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The Lula Administration

The election in November 2002 of Luis Inacio Lula da Silva as President raised tantalising possibilities as well as thorny questions about the relationship between the MST, law and the State. Clearly, the most important issue was the extent to which the presidency would address social contradictions and mark the emergence of a new and radical partnership for agrarian reform, and the beginning of the end of the long cycle of conflict between State and society. Here the role of law was critical since the government could exercise its authority in clearing cultural and legislative obstacles to land reform; could use its constitutional powers in making senior judicial and other appointments, including the Attorney General; and could adopt a more benign tone in its public pronouncements, instead of, as Raul Jungmann suggested, ‘articulate with the security and justice sectors of the states and with the federal police and democratically crack down [baixar o pau] in cases of excess by the MST’39.
The best that can be said of both Lula administrations is that they did not adopt Jungmann’s advice. To be sure there were rhetorical ambiguities at the heart of the administration in its legal discourse towards the MST. This oscillated between brinkmanship and conciliation. The former largely came from its so-called hard men, José Genoino and José Dirceu. ‘Do not doubt the authority of the government’, the latter pointedly said at the end of July 2003, following a round of land occupations and tension with the movement. ‘Acts and actions cannot be allowed to prejudice the democratic Rule of Law’, said Genoino. Almost simultaneously (June 2003) though, other Ministers, like Miguel Rossetto (Agrarian Development), were negotiating with judges in the Pontal do Paranapanema in order to accelerate legal procedures and thereby hasten the acquisition of land that might be used to defuse a volatile situation.
The appointment of key legal personnel also appears to send out mixed messages. On the one hand Claudio Fontelles’ appointment as Attorney General was a positive development. A progressive with a longstanding interest in land issues and a well worked out position, he felt able to criticise the MST when it occupied public buildings and President Cardoso’s ranch, in March 2002, contending that such practices, including the occupation of productive property, were illegal and therefore undermined movement legitimacy. But he also confronted basic tenets of legal orthodoxy. In one article he emphasised the futility of bringing repressive penal policies to bear upon food thefts in the northeast Brazil because their cause essentially lay in the persistence of centuries old structures of injustice.40 On 14 August 2003 he took aim at another target - property, which he contended was ‘not absolute’: ‘you cannot do with an area what you like. Use must be destined towards a social function. The constitution impregnates within the notion of property the notion of solidarity.’ For properties that were underutilised or held for speculative purposes ‘social movements can, in a peaceful and orderly fashion go in plant and produce’.th

Although these statements fell well short of claims made by the MST, they represented a clear departure from Fontelles’ predecessor, not to mention the repressive approach adopted by Cardoso’s Minister of Justice, Nelson Jobim.41 For the first time ever, Brazil’s most senior prosecutor was publicly endorsing a key argument advanced by the MST: that property was not absolute and could, under certain circumstances, be occupied. Setting the tone in this way would encourage and embolden young prosecutors to question landowner claims instead of taking them at face value. It also strengthened the MST’s wider public claims. Fontelles’ declarations generated newspaper headlines and predictable criticism from landed interests.42



However, when it came to judicial appointments to the Federal Supreme Court (composed of 11 individuals), timidity dominated. A wave of retirements under Lula meant that in contrast to Cardoso, who only appointed three judges during his two terms, the new president was in the privileged position of making five appointments in one term. Instead of leaving an indelible mark, it is arguable that the government’s choice quickly came to haunt it when, in August 2003, the Federal Supreme Court rejected the first major expropriation order signed by Lula. The manner of the defeat, on procedural grounds, again seemed to confirm the assertion made to me by one judge that: ‘With the Brazilian judiciary, if you have an able lawyer you can almost eternalise the discussion!’43 Clearly one should not read too much into one decision, but it is symptomatic of a general malaise. Advancing the cause of land reform within the courts has always been a difficult task. It appears likely to remain so for years to come.44 Perhaps in recognition of past failures, the strength of Lula’s popular mandate, and the extent to which the courts were now on trial for any policy failures, the High Court judges involved in the São Gabriel case reiterated their support for agrarian reform. However, their rhetorical support sat uncomfortably alongside their rejection of one of the few practical measures capable of achieving it. MST leaders like Mário Lill asked a pertinent question: ‘if the judges don’t permit agrarian reform within the law, what is left to us?’45
As for the law itself, in one of many mixed signals to the MST and right wing sectors, the government refused to reverse the August 2001 measure designed by the Cardoso administration to choke off occupations at source.46 The measure forbade INCRA from auditing any ranch for a period of two years subsequent to any occupation. Lula’s retention of the measure was the symbolic equivalent of Tony Blair retaining anti-trade union legislation. Substantively, though, it was more complex. Since its passage the MST had, quite literally, worked its way around the measure by occupying properties adjacent to intended targets.
In both symbolic and substantive terms, however, the government’s failure to update agricultural productivity indices has been far more significant. Dating back to 1975, these indices take no account whatsoever of massive leaps in productivity and Brazil’s newfound status as an agricultural superpower: only the most hopelessly unproductive properties can be expropriated, thereby artificially restricting the supply of land available for redistribution. Thus the problems accumulate. Despite promises made by President Lula on the eve of his second electoral victory, he has refused to take on the agricultural lobby by updating the indices. An unholy alliance of propertied classes-from the most advanced to the most antediluvian-has succeeded in preventing the MST and INCRA from getting their foot in the door for fear that their remit may expand uncontrollably. Such fears are, in my view, exaggerated. But they underline just how ideologically driven landed power remains, in all its forms, at the onset of the twenty first century. While the Lula government has increased public funding for land reform and family farming, ultimately it has done nothing to undermine those power relations.


  1. Conclusion

That this paper could have been renamed The Devil in the Detail for the Rule of Law in Brazil depends greatly upon correlations of force at a given moment in time, micro-political arrangements and the willingness of operators of the legal system to use their powers in a particular way. A notion like the Rule of Law fails to capture these dynamics and in Jungmann’s hands becomes a highly schematic frame of reference.



In fact, the disjuncture between narrowly conceived Rule of Law rhetoric on the one hand, and reality on the other, is exemplified by Jungmann’s own conduct. Between 1999 and 2000, as Minister of Agrarian Development he was faced with a major clash involving landowners from Rio Grande do Sul who did not want their properties audited on the one side, and INCRA, the local judiciary and MST, who felt that inspectors should be allowed to audit properties freely as the law prescribed. Far from demanding the Rule of Law Jungmann simply circumvented it. The head of the land agency, a former prosecutor with a declared desire to make the law ‘stick’, was sacked. Land productivity indices were kept artificially low so that landowners could clear this hurdle and hold on to their land. To be sure, Jungmann had his reasons47 (as he doubtless has for now urging an authoritarian approach on the part of Lula), but a purist notion of the Rule of Law is clearly not one of them.
Abstract de-contextualised approaches to law and its institutions are unsustainable and unhelpful. Indeed, for all Jungmann’s rhetorical inflexibility and emphasis upon ‘institutional normality’, he recognised just how flawed and perverse that normality was. The punitive approach of many legal practitioners towards landless workers, and glacial speed with which the legal system resolved problems while they accumulated apace, posed a major obstacle to agrarian reform. In order to overcome some of these obstacles Jungmann created the office of the National Agrarian Ombudsman (Ouvidoria Agrária Nacional). Its head, a high ranking judge, explained that this was an attempt to ‘treat agrarian questions in an informal manner, without bureaucracy, without costs to the various parties, and as close to the events as possible’.48 Typically, though, the institution’s chances of success depended not upon the formal trappings of office, but upon the ombudsman’s own personal authority and skill. Even so judicial culture remained an obstacle. As the Ombudsman freely admitted, his progressive legal theses on land issues were rejected by a substantial part of the Brazilian judiciary.49 Against such profound divisions and institutional contradictions, it seems reasonable to question what Jungmann and others mean by the ‘strict and rigid adherence to the law’.
As for the MST’s relationship to law, this must be seen as an integral and legitimate part of legal processes that have long been divided. That an organisation of its social expressiveness and stature should at last contribute to reshaping the debate on the nature and function of law, instead of merely accepting the consequences of others’ designs, is surely a healthy and long overdue development. Many observers have failed to pick up this point or seem unwilling to do so. They acknowledge the movement’s political impact, but seem incapable of recognising its positive legal ramifications, preferring to remain trapped within an artificially restrictive notion of the Rule of Law to which not even they can live up to. To this extent relations with the Lula administration do mark a significant shift in tone. Despite Genoino’s assertion that ‘Acts and actions cannot be allowed to prejudice the democratic Rule of Law’, it is also clear that this administration is far more at home with the idea of social movement pressure than any of its predecessors. In the same speech, for instance, Genoino referred to the right of social movements to continue to make demands, and the corresponding obligation of the government to manage its alliances in such a way as to bring about reform.
Far from bringing about reform, the government’s alliances have only engendered disunity within the PT’s own ranks and provoked the emergence of a new more radical party, Party for Socialism and Liberty (PSOL). In the minds of many observers the evident lack of leadership shown by Lula has raised the question of whether the MST might finally turn its back on both the political and legal process in some sort of ‘radical’ break. . A look at the recent past shows why not. The fact remains that over the course of the Sarney, Collor and Cardoso administrations, with all their attendant limitations, the MST strengthened its engagement with the legal field. There is nothing about the Lula administration that would suggest a reversal of this tendency. If anything, the highest echelons of the legal establishment are more receptive now than ever before. To assume that the MST will suddenly become disillusioned with the political process is to make a critical error about the illusions originally held by the organisation. Its history suggests that while change from the top is to be welcomed, it must be pushed for from below. It is in this context that legal action has come-and will continue-to play an indispensable part of the struggle.


1Endnotes
The União Democrática Ruralista (UDR) is the most militant and visceral of the right wing landowners organisations. It successfully lobbied to defeat land reform legislation in the late 1980s and on subsequent occasions. Throughout its ups and downs it has engaged in violent confrontation with rural groups, including the MST. According to one study, though, it has also sought to integrate its own version of social movement discourse. See Payne, Leigh, (2000).

2 Jungmann, (Jungmann, Raul, 2003).

3 Jungmann, (Jungmann, Raul, 2003).

4 See ‘Jungmann diz ser preciso ‘baixar o pau da lei’ no MST’, Folha de São Paulo, 29/07/2003.

5 UNDP Human Development Report, 2006.

6 Data derived by the author from Ministerio Desenvolvimento Agrario figures. A more complete picture should emerge when the last agricultural census, of 1996, upon which many of these figures are based, is finally updated by the Fundação Getulio Vargas in 2008.

7 The MST is only one of dozens of organisations active in rural conflicts and land occupations.

8 For a more extended discussion of this issue, particularly as it related to the National Confederation of Workers in Agriculture (Confederação Nacional dos Trabalhadores na Agricultura, CONTAG) see Medeiros (Medeiros, Leonilde Sérvolo de, 1989, p 92). She notes that with the emergence of the military dictatorship in the 1960s, and the generalised climate of fear and demobilization of rural workers that resulted, ‘the struggle for ‘rights’, within legal parameters, came to constitute the basic directive to action of CONTAG’ (my emphasis). She concludes that, ‘…The point of departure that comes to guide the practise of CONTAG is that rights existed but were not respected....In this way the recourse to legal justice became the framework of action.’

9 This is another charge levelled at the MST by Jungmann (Jungmann, Raul, 2003).

10 Wagner Gonçalves speech delivered to the conference on The Institutional and Political Challenges of Human Rights Reform in Brazil organised by the Oxford Centre for Brazilian Studies, St Antony’s College, 13 October 2000. His point was underlined in a special edition of the Brazilian weekly Veja (15 August 2007) dealing with ‘the plague of impunity’ from its ruling classes. One article (‘Por que os corruptos não ficam presos’ <http://arquivoetc.blogspot.com/2007/08/por-que-os-corruptos-no-ficam-presos.html> 11 August 2007) examined 10 high profile corruption investigations (between December 2003 and 2004) of politicians, businessmen and public officials. Legal loopholes and appeals mechanisms were so successfully exploited by lawyers that the initial figure of 245 arrests was distilled into 64 convictions and only two imprisonments. These, it should be emphasised, are instances where the justice system spent considerable sums in the investigative phases.

11 Ibid.

12 Gonçalves, Wagner, ibid.

The same study commissioned by the Brazilian Bar Association (Ordem dos Advogados do Brasil, OAB)), revealed that 30.9 percent of respondents had ‘no faith whatsoever’ in the judiciary and 26.7 percent only had ‘partial confidence’ in the institution. Among the chief reasons cited for lack of confidence in the justice system as a whole was unequal application of the law, privileging white people and the rich (24.3 percent); and corruption involving judges, prosecutors and lawyers (22 percent). ‘Pesquisa revela falta de credibilidade e conhecimento em relação ao Judiciário’, Jornal do Brasil Online,

<http://jbonline.terra.com.br/jb/papel/brasil/2003/11/10/jorbra20031110005.html>11 August 2007.

th Desembargador Gercino da Silva, interview by author, Brasília, 25 October 1999.

13 For a comprehensive guide to the Brazilian Constitution see Silva (Silva, José Alfonso da, 2004).

14 The August 14th 2003 decision of eight Federal Supreme Court judges to annul Luiz Inácio Lula da Silva’s presidential decree expropriating 13,200 hectares in Rio Grande do Sul carried tremendous political weight. The expropriation was the largest of its kind ever proposed in Rio Grande do Sul and would have allowed 530 families to be settled. However, the key question before the judges was not so much whether the property was productive or not, but whether the landowner in question had been properly served with notice of an impending audit by INCRA. Lawyers for the landowner argued that the agency had failed in its legal duty while lawyers on behalf of the President argued that notification had taken place but that access to the property had been impeded by landowners. The agency had returned later but neglected to serve a new notification. It was the absence of the new notification – and the landowner’s participation in the audit - that formed the basis of the landowner’s case. One of Lula’s own appointees sided with the majority, who on administrative grounds rejected the arguments made on behalf of the President of the Republic. Another Lula appointee, however, suggested that landowner had contributed to the situation through his own reluctance to be notified. For a highly critical analysis of the socio-legal background to the case see Stédile, Miguel, (2003) ‘STF suspende maior desapropriação do RS’ <http://www.midiaindependente.org.pt/blue/2003/06/256226.shtml> 10th June 2003. A critical evaluation of the legal background to the case is set out in Sérgio, Frei (2003) ‘Informações jurídicas sobre a desapropriação de terra’, <http://www.midiaindependente.org.pt/blue/2003/08/260961.shtml> 13th August 2003. The decision of each judge can be accessed on the Supremo Tribunal Federal’s site (http://stf.gov.br/) under mandado de seguranca number MS24547.

15 For a thorough discussion of these issues from a radical perspective by one of Brazil’s leading thinkers and practitioners, see Marés, Carlos Fredrico, 2003.

16 Caros Amigos, Ano IV, No. 39, June 2000.

17 Jacques Alfonsin, interview by author, Porto Alegre, 24 June 1997.

18 João Pedro Stedile, interview by author, Campinas, 18 March 2000.

19 Indeed, once Strozake was qualified, Greenhalgh would note that in dealing with movement affairs, ‘these days I am subordinated to him.’ Luis Eduardo Greenhalgh, interview by author, São Paulo, September 1999.

20 Already under the Cardoso administration some 15 lawyers were contracted in this way. Under Lula this number was expanded to 25 in an agreement made between INCRA on the one hand, the CPT and the MST’s legal representative, ANCA (Associação Nacional de Cooperação Agrícola). That agreement expired in March 2005 but others have now taken its place. While detractors see this as a waste of money, proponents argue that such work, which encompasses the defence of all militants in rural areas rather than just those of the MST, is essential given the conflictive nature of the rural sphere and the absence of an effective system of public defenders.

21 For an extended discussion of RENAP’s early formation and subsequent development, see Gorsdorf, Leandro, Franklin, 2004.

22 Cited Gorsdorf (Gorsdorf, Leandro, Franklin, 2004 p 96).

23One example is the movement’s use of ‘manutenção de posse’, maintenance of possession, as a means of forestalling counterattacks. When an area is occupied it is common for landowners to seek the ‘reintegração de posse’, literally meaning the reintegration of possession, via the courts. The maintenance of possession, is one means of trying to forestall such a move. The apparent simplicity of possession belies a host of legal complexities with massive social and political ramifications. By way of introduction consider these comments from Jacques Alfonsin ‘In the vast majority of ações possessorias (possession actions) what is of importance is not so much the title of land ownership, but the occupation. The proceedings that the owners undertake generally rely on the title. The judge never asks whether that person is actually occupying this area. With a mere glance at the land register the judge grants the injunction. We have a longstanding struggle to get judges to see this otherwise. The reintegração de posse, the action they most frequently use, presupposes possession. And yet these people often don’t have possession. They may be living in the United States, in England, or elsewhere. They undertake legal proceedings and the judge grants it to them. So even from the point of view of positive law the actions of the judge are highly debatable. In an area where the person does not have possession, they undertake proceedings for the reintegration of possession. Why does he go for a reintegration of possession? Because these proceedings involve an injunction.’ Jacques Alfonsin, interview by author, Porto Alegre, 24 June 1997.

24 Luis Eduardo Greenhalgh, interview by author, São Paulo, 3 September 1999.

25 I devote two chapters of my forthcoming book to the Pontal do Paranapanema, see Mesaros (Meszaros, George, 2006). For further background on this region see Leite, José Ferrari (Leite, José Ferrari, 1998) and Fernandes (Fernandes, Bernardo Mançano, 1996), as well the publications by São Paulo’s state land agency, Instituto de Terras do Estado de São Paulo (ITESP), Cadernos ITESP (ITESP, 1998a, 1998b), and Fernandes and Ramalho (Fernandes, Bernardo Mançano, and Ramalho, Cristiane Barbosa, 2001).

26 The origin of the term is said to lie in the practice of taking ‘grilos’ (crickets), and locking them up in a drawer with fictitious deeds. When the crickets died they would secrete liquids that would discolour the paper – prematurely ageing it. A slightly different version has it that the crickets eat the paper thereby ageing its edges, and their excrement discolours it. In both instances, though, authentication of the document would be completed by networks of corrupt notaries.

27 João Pedro Stedile, interview by author, Campinas, 18 March 2000.

28 José Rainha, interview by author, Teodoro Sampaio, 20 March 2000.

29 To the best of my knowledge there is no systematic inquiry into this question. The idea that law is a meaningful category of reference in people’s lives needs to be treated with caution. Leonilde Sérvolo Medeiros notes that even in situations of extreme violence perpetrated by landowners, rural workers often do not look to law for mediation of conflicts. This may be because of fear of the consequences, unawareness of its provisions, or lack of access. But she also acknowledges that other factors might be in play: ‘in many situations, at least apparently, domination is exercised without contestation in a complex imbrication between consent…and coercion’. (Medeiros, Leonilde, Sérvolo 2002 p 186).

30 José Rainha, interview by author, Teodoro Sampaio, 20 March 2000.

31 I discuss this ruling in Meszaros (Meszaros, George 2000).

32 See MST, 1998, p 3.

33 For a critical analysis of the Brazilian judiciary, see Dallari (Dallari, Dalmo de Abreu 1996).

34 At the beginning of the 1990s the Alternative Law movement emerged with considerable force in Rio Grande do Sul. On both theoretical and practical grounds a group of judges questioned claims that Brazilian justice was in any way value neutral and even whether value neutrality was a workable proposition. For practitioners and academics who came to ally themselves to the group a key issue was how to conceptualise the legal order’s failure to address issues of substantive inequality while developing practical alternatives to it. For a useful introduction to the subject see Lédio Rosa de Andrade (1996). For an example of its practical application to the Public Ministry see the work of two public prosecutors, Machado and Goulart (Machado, Antônio Alberto and Marcelo, Pedroso Goulart, 1992).

On the back of this decision the MST’s in-house legal service produced a pamphlet with the title ‘Land Occupations are Constitutional, Legitimate and Necessary’; see MST - Setor de Direitos Humanos (MST - Setor de Direitos Humanos,1997).

35 It pays to read articles 184, 185 and 186 in their entirety rather than as freestanding objects. Article 184 permits the State to expropriate lands that are not fulfilling their ‘social function’ and to destine these towards agrarian reform. Article 185 deals with the protection of productive land, while article 186 deals with property’s social function. The latter article reads: ‘The social function is met when the rural property complies simultaneously with, according to the criteria and standards prescribed by law, the following requirements: I - rational and adequate use; II - adequate use of available natural resources and preservation of the environment; III - compliance with the provisions that regulate labour relations; IV - exploitation that favours the well-being of the owners and labourers.’ Source: Vajda, Zimbres and Souza (Vajda, Istvan, Zimbres, Patrícia de Queiroz Carvalho and Souza, Vanira Tavares de, 1998, p 121).

36 Gilmar Mauro, interview by author, Brasília, 10 August 2000.

37 This letter, issued on December 13, 1999, became known as the Carta de Ribeirão Preto.

38 The launch of a Manifesto for Agrarian Reform in July 2003 is not specifically directed to the MST but is symptomatic of a broader legal support for agrarian reform. The document, signed by 30 leading practitioners (including judges, prosecutors, lawyers and law professors) outlined the legal case for agrarian reform as well as expressing the hope that progressive case law would at last inform the views of other practitioners. See Manifesto de Juristas Brasileiros pela Reforma Agrária, available at: <http://www.cidadania.org.br/imprimir.asp?conteudo_id=1336&secao_id=98> 23 July 2003.

39 ‘Jungmann propõe que o governo ‘baixe o pau’’, Estado de São Paulo, 29/07/2003.

40 The article, entitled ‘A fome não faz de famintos criminosos’, is cited in ‘Procurador-geral diz que invasão é crime intolerável’, Estado de São Paulo, 04/07/2003.

th Idem.

41 In 1997, Minister Nelson Jobim tried to target more MST activists for prosecution by enlisting the support of the Public Ministry in states where tension was particularly high. In the case of São Paulo his overtures were firmly rejected.

42 ‘Fonteles defende invasão de áreas improdutivas’ (Jornal do Brasil, 14/08/2003) <http://jbonline.terra.com.br/jb/papel/brasil/2003/08/13/jorbra20030813014.html> 14 August 2003; ‘Ruralista Critica Procurador (Jornal do Brasil, 14/08/2003) <http://jbonline.terra.com.br/jb/papel/brasil/2003/08/13/jorbra20030813017.html> 14 August 2003; ‘Fonteles volta a apoiar invasão de terra improdutiva’, Estado de São Paulo, 14/08/2003.

43 Urbano Ruiz, member of the Association of Judges for Democracy, interview by author, São Paulo, 2 September 1999. For details of this case see note 13 above.

44 In a recent interview the fourth judge appointed by Lula, Eros Roberto Grau, affirmed his view that the figure of the politically neutral judge was a fiction. When asked to comment upon a loaded question, namely whether social movements are in conflict with the spirit of the law, he retreated arguing that it would be ‘imprudent to pass comment’ and ‘the federal constitution must be respected by all sides.’ ‘Novo ministro do STF defende Estado mais forte na economia’, Folha de São Paulo, 28/06/2004.

45 ‘Ruralistas eufóricos, sem terra revoltados’, Estado de São Paulo, 15/08/2003.

46 The relevant measures, Portaria/ MDA/ nº 62, of 27/03/ 2001 and Medida Provisória nº 2.183-56, of 24/08/2001, are available on INCRA’s website at <http://www.incra.gov.br/estrut/snda/iriv.htm> 27/03/ 2001 and

<http://www.incra.gov.br/estrut/pj/medidas/2109.htm> 24/08/2001respectively.

47 I briefly discuss the motivations in Meszaros (Meszaros, George, 2000).

48 Author interview with Judge Gersino José da Silva Filho, Agrarian Ombudsman, Brasília, 25/10/99.

49 See the Ombudsman’s comments on page 10 above.

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