On May, 22 2012 the Brazilian Congress approved Constitutional amendment 438 (PEC 438) which authorized the immediate expropriation of properties without compensation where “the government's inspectors prove the existence of slave labor or similar forms of exploitation of manpower in certain properties, whether rural or urban (1).” I argue that the most important result of this amendment was its broadening of the concept of conditional private property rights pursuant to adherence to social land conditions. The Brazilian constitution, in article 5 sections 23, assigns a social function to all land (2). The social function of all land is defined by two requirements, enumerated in Article 186: First land use must be in compliance with labor regulation provisions; and second, land exploitation must favor the well-being of both land owners and workers (3). Consequently any form of slave labor would violate these two conditions for lands social functions and must therefore be redressed. Yet prior to PEC 438, Article 184 and 186 only enumerated procedures for expropriation of agrarian lands that don’t meet the social function conditions. PEC 438 broadens the constitutionally enumerated expropriation procedures to include urban lands and factories that are charged with using sweatshop slave practices. PEC 438 is therefore a major amendment because it broadens the powers granted the government to expropriate privately held lands, beyond the limited scope agrarian lands. This results in a much broader understanding of conditional private property rights that includes agricultural as well as urban/industrial lands whose ownership is predicated on the landowner’s adherence to the social land functions.
PEC 438 has been framed as a humanitarian/civil rights amendment, necessitated by the 155, 300 Brazilian domiciles trapped in modern slavery practices- defined as “possession or controlling a person in such as a way as to significantly deprive that person of their individual liberty, with the intention of exploiting that person through their use, management, profit, transfer or disposal (4)” PEC 438 was first proposed in 1995 by Deputy Paulo Rocha of the Bahia Workers Party. It was delayed 37 times for “modifications” at the urging of the Brazilian agribusiness sector which decried that amendment as regressive for the Brazilian manufacturing and agricultural sectors (5). Proponents of the amendment argued that current practices of modern day slavery are in violation with the Brazilian constitutions preamble which guarantee free “exercise of social and individual rights, liberty, security, well-being, development, equality and justice. (6)” And were in further violation articles 5 and 186 which stipulate that the social functions of land prevent the enslavement of domiciles (7). Eventually the amendment passed in both houses with only 55 No’s, abstentions, or obstructions (8).
The Brazilian constitution is comprised of 250 articles which enumerate the right for all Brazilian domiciles. As we discussed in class, this specificity makes constitutional amendments similar to normal laws rather than general will. This in turn has resulted in the constitution being amended 77 times since its ratification (9). Being similar to normal laws, it could have been possible to address the issue of modern day slavery through the legislature, but it would have been challenged in the court. Due to the constitutions specificity, Article 184 only enumerates agrarian land for expropriation. Any legislation seeking to seize non-agricultural lands would be challenged on the basis that such rights have not been granted to the government in the constitution. PEC 438 enumerates that the government is authorized to seize both agrarian and urban/manufacturing lands if they don’t adhere to social land functions, eliminating potential challenges in the courts.
PEC 438 has been framed as a humanitarian/civil rights amendment, necessitated by the 155, 300 Brazilian domiciles trapped in modern slavery practices- defined as “possession or controlling a person in such as a way as to significantly deprive that person of their individual liberty, with the intention of exploiting that person through their use, management, profit, transfer or disposal (4)” PEC 438 was first proposed in 1995 by Deputy Paulo Rocha of the Bahia Workers Party. It was delayed 37 times for “modifications” at the urging of the Brazilian agribusiness sector which decried that amendment as regressive for the Brazilian manufacturing and agricultural sectors (5). Proponents of the amendment argued that current practices of modern day slavery are in violation with the Brazilian constitutions preamble which guarantee free “exercise of social and individual rights, liberty, security, well-being, development, equality and justice. (6)” And were in further violation articles 5 and 186 which stipulate that the social functions of land prevent the enslavement of domiciles (7). Eventually the amendment passed in both houses with only 55 No’s, abstentions, or obstructions (8).
The Brazilian constitution is comprised of 250 articles which enumerate the right for all Brazilian domiciles. As we discussed in class, this specificity makes constitutional amendments similar to normal laws rather than general will. This in turn has resulted in the constitution being amended 77 times since its ratification (9). Being similar to normal laws, it could have been possible to address the issue of modern day slavery through the legislature, but it would have been challenged in the court. Due to the constitutions specificity, Article 184 only enumerates agrarian land for expropriation. Any legislation seeking to seize non-agricultural lands would be challenged on the basis that such rights have not been granted to the government in the constitution. PEC 438 enumerates that the government is authorized to seize both agrarian and urban/manufacturing lands if they don’t adhere to social land functions, eliminating potential challenges in the courts.
1. PEC 438
2. Brazilian Constitution: Art 5. Sec XXIII
3. Brazilian Constitution: Art 186
4. Global Slavery Index 2012 Report
5."Even under Pressure, Slave Labor PEC Is Passed in the House." Rede Brasil Atual. N.p., n.d. Web.
6. Brazilian Constitution: Preamble
7."Even under Pressure, Slave Labor PEC Is Passed in the House." Rede Brasil Atual. N.p., n.d. Web.
8."Brazil: Expropriation Approved for Slave Labor Properties · Global Voices." Global Voices Overall RSS 20. N.p., n.d. Web. 20 Nov. 2014.
8."Brazil: Expropriation Approved for Slave Labor Properties · Global Voices." Global Voices Overall RSS 20. N.p., n.d. Web. 20 Nov. 2014.
9.“Introduction to the Brazilian Constitution.” http://thebrazilbusiness.com/article/introduction-to-the-brazilian-constitution 4. “Constitution of Brazil.” http://www.v-Brazil.com/government/laws/laws.html
Brendan Barnes
ReplyDeleteThe recently passed constitutional amendment to which Vishal refers (PEC 438) was not easily approved. The process was hotly contested by those representing slave exploiting business/plantation owners and as a result, the amendment process took nearly two decades. Despite this opposition, the use of slave labor in Brazil was/is a formidable issue that stood in glaring contradiction to the just and equal society envisioned in the preamble of the Brazilian constitution. This contradiction spurred a social/humanitarian movement in support of PEC 438 that arguably is responsible for the amendment’s approval. “On May 8, 2012, hundreds of people gathered at the Chamber’s auditorium in support of PEC 438 (this included rural workers, social movements, labor federations, artists and intellectuals) and delivered a petition with nearly 60,000 signatures to the President of the Chamber of Deputies Marco Maia”(1). This social movement exerted pressure on lawmakers involved in the amendment process. For example, “the murder of several officials working for the Ministry of Labor in 2004 generated public outcry and caused the bill to pass first round of votes in the Chamber that year”(2).
Though this social pressure helped the amendment to pass, its long-term effectiveness in reducing and eventually eliminating slave labor is still in question. Those who oppose the amendment have argued against the current definition of slave labor so as “to create a legal void in this definition in order to reduce the threat of confiscation” (3). “Thus, the approval of PEC 438 would become a window of opportunity to mischaracterize what contemporary slavery is” (4). In order to ensure the ultimate efficacy of this amendment, supporters of PEC 438 must protect the current definition of slave labor against vehement opposition.
(1)/(2) Reporter Brasil. http://reporterbrasil.org.br/2014/06/congress-approves-expropriation-of-property-found-with-slaves/
(3) IPS News. http://www.ipsnews.net/2012/06/brazil-takes-steps-to-confiscate-property-of-landowners-using-slave-labour/
(4) Reporter Brasil. http://reporterbrasil.org.br/2014/06/congress-approves-expropriation-of-property-found-with-slaves/
PEC 438 is an important amendment to the Brazilian constitution in regards to keeping with the preamble, which clearly lays out Brazil’s intention as a modern state to guarantee basic human rights and equality to the citizenry. Vishal makes an excellent point in arguing why PEC 438 was necessary to exist as a constitutional amendment and not merely a piece of legislation, as the Brazilian constitution does not give the government the power of expropriation of non-agrarian lands.
ReplyDeleteTo answer the question, this amendment was to combat a certain vagueness of the Brazilian constitution. As Vishal notes, the Brazilian constitution has been amended 77 times since its ratification in 1988. That adds up to just over 3 amendments a year. Dick Howard, a professor at the University of Virginia, is noted as a critic of Brazil’s constitution in The Endurance of Constitutions, stating that “Excessive length and detail in a constitution invites frequent amendment and early obsolescence.”1 It would seem that Professor Howard is not incorrect in this evaluation of Brazil’s constitution when looking at the numbers.
Furthermore, another important and recent amendment to the Brazilian constitution is Constitutional Amendment 45, passed December 8th, 2004. This amendment made changes to the Brazilian judiciary branch, which had been plagued by corruption and inefficiency.2 In particular, it has been noted that a particular aspect of this constitution is the importance of Brazil’s international human rights obligations.3 The amendment is important not only in making the judiciary more efficient, but in gaining back public opinion in favor of the Brazilian judicial system, as prior to the amendment, the populace felt the judiciary was “out of touch”.4 Public support of the judicial system is crucial for a state to maintain control. Without public faith in the judiciary or the constitution, it would be difficult to imagine Brazil retaining political stability.
1. Elkins, Ginsburg, Melton. Endurance of National Constitutions. pg. 84
2. http://www.v-brazil.com/government/laws/recent-amendments.html
3.http://www.refworld.org/pdfid/48a57efe0.pdf
4. Ibid
On February 14, 2006, the Brazilian government passed constitutional amendment 50 and in the process, amended article 57 (1). This amendment shortened the number of vacation days Congressmen receive, from 92 to 75. In addition, when Congress meets during vacation for special occasions, they will no longer receive extra pay; instead, they will only receive their typical month's salary (1). Amendment 50 changed the political institutions by limiting the benefits that Congress obtains. This amendment was a public relations move in response to the Mensalão scandal.
ReplyDeleteThe Mensalão scandal was when officials, between 2003 and 2005, from the Workers' Party gave public funds each month to politicians from coalition parties in order to receive their political support (2). In addition, public funds were also used to pay off debts from the party's election campaigns (2). As a result, 25 politicians were convicted, including senior members (2). Jose Dirceu, President Lula's chief of staff and the alleged mastermind, resigned and was impeached while receiving a 10 year and 10 month sentence in jail (2).
The scandal got the name Mensalão because it translates to "big monthly", as in the big monthly allowance politicians from coalition parties were given (2). In turn, amendment 50 felt pressure from the public to cut some allowances from Congress as a form of justice. However, this amendment will simply be considered an action to improve Congress' image and nothing more. With this amendment, Congress members still have 75 vacation days and get 3 extra monthly salaries during the year (1). Moreover, Congress only votes from Tuesday to Thursday, so Congressmen can have 4 day weekends from Friday to Monday and not get penalized (1). In turn, Congress still enjoys lavish benefits despite amendment 50. Moreover, it shows that the Brazilian government is still young and improving on ridding itself of corrupt.
Unlike the United States who practices common law, Brazil follows civil law. Common law is when institutions use past precedents and judicial rulings to decide court cases (3). However, civil law is when institutions follow a specific statute or ordinance, such as a constitution in Brazil's instance, to decide court cases (3). Because Brazil relies heavily on its constitution to make decisions, it must always keep its constitution relevant and updated. Thus, since Brazil's new constitution in 1988, Brazil has had 77 amendments (4) while the United States has had only 27 amendments despite being enacted approximately 100 years earlier.
1. Brazil Constitution. http://www.v-brazil.com/government/laws/recent-amendments.html
2. Q&A: Brazil's 'big monthly' corruption trial. http://www.bbc.com/news/world-latin-america-19081519
3. Civil Law vs. Common Law http://www.diffen.com/difference/Civil_Law_vs_Common_Law
4. Introduction to the Brazilian government http://thebrazilbusiness.com/article/introduction-to-the-brazilian-constitution
ReplyDeleteMy group members thoroughly analyzed PEC 438 and I would agree with them and commend Vishal on his choice because I think it is a major amendment to the Brazilian constitution because it granted more central power to the executive branch in order to end the slavery institution that vehemently contradicted the promise of social equality, rights, liberty, and well being that is found in the preamble (1)(2)
I would like to add to Zach's analysis of Amendment 45 to give a little more context and information surrounding its ratification. One reason it is considered a major amendment is because it had effect on or altered 27 articles and created four new ones (3). One of the major changes that this amendment included was the creation of the National Court Of Justice, which received new responsibilities previously held by other Brazilian courts. The NCOJ has the objective of exercising administrative control over the Judiciary and planning and coordinating joint actions between the courts. It also has features to minimize corruption of judges allowing the review of decisions by the NCOJ although it cannot remove them from office (4).
Regarding the specificity of this amendment, I wouldn't call it vague, but it takes measures to solve a vague problem which is judicial corruption. Solving a vague problem with specific targeted amendments is a good strategy, but amendment 45 almost makes the Brazilian judiciary too complex. Overall the Brazilian constitution is known to be specific, Amendment 49 for example requires one to get permission by the Union to handle radioisotopes rather than getting permission or 'concession' by the union (3). Comparatively, amendment 45 is extremely broad and impactful, although I question the efficiency of the addition of more institutions to a judicial system.
1."Brazil: Expropriation Approved for Slave Labor Properties · Global Voices." Global Voices Overall RSS 20. N.p., n.d. Web. 20 Nov. 2014.
2. PEC 438
3. http://www.v-brazil.com/government/laws/recent-amendments.html
4 .http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402985_text