The Social Function of Land Ownership: Social Claims and Legal Decisions in Rural Brazil
Maria SILVIA EMANUELLI, 2014
This article is part of the book Take Back the Land ! The Social Function of Land and Housing, Resistance and Alternatives, Passerelle, Ritimo/Aitec/Citego, March 2014.
This article is an excerpt from the Judges’ Handbook on Protecting Peasants’ Rights1. This Handbook is edited by Maria Silvia Emanuelli and Rodrigo Gutiérrez Rivas and seeks to contribute to the broader endeavour Vía Campesina (VC) has been working on for several years with the support of a broad range of allies such as FIAN Internacional: the adoption of a UN Declaration of the Rights of Peasants. One of the most important elements in this Declaration - just as in the World Charter for the Right to the City2 - is the social function of land, provided under article 4 paragraph 11 of the VC draft3.
The cases we will present in the following pages highlight the few but nevertheless significant occasions when a judge has had to reach a decision on a land occupation conflict - usually involving the Movimiento de los Trabajadores Sin Tierra (MST) - and has ruled against eviction because the estate holder is not complying with the social function of land.
This article focuses exclusively on rural areas. Nonetheless, we are convinced, just as expressed in the article by the Comité d’action juridique Rhône-Alpes4, that this discussion can spread and shift to the urban environment, as is already happening in some Latin American countries. We also believe that this concept can be developed and further defined to be “translated” and applied in other regions of the world. In order for this to become effective, we must keep fighting for it to extend beyond its mere acknowledgment in laws and policies and to become tangible in the different fields we all work in.
The Social Function of Property in Brazilian Legislation
Article 5 of the 1988 Brazilian Constitution establishes that ownership must fulfil a social function. Articles 182 and 184 specify the cases that justify expropriation when it is geared towards carrying out urban and agrarian reforms, respectively. Article 184 provides that: “It is within the power of the Union to expropriate on account of social interest, for purposes of agrarian reform, the rural property which is not performing its social function, against prior and fair compensation in agrarian debt bonds with a clause providing for maintenance of the real value, redeemable within a period of up to twenty years computed as from the second year of issue, and the use of which shall be defined in the law.”4
The National Institute for Colonization and Agrarian Reform is the body in charge of the expropriation process5: it inspects buildings to determine whether their social function is being met, which, in accordance with article 186 of the Constitution, involves analysing the property’s productivity (rational and adequate use) as well as the adequate use of available natural resources or environmental preservation; the compliance with labour laws and regulations; and a use which encourages the landowners’ and the workers’ wellbeing6. This procedure is mandatory to obtain the presidential decree declaring the building of social interest for the agrarian reform.
Land Occupation, Agrarian Reform and Judges}
In light of the systematic denial of the right to land, and in order to impel the State to implement agrarian reform by expropriating rural properties7 which do not meet their social function requirements, over the last 20 years MST has carried out numerous occupations8. The rulings delivered on these occupations basically cover two situations: on the one hand there are expropriation-related situations and on the other hand, civil or criminal suits filed by landowners because of the land occupation with the aim of obtaining eviction rulings. Most case rulings reveal that judges privilege a civil law approach, individualist and patrimonial9, which is blind to the root causes of a conflict involving a large community voicing very concrete social demands. This explains why most rulings favour private property and prevent expropriations, leading to the movement’s eviction and convictions for its leaders.
In these cases, the use of criminal law to criminalize leaders has been analysed extensively in numerous articles10. We will now present two decisions which did not fall into this category of “making justice”. Since this article cannot be too long, we will not discuss several other cases which are analysed in the previously mentioned Handbook.
Cases in which the social function of property was applied
Civil Court of First Instance, State of Rio Grande do Sul. Property Restitution Claim Nº 02100885509, October 17, 200111
After a protest staged to demand active land redistribution policies from the State, 600 MST activists occupied 30,000 m2 of an 11,563,529 m2 farm. The landowner filed a property restitution claim which the judge ruled against - a quite uncommon event - and based his ruling on an analysis of the social function of property in relation to the dignity of persons. First, the ruling states that:
The utter ineffectiveness of traditional legal and procedural channels to adequately and reasonably solve collective conflicts must be acknowledged. Indeed, making them individualized and piecemeal stands in the way of their resolution and leaves the situation far from settled, since usually these conflicts are the manifestation of social demands stemming from structural and supra individual issues.
To ensure that the right to a decent life prevails over property rights when these two sets of right clash, the judge stresses the fact that property must meet specific criteria for social responsibility. In order to strike a balance between the different parties’ interests, the judge addresses this land occupation as part of the broader global socio-political context, as MST activists aim to:
Force the Brazilian state to urgently perform the tasks it is bound to by the Constitution and which have been historically overlooked.
The judge then explains:
Undoubtedly, should one of these rights have to be sacrificed, it should be that of property, as the Constitution of the Republic (art. 1º, II e III, and art. 3°) has enshrined what German doctrine and case law call the « State guarantee of the existential minimum », meaning the positive guarantee of a minimum resource for a decent life. In fact, how can this minimum be guaranteed while overlooking the need to see to fundamental commodities (work, housing, education, health care) which are essential to human beings, without which persons cannot exist as such?
The judge also took into consideration the occupants’ precarious situation and their dependency on land, along with the lack of evidence proving that the property was socially responsible. All of this led him to consider that the eviction notice was out of proportion, especially since the occupation only concerned 30,000 m2 of the 11,563,529 m2 farm. Therefore, the occupation did not endanger the farm’s equipment or its workers, or its overall output. The judge viewed the landless peasants’ justifications as legitimate and inspired in the principles of citizenry, as they were addressing shortcomings in the State’s action. Any decision depriving peasants of the “existential minimum” would thus be an attack against their dignity as persons, which could not be allowed for under any circumstance. Therefore the judge called upon the parties to work together on the grounds of “the principle of “social solidarity” enshrined in the Constitution of the Republic (art. 3º, I)”.
Appeals Court, State of Rio Grande do Sul. Recovery of possession, n 598.360.402, 6 October 199812
A company filed a recovery of possession claim for a farm for which it was a licensee, since it was occupied on September 4th 1998 by 600 families participating in MST. The first instance ruling granted the company its request as a preventative measure. The Movement appealed against this decision. The judge in charge of the first procedural examination decided to suspend the eviction notice until the ownership claim had been definitively solved. Finally, the appeal filed by the peasants against property restitution in favour of the company was accepted. The judge first states that “law is not just the written law”, meaning that the context had to be taken into consideration. Then, he elaborated on the legal meaning of ownership and the protection of property, stating that the right to private property is conditioned by fulfilling the social use of property.
According to the judge, social peace, which is the horizon for all judicial decisions, has been used as an argument to justify eviction operations by executive authorities, thus evicting “poor and miserable families” from the land they had occupied. Justice had thus become a mechanism used against social movements. The decision stresses the need to fully acknowledge the complex political situation from which this situation stems. According to the judge, peace cannot be achieved by evictions or actions which seek to make the right to private property prevail, but rather by means of a genuine agrarian reform.
The decision highlights how crucial it is to position the social use of property given the absolute understanding which prevails of this right. Not all the judges who participated in this ruling supported it, though it was adopted by a majority of judges. The judge in charge of drafting the ruling referred to the academic A. C. Wolkmer and developed the function of the judicature in the following terms: “A true force for social expression defined by the practice of an autonomous and unyielding practice regarding the other branches of State authority”. He also raised the issue of the challenges legal agents meet when it comes to performing this function if “they do not act subserviently with Its Excellency the market”. Furthermore, the judge defends peasants’ right to work by access to land and notes that any land reform should focus on individuals. If no land reform is enacted, peasants are forced to seize their rights in order to make use of them. The author of the decision provides a convincing argumentative presentation on the social function of property in both its active and passive dimensions.
In this case, property was considered to be defined by its productivity (active dimension) as well as by the non-fulfilment of tax obligations by the company which was demanding the eviction of the peasants’ families (passive dimension). Considering this non-payment and the non-creation of employment opportunities, the judge concluded that this property was not fulfilling its social function. Therefore the judge sided with the appeal filed by the peasant families against the eviction request.
1 Manual para Juezas y Jueces sobre la Protección de los derechos de las campesinas y campesinos , available in Spanish at: hic-al.org/noticias.cfm?noticia=1469&id_categoria=8
2 The draft versión of the World Charter for the Right to the City is the outcome of a collective initiative in which numerous organisations and networks took part, including the Habitat International Coalition (HIC). This has led to joint initiatives with Via Campesina. It is available online at: www.hic-al.org/derecho.cfm?base=2&pag=derechociudad2
3 The Declaration is available online at: viacampesina.net/downloads/PDF/SP-3.pdf
4 Translator’s Note: Source of the English translation of the Brazilian Constitution: pdba.georgetown.edu/Constitutions/Brazil/brtitle7.html
5 The proceeding is set forth in Act 8.629/93 available online at: www.jusbrasil.com.br/legislacao/104141/lei-8629-93
6 There is no consensus on this issue. Some authors believe that if a property is productive it is already meeting its social function. On this point, cf.: Diaz Varella, Marcelo, Introdução ao direito à reforma agrária: o direito face aos novos conflitos sociais, Leme-SP, LED Editora de Direito Ltda, 1998, p. 226-256. Quoted by: Reis Porto, Luciano, “El poder judicial y los conflictos agrarios en Brasil”, Revista de Derechos Humanos y Estudios Sociales, Año I, No. 1, January-June 2009, Facultad de Derecho de la Universidad Autónoma de San Luís Potosí, México, p.85.
7 For further information on the number of evictions carried out in the country the last few years, cf. : Balduino, Tomás, “Brasil: héroes y víctimas de la antireforma agraria”, April 12, 2007, ALAI, available online: alainet.org/active/16833&lang=es. The Comisión Pastoral de la Tierra (CPT) also publishes annual reports online: www.cptnacional.org.br/
8 A document published by the MST National Secretariat in 2004 states: “MST has been struggling, for these last 20 years, by putting pressure on the government, the Brazilian State, to comply with the Constitution and carry out a land reform. (…) The rich people in our country, as usual, seek to defend their privileges, even by using the law. They do not, really, defend rights. They defend privilege: land concentration, land income, wealth (…). The only solution left for por people is to organise to defend their own livelihood”. Secretaria Nacional do MST, Legitimidade das ocupações - O MST e a lei, April 20, 2004. Online: lists.peacelink.it/latina/msg05226.html
9 Reis Porto, Luciano, “El poder judicial y los conflictos agrarios en Brasil”, Op. Cit., p. 86
10 According to CPT data in the publication Conflictos en el Campo: “in 2006 there were 917 jailings for land conflicts; this figure reveals, to a certain extent, the high level of criminalisation of the struggle for land reform in Brazil. In addition to the jailings, the State’s repression has been biased against the crimes committed against the landless peasants. The CPT highlights, for instance, that between 1986 and 2006, over 1700 landless peasants were assassinated. For this total there were only 86 trials and merely 7 convictions”. Ibídem, p.67.
11 The full text of the ruling is available online: www.fian.org/fileadmin/media/publications/Brasil4.pdf
12 The full text of the ruling is available online at: www.fian.org/fileadmin/media/publications/Brasil5.pdf
Balduino, Tomás, Brasil: héroes y víctimas de la antireforma agraria, 12 avril 2007, ALAI : alainet.org/active/16833&lang=es
Charte mondiale pour le droit à la Ville (en espagnol) : www.hic-al.org/derecho.cfm?base=2&pag=derechociudad2
Commission pastorla de la Terre - Rapports annuels (en portugais) : www.cptnacional.org.br/
Déclaration des droits des paysans et des paysannes (en espagnol) : viacampesina.net/downloads/PDF/SP-3.pdf
Diaz Varella, Marcelo, Introdução ao direito à reforma agrária: o direito face aos novos conflitos sociais, Leme-SP, LED Editora de Direito Ltda, 1998.
Reis Porto, Luciano, « El poder judicial y los conflictos agrarios en Brasil », Revista de Derechos Humanos y Estudios Sociales, Année I, N° 1, janvier-juin 2009, Faculté de Droit de l’Université Autonome de San Luís Potosí, Mexique.
Secrétariat national du MST, Legitimidade das ocupações - O MST e a lei, 20 avril 2004, lists.peacelink.it/latina/msg05226.html