Law, Social Justice & Global Development
(An Electronic Law Journal)
The MST and the Rule of Law in Brazil
School of Law,
University of Warwick
This is a refereed article published on: 6 December 2007
Citation: Meszaros, G, ‘The MST and the Rule of Law in Brazil’, 2007 (1) Law, Social Justice & Global Development Journal (LGD).
The paper begins by acknowledging the uncomfortable nature of the MST’s relations with prevailing legal orthodoxy, but then go on to briefly examine their nature, origins and extent. In acknowledging the tension between the MST and prevailing legal orthodoxy we ask how much this reveals about the movement’s approach to legality, and how much it reveals about the legal system itself and the attitudes of those who operate it. The paper goes on to emphasise the positive interactions between the MST and the rule of law rather than points of friction. It underscores the importance of unpicking these relations, as well as examining the MST’s record, which does not conform to the lawless stereotype. The overall picture that emerges, however uneven and localised, is that of an increasingly rich interplay between legal practitioners and the MST. The latter, it turns out, has quite a sophisticated legal discourse and strategy. Similarly, albeit to a more limited extent given that this is a major part of the challenge, we find that the legal sphere is the subject of internal contestation in addition to external social pressure. Finally, the paper draws these threads together in the light of President Luis Inacio Lula da Silva’s administration. His 2002 election and 2006 re-election undoubtedly gave a distinctive new slant to the MST’s relationship with the State in general and the rule of law in particular. If the rhetoric was to be believed, land questions had acquired a new urgency. Gone was the repressive tension that had underlain relations between the movement and all the post dictatorship administrations. Temperamentally, at least, significant sectors of Lula’s government, including the President himself, were favourably disposed towards land reform. This raised the tantalising possibility that, for the first time in decades, a fundamental reorientation of the State - and its corollary, a loosening of the legal regime and decriminalisation of landless struggles, might take place. But it also raised the difficult question of how a government of the left would respond to Rule of Law imperatives on the one hand, and to a social movement known for tactics of direct action, on the other.
Movimento dos Trabalhadores Rurais Sem Terra (MST), Rule of Law, Land Reform, Social Movements, Brazil.
Few subjects so exercise commentators and politicians in Brazil than the real or imagined relationship between the Movimento dos Trabalhadores Rurais Sem Terra (MST) and the Rule of Law, or Estado de Direito,. Here is a typical example, an open letter sent by Raul Jungmann, the Minister of Agrarian Reform in President Cardoso's government, to President Luis Inacio Lula da Silva in July 2003:
President, no democrat can sacrifice the Rule of Law in name of the combat against poverty and social exclusion. I am sure you understand this. The MST and the UDR1, for different reasons, do not. Agrarian reform has been carried out in two contexts; that of rupture or institutional normality. Rupture is in nobody’s interests. Normality implies the strict and rigid adherence to the law - whether we like it or not. Mr President, follow the law and make others follow it.2
The implication is clear: firstly, that the MST’s restricted worldview means that questions of poverty and social exclusion are invariably set upon a collision with more broadly based Rule of Law imperatives; and secondly, that Brazil’s reconnection with ‘institutional normality’, makes it imperative for the President to uphold the Rule of Law at all times, even if this is to the detriment of allies like the MST. This is powerful language. It strikes an historical chord with Brazilians who recall the military rupture of 1964 and its costly aftermath; and at the same time makes a point of universal significance in terms accessible to all generations. It proposes a highest common denominator by appealing to people’s sense of fair play, firmly rejecting the idea that any individual or organisation should be considered above the law, and offering a clear way forward: ‘follow the law and make others follow it’. What could be simpler than that?
The present article argues that this is precisely the problem with the way the discussion is framed. The picture presented of both the MST and law is deceptively simple, representing little more than a caricature. Of course caricatures have their uses, and public letters must take short cuts in the interest of clarity, but why should someone like Raul Jungmann, one of the sharpest intellects in the Cardoso government, with a deep understanding of the issues involved and the dangers of oversimplification, adopt this type of limiting discourse? Part of the answer is that he remains a politician and the text is a political document and not just a statement of legal orthodoxy. It skilfully takes a sideswipe at the Lula administration by highlighting a vulnerability, namely how a government of the left can reconcile Rule of Law imperatives with direct action tactics deployed by its ally in opposition, the MST. By far the most crucial part of the letter, however, consists in the claims it makes about law in general and the MST in particular. In this respect it offers not so much a distorted caricature as a remarkably faithful and succinct portrayal of dominant legal and political discourses. For this reason it cannot be dismissed lightly and was chosen as our point of departure.
This paper addresses some of the issues raised by orthodox discourses like Jungmann’s, but from an entirely different perspective. We begin by acknowledging the uncomfortable nature of the MST’s relations with prevailing legal orthodoxy, but then go on to briefly examine their nature, origins and extent. Typically, critics emphasise the points of friction (of which there are many) and trace (in our view erroneously) their origins exclusively back to the MST and its supposed unilateral failure to ‘understand’ the rule of law. Constructing the problem thus both raises the stakes to a supposed clash between the MST and law. In fact, Jungmann’s letter suggests that it heralds nothing less than an assault upon democracy itself.3 This view invites the conclusion that containment, with repressive measures if necessary, is the best course of action. Indeed, Jungmann has gone on to say that it is high time for ‘law’s truncheon to be brought down upon the MST’.4
The approach of this article differs. In acknowledging the tension between the MST and prevailing legal orthodoxy we ask how much this reveals about the movement’s approach to legality, and how much it reveals about the legal system itself and the attitudes of those who operate it. The suggestion is that we are dealing with a multilateral equation. Titanic clashes or assaults upon democracy are not the issue. Indeed, aspects of legality may actually be fortified by the MSTs actions.
The second part of this paper emphasises positive interactions between the MST and the rule of law rather than points of friction. It underscores the importance of unpicking these relations, as well as examining the MST’s record, which does not conform to the lawless stereotype. The overall picture that emerges, however uneven and localised, is that of an increasingly rich interplay between legal practitioners and the MST. The latter, it turns out, has quite a sophisticated legal discourse and strategy. Similarly, albeit to a more limited extent given that this is a major part of the challenge, we find that the legal sphere is the subject of internal contestation in addition to external social pressure.
The third and final section draws these threads together in the light of President Luis Inacio Lula da Silva’s administration. His 2002 election and 2006 re-election undoubtedly gave a distinctive new slant to the MST’s relationship with the State in general and the rule of law in particular. If the rhetoric was to be believed, land questions had acquired a new urgency. Gone was the repressive tension that had underlain relations between the movement and all the post dictatorship administrations. Temperamentally, at least, significant sectors of Lula’s government, including the President himself, were favourably disposed towards land reform. This raised the tantalising possibility that, for the first time in decades, a fundamental reorientation of the State - and its corollary, a loosening of the legal regime and decriminalisation of landless struggles, might take place. But it also raised the difficult question of how a government of the left would respond to Rule of Law imperatives on the one hand, and to a social movement known for tactics of direct action, on the other.
Tensions between the MST and Legal Orthodoxy
Social and Political Origins
There is an element of inevitability governing the MST’s difficulties with the established legal order. While this is partly due to the movement's chosen course of action, methods and self-conception, it also derives from the movement's social origins, i.e., to the fact that the MST was a product of, and not just a response to, circumstances. These circumstances, especially the extent of social polarisation, are well known. Land and income inequality in Brazil are star. According to the latest UNDP Human Development Report, Brazil’s Gini coefficient (the most widely used inequality indicator) was 58.0, lower only than Colombia (58.6), Bolivia (60.1), Namibia (74.3), Botswana (63), Swaziland (60.9), Lesotho (63.2), Central African Republic (61.3) and Sierra Leone (62.9).5 Recent data suggest that 56 percent of propertied land is still concentrated among just 3.5 percent of property holders, while a mere 6.3 percent of land is held by 57.6 percent of property holders, in other words, 144,281 properties have successfully appropriated 183,564,299 hectares of land, leaving 2,441,770 other properties to squeeze into just 26,601,982 hectares.6 Absolute poverty is an endemic problem for rural families, of whom more than three million live on a maximum income of three reais (roughly a dollar) per capita per day. It is a grave mistake to imagine that legal conflicts arising from the release of these structural tensions is the product of ‘irresponsible leadership’. Time and again, whether in South Africa, Poland or, indeed, Brazil during the 1970’s and 1980’s, events suggest wider social forces are at work. The MST’s supposed failure to ‘understand’ the Rule of Law simultaneously belittles these tensions and exaggerates leadership volition.
A sense of proportion, then, is needed when considering rural conflicts that occur under the banner of the MST. All too often they are reduced - ad absurdam - to the terrain of ‘movement or leadership irresponsibility’ when in fact something more significant is happening. Consider the marked growth of groups similar to the MST. The numbers speak for themselves.7 To be sure the MST is by far the most vocal and powerful of these groups, and exercises a de facto leadership role, but that still begs the question why so many others have followed suit and adopted similar tactics of mass occupation? Whatever the answer, a spontaneous mass outbreak of law breaking is not it. Like the MST these movements should be understood as distinctive responses to and ‘products’ of circumstances rather than strait jacketed with repressive legal discourses and actions.
Another way to understand the origins of conflict between the MST and legal orthodoxy is by posing the following question: what were and are the alternatives to conflict? In fact, the alternatives had been tried and found wanting. The MST was born of a strong sense of past failures, including the assassinations of rural trade union leaders, the glacial pace of land reform, and the excessively debilitating legalistic culture of existing rural organisations.8 Not even the prospect of more radical rural unions, following the upheavals of the late 1970's, could persuade MST organisers to throw in their lot with these groups. The argument, which finally prevailed, was that while unions could only organise individual workers as members, the MST could derive strength from the organisation of families - men, women and children - in mass occupations without the restriction of municipal limits, to which legislation also subjected unions. Mobilising beyond traditional borders – geographic and legal - would give the movement its national characteristic as well as the capacity to concentrate large groups of people in small areas without the usual restrictions. In this sense, leadership did indeed play a vital role in shaping the movement and to this extent is responsible for the path undertaken and its consequences.
But what of the substantive critique offered by orthodox Rule of Law advocates? Is the MST acting beyond the law, thereby ‘threatening democracy’ itself?9 The illegality argument is usually based on two pillars. The first, although less significant, arises from specific cases of law breaking and their depiction as representative of the movement as a whole. Undoubtedly, this is one of the most difficult questions facing the movement. However, in an organisation of the MST’s size, operating under extremely stressful conditions, it is not surprising that laws have been broken. That is one reason why, for instance, the movement has long banned alcohol from encampments, since it often gave rise to fights. Over the years, the process of conflict has seen thefts, damage to property, the killing of landowners, military police and even fellow members. Opponents have been quick to latch on to these events, seeing in them the possibility of tarnishing the movement’s image and embarrassing its leadership. Crucially, though, they do not form part of the MST’s modus operandi. If they did then Rule of Law arguments would hold more weight. Instead, they must be seen for what they are, as episodic exceptions to the rule, no matter how tragic or unwelcome for those directly involved.
The same claim to exceptionality, however, cannot be made for the second target of criticism: land occupations. On the contrary, these form an indispensable part of the MST’s whole operation. Without them its survival would either be compromised, or the movement would be institutionalised. To this extent, the allegation that the movement is embarked upon a systematic confrontation with the law itself is far more serious. Before addressing this issue, some reference to the operation of Brazil’s legal system is required.
Failures of the Legal System
In the absence of clarification the impression created so far has been of a fully functional and largely impartial legal order where due process prevails. Like Gandhian notions of Western civilisation, though, it would be a nice idea. Arguably the only consistent feature of Brazil’s justice system is its inconsistency, namely its capacity to deviate from many of the basic premises advanced by a range of Rule of Law advocates. The system is notoriously unjust, bureaucratic, cripplingly slow, and saturated with class bias. Because detailed consideration of these points is beyond the scope of this paper, our remarks are confined to a few brief illustrations of this last point, class bias.
Even senior figures working within the system have acknowledged major class divisions. In 2000, for instance, the Deputy Attorney General for Human Rights, Wagner Gonçalves, observed that ‘in Brazil there is a very strong complex of formal and informal mechanisms that protect people with political and economic power.’ He went on to note that the Brazilian penal system was ‘profoundly selective’: ‘The chances of a poor person succumbing to the long arm of the law are incomparably greater than those of a rich person.’10 The differences abound. When a college educated person goes to prison, assuming that matters get this far, he or she has the right, enshrined in law (article 295 of the penal code), to be held in a separate cell away from less educated and grossly overcrowded countrymen and women. This says a lot for the system. In the case of politicians, the situation remains unequal but is different. For years they attained near untouchable status. In his Oxford speech11, Gonçalves, confirmed that ‘in Brazil, if the author of a crime is a parliamentarian there is a 95 percent chance that he will not have to respond for the crime he committed’.12 An illustrative case took place in September 2003, when Brazil’s Attorney General was compelled to halt investigations into the fraudulent emission of hundreds of millions of dollars of land bonds during senator Jader Barbalho’s tenureship of the land reform ministry back in the late 1980’s. Despite the colossal magnitude of the crime, the passage of time and destruction of crucial evidence had undermined the prospects of a successful prosecution. At one point in the lengthy proceedings, Barbalho was imprisoned for precisely five hours. The contrast with landless workers is striking. Menial crimes routinely attract custodial sentences. An extreme example occurred in March 1999 when five workers from Pernambuco state were imprisoned for a period of six months. Their crime was the theft of eight goats to feed 70 families encamped near the Santa Rita ranch, in São Bento do Una.
Given the class biases of Brazilian justice, it is no wonder that the MSTs relationship with the law is difficult. The situation is compounded by Kafkaesque absurdities of which the emphasis upon the vindication of procedure to the exclusion of substantive issues is perhaps the most notable. However, any notion that the MST is uniquely disadvantaged, or a ‘victim’, must be qualified. To a large extent movement members are in exactly the same position as the majority of Brazilians who, according to many studies, have little faith in the system. In a 2003 poll, only 12 percent of the respondents claimed to have ‘total confidence’ in the judiciary. Although a blindfolded statue of Themis, the Greek god of justice, sits outside the Supreme Court denoting impartiality, other more negative and powerful representations grip the popular imagination. These include common expressions like: ‘A lei é para o ingles ver’ (The law is for appearances); ‘Da justiça, o pobre só conhece castigos,’ (From justice the poor only know punishment), and ‘Há uma lei para o rico e outra para o pobre’, (There’s one law for the rich and another for the poor.). Arguably the most potent, damning and illuminating aphorism is attributed to Brazil’s greatest 20 century statesman and legislator, Getulio Vargas: ‘Aos meus amigos tudo, para os inimigos, a lei’, (For my friends everything, for my enemies the law). The underlying message of these examples is clear: justice is selective.
Thus there is a universal dimension to tensions between the MST and legal orthodoxy. One feature that clearly distinguishes the movement from the vast majority of other victims, though, is the organised nature of its challenge and the equally systematic nature of the legal response. This gives the conflict an eminently political character.
For many observers politics and law do not mix. The MST is perceived as intruding upon the tranquil and ‘normal’ functioning of the legal system. Such an account is one-sided. Historically speaking it was landowners who dominated legal spaces, through imperial and republican arrangements, and gave law its highly sectarian character. That Brazil retains an acutely polarised rural social structure illustrates the adaptability and tenacity of landed interests, and degree to which courts and legislatures sustain those interests. Orthodox rhetoric’s substitution of a-historical notions of legal neutrality deliberately overlooks these constitutive social and historical dimensions. Proponents suggest that the line must be drawn somewhere for the common good -’strict and rigid adherence to the law, whether we like it or not’ - but rarely acknowledge how it has been redrawn repeatedly to suit landed interests. Although the acknowledgment of law’s historical, and especially contemporary, permeability by social forces would move the debate forwards, this presents real difficulties for orthodox advocates. Legal change resulting from social pressure is inadmissible because it calls into question law’s supposed origins and neutrality and raises the prospect that lines will be redrawn by the most aggressive groups, for example, the MST and UDR. And yet, when one looks at the extent of the threat to legal ‘neutrality’ it becomes clear that any pressure brought to bear upon the system by the MST is nothing compared to that still exercised by landowners – whether by the UDR (a comparatively easy target), or infinitely more powerful mainstream economic and political groupings like the Agricultural and Livestock Confederation of Brazil (Confederação da Agricultura e Pecuária do Brasil, CNA), which still exercises a veto over government policy.
Elective affinities felt by many legal practitioners towards landed interests reinforce these imbalances from within. The Agrarian Ombudsman, a senior judge by profession, acknowledges that fifty per cent of his colleagues believe his more progressive ideas, based upon constitutional notions of the social function of property, are ‘not in accordance with the Civil Code, which says that whoever registers land is its absolute owner, and that consequently it is wrong to speak of a social question’.th With a starting point like this, the actions of the MST and other rural labour organisations look more like an attempt to rebalance the social and legal order rather than an effort to subvert it or democracy.
Diverse Legal Currents
In the light of the foregoing discussion we return to the question of whether occupations are lawful. Although we have seen that profound historical and social imbalances structure the legal order, which in turn favours the landed status quo, the legal order is not entirely closed. Indeed, from a strictly legal perspective the status of occupations depends upon the weight attached to various seemingly contradictory legal documents and clauses. Put at its simplest, defenders of the status quo regard the Civil Code as the main bulwark of property rights, while reformers see the 1988 Constitution’s concepts of property, especially what is termed its ‘social function’, as the highest expression of property rights and the overriding qualification upon all prior formulations.
Thus to urge the President to ‘follow the law and make other follow it’ begs the question: whose law and on whose terms? Matters are further complicated by the Constitution’s failure to offer a sufficiently unambiguous programme. Instead, it was marked by immense social and political pressures at the drafting stage. Florestan Fernandes, a deputy on the left of the political spectrum, described the result as a patchwork quilt; while José Sarney, the former right wing Brazilian President (1985-1990), called it a Frankenstein’s monster.13 Whatever the metaphor, the stitching is evident. Faced with the impossibility of resolving underlying social tensions, the Constituent Congress framing the constitution simply farmed out the most contentious issues to other fora for later consideration and, as it would turn out, litigation. Thus although the Constitution asserts the conditions under which the State can and cannot appropriate property for the purposes of agrarian reform, it does so through an elaborate legal, administrative, economic and social web mediated by judges, administrative agencies (for example Instituto Nacional de Colonização e Reforma Agrária [INCRA]) and politicians. Conflict was built in from the start.
A complex battle is now being waged inside the legal establishment for hegemony. However, rather than occurring along a single front it is expressed in terms of multiple skirmishes and sometimes quite fluid and episodic formations. Even those taking part are not necessarily fully aware of the ramifications of their own decisions. Indeed, many would reject the notion that they fall into any kind of ‘camp’ at all, since their decisions are taken upon a case-by-case basis, often upon extremely narrow legal points.14 Highly restrictive judicial interpretations of property rights form part of a tradition that goes back centuries. Although the alternatives start from a position of institutional and cultural weakness, they are neither weak nor new in doctrinal terms. On the contrary, academic studies examining the social function of property can trace their pedigree back to antiquity and to nineteenth century Catholic social teaching amongst others.15 But just as the Catholic Church developed its immense political and cultural presence in Latin America by ostracising radical alternatives, so too the legal order developed in close proximity with landed classes, while marginalising the alternatives.
The failure to establish the supremacy of the 1988 Constitution illustrates the difficulty of reversing such ingrained patterns of behaviour. As the following section makes clear, that is precisely why the contribution made by groups like the MST to the debate is potentially so important. In sum, most of the tensions between the MST and the legal order can be traced to the latter’s fabric and operating dynamics rather than to the MST’s supposedly irresponsible or lawless approach. In fact there is more to relations between the MST and legality than tension alone. A variety of reciprocal determinations are at work occasionally with unexpected consequences. Arguably, the MST’s very emergence is a prime example of this. Although the movement was the brainchild of the left and progressive religious organisations, it also emerged as a direct response to the huge legal limitations imposed by the military dictatorship and largely retained by the legal establishment immediately following the transition to democracy. A common perception among MST supporters during the early 1980’s was that progressive initiatives were hamstrung by these laws, would remain so unless the connection was broken and entirely new methods and structures developed.