The PT (or Workers’ Party) is more multiethnic than ever in Rio de Janeiro State, creating hopes its broad diversity will shape a future government. Yet Lula’s popularity in the state confronts another seat altogether, that of the very military academies and colleges through which the generals orchestrated Bolsonaro’s rise a decade ago. Entitlement to power is what their authoritarian training charts. A clause in Article 142 of the 1988 Constitution is the joker in their deck meant to raise them above democracy and law. Their obsession with dominating the State apparatus spins their hysterical yarn about the corruptibility of electronic voting booths – when it is Kryptus, a cyber security firm connected to the military itself, which holds the keys to the encryption of the ballot boxes. That Oracle is also part of the pact underscores how deeply Brazil’s military has sold the country out to the United Oligarchs of America.

THE PEOPLE AND THE PLATFORM

On stage, Afro-Brazilians, lesbian militants and trade unionists flanked and upstaged the white men, darkening their roots and coloring their unconscious. Lula’s wife, sociologist Rosângela da Silva, aka “Janja”, warmed younger faces by pulsating ripples of militant resonance. She cements Lula’s art of negotiating into a joyous feast, bringing soul to new alloys and daring alliances. Lula’s campaign events may still amount to merely an inkling of what occurred in Chile in 2019, but given the attacks against the Workers’ Party (PT) waged by media conglomerates such as the Globo Group, his message of prosperity might make his pragmatism pay off in the end.

Rio de Janeiro may not be what analysts like to call a microcosm for the challenges Lula’s campaign faces, but it does show the fragmented and very violent nature of the struggle for political hegemony in Brazil. Despite its size, the state is home to one of the most progressive cross-sections of class, ideology, professions, ethnicity and culture, the accomplishments of which on the local level rarely fail to trigger international interest. The former capital is where the riot phase of the June 2013 uprising was most violently nipped in the bud, while State investment in large international events (the World Cup and Olympics, especially) equates to mismanagement, fraud and corruption. It is also where the State police works as an occupation force against poorer communities.

Not least of its brutal contradictions is that progressive thought is most associated to the upper middle class white population living in the ocean-bounded South Zone. Behind the mountains, evangelical churches dilute the class struggle with racial politics, though the faithful fail terribly to notice their directors are as white as any surfing star or samba school impresario. Likewise in the Armed Forces, where a clear majority of Afro-descendants and mixed-Indigenous in the corps salute a president known for his despicable anti-Black and violently anti-Indigenous racism.

Social contradictions long ago failed to transform into greater equality and deeper ethical integrity. If anything they confirm how the tensions lie elsewhere, perhaps even beyond the reach of hope. Not that polls are suggesting anything but Lula’s victory. To damper their results, signs of a coup d’état flicker through the country’s federal institutions. Woke-baiting and confusion-mongering can do little to deviate the sense of insecurity simmering in Brazil’s military caste and oligarchs.

For three years, a brazen “secret budget” has swayed Congressional Representatives and Senators from initiating impeachment procedures against the current President. The Judiciary has mainly cowered from indicting the Executive for milking everything the Budget can afford to ensure votes. Despite half-wittingly abandoning Bolsonaro, the Globo Group still teams up with its evangelical rivals from the Record Group to make sure Congress keeps from falling to the opposition. From these most decrepit sources of media disinformation, a report short of lip service was devoted to the PT rally in Candelaria square, while all poll results favorable to Lula are muttered with contempt.
Even though the authoritarian government has repeatedly threatened terror and coups in its three years in power, what it has done best is to crouch into careerism. Three months await the next presidential elections. As many have put it, it is the measure of time “before being happy again”.

SURFDOM ON THE ROAD

With no social welfare program in place to confront Sars-Cov-2, over six-hundred thousand Brazilians have succumbed to Covid-19 according to the lowest of estimates. One in ten Brazilians have seen someone within their circle die from Covid-19. Meanwhile, hundreds of millionaires flee to G7 countries complaining from behind their privatized prisons that the country’s not moving forward. Negationism and anti-vax are not merely paranoid obsessions resulting from ignorance about science. They are government programs bent on gutting the very institutions that care for persons perceived by Bolsonaro as the real enemy. Ironically, in 2018, many had been fooled by illicitly funded disinformation campaigns on WhatsApp, joining the ranks of the president’s most fervent supporters.
Behind their backs, Bolsonaro let loose the bulldozers of deindustrialization. Distracted social commentators have thrived on spotting social polarization where the symptoms of class war abound. What has struck society is market-driven leveling, the plying force of privatization sending masses into a precarious existence. Brazil’s socialized health care system has crumbled through the contempt of those who have never depended on its essential services. The anti-Covid-19 vaccination program only took off after a congressional inquiry began examining mismanagement and embezzlement in the Ministry of Health. At the time, it was under the helms of a general with no experience in public healthcare and a fraudulent one in logistics.

Since the onset of the pandemic, the liberal conservative ideal of gutting social welfare programs has thrown the public into food insecurity. Over 30 million now barely survive in misery, and 153 million suffer from food insufficiency. All this in a country that produces 3.7 kg of grain per citizen on a daily basis.

Economist João Saboia, from the prestigious Economics Institute of the Federal University of Rio de Janeiro (UFRJ), has created an indicator to measure rising rates of inequality. With a spike at 0,947 on a scale of 0 to 1, it speaks of a calamitous situation. Income of the 20 percent poorest fell by 23.3 percent in the first year of the pandemic alone. Since 2014, it had fallen 27.3 percent cumulatively, while gains among the 20 percent highest income earners have increased steadily by 21.1 percent. In hyperactive spats of privatization, Bolsonaro’s minister of finance, Paulo Guedes, has edged the general population toward a precipice.

These indicators are hardly surprising. The knowledge they encapsulate converges in the sadistic cynicism behind the president’s continual portrait of the country as being in an impending state of communist infiltration. Supported by his Minister of Defense, the military commander of the Joint Chiefs of Staff, the president’s persistent attacks on the Supreme Electoral Court instill a sense of institutional chaos.

At the level of civil society, Bolsonaro’s unfailing base are the gun clubs. In recent weeks, his social media advisors have spread tantalizing tales as to how Lula’s victory would close the gun clubs and replace them with libraries. With official stats accounting for the existence of a million and half guns in the hands of civilians matched by the closure of over 700 public libraries, it makes sense to represent the upcoming elections as a struggle between culture and barbarism. With Taurus Arms Inc. helping to bubble up the stock exchange, the accumulative drive behind financial capitalism clearly needs firepower upon which to lean.

Concomitantly, depletion of funds for higher education has plunged public investment in scientific research and post-graduate scholarships into an endless downward spiral. No less than four ministers of education have fallen, the last one leaving his building handcuffed by Federal Police. This is a struggle pitting the four-stars against the PhDs. Allegations made by the latter of the “shadow ministries” aimed at undermining constitutional institutions are bolstered the former with their decrees on classifying government dealings for a century.

While society buckles, industry can barely keep from shedding its parts. Brazil’s mega mixed-ownership State-controlled utility Petrobras industries, once a latter-day example of a Galbraithian semi-benevolent enterprise, has gone from leaping amongst deep-sea rigs to limping on stilts as its gas stations and refineries are sold off piecemeal. The selling of its assets has opened valves for foreign investors, while government-appointment administrative boards have ensured no profits reach R&D, let alone public investment.

Privatizations have pirated Brazil’s national wealth, while its moneymaking has again been reduced to primary sector commodities. Two-thirds of the country is unemployed and let loose by the Central Bank to financial trickery by means of bloated interest rates on credit cards, overdrafts and loans. The top zero-point-one percent believes it has been historically entitled to steer democratic processes according to its own personal interests.

Conservative indicators show South America has greater proportional wealth concentration than the Golf State Petro-Monarchies. Brazil’s oligarchs make Russia and Ukraine truly look like the communist successors of the Soviet Union. The business model followed involves producing deliberate underemployment, false flag news bulletins over even the slightest economic downturn, over-exaggerations by corporate media to drive desperation, thus seeming to justify caps on social spending for decades. Preemptively framed for corruption are precisely those most geared to fighting it.

RESISTANCE TO IDEOLOGY MEANS AWARENESS OF THE ECONOMIC STRUCTURE OF THE GLOBAL SOUTH

Against the fear mongering prompted by conservative leaders, the only sector of the population meant to lose out from a PT victory are the richest and most powerful sectors they represent. Yet against the hopes and even faith of opposition politicians and militants, a PT victory will not usher in radical economic transformation.

The truth is that, in Brazil, even the slightest change at the top can trigger monumental ramifications at the base. Lula’s team has to work through the margins. Among the young economists committed to his vision, many have as much training in the US as back home. A Nobel Prize may await those who achieve reversal of capital flight from the Global South and prove how socialism today equates with smashing liberal hegemony’s parasitical incentives to deindustrialize competitive economies. What can be grasped of Lula’s economic platform, at least for the time being, follows half a dozen crucial axes.
Given the current climate of world war, the most urgent move might very well be to change Petrobras’ pricing policy for natural gas, oil and gasoline. The struggle over ownership of this firm was one of the factors leading to President Dilma Rousseff’s impeachment through a congressional coup d’état in 2016. Once she was out of the way, the privatization vultures flew in on the vulnerable corpse called publicly owned property. Today, it amounts but to a third of the massive utility’s holdings. That these vultures soon morphed into hedge fund hawks merely underscores how lucrative the company has continued to be despite media disinformation aimed at convincing the public of the contrary.
Dilma’s policy was to invest one third of new income from the offshore “pre-salt” deep-sea oil discoveries into higher education, while another third was to be set aside to upgrade the socialized health care system. Answering to the most progressive moment of the 2013 uprising, Dilma also sought to cap rising energy prices overall. When that also included caps on interest rates set by private banks, the FIRE sector wasted no match to make her government burn. The yellow and green color revolution would ensue two years later.

Skyrocketing prices at the pumps could easily benefit Brazilian society. That it does not merely stresses the point of what dwindling public shares in Petrobras fails to avert, even for what does remain in its powers to invest socially. The current Petrobras board of administrators has simply ignored investment in national energy security. Such are the hallmarks of deindustrialization made plain especially when astronomical profits (estimates for the 2nd quarter of 2022 project BRL 60 billion in profits and BRL 58 billion in dividends) fill the pockets of private investors.

The second axis of Lula’s economic platform will be to invest heavily in culture and education again. Few countries have produced as many artists, composers, musicians, dancers and writers as has Brazil. When the country lost the bossa nova pioneer, João Gilberto, Bolsonaro scoffed. Innovative expressions in cinema and art have had to fend off agitprop acts of censorship by the self-avowed Holocaust deniers and white supremacists calling themselves the Free Brazil Movement (MBL). Censorship has also shifted of late to the saturated judicialization of Brazilian society, whereby opponents to the government simply end up being sued for libel should they dare to speak out.
Swallowed whole by a shadow ministry of protestant sects merging Education and Women’s Rights, the Ministry of Culture has been demoted to a subservient role. Lula’s plan is to provide the artistic community with a means to break their dependency on private funding from either media or finance.

The presidential candidate has spoken at length and at times with fury of the suffering Brazilians have had to endure over the past three years of massive cutbacks. For the 2024 budget, he has promised to reintegrate the poor into the government’s budget. The post-impeachment government of 2016 immediately voted for a constitutional amendment forbidding the increase of social investment beyond inflation. Two so-called labor reform packages have also contributed to the immense hardship experienced by the public at large. This legislation has essentially stripped workers of legal protection against hiring practices, salary reduction, precarious work conditions, and lay-offs and firings. The shift has sacralised employers and their word. There can be no dignified future for the country without reverting these hypocritical measures.

In addition to including the poor into the budget, the next strategy aims to draw the wealthy back into tax justice. For the top 2 percent, Brazil is essentially a tax haven. Companies basically pay no taxes on profits or dividends resulting from capitalization. Brazil maintains double tax exemption treaties with scores of tax-free domains, thereby making tax avoidance legal. The average salary in Brazil is only twice that of the already absurdly low minimum wage. The Oligarchs and the Upper Middle class rant about the illusion of excessive taxation while refusing to accept their responsibility for social decay. At BRL 1000 (roughly USD 200) minimum wage has not changed since Bolsonaro was elected four years ago, despite the country seeing yearly inflation rates reaching 10 percent. Almost all of the property owned in the country lies in the hands of roughly five percent of the population. In order to get the funds to redistribute national public wealth, taxation policy has to become fair, if not radically progressive.

Both Michael Hudson and Thomas Piketty have argued that taxing productive labor is a useless and merely illusory policy. Most of the accumulation produced by the wealthiest Brazilians already sits outside of the country anyway. What has to be taxed, if it is truly to work to skim down the rentier elite’s concentration of accumulated wealth, is land and real estate revenue, inherited wealth as well as income from non-productive sources, such as dividends. Even tax exemptions and incentives can revert into major funding for the creation of equality.

What Lula’s economic team must fend off is the infiltration into their ranks of economists linked to hedge funds and the oligarchs. As usual, the financial elite uses its ownership of private media to work against socially inclined tax policies. What gives hope is how even monopolistic concentration of media fails to keep the public from the knowledge of how Brazil’s elite descends from the slave-holding plantation systems, whose tax-free benefits are ensured by the four stars and the black gowns. This caste of multimillionaires could care less about the lack of safety the country’s overpopulated cities face as jobs are stripped from the population.

The ideology of liberal democracy serves the dominant sectors only when privilege is assured. Otherwise, as elsewhere, they hesitate little before calling in the henchmen.
This also explains why Lula’s silence on the details of his plan to fend off financialization. Modern Monetary Theory has no future outside of countries holding the monopoly over printing their own currency. Independence of the Central Bank may be concrete with respect to Brasilia, although nothing could be farther from the truth regarding Wall Street and the City. A country having as regressive a tax system as Brazil allows outward capital flow stemming from concentration of wealth on the one hand and debt extraction and production on the other. The is no revolving door to jam in Brazil as finance dictates to the State what to extract from society. Shoring up the Central Bank and reverting the capitalization of the private banks is the radical move Lula cannot fail to make. When he does so, he will need much more from China than the Belt and Road.

Pretentious media experts claim there is no risk of a coup d’état prior to the elections, though they say little regarding what comes after. What they fail to concede is that it has already occurred. One of its indelible signs is Bolsonaro’s circus regarding Russia. Russia hating means next to nothing in Brazil. Bolsonaro can prance about as a Putin ally, even sport the mantle of a true Global South crusader against the American Empire. At home, few are convinced, let alone notice. What Brazilians do know is that Bolsonaro is the closest foreign ally to Donald Trump.

Despite how it was Trump who escalated the militarization of Ukraine against Russia, Bolsonaro’s ploy is to keep twisting the narrative behind Trump and his alleged sympathies toward Putin. In turn, this become a trap for Lula, who has little choice but to remain tied to the U.S. That this amounts to simply giving up on Brazil is a fate his team must do a better job at countering than in the past.
Bolsonaro and Guedes’ destructuring of Brazil’s development will not be simple to reverse. In 2002, when the PT first came to power, developing Brazil’s potential could take root in the vast areas that were historically underfunded or non-funded since the end of slavery. However, over the past six years, the scenario has seen the dominant classes privatize the economy so as to lock it into regression and barbarism. They have fabricated an economic crisis, while articulating a slowdown of economic production in order to prevent the productive classes from gaining financial security and political courage. They prefer a society run by oligarchs concentrating wealth by indebting the population rather than one in which the cross section of the planet represented by the Global South may thrive through economic equality.

In the end, as far as Brazil is concerned it might just be easier to forget the past and build anew. By leaving Petrobras, Eletrobras, Embraer and the big public state-level utilities behind, a stellar landscape can be created by making it ever harder for the privatized firms to stay competitive. As it touches new ground, new ecosystems with trees in abundance may once again cover over a financial environment devastated by deforestation and catastrophic social erosion.

Norman Madarasz, Ph.D., is professor of political philosophy. His research deals with the philosophical critique of economic theories.

Brazil could be forced to pay damages if it loses the trial in the Inter-American Court of Human Rights, which is hearing evidence from both sides in Guatemala.

“This case could strengthen the fight of indigenous people, who continue to have their rights threatened in Brazil,” said Raphaela Lopes, a lawyer at Global Justice, a non-governmental organization that is supporting the case.

The case seeks to end a vicious dispute over land, which the indigenous Xucuru people say has dragged on for 27 years, cost it lives and threatens to erode an ancient way of life.

“Our case is emblematic of indigenous people across Brazil,” Marcos Xucuru, leader of the indigenous group, told the Thomson Reuters Foundation by telephone.

“More than 20 years after the constitution, demarcating land is still in chaos, during which time violence against indigenous people continues to increase,” said Xucuru.

Brazil has been a pioneer in setting aside – or demarcating – parcels of land for its indigenous people, a process meant to safeguard their culture, ward off unwelcome incomers and enshrine legal rights over ancient turf.

But activists fear the government is now backsliding on its much-praised commitment to indigenous people, who number about 900,000, as it is rattled by economic and political uncertainty.

Unwelcome First

At stake is access to the traditional homeland of the Xucuru and with it the preservation of their customs and economy. Lawyers say Brazil is delaying setting aside the land.

Whoever wins, the case sets a precedent.

Giorgina Vargas, a lawyer at the court, said this is the first time the Brazilian state stands accused of indigenous rights violations at an international court.

In an interview with the Thomson Reuters Foundation, she was unable to estimate what damages the government might face if it lost, saying only the Xucuru had 12 demands in case of victory.

The Xucuru come from Brazil’s northeastern state of Pernambuco and say they have been waiting 27 years for their land to be fully demarcated.

In the interim, several members of the community have been murdered defending the territory, according to prominent human right groups Amnesty International and Human Rights Watch. These include former Xucuru leader Francisco de Assis Araujo.

Indigenous advocacy groups hope that if the case is successful, it could put pressure on the government to conclude a growing backlog of applications for demarcation.

The case came to court after the Inter-American Commission on Human Rights (IACHR) ruled in favor of the Xucuru a year ago and recommended their case be heard.

It said Brazil “must ensure that indigenous members can continue to live peacefully their traditional way of life, according to their cultural identity, social structure, economic system, customs, beliefs and traditions.”

The hearings are being held in Guatemala, behind closed doors, and the case is expected to last 90 days. Both sides face an April 24 deadline for any new submissions.

Backsliding

Brazil announced changes to its demarcation procedures in January in a move that campaign groups fear will weaken the rights of communities, already facing mounting pressure from illegal logging and big agriculture projects.

According to Brazil’s constitution, indigenous people have exclusive rights to their traditional lands.

In practice, however, this is often violated.

Formal demarcation processes have been launched for 339 areas, according to the Social and Environmental Institute, a charity that monitors rights violations. Demarcation would offer tenure, as well as legal defence against encroaching groups.

Experts say farm interests are wielding greater pressure on the government amid recession and political frailty.

United Nations officials say Brazil is back-sliding on indigenous rights. The government says it is trying to boost growth by expanding its agricultural sector.

The government did not respond to requests for comment.

Death Threats

Around 11,000 Xucuru live on the contested 27,500 hectare swathe of land.

Conflict began in 1989 when the Xucuru mobilized against subsistence farmers who had moved in hoping for tenure. A series of competing claims has further complicated the case.

“The state was slow in the process of demarcation and the farmers responded with violence,” said Adelar Cupsinski, legal adviser to Brazil’s Indigenous Missionary Council (CIMI), a Catholic activist organization.

In the first court session in Guatemala last month, the Xucuru said demarcation must be completed in 12 months.

The group also requested that Brazil publicly acknowledge the violations in national media, set up a community development fund and guarantee protection for its leader from death threats.

This article was produced by the Thomson Reuters Foundation. Visit them at http://www.thisisplace.org

Brazil’s Chamber of Deputies on Monday night (October 10) voted 366-111 (with two abstentions) to approve a constitution amendment bill that will cap public spending for the next 20 years.

The draft must now undergo a second-round vote on the lower house floor before it proceeds to the Senate.

Dubbed the “New Fiscal Regime” by the government, the measure will limit the annual growth rate of federal spending in the next 20 years to the previous year’s inflation rate.

If the government fails to stay within this limit, it will be prohibited from hiring staff, running civil service entry examinations, raising staff pay, and creating or changing government jobs that incur additional costs.

For opposition lawmakers, limiting federal spending to the inflation rate is not the way to boost the economy, and will actually hurt investment in healthcare and education. Moreover, they argue, it is an issue that should have been discussed with the population.

The leader for the Workers’ Party (PT) at the lower house, Afonso Florence, said the proposal will “dismantle all public policy, the social security system, SUS [the public healthcare system], and state-run higher education.”

Government allies contend that the budget crisis was “inherited” from the Workers’ Party administrations that preceded the current government. “The PT was a spendthrift,” said Deputy Duarte Nogueira of the Brazilian Social Democracy Party (PSDB).

They maintain that the so-called “New Fiscal Regime” will drive economic growth and, contrary to what the opposition says, will not take away funding from health and education.

“Next year, we will be adding an extra US$ 3.1 billion to healthcare alone,” said Deputy Baleia Rossi, leader of President Temer’s PMDB party. “Similarly, all funding for education policy is guaranteed. We’re committed to the floor not the ceiling. These lies won’t stand.”

According to the draft of the austerity proposal, as of 2018, the funds for these two areas will no longer account for a fixed share of the total government revenue; instead, their growth pace will be limited to the inflation rate like all other costs.

In a statement thanking deputies for passing the amendment, President Michel Temer said “restoring fiscal balance is not a goal in itself, but a means to restore growth, reduce interest rates, and revive employment.”

According to him, a balanced budget means a guarantee that there will be enough funding for anti-poverty welfare policy, health, and education in the future.

Corruption Investigations

Brazil’s Prosecutor-General’s Office questioned the constitutionality of President Michel Temer’s proposed public spending cap and recommended that Congress shelve the austerity measures.

The office said in a statement the proposal interferes with the autonomy of other federal powers and would weaken the country’s judicial system, handicapping efforts to combat corruption.

“The proposal invades the judicial system budgeting competence drastically, risking to impact the exercise of its constitutional and institutional functions,” the statement said.

The unprecedented constitutional amendment, which limits the growth of federal spending to the rate of inflation for 20 years, is aimed at gradually closing a yawning budget gap that topped 10% of GDP last year.

It is the first of a series of austerity measures to assuage market concerns that the once-booming economy, which was stripped of its investment grade rating last year, could be hurtling towards a debt crisis. A lower house committee approved the proposal Thursday, handing Temer an initial victory on the battle to pass the amendment.

Its approval requires two votes in the plenary of the lower house and two more in the Senate, needing a three-fifths majority in each. The Prosecutor-General Office also said it was worried that the spending limits could affect a major investigation into corruption in Brazil and asked that money for that type of work be left out of the spending limits.

Rodrigo Janot, the Prosecutor-General, leads the ongoing probe into Brazil’s biggest corruption scandal centered around state-controlled oil company Petrobras.

ABr/MP

Homicide is currently the major cause (58%) of early death for Brazilians. A report from the United Nations has revealed that while the country has only 2.8% of the world’s population, it is responsible for more than 11% of registered homicides.

According to the IBGE (Brazilian Institute of Geography and Statistics), around 600,000 people were killed in Brazil between 1980 and 2000, an average of 30,000 a year. In comparison, the thirty-year civil war that devastated Angola killed “only” 350,000 people. According to Timothy Cahill, an investigating leader for the Amnesty International, the number of deaths in Brazil falls easily within the U.N. parameters for a situation of civil war.

Although Article 144 to the Constitution states that the provision of public security is a primary obligation of the government, the sad reality is that authorities have shown a disturbing lack of ability (and interest) to effectively protect this most basic right of the citizen.

The police in Brazil rarely catch criminals, and those who are convicted can go free within a few years in prison. A 2003 report of the United Nations revealed that only 7.9% of the 49,000 cases of murder officially reported in Brazil were successfully prosecuted.

The police seldom investigate criminal cases diligently, even when it involves offences such as rape, torture, and first-degree murder. Investigations are often conducted in a superficial and incomplete manner, if not visibly performed with bad-faith.

As a result, even the most notorious cases of first-degree murder may not produce enough evidence to even initiate the trial of well-known perpetrators. Brazilian courts condemn only 1% of all suspects for first-degree murder, because judges argue that inquiries transferred to them by the public prosecution are so poorly elaborated that they apparently find no evidence to condemn even a serial killer.

Policies regarding public security in Brazil are tantamount to an “invitation to criminality”, argues Dr. Candido Mendes Prunes, a jurist with a Ph.D. from the prestigious University of São Paulo (USP). He explains that the state gives a “package of incentives” to criminality that no honest citizen can find to develop legal activities.

As part of this “package”, Prunes highlights the lack of preventive policing, the lack of ability to investigate cases diligently, and judicial delay. The last “incentive” occurs, he says, particularly because the long police enquiries can allow offenders to benefit from the statute of limitations which establishes a limit of time for the trial of suspects.

People in Brazil, therefore, are reasonably inclined to believe that criminals have very little to fear in terms of punishment from the state. The feeling of impunity, which is indeed widespread, explains why so many citizens have resorted to taking “justice” into their hands.

Despite how primitive do-it-yourself justice may seem, mob executions and lynchings have become a daily occurrence throughout Brazil. Such actions are a popular answer to situations of theft, rape, and murder.

According to the Organization of American States (OAS), these practices represent a natural solution to “the lack of a functional and effective police system, and the fact that the public does not believe in the effectiveness of the justice system”.

It is worthwhile also considering that Brazilian police officers are in general unqualified, unprepared, highly corrupt, and poorly paid. An ancillary body to the armed forces, the state uniformed police have been accused of treating suspects as “military enemies who are to be destroyed”.

In some states the salary of police officers begins at just a few dollars above the minimum wage fixed by legislation. For a career demanding courage, discipline, and sensitivity, the state provides an extremely low salary as well as inadequate training. Due to their poor wages, honest officers have no other option but to live with their families in poor areas normally under the control of drug gangs.

But it is also the case that policemen have been involved in extortions, kidnappings, the torturing of suspects, arbitrary detentions, trafficking of narcotics, and executions by death squads. Rather than expelling bad officers from the force, state authorities have actually decorated them.

In 1997, for example, the government of São Paulo promoted a policeman who was responsible for at least forty extra-legal executions. Similarly, the government of Rio de Janeiro established in 1995 “salary bonuses” for police officers engaged in “acts of bravery”. In practice, says the HRW, such “acts of bravery” were often confused with the summary execution of suspects.

When Rio’s state police executed a record one hundred people in April 2003, public-security secretary Anthony Garotinho argued that those killings were a ‘positive development’. He assured the population that the police had limited the killing ‘only’ to criminals.

The explanation seemed relevant since everybody knows in the city that it is not always that the police kill ‘only’ criminals. On 2 April, 2005, for example, the police in Rio massacred 30 people in a shantytown in reprisal for the arrest of three policemen who were filmed by residents of that area lobbing the heads of their victims over the wall of a house.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2006). His e-mail is: augzimmer@hotmail.com.

A question currently being raised in the country is whether or not its judiciary has now become an entrenched “bureaucratic oligarchy” devoid of any accountability.

The last days of military government (1964-1985) in Brazil coincided with an incredible rise of politicisation in the judiciary. Since the 1980s, many judges have coalesced around the idea of “alternative law”. Judges who embrace “alternative law” normally argue that the judiciary should cater to the expectations of the “marginalised” and “oppressed” ones, by resisting what they regard as “wooden and violent generalities of the state law”.

According to Law Professor Megan J. Ballard, a more dogmatic interpretation of alternative law “posits that judicial power ought to be rallied to the service of poor masses in their struggles”. However, as Ballard points out, “detractors argue that alternative law will lead to anarchy because it encourages judges to consider themselves to be above the law and the sole interpreters of popular will”.

The Movimento de Juízes Alternativos (Movement of Alternative Law Judges) has been Brazil’s most influential school of legal thought. The movement has its own journal, collective meetings, and “a degree of influence upon the judiciary as well as a legal academy that far outreaches the American critical legal studies movement and its European counterparts”.

The idea of applying “alternative law” is so popular in Brazil that a survey of state judges in Rio de Janeiro revealed that 62 percent of them have decided cases based on alternative-law tenets. Another survey also found that 83 percent of all judges of the country think that the courts should not be impartial and should always be used as tools for social transformation.

When Brazilian judges in the survey were presented with the basic choice of applying a clear legal norm and promoting their own vision of “social justice”, three-quarters expressed their preference for the latter over the former. In doing so, they argue, the courts should be morally bound to “play an active role in reducing social inequalities”.

This is for instance how a judge from the Supreme Court (STF) describes his peculiar way of deciding cases: “Whenever I face a controversial case, I do not look for the dogma of the law. I try to create within my human character a more adequate solution”.

Indeed, a basic principle of alternative law is to never look for the “dogma of the law”, as alternative-law lawyers tend to regard the idea of judicial neutrality as a “bourgeois myth”. For alternative-law proponents, judicial impartiality will result in “servile utilization” of the courts by the ruling economic classes.

Thus, Antônio Alberto Machado, a law professor and the head of the center for Alternative Law Studies at the State University of São Paulo (Unesp), has declared that judges need to be entirely free “to construct law as means to change the order (mudança da ordem) and [as a result] bring about human emancipation”.

Behind the exhortations of alternative-law lawyers we find the post-modern doctrine of philosophers such as Jacques Derrida and Michael Foucault, for whom there is no fixed meaning in language. Judges who accept this axiom repudiate objectivity in legal provisions.

They argue that every judge should be free to decide cases on the basis of “the best interests of the oppressed classes”. A good example of this alternative-law position is expressed in the following excerpt from an article written by law professor Paulo Roberto Pereira de Souza, formerly the chancellor of the State University of Maringá:

“In our postmodernist society, we are seeing a true revolution in law… The installation of judges with new powers resulting from this process has allowed judges to make advanced decisions going against unjust norms that conflict with public interest. There is no law, no legal norm or statute that justifies fraud of the public interest”.

The installation of such “new powers” is found nowhere in the constitutional order. If so, this idea of “new powers” is basically unconstitutional. It means, in practical terms, the replacement of the rule of law by the rule of judges.

Moreover, the premise that judges better know what is best for the public interest is an arrogantly elitist and utterly undemocratic postulation. For it basically implies that the people’s representatives in parliament know less about matters of “public interest” than unelected judges.

As observed, the major goal of the alternative-law movement is the use of the judiciary as an instrument for radical social transformation. The means through which this objective is to be reached is by subversion of so-called “dominant discourses” of the state law.

Thus, judges who embrace the idea are less concerned about legal interpretation than they are about deconstruction of the legal system, a system they regard as being merely an instrument for domination by the economic elites.

Since the law is broadly seen as only serving the interests of the economic ruling groups, alternative-law lawyers label as “elitist” any literal interpretation of positive law. They state that judges ought to have total freedom to create “new laws” so as to liberate “oppressed classes” from state law. These “new laws”, of course, do not come from the state legal system, but are declared “parallel” and “insurgent” to this.

According to José de Oliveira Ascensão, a legal scholar at the prestigious University of Lisboa, alternative law wishes to “deconstruct” the state legal order, so as to apply new rules that judges themselves believe to represent “better solutions for the exploited classes”.

The Portuguese law professor also states that constant “alternative” decisions have already transformed the Brazilian judiciary into a sort of “lottery”, where nobody is able to reasonably predict the final result of any judicial decision.

Of course, one may suggest here that Brazil’s social inequalities could possibly justify a more politically active role for the judiciary. But we only need point to the research that found that the Brazilian judiciary is directly responsible for the reduction of Brazil’s domestic private-sector investment by around 15 percent of the GDP to disabuse anyone of such a notion.

The main reason for such a reduction is the perceived lack of law-enforcement of contracts by the country’s judiciary. This perception that judges do not properly apply the law has dramatically discouraged private investment and reduced the willingness of debtors to pay creditors.

Potential creditors are now reluctant to lend money to entrepreneurs (and the poor), as they reasonably conclude that judges will be unwilling to protect them from any opportunistic behaviour from their borrowers.

A renowned economist, Armando Castelar, explains that even when the legal norm is broadly regarded by commercial lawyers as being absolutely clear about a creditor’s right, judges may prefer not to enforce it.

He also explains that housing mortgages, which are very important for the working class, scarcely exist in Brazil because judges are broadly recognized as being reluctant to allow the banks to foreclose.

While judicial independence is essential to check governmental arbitrariness, judges must not abuse the principle so as to obstruct government policies they personally (and ideologically) dislike.

In 1997, however, the power struggle between the government and highly politicised judges led to several suspensions of the auction of the CVRD, the world’s largest iron-ore mining company.

They were suspended because judges issued injunctions for minority groups who were ideologically opposed to any form of privatisation. Some, however, used the technical argument that prospectus should have been published in popular tabloids and not only in business publications, despite jurisprudence from higher courts to the contrary. As Law Professor Keith S. Rosenn explains:

“The auction to privatize the state mining company… had to be suspended on four successive days because 135 lawsuits were filed throughout the country, resulting in thirty-five preliminary injunctions barring the sale. One belated injunction was issued after the auction had been held. All were eventually quashed by higher courts, but only after causing Brazil considerable international embarrassment for permitting a judicial circus”.

In the same way, politicised judges also tried in 1998 to block the sale of Telebrás, a publicly owned telephone company. The government, however, had on this occasion organized an “army” of 700 lawyers for the battle at the courts, ready to challenge and repel last-minute injunctions.

In fact, those judges who fought against the sale ignored its clear benefits for the working people. With the sale, the cost of a new telephone-line dropped dramatically, from US$ 1,200 to just US$ 65. What is more, as reported, a great part of sale profits was allocated to public education.

Another good example of politicisation is the way some judges interpret the meaning of “social function” with regard to property. It is true that the 1988 Constitution discusses the need for property to respect “social function”. But this basic law is silent on what it actually means. What the law instead does is explicitly declare that citizens have the constitutional right to preserve and inherit their property. It even says that property rights constitute “fundamental rights” for the citizen.

The 1988 Constitution also states that property can only be taken away from its owner in extraordinary situations of “relevant public interest”. If so, expropriation needs to be carried out by the government by providing “fair compensation in money”. In fact, there is even a “cláusula pétrea” (stone clause) to the Brazilian Constitution, which forbids any amendment aiming to restrict individual rights like that applying to property rights.

Despite all this, some judges have interpreted “social function” to mean the judicial redistribution of property. A judge from Rio Grande do Sul state, Luis Christiano Enger Aires, decided on 15 October 2001 to reject a farmer’s request to regain his own farm that had been invaded by social activists of a radical organization known as Landless Movement (MST).

He argued in his “legal” reasoning about a supposed conflict between the farmer’s right of property and the right of land invaders to a “worthy life”. He thus decided to reject the former right by upholding the latter one. The State High Court (TJ) subsequently confirmed the controversial decision in an appeal. Such rulings sparked general protests throughout the region, as can be gauged by the editorial of Zero Hora, the state’s leading newspaper:

“The invasions of property that have been taking place over the last few days have once again confirmed the aggressive, illegal, and arrogant manner in which they are normally performed. But there is now a new factor in this whole matter. It is the alternative content of judicial decision, and more specifically their purely ideological content.

“On behalf of civilized life, we should never regard as natural and acceptable the idea that judges, whose main function is the administration of justice, can decide to arbitrarily confer to themselves the power of absolute arbiters of what law is… By undermining a basic right of the constitution, judicial rulings have made the case for land reform even more explosive. What should be done through fair legal reasoning and common sense has now become an insoluble problem, and almost certainly a dangerous focus for more violence and illegality”.

In reality, people in Brazil tend to see judicial trials as usually uncertain and unjust. A 1991 poll conducted by the national public-opinion agency (IBGE) found that 30 percent of Brazilians do not have faith in judges and support vigilante justice.

These people believe that judges have failed them, and have decided to support a “parallel system” of “real justice” to deal with problems like criminality. In a study on vigilante justice, the sociologist José de Souza Martins observed:

“In the lynchings that occur in capital cities, the poor and working-class demonstrate their will. They are their own judges, rendering decision about the crimes to which they are subjected, in so doing demonstrating the importance to them of recovering a predictable system of formal justice.”

Although judicial politicisation is surely not the only reason for “popular justice”, we can nonetheless argue that judges might contribute to this problem by bringing about uncertainty and unpredictability in the formal legal system.

If trials are normally seen as unavoidably uncertain and not objectively just, then, argues High Court of Australia judge Dyson Heydon, “the chances of peaceful settlement of disputes are reduced and the temptation to violent self-help increases”.

What is more, since we can also suggest that corruption normally implies an undue deviation from the regular application of legal norms, an excess of judicial politicisation can arguably contribute to the problem.

This is so because corruption often takes forms that are much more insidious than outright bribery. Indeed, a stricter adherence to positive laws can produce far more legal certainty, which is by itself a basic precondition for the rule of law.

If so, such excess of politicisation in the Brazilian judiciary might contribute to judicial corruption, as it interferes in the regular course of legal actions in an unforeseeable manner. In brief, without a more satisfactory level of juridical predictability, there will always be an open door to corruption and impropriety.

As can be seen, many judges in Brazil have to reconsider the role of the judiciary as an independent body for the administration of justice according to law. Judges who abuse their position in order to satisfy their personal interests cannot possibly be described as equitable upholders of the legal system.

In fact, as Justice Murray Glesson from the High Court of Australia explains,

“Judges are appointed to interpret and apply the values inherent in the law. Within the limits of the legal method, they may disagree about those values. But they have no right to throw off the constraints of legal methodology. In particular, they have no right to base their decisions about the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy”.

A good reform for the Brazilian judiciary would be to convince judges that they also need to remain under the rule of law. Indeed, some judges in Brazil have yet to learn that the rule of law implies that nobody, not even a judge, has the right to ignore basic legal norms. But it may be said that placing judges under the rule of law requires a radical change of mentality in the country’s dominant legal culture.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: augustozimmermann@hotmail.com.

A critical analysis of what is going on in Brazil reveals the prevalence of extra-legal factors that prevent Brazilians from establishing an authentic democracy under the rule of law. In fact, the reality in Brazil does not lend itself to the optimistic assumption that only a rights-based constitution might be enough to bring about the necessary sociopolitical context for democracy and the rule of law.

In 1979, the army rulers who at that time still governed the country passed a legislation which granted amnesty to anyone imprisoned or exiled for political reasons. Massive rallies were also organized during that period, agitating for the end of the military regime, and for direct elections of the president.

It was very clear that the military leaders were losing prestige with all social classes. Then, on January 15, 1985, an Electoral College convened at the National Congress elected as Brazil’s new president the civilian Tancredo Neves, a politician from Minas Gerais. The indirect election of Tancredo Neves marked the end of two decades of military government.

Tancredo Neves, however, died of natural causes in March 1985 before he even had the chance to take office as president. The law was respected, and his vice-President, a rural oligarch called José Sarney, appointed as the new president.

Sarney was the leader of the Social Democratic Party (Partido Democrático Social – PDS), a party that had been allied to the military regime. He was the PDS leader until making a strategic jump to the Liberal Front Party (Partido da Frente Liberal – PFL) and creating the Democratic Alliance with Neves.

President Sarney sent to the National Congress, on 27 November 1985, a proposal of constitutional amendment, asking for the convocation of an Assembléia Nacional Constituinte (National Constituent Assembly). This assembly was not a body separated from the Congress, because this amendment endowed congressmen with the power to act as constitutional legislators.

But Sarney decided not to send to the constitutional assembly a draft of constitution prepared by a group of experts known as ‘Afonso Arinos Commission’. After all, the group delivered to him an absurd document which contained more than five hundred articles. He wisely shelved it, allowing parliamentarians to draft the constitution without that report.

The result of their work was promulgated on 5 October 1988, nineteen months after the start of the drafting process. It is not very clear if parliamentarians on that day were celebrating the final result or just the conclusion of such a long period of work.

The result is a lengthy document, originally enacted with 245 articles and 73 temporary provisions. As historian Boris Fausto explains, “in a country whose laws are not good for much of anything, different groups tried to put the greatest possible number of laws into the constitution, believing that somehow this would guarantee their being obeyed”.

The 1988 Constitution is now lengthier. It currently possesses 250 articles, plus 74 temporary provisions, plus 45 constitutional amendments. Some articles are very extensive and could be divided into several articles. Article 5, for instance, contains no less than 77 subsections with four additional paragraphs.

It seems here that constitutional parliamentarians forgot that detailed documents can bring about its rapid obsolescence. The longer a constitutional document, the more likely it is to be constantly amended, and soon regarded less as a fundamental law than just another piece of legislation.

The 1988 Constitution is full of trivial details and unaffordable promises. Article 242, for instance, declares that a public school that is located at Rio de Janeiro must be owned by the federal government. Article 3 says that the government has to eradicate poverty and reduce social and regional inequalities. Of course, the mere enunciation of these objectives can bring no solution to these problems.

As a good example of utterly unaffordable promise, the original text of the Brazilian Constitution prohibited the charging of interest rates above twelve percent per annum. In a country which has for many decades struggled against high levels of inflation, its financial system would enter into collapse had not the STF decided that such provision demanded complementary legislation.

The 1988 Constitution is called a programmatic document, because it is not just a ‘statute of power’ but also a ‘program of government’, to be complied with by the ordinary legislator. A constitution is programmatic if it lays down policy-making. The idea comes from the 1976 Constitution of Portugal, which demanded in its original document a ‘gradual transition’ to socialism.

Programmatic constitutions are a gross distortion of the normal idea of constitutionalism. They represent, in the words of political scientist Giovanni Sartori, “a deviation and an overload of constitutional capacities that results, in turn, in their failure to function well”.

Designed to exercise rigid control over policy-making, the Brazilian Constitution contains legal rules often found only in ordinary legislation. This fact has occasioned the tacit revocation of numerous laws and administrative acts, forcing the legislature to produce hundreds of additional statutes in light of correlating constitutional provisions.

In fact, the enactment of the current Brazilian Constitution required the production of 285 ordinary statutes, plus 41 complementary laws, as a fact that contributed to the legal chaos faced by Brazilians, and which has brought even more discredit to the rule of law.

Any proposal to amending the Brazilian Constitution has to be approved by one-third of the congressmen of any legislative house of Congress, or the President, or one-half of the state legislative assemblies. Because the constitutional text is rigid, it means that it cannot, at least in theory, be easily modified.

Proposals to amend the constitution must therefore be discussed and voted on twice in each house of Congress and can only be approved if it gets a three-fifths majority in both rounds of parliamentary discussion.

There are also temporal limitations for amending the Brazilian Constitution. First, it cannot be done during times of federal intervention (over any state) or if estado de sítio (martial law) is in place. Second, rejected proposals cannot be subject to another deliberation in the same year.

Moreover, the constitution forbids any amendment intended to restrict norms and principles related to the federal system; direct, secret, universal and periodic popular elections; separation of powers; and individual rights and guarantees.

And yet, all this complexity of proceedings for amendment has not helped the Brazilian Constitution maintain its necessary stability as a basic law. Rather, the original document has constantly been altered on account of numerous amendments following the above-mentioned proceeding.

High figures in government and society are now talking about the possible creation of a new constitution. The idea is supported by the president of the Brazilian Bar Association (OAB), Roberto Busato, and by the Chief Justice of the Superior Tribunal of Justice (STJ), Édson Vidigal, who declares that only another constitution can construct a new ‘national project’ for Brazil.

They back the proposal of Miro Teixeira, a federal deputy from the ruling Workers’ Party (PT), who thinks just a new constitution can resolve the political crisis in Brazil, arguing that voters no longer feel themselves represented by politicians.

However, problems like political corruption are provoked mainly by the complete absence of ethical conscience on the part of numerous politicians. Indeed, Brazil would have less corruption if its politicians developed the salutary habit of respecting legal norms. This would be far better an achievement than changing the current constitution.

If laws can be easily modified and/or disrespected, citizens lose any legal guarantee against abuses of the governmental power. Indeed, it is mainly the situation of political corruption and imprudent multiplication of laws that have already generated a situation of absolute discredit to the current constitutional order.

Augusto Zimmermann is a Brazilian Law Professor and the author of the well-known books Teoria Geral do Federalismo Democrático (General Theory of Democratic Federalism – Second Edition, 2005) and Curso de Direito Constitucional (Course on Constitutional Law, Fourth Edition – 2005). His e-mail is: augustozimmermann@hotmail.com.

According to the Inter-American Commission on Human Rights, “The Chapter [on indigenous rights] of the Brazilian Constitution is devoted to one of the most advanced normative positions in comparative legislation.

“Its provisions relate directly to the Indians’ rights, surpassing the doctrine of ‘natural assimilation’, and grant permanent recognition to the inherent original rights of the indigenous people, predicated on their status as the initial historical and permanent occupants of their lands”.(1)

Indigenous lands are characterized by the Brazilian Constitution as those traditionally occupied by indigenous people on a permanent basis, as well as “those used for their productive activities, those indispensable to the preservation of the environmental resources necessary for their well-being and for their physical and cultural reproduction, according to their uses, customs and traditions”.

Thus an eminent constitutional lawyer, Manoel G. Ferreira Filho, argues that such description of ‘lands traditionally occupied by Indians’ is so broad that it would be easier to explain which lands the non-Indians can occupy.

The 400 thousand Indians who live in Brazil have the legal right to occupy 946 thousand square kilometres. In other words, less than 5% of the Brazilian population holds impressive 12% of the national territory, a fact that makes of the indigenous community the biggest landowner in this country.

This also means that the quantity of lands classified as indigenous reserve is much bigger than the territory of any European country, except for the Russian Federation. In France, for instance, about 59 million people share a territory which is less than 544 thousand square kilometres.

Indigenous lands are the permanent possession of the indigenous people, who have the exclusive usufruct over the riches of the soil, the rivers, and the lakes existing therein.

In addition, the Supreme Court (STF) has decided that any statute or contract that can result in the reduction or alienation of indigenous lands is unconstitutional.

Only the elected members of National Congress can authorize the exploitation of hydric resources and/or mineral riches in the indigenous lands. If so, a share of the profit has to be ensured for the Indians.

They can not be removed from their lands except by the approval of congressmen in cases of catastrophe and/or epidemic. Even so, they have the right to return to their lands as soon as the risk ceases, for the land rights of Indians are considered inalienable and not subject to limitation.

Brazil has established a special federal agency only to uphold the cultural values and background of the indigenous community. The National Indian Foundation (Funai) is a federal agency charged with promoting the rights of Indians, including the basic right of every indigenous person to education, heath care, and legal assistance.

Regardless of all these rights (and lands), half of the Brazilian Indians rely on a federal program of basic food baskets to survive. Indians are facing problems of poverty, diseases, and poor health care.

For example, the medical department of Funai estimates that 60% of the indigenous population suffer from chronic diseases such as tuberculosis, malaria, or hepatitis.

And Funai also acknowledges that non-indigenous people have illegally exploited the indigenous reserves for mining, logging, and agriculture.

A notorious example of disregard for basic rights of the Indians occurred in 1997, when a federal judge dismissed manslaughter charges against four youngsters who doused an indigenous person with gasoline and set fire on him.

They argued as legal defence that they did not want to hurt an Indian, as they thought the victim was ‘just’ a beggar. It is important to consider in this case that one of the defendants was the son of another federal judge.

On May 9, 2004, the Amnesty International (AI) released a document suggesting that the situation of the Indians has ‘deteriorated’ since President Lula took office in 2003. The AI informed for instance that 27 Indians were murdered in 2003, three times more than in 2002.

The Indigenous Missionary Council (Cimi), one of the NGOs responsible for the data produced by AI, suggests however that the correct number could be 31 deaths. Its vice-president, Saulo Feitosa, argues that the Cimi backed the AI report only because some Indians were still missing, and, therefore, could not be classified as dead.

Indians’ Wrongs

The Brazilian law espouses a paternal approach towards the indigenous person, particularly in relation to criminal law. The Statute of the Indian, in its Article 56, declares that sentences shall be attenuated in cases of conviction of an Indian.

In 1980, Chief Raoni of the Txucarramãe Indians ordered the massacre of 30 peasants at the Xingu National Reserve. Raoni was not even charged for the killings which he proudly confessed to have ordered.

In 1988, Sting, a British rock-singer, served as Raoni’s patron during his ‘official visit’ as indigenous leader to European countries. On that occasion, Pope John Paul II, France’s President François Mitterrand, and Spain’s King Juan Carlos, received Raoni with all the honours of state leader.

In 1989, Sting raised US$ 1,5 million for the Caiapó Indians. He probably did not know that Chief Paiakan of Caiapó Indians had already become a millionaire by illegally exporting mahogany to Europe.

In 1993, after federal police arrested many loggers operating illegally in the Caiapó reserve, Chief Paiakan and other Indians, “who had made a deal with the lumber dealers, protested vehemently against the actions of the police as an improper intrusion in their business”.(2)

In May 1992, Chief Paiakan brutally raped and tortured an 18-year-old student called Sílvia Ferreira. He confessed the crime but warned that a ‘white blood roll’ would be carried out if police tried to execute the order for his arrest.

Although Paiakan was judicially sentenced to six-year jail, the order was never executed because police officers were too afraid to arrest him. Then, a few months later, a visibly scared judge absolved Chief Paiakan during a trial in which the indigenous leader appeared at the courthouse backed by hundreds of Indians armed with clubs.

More recently, approximately 350 Guarani Indians decided in February 2004 to invade productive farms in the state of Mato Grosso do Sul. They stole cattle and burned all the buildings.

Not satisfied with the size of their lands, they claimed that attacked farms also belonged to them, because those lands had been ‘stolen’ from their ancestors four centuries ago.

In March 2004, the chief of the Cintas-Larga Indians ordered the assassination of 29 prospectors in northern Brazil. It seems that prospectors had not given him the amount of money requested for the illegal mining in his reserve.

Chief Pio declared that those killings were ‘just a warning’ for those who dared to mine in his land without consent. As anyone who really knows this country would expect, no charges were raised against him.

Actually, Funai’s President Mécio Gomes considered the massacre of prospectors a ‘normal thing’ because those Indians would have, in his opinion, the right to kill people who invade their property.

Although the Lula da Silva administration enacted in 2004 a statute which prohibits law-abiding citizens to possess firearm, the press has displayed photos of Cinta-Larga Indians proudly carrying their potent rifles.

While they seem to have a ‘special license’ from the Workers’ Party (PT) government to disrespect the legislation, gun-control has been rigorously enforced on ranchers who dare to protect their property against the violent invasions of a radical movement called MST (Landless Movement).

One needs to remind in this case that the congressman who drafted and proposed the gun-control legislation, PT Deputy Luiz Eduardo Greenhalg, is also a lawyer for the MST.

On May 28, 2004, the President of the Prospectors Union in Rondônia, in northern Brazil, appeared before the Chamber of Deputies to report the missing of 350 colleagues in the Cintas-Larga reserve.

A court judge, Leonel Pereira da Rocha, was also invited and let the federal deputies fully informed that Cintas-Larga Indians were heavily armed and had already assassinated at least 65 people between January 2001 and May 2004.

According to him, there was even a clandestine cemetery in that indigenous reserve, where not less than 100 corpses are buried. Finally, the judge revealed that local courts are facing problems to execute warrants and interrogate criminal suspects, because, as he put it, “the National Indian Foundation (Funai) has gotten in the way of investigations”.(3)

References:

(1) Organization of American States; Report on the Situation of Human Rights in Brazil. Organization of American States, 1997. http://www.cidh.oas.org/countryrep/brazil-eng/index%20-%20brazil.htm
(2) Valenta, Lisa; Disconnect: The 1988 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil. 38 Texas International Law 643, 2003, p.657.
(3) Vasconcelos, Luciana; Brazil and Amnesty Clash. Brazzil, Human Rights, May 2004. https://www.brazzil.com/content/view/1827/59/

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, and is the author of two well-known law books (“Teoria Geral do Federalismo Democrático” and “Curso de Direito Constitucional”). His e-mail is: augustozimmermann@hotmail.com

Regardless of what this Constitution says, the Workers’ Party (PT) government has decided to introduce a highly controversial bill on audiovisual affairs.

If approved, this bill creates a National Agency of Movies and Audiovisual Affairs, the Ancinav, with full powers to exercise control over radio and television stations, communication services with audiovisual content (including telephony and the Internet), as well as the production, distribution, and the showing of movies (including television films and news reports).

The President of the Republic, Luiz Inácio Lula da Silva, would be free to nominate board members of such powerful agency, for a four-year term.

The Ancinav would be endowed with powers to investigate and restructure the strategic plans of cinematographic and audiovisual companies. The bill explicitly calls for the “planning, regulation, administration, and monitoring of cinematographic and audiovisual companies”, in their “production, programming, distribution, exhibition, and divulgation”.

It states that the Ancinav would preserve the ‘confidentiality’ of technical, operational, and even financial records requested from these companies, which also implies that this federal agency could force them to provide strategic and/or financial information.

The Ancinav would be financed by resources obtained from new taxes over advertisement, the rent and/or purchase of VCRs and/or DVDs, and a 10% increase in the price of movie tickets. This increase would obviously transform cinema into an even more elitist entertainment in this country.

Also, it would make just impossible for the majority of theatres to exhibit movies with small public demand, such as those produced by specialised film companies.(1) In this sense, the bill violates Article 215 of the Brazilian Constitution, which declares that the state needs to support the maximum diffusion of cultural expressions.

In explaining why the National Congress should approve this sort of bill, the Lula administration suggests that the Ancinav would support the national filmmaking industry to promote ‘civic re-education’ towards a ‘better sense’ of Brazil’s ‘national identity’.

Since the idea is confessedly to control cultural expressions, including those with scientific and/or artistic value, a prestigious lawyer, Ives Gandra, has accused the PT government of willing to exercise its full control over artistic, cinematographic, and audiovisual activities, similarly to what happened in the past in places like the former Soviet Union and Nazi Germany.(2)

In fact, the first attempts toward an unduly control over freedom of expression have already been carried out. Since President Lula took office, in 2003, state companies can only sponsor social and cultural projects in tune with the ideology of those who are in power.

A state oil and gas distribution company, Petrobras, has informed that ‘social views’ of the current administration must be taken into consideration for social and cultural projects to be funded. Other state companies such as Eletrobrás and Furnas communicated the same conditions for the financing of social and cultural activities.

In relation to the problem of the Ancinav, a prestigious member of the highly selected Academia Brasileira de Letras (Brazilian Academy of Letters), history professor José Murillo de Carvalho, wrote an insightful piece on the subject in daily newspaper Jornal do Brasil. He suggests that this law proposal creating the Ancinav constitutes an attempt to establish one the worst forms of censorship a government has ever produced in the whole history of this country.(3)

A leading daily newspaper, O Estado de S. Paulo, commented in an editorial that the bill of Ancinav is authoritarian, bureaucratising, statist, and, as a result, would result in a return to former instruments of censorship in Brazil.

The editorial also suggests that calling the law proposal ‘only’ authoritarian is too bland and small, as it reveals that President Lula is certainly not joking when he says that countries like Cuba and Venezuela are ‘models of democracy’ to be imitated.(4)

References

(1) See: Revista Veja; Um Desastre de Lei. 13 October 2004, p.120.
(2) Martins, Ives Gandra da Silva; O Retrocesso Democrático. Jornal do Brasil, 36 August 2004, p. A13.
(3) Carvalho, José Murillo de; O Novo DIP. Jornal do Brasil, 29 December 2004, p.B2.
(4) O Estado de S. Paulo, Debaixo do Parangolé da Ancinav. Editorial, 26 September 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, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro. His email address is: augustozimmermann@hotmail.com.

Actually, the Brazilian Constitution explicitly prohibits death penalty as well as penalties of life imprisonment, hard labour, banishment, and cruel punishment.(1)

By comparison, the U.S. Constitution only says that a person cannot lose his life without due process of law, that is, by means of formal proceedings followed by regular courts.

Therefore, the laws in the United States give much less protection to the right to stay alive than the laws in Brazil.

In practice, however, such right to life is not fully guaranteed in Brazil. Killing has become the major cause for unnatural death in this country.

According to the United Nations, Brazil has only 2.8 percent of the world’s population but more than 11 percent of all its registered homicides.

According to the IBGE (Brazilian Institute of Geography and Statistics), 600 thousand people were killed in Brazil between 1980 and 2000 alone, an average of 30 thousand per year.(2)

By comparison, the terrible thirty-year civil war that devastated Angola killed ‘only’ 350 thousand people, or 11 thousand per year.(3)

The great majority of these 600 thousand killings occurred in the last decade.(4) In fact, the death rate for killings has dramatically increased over these last ten years.

While 37 thousand people were murdered in 2002, the number jumped to 49 thousand in 2003.(5)

Both numbers were higher than in the whole region of the Middle East, including Iraq and Israel. For Timothy Cahill, an investigating leader for the Amnesty International, they fall very easily within the U.N. parameters for civil war.(6)

Since the military left power, in 1985, the situation has clearly worsened. The annual number of killings grew 130 percent between 1980 and 2000.(7)

While a city like Rio de Janeiro had registered ‘only’ 840 killings in 1984, the number jumped to 10 thousand in 2002.(8)

According to Beatriz Kuhn, the head of an anti-violence group, normality in a city like Rio de Janeiro has now become a daily reality of civil war.(9)

The Human Rights Watch (HRW) reports that Rio de Janeiro today “is most often described as a city under siege”.(10) For example, this is precisely what an article from The Guardian, a British newspaper, reported on May 19, 2003:

“Heavily armed drug gangs… launched a series of audacious attacks that have shocked the city’s residents. Homemade bombs were thrown at the luxury Hotel Le Meridien on Copacabana beachfront and at a hotel and restaurant in nearby Leblon…

“Shots were fired at the up-market Hotel Glória. A grenade was thrown at one shopping centre and another was machine-gunned. Scores of buses [were] burned out and gun battles close the city’s main roads.” (11)

Even authorities in Rio now confess that violence is out of control. They openly recognise that criminals totally overrun the city.

For instance, Rio’s Public Security Secretary, Anthony Garotinho, was reported to have declared: “We cannot deny that the situation is out of control. To say that isn’t is to ignore the reality.”(12)

When the military (uniformed) police killed a record 100 people, in April 2003, Garotinho argued that the extra-judicial killings were a “positive development”, assuring the population of Rio de Janeiro that ‘only’ criminal suspects were assassinated.(13)

The Poverty Explanation

An argument that seems to be completely fallacious is that the growth in the number of killings proceeds from, or can be explained by, situations of poverty.

While it is true that some violent criminals have indeed emerged from a background of social deprivation, many of these criminals are middle-class teenagers who do not stem from a ‘deprived childhood’ so much as from a conscious choice by a mind deprived from any regard to human life.

Although social or environmental factors can obviously prompt someone with criminal tendencies to take away a person’s life, it would appear that a very common motivation for violent behaviour is not need but greed.

Crime is not necessarily a product of poverty. Since the situation of poverty is a constant reality in Brazil’s history, it does not serve to explain why poverty could by itself be the major cause for the absurd growth of criminality over the last two decades.

The truth is that poverty does not explain such a growth, nor can it reasonably explain why the poorest states in the country, Maranhão and Piauí, are precisely the less violent ones.(14)

Nor it would explain why São Paulo and Rio de Janeiro, the richest states of the Brazilian federation, are curiously the most violent ones. In fact, not even unemployment in both states would serve as a good explanation.

In Rio de Janeiro, for instance, 70 percent of all convicted prisoners were fully employed when they decided to commit their crimes.(15) São Paulo, a state that registered 62 killings per 100 thousand in 2002, had six times a higher number of killings than Argentina, a country where 20% of the working force was unemployed in the same period.(17)

In reality, it seems that temptation for violent criminal behaviour has obviously increased among individuals from the higher classes. For instance, the growth of violent crimes committed by middle-class teenagers has actually become a major concern in the country. In this case, a background of social deprivation certainly will not help to explain the individual option for criminal behaviour.

Actually, a better explanation for the problem is given by Ib Teixeira, a specialist on the subject of criminality.

He comments that Brazil’s criminal laws are considerably ‘soft’ against dangerous criminals, because they are drafted by jurists who embrace a ‘radical criminology’ which considers criminality a sole product of social injustices generated by free-market capitalism.

As Teixeira explains, the premise is obviously wrong, for an authentic capitalist society such as the United States has ‘infinitely’ lower levels of criminality than Brazil.(17)

In contrast to what normally happens in a country like the United States, a person who is in Brazil convicted for the crime of murder will not spend a long time behind bars. He might stay not more than four or five years arrested.

After this period, this criminal might be released on parole for having completed only one-third of the sentence. Unfortunately, the rate of recidivism in such cases is discouragingly high, for the majority of such criminals tend to commit other crimes subsequent to their original discharge.

Of course, their easier target always is the poor citizen, whose right to security has been cowardly denied by the state, and is not able to pay for ‘special protection’ against those criminals.

References

(1) Federal Constitution, Art.5, XLVII.
(2) Gasparotto Rafael; In Brazil, 82 Murders a Day, for 20 Years. Brazzil, April 2004.
(3) See: Teixeira, Ib; Dissonância. O Globo, April 4, 2002.
(4) See: Mota, Lourenço Dantas; Civil War is no Figure of Speech. Brazzil, October 6, 2004.
(5) O Alarmante Custo da Violência. Interview of Simone Goldberg to Ib Teixeira. Dinheiro na Web, September 9, 2004.
(6) See: Marcus, Alan; Brazilians, Those Barbarians! Brazzil, April 2004.
(7) Gasparotto, Rafael; In Brazil, 82 Murders a Day, For 20 Years. Brazzil, April 2004.
(8) See: Teixeira, Ib; Dissonância. O Globo, April 4, 2002.
(9) Kuhn, Beatriz; Brazil: Rio, Stop the Civil War! Brazzil, July 2004.
(10) Human Rights Watch; Fighting Violence with Violence. Vol.8, No.2, January 1996.
(11) Zobel, Gibby; Lawless Rio: Chief Police Admits defeat as Criminal Rampage. The Guardian, May 19, 2003.
(12) Zobel, Gibby; Lawless Rio: Chief Police Admits defeat as Criminal Rampage. The Guardian, May 19, 2003.
(13) See: Herald Sun; Justice in Brazil. Melbourne, 18 November 2003.
(14) See: Pinter, Silvia; O Alto Preço da Violência Brasileira. Interview with Ib Teixeira, A Notícia, Joinville, February 3, 2002.
(15) See: Pinter, Silvia; O Alto Preço da Violência Brasileira. Interview with Ib Teixeira, A Notícia, Joinville, February 3, 2002.
(16) See: Pinter, Silvia; O Alto Preço da Violência Brasileira. Interview with Ib Teixeira, A Notícia, Joinville, February 3, 2002.
(17) See: Pinter, Silvia; O Alto Preço da Violência Brasileira. Interview with Ib Teixeira, A Notícia, Joinville, February 3, 2002.

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, and is a former Law Professor at the NPPG (Research and Post-graduation Law Department) of Bennett Methodist University, and Estácio de Sá University, in Rio de Janeiro.

He is also a member of the editorial board of Achegas, Brazil’s journal of political science, and Lumen Juris, a prestigious law book publisher in Brazil. His e-mail address is: augustozimmermann@hotmail.com.