Updated to version published on Upside Down World
There’s a new law being debated in Brazil that threatens to undermine the rights and livelihoods of all Indigenous people in this South American nation.
Through twisting the letter and intent of International Labour Organisation convention 169, among other International agreements and National legislation, this law proposes that Brazil perform a state-wide intervention campaign to “save” indigenous children from bad treatment, neglect, abuse, exploitation, and infanticide.
While not as comprehensive as the 700 pages of legislation that embodies the “Australian Intervention” this Brazilian equivalent poses an even greater danger. If legislated, it would allow state forces to enter all indigenous communities on a regular basis; and it would force Indigenous people to police themselves by making them legally obligated to denounce any community member who is or who may be harming children.
If they do not denounce such a person, or if someone is suspected to know something but declined to report it, they would then be punished similarly to those who harmed or may have harmed a child. Punishment would range from fines and incarceration to the state taking away the children or just adopting them out—most likely, to non-indigenous people.
Under the Cloak of Benevolence
As is the case with the Australian Intervention—this law, and the intent of those behind it must be called into question. At first glance, there are five main reasons for this:
1 It quite clearly subverts indigenous rights;
2 It blatantly mischaracterizes the facts to justify the alleged need for an ‘intervention;’
3 It’s entirely discriminatory;
4 It grossly criminalizes all indigenous people;
5 It would have an immeasurable impact on their everyday lives.
It’s also important to note how this law would give the state of Brazil a prime, legal opportunity to incarcerate an entire indigenous community—leaving the land completely open for the state to do with it as they please. If this law becomes legislation, all it would take is for one indigenous person to say “everyone knew.” There wouldn’t even have to be any actual abuse – just the accusation would suffice.
As far as the intent goes, some months ago, Rita Laura Segato, from the Dept. of Anthropology, University of Brasilia, gave a presentation arguing against this the law – where she made it abundantly clear:
[A major concern is] with the gradual growth of punitive and criminalizing dimensions of State action in detriment of other kinds of action. Analysts criticize the fact that, while State agencies seem to concentrate more and more of their responsibilities upon punitive measures, they relegate sine-die other and more vital obligations. This law we came here to argue fits in precisely within this trend, endorsing the much lamented and condemned profile of the punitive State, a State that reduces its performance to the acts of force on and against the peoples whom it should protect and promote.
In his last book, The Enemy in Criminal Law2, the influential Argentine jurist Eugenio Raúl Zaffaroni, today Minister of the Supreme Court, examines the contradiction between the principles of Democracy and the punitive State. Zaffaroni unveils the hidden transcript of the punishing State throughout history and, especially, in the contemporary context. What emerges is that penal juridical discourse unavoidably introduces the idea of an enemy, which unfolds from the category of the hostis in ancient Roman law. While Democracy is supposedly for all, criminal legislation speaks always, in either more hidden or more explicit ways, of the figure of an inimical other, for then to enshrine itself in opposition to it. Though the State belongs to all, it projects (and, as a matter of fact, e-jects), by means of Criminal law discourse, the figure of an other people, to then, as part of the same maneuver, claim it as enemy.
In the case of the law we debate, the enemy in Criminal law is each indigenous people, the radical difference they represent and their right to make their own history. This law criminalizes the village and attempts at punishing the other just for being other. The authors do not stand the possibility of existence of a collectivity that is not a part of them.
As for mischaracterizing the facts, this is expressly done in the author’s primary focus, which is on the abolition of the traditional practice of infanticide. While it’s true that some indigenous cultures still practice this, it’s nowhere near as prevalent as the authors suggest. The simple fact is it’s a dying tradition that only a handful of Indigenous Cultures continue to exercise.
However, even if the practice of infanticide was as wide-spread as they claim, this type of legislation would simply not deter it from happening.
From a Judicial standpoint, Rita explains:
In the article “Truths and lies on the Criminal Justice System”3, sociologist Julita Lemgruber not only discloses the scarce effectiveness of the law among us, but also in the most policed countries of the world. Using quantitative research on Public Security in countries where such research is carried on with regularity, Julita states that in England and in the country of Wales, in the year of 1997
[…] of each one hundred crimes committed in that year, 45,2 were communicated to the police, 24 were registered, 5,5 were solved, 2,2 resulted in conviction and 0,3 ended in punishment by confinement. That is, in England, with a police force well more efficient than ours and a Judiciary much more agile, only 2.2% of offenses resulted in conviction of the criminals and only a trifle parcel of 0,3% of them received punishment by confinement.
Analogous study was carried in the United States in 1994, but considering only violent crimes (homicide, aggression, rape, robbery etc.), therefore crimes more important to investigate, solve and punish. However
[…] in a country with such rigorous criminal legislation as the U.S., the System of Criminal Justice acts as a true funnel, capturing parcels progressively smaller of crimes perpetrated in the society: for 3.900.000 cases of violence occurred in that year, only 143.000 (3.7%) resulted in conviction of authors, being 117.000 (3%) punished with confinement.
In the light of these data, the author characterizes as a “First Lie” the statement that the system of criminal justice can be considered an efficient inhibitor of crime.
Finally, this law would also have an immeasurable effect on the lives and cultures of all Indigenous People: the Ache, Amanyé, Awá, Enawene Nawe, Guaraní, Kayapo, Matsés, Quilombolo, Tupi, and Waorani to name a few.
In the least, it would instill a constant state of fear, mistrust and even paranoia; remove all forms of privacy, and fracture and impede regular life. In the extreme, it could become a catalyst for physical and cultural genocide.
Throughout history, some of the greatest atrocities were committed under the cloak of benevolence. I need only turn to America and say “Pox Blankets”, to Canada and say “Residential Schools”, to Australia and say “Protection Board.”
Sadly, such a list could go on forever because it’s a testament to the abhorrent nature of colonialism. The intervention proposed in this law fits in such a horrible accounting.
Overall, the dangers this intervention poses far exceed any of its real and imagined benefits. In the name of the children, it would act like a chainsaw – the sole purpose of which is it to rip apart Brazil’s social, cultural and genetic rainforest.
It therefore must not become legislation.
· Read the proposed law in Spanish (pdf) or English (pdf)
· Read the Presentation by Rita Laura Segato in Spanish (pdf) or English (pdf) note: the English version is roughly translated from Spanish, so can be a bit difficult to read.
You can find more articles by John Schertow at his blog, Intercontinental Cry
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