News-Letter Nr. 566

Unconstitutional amendment will once again be voted on in the Senate

Constitution Amendment bill n. 38, proposed by senator Mozarildo Cavalcante (PPS-state of Roraima), will once again be included in the list of bills to be voted on at the Federal Senate on the 11th of this month, although it was condemned by an anthropologist, a jurist, and political leaders.

This Constitutional Amendment Bill (PEC), the purpose of which is to restrict the combined size of indigenous territories and conservation units to 50 % of the surface of each unit of the federation and to transfer the responsibility for approving the demarcation of indigenous lands to the Federal Senate, was considered unconstitutional, as suggested by different statements about it.

The leader of the Government in the Senate, senator Alo¡sio Mercadante (Workers' Party - state of São Paulo) rejected the bill. At a hearing with Kayapó, Xavante, Pankararu, Tupinambá, Fulni-ô and Maxakali leaders and with senators João Capiberibe (Brazilian Socialist Party - state of Amapá), Fátima Cleide (Workers' Party - state of Rondônia) and Sib Machado (Workers' Party - state of Acre) held yesterday (the 4th), Mercadante stressed that "the government does not support this Constitutional Amendment Bill; therefore, I don't think it will be passed."

A bill like this one, which runs counter to the rights of indigenous peoples, should not be voted on for the third time by the Senate of a government that has assumed a clear commitment to defend the rights of indigenous peoples, added representative Luiz Eduardo Greenhalgh, chairman of the Constitution, Justice and Citizenship Rights Committee. "I hope that the government will vote against it and that this bill will be eliminated from the Senate once and for all," he said.

The jurist and professor Dalmo Dallari analyzed the bill from two points of view that he considers important. The first one is the point of view of its constitutionality. In his opinion, bills that tend to restrict individual rights and guarantees cannot be the object of constitutional deliberations, according to article 60 of the Constitution. "This amendment falls under this category. If it is passed, the Supreme Court can be asked to annul it on grounds of unconstitutionality," he explained. The second aspect addressed by Dallari is the aspect of convenience, in relation to which he made two points. The first one is related to the preservation of the environment. "Since ancient times, indigenous people have been known as important preservers of the environment," he said. According to him, taking lands away from indigenous people and giving them to national and multinational mining and timber companies will surely lead to the destruction of nature. "Miners throw mercury into the rivers, which destroys all forms of life in them, and indigenous people never do that, while the extraction of timber will lead to the destruction of the Amazon forest. For this reason, it is important for Brazil that indigenous people keep their land," he said. The second point made by the professor is related to the defense of the Brazilian borders. "It is a confirmed fact that indigenous people defend our borders better than the Army. Therefore, for legal reasons and as a matter of convenience, this bill should not be passed, as its passage would lead to a massacre of indigenous people and would run counter to Brazilian interests; in the broadest sense, it would run counter to the interests of humankind, as it would lead to serious acts of aggression against the environment," he stressed.

The professor concluded his analysis by saying that there is no justification for using a Constitutional Amendment Bill to ensure individual benefits. "A Constitutional Amendment Bill should not be used as an instrument aimed at ensuring economic benefits to half a dozen people without any ethic commitments involved, causing serious damage to the Brazilian population," he said.

João Pacheco, an anthropologist and titular professor at the National Museum, said that the arguments in favor of the bill are mistaken and biased in two ways. First, they are based on the arbitrary recognition of rights provided for in the Federal Constitution. "An indigenous area is not defined by its proportion in relation to the size of the unit of the federation in which it is located, but rather by the fact that it is a land traditionally occupied by indigenous people and is necessary for the physical and cultural survival of the indigenous communities socially gathered in it," Pacheco said.

Second, they suggest that indigenous lands are excessively large and that their size should be limited. According to him, indigenous lands are not at all excessively large or privileged. "In most Brazilian states, including in the northeast, east and south regions, from the states of Rio Grande do Sul to Ceará, indigenous areas cover fractions of only a few thousandths of the land available in them. The indigenous people who live in those regions are poor and confined to small areas characterized by degraded environmental conditions. If indigenous people and conservation units occupy larger areas in the states located in the Amazon region, this is due to historical factors that led to a stronger indigenous presence in them in demographic terms, as well as to a better preservation of their biodiversity."

The professor believes that instead of incorporating positive aspects into the environmental policy developed by the Brazilian Government in the last 10 years, the Constitutional Amendment Bill in question is based on the outdated notion that economic progress cannot walk hand in hand with sustainable development programs. If passed, Brazil would be adopting a position that is completely out of tune with all modern concepts of territorial occupation and use of natural resources. "This bill aligns the Brazilian policy with the most conservative thoughts in relation to the environment," he said. "Because it assumes that development is synonymous with devastation, the Constitutional Amendment Bill is asking legislators to impose a preposterous and draconian limit (50%!) on the combined size of indigenous areas and conservation units that will stimulate the destruction of the environment," he concluded.

Marilena Chau¡, a philosophy professor of the University of São Paulo who addresses the evolution of indigenous issues in her cultural studies and reflections was emphatic: "The only thing I can say is that this bill is just another aberration. I am against it and it should not be allowed to be passed."

Cimi reaffirms its position that this bill runs counter to the constitutional rights of indigenous peoples.

Brasília, 05 June 2003.
Cimi - Indianist Missionary Council

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