Abusive Legalism Against Indigenous Minorities: Challenges of the Marco Temporal II Case before the Brazilian Supreme Court

—Ranieri L Resende, Postdoctoral Researcher, Federal University of Rio de Janeiro (UFRJ)[1]

Soon after celebrating a historic victory before the Supreme Court in the Marco Temporal I case, which held that the date of promulgation of the Constitution could not be used as the mandatory date for the demarcation of indigenous lands, Brazilian indigenous peoples have to fight another (unfair) battle. This time, their lethal enemy is the Statute named the Law of Marco Temporal, which was approved through an expedited regime by the National Parliament, which ignores the prior decision of the Supreme Court, and which constitutes a textbook example of abusive legalism against indigenous minorities. The urgent question is: What will the Brazilian Supreme Court do with its own precedent from the Marco Temporal I case in the Marco Temporal II case against this new Statute?

The Strategy of Abusive Legalism

With great sorrow, I received the sad news about the passing of Alvin Y.H. Cheung (1986-2024), a young professor and researcher of Public Law, with whom I had the reflective opportunity to converse at New York University during the academic year 2017-2018. The remembrance of Cheung reignited my interest in his innovative doctoral research centered on the paradigm of “Abusive Legalism”.  

Prof. Cheung investigated the concrete effects of abusive legalism as a political-normative strategy applied in Hong Kong after its reintegration into the Chinese State, through the imperative aggregation of local institutions, as well as the structural modification of legal arrangements entitled by the HK population, with degenerative consequences for fundamental freedoms (Cheung 2021).

In this sense, the concept of abusive legalism seems consistent with the use of the sub-constitutional (ordinary) law, formally connected to the Rule of Law as a strategy to avoid negative scrutiny, but which via daily practice aimed at consolidating substantially autocratic programs (Cheung 2018).

Revisiting my notes on Cheung’s thought-provoking participation in the JSD Forum (NYU 2017), one observation came out in connection with the systematic practices of legal concessions to a specific group in electoral authoritarian regimes, in comparison with the discriminatory treatment against minorities and groups of political opposition. 

Even admitting that electoral authoritarian regimes do not intend to cede the control of the State, in spite of the adoption of regular elections to legislative or other political offices (Smyth, Bianco & Chan 2019), it seems appropriate to ask if the theoretical perspective of abusive legalism is able to help us better understand some phenomena in democratic regimes.

In this regard, an intriguing test might be applied to the facts surrounding the Marco Temporal I & II cases before the Brazilian Supreme Court (STF).  

The Marco Temporal I & II Cases

In the end of a long decision-making process, during almost five years between the admission of the general repercussion and the final decision on merits (2019-2024), the STF established the constitutional thesis against the viability of fixing the date of the promulgation of the National Constitution (Oct. 5, 1988) as the mandatory temporal landmark for the demarcation of indigenous lands in Brazil.

In its precedent extracted from the Marco Temporal I case, the Brazilian Supreme Court concluded that “the constitutional protection of aboriginal rights to the lands traditionally occupied [by indigenous peoples] does not require the existence of a temporal landmark on 5 October 1988” (RE-1.017.365 2024).

This decision was positively recognized by several international human rights institutions, such as the Office of the UN High Commissioner for Human Rights (UN 2023) and the Inter-American Commission on Human Rights (OAS 2023), in order to congratulate the adoption of the judicial interpretation which provides the widest protection to indigenous rights. 

Before the official publication of the full decision, however, the National Parliament approved the Bill on Marco Temporal under an expedited regime, and rejected several executive vetoes to quickly enact Federal Law No. 14.701 (2023).

The new Statute establishes that “the absence of the indigenous community on 5 October 1988 in the respective area withdraws its classification” as permanent indigenous land (Art. 4.2); furthermore, it states that “the cessation of the indigenous possession before 5 October 1988, regardless of the cause, makes impossible the recognition of the respective area as traditionally occupied” (Art. 4.4).

Hence, the novel legislation generates a direct, immediate conflict with the constitutional judicial precedent expressed in the Theme of General Repercussion No. 1031/STF (Marco Temporal I case), by means of performing the superimposition of the majority represented by the Parliamentary will in relation to the indigenous minority affected, which had been substantially protected by the Brazilian Supreme Court’s decision.

Considering this normative contradiction, several constitutional actions were filed in the Brazilian Supreme Court (e.g., ADO-86, ADC-87, ADI’s-7582, 7583, 7586), whose claims focused on the legal efficacy and validity of the Law No. 14.701 (2023) – Marco Temporal II case –.

Under his unified rapporteurship, Justice Gilmar Mendes decided to suspend nationwide all judicial cases centered on the constitutionality of the Law of Marco Temporal and, simultaneously, to submit those specific constitutional actions to “an open, dialogic judicial model of dispute resolution, through the collaborative judicial governance” (ADC-87 2024).

Based on the premises of our previous work (Resende & Vieira 2016), some critical remarks seem necessary regarding the overly broad application of the method of dialogic judicial review to the Brazilian case.

Limits to the Dialogic Judicial Model: The Human Rights of Minorities

From the political perspective, an absolute conception of democracy may convert itself in a trap for minorities, especially when the applicability of the rule of majority is not followed by the respective constitutional mechanisms of protection, without the effective promotion of plurality and pluralism (Ely 1980).

In this sense, the counter-majoritarian performance of the Judiciary shall prevent eventual scenarios of suppression of minorities (Bickel 1986), aiming at readjusting immoderate political tensions produced by the majority. Accordingly, the Judicial Branch must not support or confirm violations of human rights of minorities, which should be protected by the force of its structuring constitutional functions.

We cannot afford to reject the relevant approaches provided by the dialogic judicial review concerning the paradigm of democratic constitutionalism, in order to seek to harmonize the Courts’ institutional advantages with due attention to the political will centered in the Legislature (Tushnet 2008). These patterns, however, must be guided by very distinct limitations when minorities are concerned.

In this sense, the Canadian experience reveals important elements in its Charter of Rights and Freedoms of 1982. As a constitutional norm, the Charter states in its Section 33 the Notwithstanding Clause, which authorizes the National or Provincial Parliament to maintain, up to five years, the provisional efficacy of the statutory law assumed unconstitutional by the Judiciary.

In spite of its abstract virtues in favor of a possible balance between democracy and judicial review, there are some substantive normative restrictions to the adoption of Section 33 by the Legislature, such as the inadmissibility of its application when fundamental rights of aboriginal peoples are at stake (Kahana 2023).

In a recent precedent (Dickson v. Vuntut Gwitchin First Nation 2024), the Supreme Court of Canada recognized that the rights and freedoms of indigenous peoples (Section 25) are protected even against eventual conflict with other individual rights and freedoms set forth by the same Charter (1982), pursuant to the UN Declaration on the Rights of Indigenous Peoples (2007), especially Article 34.

Following these premises, we are compelled to admit the existence of some risks caused by a far-fetched adoption of the method of dialogic judicial review in the Marco Temporal II case, particularly when indigenous minorities are not able to counteract the real, operative political forces through their effective participation in the constitutional debate.

A bizarre episode illustrates the highly contradictory situation in the case’s proceedings, in which the owner of a large farm, where a young indigenous man was recently killed, was appointed by political parties to join a body of experts before the Brazilian Supreme Court (CB 2024).

Based on this whole context, the most representative entity of indigenous communities in Brazil (APIB) decided to immediately cease its participation in the ongoing conciliatory proceedings before the STF. In her justification, an indigenous leader said: “We will not be subjected to another violence by the Brazilian State, under the premise of a forced conciliation” (Jota 2024).

Conclusion: Precedents Trapped in the Wheel of Fortune

Back to Cheung’s thesis, we can identify some constitutive elements of abusive legalism in the behavior of the national Parliamentary majority when editing the Law of Marco Temporal, e.g.:

(i) strategic use of the sub-constitutional (ordinary) law: urgent approval of the Law No. 14.701 (2023), throughout the expedited regime during the processing of the Bill, in order to initiate its legal force before the publication of the Supreme Court’s final decision (Marco Temporal I case);

(ii) merely procedural connection with the Rule of Law: formal rejection of the executive vetoes to the Bill, in spite of its material contradiction with constitutional judicial precedent (Marco Temporal I case);

(iii) substantially autocratic tendencies: seeking to arbitrarily suppress the land rights of indigenous minorities, as well as to debilitate the respective political opposition.

Consequently, through the indistinct application of the method of dialogic judicial review to the Marco Temporal II case, the Brazilian Supreme Court has not stuck to the basic restrictions linked to the direct, immediate involvement of the human rights of indigenous minorities. In this perspective, the Canadian dialogic constitutional model seems more protective of the country’s First Peoples, as it excludes the indigenous fundamental rights and freedoms from the Notwithstanding Clause (Section 33).

So what’s next? Even if any prognosis sounds unreliable, probably thanks to a broader crisis of judicial review itself (Waldron 2024), the Wheel of Fortune shall continue to spin for some constitutional precedents, including when the urgent protection of minorities is at stake. O Fortuna, velut luna statu variabilis… (Carmina Burana). 

Suggested citation: Ranieri L Resende, Abusive Legalism Against Indigenous Minorities: Challenges of the Marco Temporal II Case before the Brazilian Supreme Court, Int’l J. Const. L. Blog, Oct. 11, 2024, at: http://www.iconnectblog.com/abusive-legalism-against-indigenous-minorities-challenges-of-the-marco-temporal-ii-case-before-the-brazilian-supreme-court/

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[1] Previously, a Visiting Postdoctoral Research Fellow at the Max Planck Institute for Comparative Public Law and International Law (MPIL, 2020) and a Visiting Doctoral Researcher at the New York University School of Law (NYU, 2017-2018). ORCiD: https://orcid.org/0000-0003-4869-7460; Website (acad.): http://www.ranieriresende.com. A preliminary version of this essay was published in the Portuguese language by IberICONnect (2024). This post is in memoriam of Alvin Y.H. Cheung.