In the Brazilian legal system it is recognized, since the advent of the Federal Constitution of 1934, that it is the duty of the public power “to favor and encourage the development of sciences, arts, letters and culture in general, protect objects of historical interest and the artistic heritage of the country” (article 148).
In the current constitutional regime, established by the 1988 Charter, the common duty of the Union, the Federal District, states and municipalities, in addition to covering the protection (formal action of recognition) of documents, works and other assets of historical, artistic value and cultural heritage, monuments, notable natural landscapes and archaeological sites (Article 23, III), also includes the adoption of concrete preservation measures with a view to “prevent the evasion, destruction and de-characterization of works of art and other assets of historical, artistic or cultural value” (Article 23, IV). That is, in addition to the formal recognition of culturally valuable assets, the implementation of actions to effect protection is currently required, so that state actions do not rely on mere administrative acts that enunciate a safeguard that is nothing more than a vain promise or letter. of intentions inscribed in cold letters on sheets of paper.
Another aspect that deserves to be highlighted in the current Brazilian constitutional legal system concerns the innovation on the expansion of the role of those responsible for the duty to protect and preserve the assets that are part of our cultural heritage.
Indeed, the constituent legislator established that the “Public authorities, with the collaboration of the community, will promote and protect the Brazilian cultural heritage, through inventories, records, surveillance, tipping and expropriation, and other forms of precaution and preservation” (article 216, § 1).
Thus, the duty of protection and preservation is no longer a solitary duty of the public power, but solidarity, and must be shared with the community that, after all, is the final recipient of the benefits arising from measures to safeguard the assets that make up the our cultural heritage, comprising identity signs of the evolution of Brazilian history, deeds and people.
The command inserted in article 216, § 1, of the Federal Constitution of 1988 supports the so-called “principle of community participation in the protection of cultural heritage”which expresses the idea that, in order to solve problems related to this area, special emphasis should be given to cooperation between the State and society, through the participation of different social groups in the formulation and execution of the policy for the preservation of cultural assets, involving selection actions (identification of cultural assets), protection, preservation and promotion.
This principle is also reinforced in article 1, sole paragraph, and in article 225, caput, of the current Charter, which, in conjunction with article 216, § 1, prescribe to the community the right/duty to defend and preserve the cultural environment for present and future generations.
The perception of the need for this combination of efforts is not recent at the international level.
At Quito ruleson the conservation and use of monuments and places of historical and artistic interest published in 1967, after a meeting of the Organization of American States, already foreshadowed that:
“From the heart of each community, the voice of alarm and vigilant and preventive action can and must arise. Encouraging civic groups to defend heritage, whatever their denomination and composition, has given excellent results, especially in locations that do not yet have urban guidelines and where protective action at the national level is weak or not always effective.
The new times effectively show that the State, by itself, most of the time is not able to act promptly and effectively to satisfy all public desires. Hence, the constitutional tendency to encourage the participation of society in the definition and implementation of measures aimed at improving the living conditions of the population itself. Technically, this right is called active constitutional statuswhereby the citizen receives powers to participate and assist the State in achieving the objectives established by the constitution, among which is the safeguarding of cultural assets.
There are several possibilities for citizens (in isolation or through associations) to contribute to the preservation of our cultural heritage, highlighting the following:
- Popular participation in the legislative process, from the discussion stage to the final approval of the project (public hearings);
- Popular law initiative (CF/88 — article 61, § 2);
- Referendum and plebiscite;
- Right of access to public information (CF/88 — article 5, XXXIII);
- Right of petition (CF/88 — article 5, XXXIV);
- Popular action (CF/88, article 5. LXXIII);
- Public civil action (Law 7,347/85, article 5);
- Direct action by the third sector (actions developed by non-governmental organizations aimed at protecting cultural heritage);
- Institution of private natural heritage reserves for the development of scientific, cultural, recreational and leisure activities (Decree 1922, of June 5, 1996);
- Request for voluntary tipping;
- Participation in cultural heritage deliberative councils and other collegiate bodies endowed with normative power;
- Convocation and participation in public hearings.
A measure that is still little explored in our country concerns the mechanism of “adoption” of cultural assets, through which individuals or legal entities voluntarily assume the obligation to take care of the conservation of assets that are part of the cultural heritage, formally receiving such a charge through an act entered into with the state body, in which the rights and duties of the adopter are established.
In Bogotá, Colombia, for example, the Decree No. 628, of 2016set the rules “By means of which the Program Adopts a Monument is created and developed and other dispositions are dictated”creating “strategies and mechanisms for the restoration, preservation and defense of commemorative events, sculptures and other cultural events located in the public space of Bogotá”. According to Colombian regulations, the “Adopta un Monumento” program aims to “link to entities, natural or legal persons, public and/or private, national or foreign, to support the activities of restoration, preservation and defense of the commemorative attractions, sculptures and other cultural attractions located in the public space of Bogotá”.
In the same line of action, in Belo Horizonte (MG), integrated actions between the State Public Ministry and the City Hall culminated in the issuance of Decree no. 14,107of September 1, 2010, which creates the “Adopt a cultural asset” program within the municipality of Belo Horizonte and establishes norms and procedures for partnerships between the municipal government and society, with regard to the adoption of cultural assets and takes other measures.
The Belo Horizonte program is designed to provide the private sector with the possibility of cooperating with the Government in the restoration, conservation, safeguarding and promotion of protected cultural assets installed on public roads and public places or in the Municipal Cultural Foundation units. Those interested in participating in the program must submit an adoption request to the Municipal Culture Foundation and, once the adoption request is accepted, the agreement will be formalized through a cooperation term valid for two years.
According to municipal regulations, the adopter may, at his/her discretion, hire specialized companies for the conservation of the cultural asset that is the object of the agreement. The decree also provides that adopters are allowed to place a plaque alluding to their partnership with the municipal government in a previously defined location with the adopted cultural asset, respecting the criteria defined by the Municipal Culture Foundation.
Finally, in times of limited public resources available for investments in the area, the implementation of co-responsibility mechanisms involving the management and preservation of cultural assets, with the support of the private sector, such as the adoption of monuments, can constitute an important initiative for to ensure the implementation of the aforementioned constitutional commandments, providing society with the healthy enjoyment of the goods that bear reference to the action, memory and identity of the Brazilian people.