establishes the obligation of the existence of Youth Councils including at the municipal level –the main responsible for the urban development. By the inclusion of the territory and the sustainability, the members of the councils themselves, even if not deeply familiar with the subject –after all, property has always been an “issue of grown people”– must get educated and instructed to gradually conquer the space of youth in urban development policies.

The remaining challenge is how to ensure the quality of participation and the good use of such structures. It is now up to youth to overcome the “unwritten rules” in force: the possibilities for participation were formalized, there is the legal background and there is the will. Now it is about to make it happen.

 


[1] Urbanization occupies in fact a prominent position in relation to economic development, “there is an almost perfect relationship between urbanization and prosperity for all nations. On average, when the share of the urban population of a country grows by 10%, the per capita income of that country grows by 30%. Per capita income is nearly four times higher in countries where the majority of the people live in cities than in those where most of the population lives in rural areas” (Glaeser, 2011, p. 7).

[2] Quote in latin

[3] Since they influence, for example, urban flows and mobility, and also environmental quality (stimulating the formation of islands of heat, preventing the dissipation of pollutants etc.).

[4] To learn more about the origins of the City Statute, see “City Statute: the construction of a law” by José Roberto Bassul, available at (in Portuguese): http://www.cidades.gov.br/images/stories/ArquivosSNPU/Biblioteca/PlanelamentoUrbano/EstatutoComentado_Portugues.pdf

[5] The instruments are divided into national, state and regional planning; metropolitan planning; municipal planning (the main one); tax and financial institutes; legal and political institutions; and previous studies of environmental impact and neighborhood impact.

[6] To know more (in Portuguese): “A relevância do Direito à Cidade na Construção de Cidades Justas, Democráticas e Sustentáveis”, de Nelson Saule Junior, no livro “Direito Urbanístico: vias jurídicas das políticas urbanas”, Sergio Antonio Fabris Editor, 2007.

[7] Art. 2 The urban policy aims to order the full development of the social functions of the city and urban property, subject to the following general guidelines:

I – guarantee of the right to sustainable cities, understood as the right to urban land, housing, environmental sanitation, urban infrastructure, transportation and public services, work and leisure, for present and future generations;

II – democratic management through participation of the people and associations representing various segments of the community in the formulation, implementation and monitoring of plans, programs and urban development projects;

III – cooperation between governments, the private sector and other sectors of society in the urbanization process, in compliance with the social interest;

IV – planning the development of cities, the spatial distribution of population and economic activities of the municipality and the territory under its area of influence, in order to avoid and correct the distortions of urban growth and its negative effects on the environment;

V – supply of urban and community equipment, transportation and public services tailored to the interests and needs of the population and local characteristics;

VI – ordering and control of land use, in order to avoid:

  1. a) the improper use of urban real estate;
  2. b) the proximity of incompatible or inconvenient uses;
  3. c) splitting of land, construction or excessive or improper use in relation to urban infrastructure;
  4. d) entreprises or activities that can function as generators poles of traffic without predicting the corresponding infrastructure;
  5. e) the speculative retention of urban real estate, resulting in its under-utilization or non-utilization;
  6. f) the deterioration of urbanized areas;
  7. g) pollution and environmental degradation;
  8. h) public exposure to disaster risks.

VII – integration and complementarity between urban and rural activities, given the socioeconomic development of the municipality and the territory under its area of influence;

VIII – adoption of patterns of production and consumption of goods and services and urban expansion compatible with the limits of environmental, social and economic sustainability of the municipality and the territory under its area of influence;

IX – fair distribution of benefits and burdens resulting from the urbanization process;

X – adequacy of economic policy instruments, tax and financial and public spending to the objectives of urban development in order to favor investments that generate general well-being and the enjoyment of goods by different social segments;

XI – recovery of government investments that have led to the valorization of urban real state;

XII – protection, preservation and restoration of the natural and built environment, cultural heritage, historical, artistic, archaeological and landscape;

XIII – sitting of the municipal government and the people interested in the processes of implantation of developments or activities with potentially of negative effects on the natural or built environment, comfort or safety of the population;

XIV – land regularization and urbanization of areas occupied by low-income people by establishing special rules of urbanization, land use and occupation and building, considering the socioeconomic status of the population and environmental standards;

XV – simplification of installment legislation, land use and occupation and building standards, in order to enable cost reduction and increased supply of lots and housing units;

XVI – equality of conditions for public and private actors in promoting projects and activities related to the urbanization process, attended the social interest;

XVII – stimulate use, in the soil installments and urban buildings, of operational systems, construction standards and technology that aim to reduce environmental impacts and natural resource economics.