By FÁBIO KONDER COMPARATIVE*

In all times and countries there are always some more equal than others

Here is the famous mantra, thought up by the French revolutionaries of 1789 and repeated liturgically in all Brazilian Constitutions, since Independence. Unfortunately, however, as a character in a novel by George Orwell warned, in all times and countries there are always some more equal than others.

The enslavement of Africans and Afro-descendants was legally in force in this land for more than three centuries; and when abolished by law of 1888, it continued to exist openly or surreptitiously in the world of social mores.

Something similar – if not worse – happened to the original population of these plagues, mentioned for the first time in the 1934 Constitution under the name of forestry, embellished expression of wild. And for what purpose was it used in that Constitution? In order to determine that “the Union is exclusively responsible (...) to legislate on the “incorporation of forestry farmers into the national community” (art. 5, XIX, paragraph m). That is, it was indirectly recognized that the indigenous people, until then, were not part of the Brazilian people.

In a letter to King Portugal Afonso VI, dated April 20, 1657, Father António Vieira summarized what the colonization of the indigenous people had consisted of until that date: “The injustices and tyrannies that have been perpetrated on the natives of these lands far exceed those of that were made in Africa. In the space of forty years, more than two million Indians were killed and destroyed on this coast and in the hinterlands, and more than five hundred settlements as well as large cities, and no punishment has ever been seen for this.”

Having become independent in 1822, Brazil remained, as it had always been, a country with an essentially agricultural economy and servile work. But since the beginning of the century, England, which had begun to exercise imperial powers internationally and had its economy focused almost exclusively on exports, could no longer withstand competition from the countries of the American continent in the trade of agricultural products. Above all, because its two main competitors in this field, the United States and Brazil, had an economy based essentially on slavery.

Although the Brazilian government, under pressure from England, enacted a law in 1831 that prohibited the importation of African slaves, this law, according to the expression since then consecrated, was only approved for the English to see. Faced with this, England decided to move from agreements to the policy of force in this matter. In 1845, the British Parliament voted the Bill Aberdeen, which gave the British Royal Navy the power to seize any ship used in the slave trade on the high seas. At that time, we had no choice but to enact the Eusébio de Queiroz Law in 1850, which put an end to the transatlantic slave trade, and two weeks later, the Land Law, which enshrined large-scale agriculture among us.

In the parliamentary discussion of this last law, Senator Costa Ferreira did not hesitate to emphasize the objective of the legal diploma: “There are many lands in the provinces, but some are not demarcated or benefited, because they are infested with gentiles”

Today, no less than half of the Brazilian countryside is occupied by properties with an area greater than 2.000 hectares (20 square kilometers).

Well then, this landowning oligarchy redoubled its power by installing itself at the Head of the Executive Power, sponsored by the current President of the Republic and his Minister of the Environment. It remains to be seen whether the Judiciary will have the dignity to fulfill its duty, preventing this government robbery.

An opportunity for this is the decision to be taken by the Federal Supreme Court, when it judges in a short time the extraordinary appeal nº 1017365, in which the meaning and scope of art. 231 of the Federal Constitution:

“Indians are recognized for their social organization, customs, languages, beliefs and traditions, and their original rights over the lands they traditionally occupy, and the Union is responsible for demarcating them, protecting and ensuring respect for all their assets.

(...)

§ 4 The lands dealt with in this article are inalienable and unavailable, and the rights over them are imprescriptible”.

Is there any doubt that these are fundamental indigenous rights and, as such, irreducible?

The same Supreme Court, however, when judging the issue of the demarcation of the Raposa do Sol indigenous land, decided that such demarcation has a “time frame”, which is the date on which the Federal Constitution in force was enacted; i.e. October 5, 1988.

Such a decision is clearly unsustainable. Firstly, because more than half a century earlier, the Federal Constitution of 1934 already provided in its art. 129: “The ownership of forestry lands that are permanently located therein shall be respected, being prohibited, however, to alienate them”. Secondly, because, when it comes to a fundamental right, it is not positive law that creates it; he simply recognizes it.

As Montesquieu warned in the From the Spirit of Laws, “There is no citizen against whom a law can be interpreted, when his goods, his honor or his life are at stake”.

* Fabio Konder Comparato Professor Emeritus at the Faculty of Law of the University of São Paulo, Doctor Honoris Causa at the University of Coimbra. Author, among other books, of the capitalist civilization (Hail).