LAS TIC EN EL PROCESO ENSEÑANZA-APRENDIZAJE DE LAS MATEMÁTICAS.

Brazil is the largest country in South America and has the seventh largest economy in the world. It has a multiethnic population of over 200 million; yet around 32 million people still live below the national poverty line. The country’s poorest 20 5

percent earn around 3.4 percent of Brazil’s income, whilst the richest 10 percent earn 41.7 percent, making Brazil one of the most unequal countries in the world with respect to income inequality. Over the past two decades Brazil has seen rapid 6

improvements in population health with, for example, an increase in life expectancy at birth from 63 years in 1990 to 74 years in 2013, an almost halving of the maternal mortality rate from 120 per 1,000 in 1990 to 69 per 1,000 in 2013 and an even more impressive improvement in the child mortality rate, which has fallen by more than three quarters from 62 per 1,000 in 1990 to 14 per 1,000 in 2013. Changes in the nature of mortality are also suggestive of general improvements in population health, with deaths from acute infectious diseases giving way to those from chronic noncommunicable diseases as the main contributors to mortality. 7

These statistics are indeed remarkable. However, they conceal important aspects of the Brazilian health picture. There remain vast disparities in access to health care and in health outcomes within Brazil; like income, health is not distributed equally. To take infant mortality as an example, whilst the average number of infant deaths for every 1,000 born was around 13 for Brazil in total in 2013, the number creeps up to 20 for every 1,000 in the state of Amapá in the Northern Region and is as low as 10 for every 1,000 in the state of Santa Catarina in the Southern Region; twice as

UN Statistics Division. Millennium Development Goals Database, 2012 estimates

5

World Bank. World Development Indicators, 2012 estimates

6

WHO. Global Health Observatory Data Repository

few. Within these averages, there are even greater disparities at the municipality level. The infant mortality rate is as low as 2 in every 1,000 in some Southern municipalities, such as Jaraguá do Sul in Santa Catarina and Birigüi in the state of São Paulo and climbs to more than 50 in every 1,000 in some Northern and Northeastern municipalities, such as Caracaraí in Roraima and Mulungu do Morro in Bahia. This same north-south disparity is revealed across numerous health 8

indicators. Health inequity is therefore the backdrop against which the right to health in Brazil must be framed.

Health as a fundamental human right in Brazil is recognised in both international law, for example through Brazil’s ratification without reservation of the International Covenant of Economic and Social Rights (ICESCR), and domestically in Article 6 and Articles 196 to 200 of the 1988 Brazilian Federal Constitution:

Education, health, nutrition, labor, housing, leisure, security, social security, protection of motherhood and childhood and assistance to the destitute, are social rights, as set forth in this Constitution. 9

Health is the right of all and the duty of the state and shall be guaranteed by social and economic policies aimed at reducing the risk of illness and other maladies and by universal and equal access to all activities and services for its promotion, protection and recovery. 10

The conception of health as it is constitutionalised is broad and the measures required for its protection and promotion go beyond the provision of health care. Nevertheless, for the first 10 years of its inception, the Constitution, and the

Brazil Ministry of Health Information System on Mortality (Ministério da Saúde Sistema de

8

Informações sobre Mortalidade) 2014 estimates

Constitution of Brazil, Article 6 (Constituição da República Federativa do Brasil, 1988)

9

Ibid, Article 196

provisions therein, was seen as giving rise more to “programmatic norms” than to 11

individualised rights claims and the judiciary unfailingly interpreted it deferentially. It was widely perceived that giving content to its provisions was not the job of the judiciary but rather that of the political and technical branches of the state; a presupposition that resembles the approach taken by the Constitutional Court of South Africa and by the Costa Rican Sala Constitucional (in its early guise), already discussed in Chapter 3. The following passage from the court of appeals in Rio de Janeiro is an illustration of this deference with respect to the right to health:

Given scarcity of resources, the State cannot privilege one patient over hundreds of others, also needy, who accept the limitations of the state machinery. The Judiciary cannot, to protect the litigant, intrude in the public administration’s policy aimed at attending to the population. 12

However, since the mid to late 1990s, the judiciary’s position of passivity in giving direct orders has changed. Radically. Since the enactment of a 1996 law, which imposed upon the state an obligation to provide state-funded access to medicines to all patients infected with HIV or suffering from AIDS, patients left with unfulfilled prescriptions turned to the courts for redress. It was in the decisions made with respect to these cases that the judiciary’s approach of deference changed to one of assertiveness.

Positive orders, which granted access to prescribed medicines, first began to permeate the lower courts of several southern states but soon became de rigueur

throughout Brazil. And, the rationale for the positive order given by one judge in 1997 in a case that reached the Supremo Tribunal Federal (STF), the highest court in the Brazilian judicial system for dealing with constitutional rights, has since

Trial No. 1998.004.00220, Relator: Des. Antonio Lindberg Montenegro, 17.12.1998. Quoted in

11

Ferraz, O.L.M. “Harming the Poor Through Social Rights Litigation: Lessons from Brazil.” (2011b) p. 1654

Ap. Civ. No. 1994.001.01749, Relator: Des. Carpena Amorim, 20.10.1994. Quoted in Ibid

become according to Ferraz “a kind of de facto binding precedent … upon which most of the subsequent successful cases have been based.” He quotes the decision 13

as follows:

The right to health — as well as a fundamental right of all individuals — represents an inextricable constitutional consequence of the right to life. … The interpretation of a programmatic norm cannot transform it into a toothless constitutional promise … Between protecting the inviolability of the right to life, an inalienable fundamental right guaranteed by the Constitution itself (art. 5º, caput) or ensuring, against this fundamental prerogative, a financial and secondary interest of the state, I believe — once this dilemma is established — ethical and legal reasons impose on the judge one single and possible option: unswerving respect for life. 14

From the jurisprudence that has followed, it is clear that this decision marked a significant turning point in the history of the right to health and its interpretation in Brazil. Since 1997, judges and courts have consistently followed suit, interpreting the right to health as an expansive individual entitlement to the satisfaction of all kinds of health needs, not only those related to HIV/AIDS.

The nature of right to health cases being presented in the Brazilian courts has overwhelmingly taken an access to medicines-type shape and the number of such cases being brought has grown exponentially. Between 2003 and 2011, the volume of health litigation at the Federal level in Brazil grew from 387 to 12,811 cases. 15

Importantly, these figures are likely to reveal only the tip of the iceberg. Given that the Brazilian constitution somewhat blurs the lines of accountability between the different units responsible for delivering health services, (that is federal, state, and municipal) it is possible for an individual who believes that their right to health has

Ferraz, O.L.M. “The Right to Health in the Courts of Brazil: Worsening Health

13

Inequities?” (2009b)

Ibid. Quoting Justice Celso Mello, RE 271.286 AgR- RS (2000), Relator Min. Celso de Mello.

14

(translation)

Ferraz, O.L.M. Supra n. 3