The ineffectiveness of the constitutional amendment number 81/2014 and the deconstruction of the foundations of contemporary slavery labor in Brazil

• Autores: Herena Neves Maués Corrêa de Melo
• Localización: Current Issues On Human Rights / coord. por Alexander Sungurov, Carlos R. Fernández Liesa, María del Carmen Barranco Avilés, María Cruz Llamazares Calzadilla, Óscar Pérez de la Fuente, 2020, ISBN 978-84-1324-552-2, págs. 171-184
• Idioma: español
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• Resumen

  • This theoretical and documental paper aims to partially analyze data involved in the process of approval of the Constitutional Amendment nº 81, which inserted in Article 243 of the Brazilian Federal Constitution the expropriation sanction in case of contemporary slavery for noncompliance to the social function of property. To the Brazilian supreme law, the requirements to fulfill the social function of the rural property, provided for by Article 186 of the Magna Carta, include the rational use of soil, compliance to environmental laws as well as with the welfare of owners and laborers. This way, there can be no observance to the right of property, nor its guarantee, if this right of property harms the human dignity and their rights through contemporary slavery, which is typified as crime on Article 149 of the Brazilian Penal Code, and is forbidden in every international human rights agreement Brazil has signed for. On these terms, there is a necessary criticism to the new text of the Constitutional Amendment nº 81, which hermeneutically empties the efforts to a critical sanction and that had been debated in the National Congress for 19 years, as a real possibility of contribution to eradicating contemporary slavery in Brazilian lands. In the approved text, the present Amendment, to its applicability, brings future regulation as a necessity, as adduced by the expression “as set forth by law”. Such expression brings back the discussion over contemporary slavery, that was already regulated in the terms of Article 149 of the Penal Code, making the emptying of this concept possible and falling back to the understanding of years of this degrading practice, as inferred from the Bill nº 432 of 2013, which was thought to modify what had been established by the article 149 of the Brazilian Penal Code. In this study, different categories of contemporary slavery and the social function of property were presented, followed by a contextualization of the proposal of amendment to the Constitution of 1988, approved in May 2014 as Constitutional Amendment nº 81. Lastly, passages from the regulations of the cited constitutional amendment and bill were referenced according to the discourse analysis methodology.