Decision on the time frame in the STF may weaken Congress

The definition of how the demarcation of indigenous lands in Brazil will take place is still pending, pending at the same time in Congress and in the Federal Supreme Court (STF). The government of President Luiz Inácio Lula da Silva (PT) is maneuvering to delay discussion of the matter in the Senate, with the hope of gaining time for the Supreme Court to decide to end the time frame and facilitate the demarcation of more indigenous lands in Brazil.

This decision is important both for agribusiness and for small producers and residents of rural areas. The time frame says that indigenous peoples have rights over the lands on which they were settled at the time of the enactment of the 1988 Constitution.

But part of the indigenous people and the Lula government do not want this rule, as they hope to increase the number of demarcated indigenous lands. Today, each Brazilian indigenous person already has the right to an area equivalent to 99 football fields and the idea of ​​the PT administration is to increase this “right” even more.

In Congress, the topic is being discussed in a bill that has already passed the Chamber and is in the Senate. At the STF, ministers are analyzing a specific process of ownership of an area in Santa Catarina, which could become case law and guide all future decisions on the subject.

The Lula government has some strategies to deal with the bill in Congress, while buying time for the STF to make its decision. The first is to get the bill through as many committees as possible. Then, if approved, you can still use the presidential veto. But if the veto is overturned by deputies and senators and the project is enacted by Congress, the left can still challenge the legality of the measure in the Supreme Court through a Direct Unconstitutionality Action (Adin).

Temporal framework was approved by the House and is being analyzed in the Senate

In May, the Chamber approved Bill 490/2007, which deals with the time frame, and the text went to the Senate, where it gained a new number: PL 2,903/23. There, a report by Senator Soraya Thronicke (Podemos-MS) on the proposition was approved by the Agriculture and Agrarian Reform Commission (CRA).

Now, senators are preparing to analyze the report by senator Marcos Rogério (PL-RO) at the Constitution and Justice Commission (CCJ). The rapporteur must speak in favor of the time frame. He has the support of the Agricultural Parliamentary Front (FPA) to ensure the approval of his report. The front has the support of 50 of the 81 senators.

“At CCJ it is a new environment for discussion. I have already started work on preparing the report, I spoke with members of the FPA, with former minister Tereza Cristina and also with the government leader. We are pressed for time, as there is very strong pressure on the Senate, as this matter is also being dealt with in the STF”, said the senator.

In the STF, the voting score is 4 to 2 against the time frame

At the Supreme Court, the judgment score so far registers four votes against the timeframe (from ministers Edson Fachin, Alexandre de Moraes, Cristiano Zanin and Luís Roberto Barroso) and two in favor (from ministers Kassio Nunes Marques and André Mendonça). Therefore, the majority has not yet been formed, as there are five votes remaining to conclude the analysis of this issue.

After the most recent votes of the ministers of the STF on the time frame, the president of the FPA, deputy Pedro Lupion (PP-PR), reaffirmed the appeal of the Brazilian agro for the approval of the time frame.

“We fear the expropriation of land in Brazil, which violates essential clauses of our Constitution. We hope that the remaining ministers opt for a sensible decision, which considers the entirety of Brazilian society. The time frame is a matter of justice for all Brazilians”, said Lupion via social media.

Government acts to lengthen debates on the time frame in the Senate

The time frame bill needed 16 years of debates to be approved in the Chamber of Deputies. Received in the Senate on June 1, the proposal was distributed for analysis by the Agriculture and Agrarian Reform Committee and the Constitution and Justice Committee. After this stage, it will be debated and voted on by the plenary.

Senators in favor of the time frame sought the presentation of an urgency request, which would cause the PL to be voted directly in plenary, without going through the committees.

However, the president of the Senate, Rodrigo Pacheco (PSD-MG), was with the Minister of Indigenous Peoples, Sonia Guajajara, even before the vote in the Chamber of Deputies, on May 30. In an interview with the press after the meeting, he signaled that the appreciation in the House will follow the normal rite, with “caution” and “prudence”.

In an attempt to block the processing of the bill until the STF decides on the case, supporters of the government in Congress sought alternatives to postpone the decision-making process in the Senate.

According to Pacheco, the Minister of Institutional Relations, Alexandre Padilha, would have requested that the analysis of the matter also be carried out by the Human Rights Commission (CDH) or the Environment Commission (CMA). But that hasn’t been decided yet.

In a press interview, however, the president of the Senate suggested that the procedure should not be changed. “At first, [o projeto vai para as Comissões de] Agriculture and Constitution and Justice. It’s a very typical topic for CCJ, and I hope she can deliver the best text possible regarding this topic. The deliberation made by the General Secretariat of the Board was for these two committees and the Plenary. To pass another commission, there needs to be a majority with this understanding. We can consider it, but obviously this is a majority exercise”, stated Pacheco.

Despite the caution with which the Senate president has dealt with the issue, the rapporteur for the bill at the CCJ, Marcos Rogério, said he was committed to approving it as quickly as possible.

“We are committed to making this matter go to the Senate for a vote, and if it is approved, it will be sanctioned. […] Our effort is to avoid changes that make the matter return to the Chamber, but this will obviously depend on the group of senators. Our effort is to move as quickly as possible”, stated the rapporteur of the matter.

Decision on the timeframe would have to be made by Congress, which represents the people

A scenario of uncertainty involves the possible definitions of the time frame for the demarcation of indigenous lands. Analysts’ assessment shows that this is a very complex issue, although they understand that the legislation formulated by the National Congress must prevail.

The lawyer specializing in Agrarian Law from the Federal University of Goiás (UFG) Rudy Ferraz said he believes in independence and harmony between the Judiciary and Legislative powers. “I think it’s important to say that the powers are harmonious and independent. The vision that each person has of a situation deserves due respect given the responsibilities that the Constitution assigned to each person. However, it is important to emphasize that polysemous norms [múltiplas]as a rule, depend on greater deference to the Legislature, since it is the representative of the people and definer of public policies”, said Ferraz.

Scenarios in the Senate are Lula’s veto and judicial appeal

Responsible for public relations for the Movement for the Defense of Property, Dignity and Social Justice (DPD), lawyer Carlos Zimmer evaluates the issue from the point of view of small producers in the west of Santa Catarina, who for at least 20 years have lived in legal uncertainty caused by uncertainty about the time frame. He highlights the main scenarios, considering the possibility of Lula’s veto, if the text passes in the Senate, and also the possible challenge to the constitutionality of the bill through Adin in the STF.

“Firstly, the bill has not yet been approved in Congress. If approved, it could be vetoed by the president, which we think is very likely. Afterwards, Congress can still override the veto. By overturning the veto, or, in a more unlikely scenario, as long as there is no veto, political parties can file an Adin with the STF arguing that this is a constitutional matter, which should not be dealt with by law but rather by means of a proposed amendment. constitutional (PEC)”, points out Zimmer.

For lawyer Rudy Ferraz, the approval of the bill will bring a new element to the case. “We have to verify that the STF is not analyzing the bill. The Court is analyzing a specific case that came before the Court, at which point an interpretation of art will be defined. 231 of the Constitution of the Republic. With Congress enacting a law on the issue, the STF will analyze the issue with a new element, namely, the legislator’s statement on its interpretation of art. 231 of the Constitution”, said Ferraz.

Zimmer reinforces Ferraz’s understanding. “We believe that Congress must take a position to signal to the STF what the understanding of the [Parlamento] Brazilian [em relação ao marco temporal]. I’m just saying that this law has some weaknesses, because it can be questioned. I understand that this should be resolved at the Legislative level. Congress makes the laws and the STF interprets them”, highlighted the representative of the Movement for the Defense of Property, Dignity and Social Justice.