Academic journal article Brazilian Political Science Review

Institutionalisation, Reform and Independence of the Public Defender's Office in Brazil*

Academic journal article Brazilian Political Science Review

Institutionalisation, Reform and Independence of the Public Defender's Office in Brazil*

Article excerpt

Introduction1

The aim of this article is to investigate the institutionalisation of the state Public D efender's O ffices b efore a nd a fter t he r eform t hat g ranted i ndependence a nd new functions to the Public Defender's Offices in Brazil. This reform, created by the 1988 Federal Constitution with the aim of guaranteeing access to justice to the less privileged groups in Brazilian society with the public provision of legal assistance, took over two decades to be implemented by the states in their institutions. After a slow process of institutionalisation, it underwent a great change with the enactment of Constitutional Amendment no45 in 2004, which, in the context of the reform of the Judiciary Branch, granted independence and new attributions to the Brazilian Public Defender's Office. The PDO is today an institution of great power and visibility in the legal system. However, considerable differences exist between the states in terms of their independence.

As a research problem, we initially sought to understand the reform and the attainment of independence based on theories of judicial empowerment - whether through ideational perspectives, which suggest that the Public Defender's Office was reformed as part of a general movement towards democratisation and guaranteeing access to rights in Latin America, or from governance perspectives, which indicate the attempt by the Executive Branch to modernise public assistance in Brazil, reducing differences between the states. We also sought to understand the movement of institutionalisation and independence of the Brazilian state Public Defender's Offices, verifying to what extent formal (de jure) advances were connected to the exercise of autonomy in the states.

There are three reasons for studying the Brazilian Public Defender's Office. Firstly, Brazil is one of the few countries in Latin America that has a constitutional institution with public servants providing legal assistance to vulnerable citizens2. Secondly, given income inequality in Brazil, almost 90% of the population qualifies for free legal assistance, the criterion being earning up to three minimum wages (IBGE, 2010). Thirdly, the Public Defender's Office is a young institution, with great relevance as a political actor, and whose relationship with the other justice bodies must be better researched.

This article is inscribed in the domain of comparative judicial studies, which through the lens of political science has carried out a series of investigations on the role of different legal and judicial institutions in Latin America, particularly on their role as providers of social justice and on the relationship between legal processes and politics (TAYLOR, 2008).

Specifically in Brazil, since the mid-1990s, this research field has been discussing the role of the interaction of judicial processes with the democratic political system, whether in terms of the debate on the separation between the spheres of government and the judicialisation of politics, or through the effects in terms of the formulation and implementation of public policies (CASTRO, 1997). In institutional terms, the first Brazilian studies on the justice system focused on the Judiciary and its various aspects, such as the role of the Constitutional Court in its relationship with the political system, especially the impacts of injunctions issued against the actions of the Executive and Legislative Branches (CASTRO, 1997; VIANNA et al. 1999, 2007); the process of recruitment of the Brazilian judicature (VIANNA et al., 1999); and the discussions on the Judicial Branch and the changes and reforms undergone since the country's redemocratisation (SADEK, 1999, 2004). More recently, several studies have been dedicated to investigating the State Prosecutor's Office and its institutional changes, its role in defending diffuse and collective rights and the vision and activism of its members (ARANTES, 1999); and its role as a political actor and the processes of achieving autonomy and accountability (CARVALHO and LEITÃO, 2010, FORTHCOMING). …

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