The Federal Prosecutors’ Office (MPF)
Introduction
The Federal Prosecutors’ Office Federal (MPF) has the duty to
defend the rights and interests of indigenous peoples (Article 129,
item V). In this light it means the defense of the aspirations of the
indigenous peoples, their organizations and support entities in the
sense that there is an organ which, acting in a form independently of
the state, can guarantee the defense of indigenous peoples.
From this basis the MPF began to set up a structure that enabled the
entity to operate in this area. The Ministry, like so many other public
institutions, knew little about the indigenous peoples, their customs,
interests or traditions.
Sérgio Leitão, lawyer, writes about this topic:
Coordinatorof the defense of indigenous interests
The first structure created as part of the MPF (Public Prosecutor’s
Office) to deal with matters related to the indigenous peoples, was
the Coordinator of the Defense of the Rights and Interests of Indigenous
peoples, which was part of the Secretariat of the coordination of defense
of Individual Rights and Diffuse Interests (Secodid).
It is the duty of this coordinating organ to adopt a series of initiatives
in the judicial and administrative spheres. Regarding the Judiciary,
one should mention the proposal of the following steps to the year 1994:
- Declaratory measure for the demarcation of indigenous area of the
Alto Rio Negro, in a suit against the federal government, Funai and
Ibama.
- Civil Action suit to remove invaders (especially grubstake miners)
from the indigenous lands Raposa/ Serra do Sol in another suit against
the federal government, Funai and Ibama.
- Civil Action suit to remove woodcutters and grubstake miners from
the indigenous lands occupied by the Kayapó tribe in another
suit against the federal government, Funai and Ibama.
- Civil Action suit to remove invaders from the Indigenous lands of
the Parque Indígena do Araguaia in another suit against the
federal government, and Funai in the 9th federal court in Brasilia.
In administrative suits, the coordinating committee of the prosecutors’
offices decided to file a civil investigation to verify violation of
indigenous rights. The prosecutors’ office solicits documents to
be sent to public entities, convoking persons to testify to obtain maximum
information and documentations to enable the prosecutors to duly file
the proposed suits.
In one of these inquiries, for example, e the prosecutors’ office
sought to verify the causes “for the non compliance by the federal
government of the constitutional time frame stipulated in Article 67
of the Transitory constitutional regulations to conclude the procedures
for demarcation of indigenous lands (Instruction -Portaria nº.
334 - 06/ 10/ 1993 of the court document filed by the prosecutor of
the federal government, Aristides Junqueira Alvarenga).
Aside from these activities, the Coordinating Committee of the prosecutors’
office sought to organize events to discuss Indigenous rights.
Decentralization
In principle nearly all the measures in defense of indigenous human
rights on the part of the prosecutors’ office were centralized
in Brasilia, at the coordinating committee level. This was due mainly
to the fact that in the majority of cases there weren’t prosecutors
of the federal government interested in dealing with the question at
hand.
This situation changed gradually when newer prosecuting attorneys assumed
office in the federal prosecutors office, due to various examinations
to fill these judicial posts which which were, conducted in recent years.
This enabled the public prosecutors located in the various states to
develop specific measures,for example, those mentioned below:
- Civil Action suit proposed by the federal prosecutors office in
the state of Amazonas for the purpose of removing grubstake miners
from the Indigenous Area of the Rio Negro. The federal prosecutors’
office received an injunction that resulted in the removal of most
of the invaders in this area.
- Civil Action suit proposed by the federal prosecutors office in
the state of Mato Grosso for the purpose of removing grubstake miners
and woodcutters from the Indigenous Area of the Vale do Guaporé
and Sararé. The federal prosecutors’ office received injunctions
that resulted in these areas being declared off limits.
- Opening of an investigation by the federal prosecutors’ Office
in the state of Maranhao to verify facts related to irregular extraction
of wood in the following indigenous areas: Alto Turiaçu, Arariboia
and Governador (Instruction/Portaria Nº. 05, September 30, 1993);
- Opening of an investigation by the federal prosecutors’ Office
in the state of Mato Grosso do Sul to verify facts related to irregular
leasing of land between the Kadieweu and private individuals (Instruction/Portaria
Nº. 01 February 17, 1994).
- Opening of an investigation by the federal prosecutors’ Office
in the state of Bahia to verify facts related to Project for Health
Assistance of the Indigenous Communities (Instruction/Portaria Nº.
03 November 18, 1993 .
Aside from these the federal prosecutors began active role in various
suits filed against the indigenous peoples mainly by farmers and ranchers
who invaded their lands. This occurred especially in the state of Mato
Grosso do Sul, where the role of the public prosecutors Office helped
reverse a situation that had been completely negative for the Indian
communities, due to the constant court decisions against their rights
on the part of the state and federal courts.
It should be mentioned that in the court suits filed by the indigenous
peoples themselves and their support organizations, the federal prosecutors
Office, led by the coordinating committee, began to assume a specially
important role and fully backed the indigenous peoples demands in their
decisions. ‘Mention should be made specifically to the public prosecutors
office in suits filed by the legal counsel of the Nucleus of Indigenous
Rights--Núcleo de Direito Indígenas.
The technical advisory group
Another relevant fact , which helps explain why the prosecutors’
office is performing its functions more effectively was the public examination
for candidates for the positions of technical advisors in various areas.
Regarding the indigenous rights, anthropologists were hired in Brasilia,
Recife, Rio de Janeiro, Porto Alegre and Sao Pauloto advise the work
of the public prosecutors, especially in preparing anthropological expertise
reports in court suits.
The public prosecutors office also contracted professionals in the
area of forestry engineering, which can play an important role in following
up indigenous land conflicts, since one of the most sensitive areas
is the cutting down of forests.
New Institutional Format
After the Constitution of 1988 had been promulgated, defining new functions
for the Prosecutors’ office as a whole, bills were sent to Congress
to regulate the new rulings, principally in regards to their organization
and attributions. The process of these bills in Brazil’s parliament
suffered many ups and downs, because many attempts were made by conservative
groups to restrict the powers and the areas of activity of the public
prosecutors’ office.
On May 20, 1993, the Supplementary Law 75 was finally sanctioned, regarding
the Federal Prosecutors’ Office (which covers the Public Prosecutors’
Office, the Labor Ministry, the Military Prosecutors’ Office, and
the Prosecutors’ Office of the Federal District (Brasilia) and
Territories. One of the main features introduced by this law was the
establishment of the Chambers of Coordination and Review, Câmaras
de Coordenação e Revisão, which became a part of
the structure of the Federal Prosecutors’ Office (MP:F)
(Articles 58-62). The duties of the chambers are to establish the full
policy of operational activity of the MPF in their various areas, as
well as to decide on the entity’s administrative questions.
Regarding the indigenous question, by means of the installation of
this chamber system, the coordinating committee was shut down and substituted
by the Chamber of Coordination and Review of the Rights of Indigenous
Communities and Minorities, which was established on April 5, 1994.
Each chamber, in accordance with Article 60 of Supplementary Law 75/
93 , is composed of three members of the Public Prosecutors’ Office,
wherever possible, as part of the general sub-prosecutor divisions (Art.
3. of Resolution 06, 16/12/93, of the Superior Council of the MPF).
It is the duty of the general prosecutor to indicate—he has the
exclusive right to do so--one of three members, while the other members
are chosen by the Superior Council of the entity.
All together seven chambers were set up in The Prosecutors’ Office.
Regarding the indigenous peoples the sixth chamber should be given special
attention due to the fact that, in its first meeting, the sixth Chamber
decided that its relationship with non-governmental organizations would
be as broad as possible in order to always keep open a channel of communication
with organized civil society.
Challenges
There are various challenges to the MPF in its institutional performance
regarding indigenous rights. The independent position of the entity
has caused it to perform the role of mediator among various entities
of the executive branch of the government, which have power over this
question—even though this was not one of its pre-established functions.
In the current state of the Project of the Statute of Indigenous Societies
(which proposes the review and revision of the Indian Statute), which
should be discussed and voted by the Senate, the Prosecutors’ Office
are given various duties (advisors to the indigenous peoples in the
discussion on the installation of mining projects on their lands, participation
in collegiate bodies, etc.)
This growing participation of the entity in questions of the executive
branch of the government, however, must be debated further and more
carefully defined so that it does not endanger the performance of its
activities with the judiciary branch of the government.
Furthermore, the 6th Chamber must be better informed about the measures
and suits that are being processed in the judiciary branch of the government,
including at state court levels so that the activities of the entity
are carried out in an orderly and consistent manner. Many times, one
suit about indigenous rights is judged by the Federal Supreme Court
without the 6th Chamber having any knowledge of it.
It is important, furthermore, that the entity be in conditions to disclose
all the requests , demands and suits for it to act upon, and the subsequent
results of these measures and suits to facilitate a greater understanding
of its activities by interested parties.
In conclusion, the positive role of the Prosecutors’ Office is
of undisputable importance in the treatment of the indigenous cause.
The role of the Prosecutors’ Office enabled the indigenous peoples
to rely on an independent body with qualified professionals, who have
shown they have honored the posts they have been given. The entity,
however, will have to improve its performance and become even better
equipped to deal with the multiple functions of its duties and attributions
(and future duties) in order not to have a negative effect on the high
level of work which it has achieved to date. (Sérgio Leitão
– September 1994).
