The Constitution of Brazil declares that everybody in this country has the right to acquire, inherit, and preserve property. It also says that nobody shall lose his or her property without “fair and previous pecuniary compensation to the owner”.
In the section of ‘constitutional economic order’, the Constitution explicitly describes property rights as “fundamental”, establishing that utilization of private property by the government can only take place in cases of ‘imminent public danger’ like natural calamity and war period. If so, financial compensation needs to be provided for damages caused by the temporary occupation of property.
In practice, such property rights amounted to almost nothing when a Brazilian President, Fernando Collor de Mello, issued a controversial measure to stabilise the currency.
On March 15, 1992, the notorious Plano Collor froze all bank accounts in the excess of US$ 1 thousand. The radical plan also blocked all existing savings accounts, certificates of deposit, and any other type of fund, while their liquidity was dramatically reduced from US$ 140 billion to US$ 35 billion.
Incredibly, this economic plan was not conceived by law but a provisional measure. In its Article 62, the Brazilian Constitution says that provisory measures can only be enacted for reasons of urgency and/or public necessity.
Then, the measure needs to be approved by the National Congress and, once is approved, converted to ordinary law. If not, the measure loses its effectiveness from the day of issuance.
Yet it is hard to see how a ‘provisory’ measure that changed even the currency of the country could be further rejected. In a decision that shows the real value of property rights in this country, the National Congress approved the arbitrary savings confiscation with almost no modification.
To avoid legal challenges to the measure, President Fernando Collor also issued a second ‘provisory’ measure to pre-emptively block all federal courts from issuing injunctions against the confiscation.
While avoiding discussing the validity of these ‘provisory’ measures, the Supreme Court (STF) at least decided that everyone could try to recover their frozen assets judicially.
This ruling triggered many thousands of lawsuits against the government. Seven months later, the plan proved to be disastrous for the national economy, with inflation running at no less than 20 percent a month.
As well as in this recent past, the federal administration has now decided to tacitly support the violation of property rights. Attorney-General Cláudio Fontenelles, for instance, declared that people have the ‘right’ to invade properties which are personally regarded by them as not respecting ‘social function’.
In his own words, “invasion of property is not illegal if the land does not comply with its social function”. .(1) Of course, he forgot to mention that it is for the courts to decide whether or not a property is really not respecting social function, and that expropriation has to be decided according to general principles of due process of law.
Likewise, Justice Minister Márcio Thomaz Bastos once declared that the current administration has now decided to adopt a ‘tactical tolerance’ towards land invasions.(2)
On at least one occasion, the press published photos of President Lula wearing the cap of the MST, which everybody knows in Brazil that is a revolutionary movement. In 2004, the U.S. Department of State released an official document which comments:
“Many persons were killed in recent years in conflicts involving disputes over land ownership and usage. The land rights organization known as the ‘Movement of the Landless’ (MST) continued its campaign of invasion and occupation of private and public lands that it wanted the federal and state governments to expropriate for land reform. The MST also continued its occupation of public buildings. MST activists often used confrontational and violent tactics, and destroyed private property during some occupations”.(3)
Although the MST does not have even a legal status in this country, it has been able to open ‘schools’ for children, where they are educated for principles of communism and revolutionary action. When a productive farm was violently occupied in the state of Rio Grande do Sul, a bus school brought some of them to have ‘practical lessons’ on how to invade private property.
Also, the MST inaugurated, in 2005, its own school of politics in the state of São Paulo: the National School Florestan Fernandes. In brief, it is a school with professors, curriculum grid, and regular classes on the revolutionary doctrines of Marx, Lenin, Mao, Pol Pot, Che Guevara, Fidel Castro, Hugo Chavez, and so forth.
However, the Agriculture Minister, Tasso Genro, says that the PT government supports the MST and also acknowledges the “strategic importance” of social movements that promote “great social changes… from outside the government”.(4)
Similarly, the Minister of Agrarian Reform, Miguel Rossetto, stated in a well-known interview that land invasions are part of ‘normal democracy’ because, in his own opinion, the lack of violent social conflicts would somehow represent a ‘deficit of democracy’ for this country.(5)
Thus a highly respected lawyer, Ives Gandra da Silva Martins, comments:
“[The MST] is a movement that constantly tramples on the rule of law by disobeying judicial rulings and invading both productive properties and public buildings, eventually destroying them. However, the PT government has given to leaders of the MST a ‘free ticket’ for disorder and subversion.
“The Minister of Agrarian Reform, Miguel Rossetto, has overtly supported the illegal actions of the MST. He argues that the astonishing number of violent invasions – the greater ever seen in this nation – is a normal fact of democracy.
“This person left the cadres of the MST in order to become a Minister and has since then clearly supported the break of both ordinary law and the Brazilian Constitution. Actually, the hidden and utmost intention of Minister Rossetto is to eventually transfer all productive lands to leaders of the MST”.(6)
In April 2004, leaders of the MST fulfilled their promise of “giving hell” to the country by carrying out what they proudly described as a “wave of invasions” mainly against productive farms and public buildings.
On the occasion, the MST national leader, João Pedro Stédile, called his “army” to engage in a “fight in the countryside”. Stédile and other MST leaders also named this period as “Red April”.
It is true however that the MST coordinator in the state of Pernambuco, Jayme Amorin, was very ‘kind’ to let landowners advised that “if they kill[ed] one of ours, we will kill ten of theirs”.(7)
As the Brazilian press exhaustively reported, highly productive farms from the agriculture sector, the only segment that gives trade surpluses for the country, were the main targets of the MST during its “Red April”.
But in contrast to what normally happens in democracies under the rule of law, its leaders were not punished for their crimes, but, rather, rewarded by the government with US$ 600,000 provided under the alleged reason of financing a program for agrarian reform.(8)
(1) See: Jornal do Brasil; Fonteles Defende Invasão de Áreas Improdutivas: Propriedades têm que manter função social, diz procurador. Rio de Janeiro, 14 August 2003.
(2) Kramer, Dora; De Braço Dado com a Minoria. Jornal do Brasil, Rio de Janeiro, 27 August 2003, p.A2.
(3) .S. Department of State; Country Reports on Human Rights Practices – Brazil. Released by the Bureau of Democracy, Human Rights, and Labour, February 25, 2004. http://www.state.gov/g/drl/rls/hrrpt/2003/27888.htm
(4) Hashizume, Maurício; Brazil: Blame it on Neoliberalism. Brazzil, August 2004. https://www.brazzil.com/content/view/2071/51/
(5) Kramer, Dora; Anormal, Ilegal and Fatal. Jornal do Brasil, Rio de Janeiro, 07 April 2004, p.A2.
(6) Martins, Ives Gandra da Silva; O Retrocesso Democrático. Jornal do Brasil, 26 August 2004.
(7) Espinoza, Rodolfo; Protestors Vow a Red April in Brazil. Brazzil, March 2004. http://www.brazzillog.com/2004/html/articles/mar04/p137mar04.htm
(8) See: MST Descumpre Ordem e Invade mais Terras Produtivas. Jornal do Brasil, 15 April 2004.
Augusto Zimmermann is a Brazilian Law Professor and PhD candidate for Monash University – Faculty of Law, in Australia. The topic of his research is the (un)rule of law and legal culture in Brazil. He holds a LL.B and a LL.M (Hons.) from the Pontifical Catholic University of Rio de Janeiro. Among others, he has published many articles in several languages and countries, and two law books on the subject of democratic federalism and constitutional law. His e-mail is: email@example.com