Constitutional Authority: Legality of Land Occupations


Brazil has one of the largest wealth gaps thoughout Latin America and the world. Approximately half of all the country's farmland is owned by 1% of the population. [BBC article- Brazil Landless Visit President--Jersey Devil 01:31, 22 May 2005 (UTC)] The Brazilian constitution challenges notions of private property rights by assigning to all land a social function. [Article 5, Section
XXIII.] The constitution requires the Brazilian government "to expropriate for the purpose of agrarian reform, rural property that is not performing its social function." [Article 184.]

According to Article 186 of the constitution, the social function is performed when rural propery simulatneously meets . . . the following requirements: (1) rational and adequate use; (2) adequate use of available natural resources and presearvation of the environment; (3) complaince with the provisions which regulate labor relations; and (4) exploitation which favors the well-being of the owners and workers."

The MST identifies unproductive rural land that it does not believe is meeting its social function and occupies it to remind the federal government of its constitutional responsibility. Upon occupation, a legal process commences to expropriate the land and grant title to the landless workers. The MST is represented in these activies by public interest legal counsel, including such organizations as Terra de Direitos, a non-profit legal practice co-founded by Darci Frigo, the
2001 Robert F. Kennedy Memorial Human Rights Award Laureate. The landowners generally petition the court to evict the families.

Sometimes the Court's require the families to leave. Other times, Courts refuse the landowners' request and allow the families to stayand engage in subsistence farming until the federal agency responsible for agrarian reform, INCRA, is able to determine if the occupied property is, indeed, unproductive.

For example, in August of 1999, Chief Judge Rui overruled the decision of a trial court granting a landowner's petition to evict the MST off his property. The Court reasoned: Before applying a law, the judge must consider the social aspects of the case: the laws repercussions, its legitimacy and the clash of intersts in tension. The [MST] are landless workers [that] want to plant a product that feeds and enriches Brazil in this world so globalized and hungry. But Brazil turns its back. The
executive deflects money to the banks. The Legislature . . . wants to make laws to forgive the debts of the large farmers. The press accuses the MST of violence. The landless, in spite of all this, have hope . .. that they can plant and harvest with their hands. For this they pray and sing. The Federal Constituion and Article 5 . . . offers interpretive space in favor of the MST. The pressure of the MST is legitimate. [I]n the terms of paragraph 23 of Article 5 of the Federal
Constition [that land shall attend it social function], I suspended [the eviction.] (Decision #70000092288, Portanova, Porto Aglegre) The expropriation process can take years and is sometimes accompanied by violence as fazendeiros hire gunmen to intimidate, and not infrequently kill, members of the MST.