An important step to ensure a greater representation of the black population in decision-making positions was taken this Tuesday, June 9, by the CNJ (National Justice Council). The council members approved the establishment of an affirmative action policy for the appointment of judges, setting aside 20% of vacancies for black candidates (‘black’ and ‘dark-skinned’ people, according to the classification by the IBGE statistics institute).
The decision was based on the Judicial Branch Census, published by the CNJ in June 2014. The census reveals that only 1.4% of judges describe themselves as black and 14.2% as dark-skinned. It also shows that 64.1% of Brazilian judges are men and 82.8% are white.
Human rights organizations applauded the decision. In a brief sent to the CNJ in February 2013 endorsing the adoption of affirmative action policies for the Judiciary, Conectas and JusDh (Justice and Human Rights Articulation) stated that “the black population is kept away from the corridors of power where decisions are taken on collective goods”. They also called for changes in the selection process for judges, which currently “measures investment more than knowledge”.
“Since selection by public service examination implies a certain economic status for application (opportunity and ability for exclusive dedication to a costly activity [a preparatory course] in the medium term), it ends up filtering out those who do not have the financial means to apply,” reads the document.
The demand for more racial equality in decision-making positions is historic and derives from income inequality and also from unequal access to education and to political institutions. The establishment of affirmative action policies for enrollment in universities, adopted by the Brazilian State more than 10 years ago, has been responsible for a significant increase in the rights of excluded social groups, making universities more representative and pluralistic.
But these progressive changes have still not managed to reverse the low presence of black people in the justice system. “Recruitment needs to be pluralistic, guaranteeing the diversity of the social and interpretive horizon of judges,” said Rafael Custódio, coordinator of the Justice program at Conectas. “With affirmative action, it will be possible to break with the current homogeneity of the justice system.”
According to the CNJ Census, the number of black judges in the country’s Higher Courts is less than 10%:
“Not only does the situation demonstrate the highly exclusionary character of the Brazilian Judiciary, but it also exposes the need to discuss the extension of affirmative action policies to the other institutions of the justice system, namely the Public Prosecutor’s Office and the Public Defender’s Office,” said Custódio.
In September 2014, Conectas participated in a public hearing on the adoption of racial quotas in public service examinations for the Public Prosecutor’s Office, which are held by the CNMP (National Council of the Public Prosecutor’s Office) in Brasília. At the time, in partnership with JusDh and CEERT (Center for Studies on Labor Relations and Inequalities), the organization submitted a manifesto on the administrative process set up by the CNMP to discuss the matter.
Click here to read the full manifesto by Conectas, JUSDH and CEERT.
Although no census was conducted among its members, like the CNJ did with the Judiciary, the CNMP requested information separately from all the country’s Public Prosecutor’s Offices. The information was annexed to the procedure and it shows that racial inequality also prevails in the Public Prosecutor’s Office.
In the Rio de Janeiro State Public Prosecutor’s Office, only four of the 910 prosecutors are black. In the state of Bahia, there are nine black prosecutors out of a total of 470. The situation is even more serious in the state of Rio Grande do Sul, where none of the approximately 700 prosecutors are black. In the Federal District, 10 of the 370 prosecutors are black. And in Minas Gerais, there are 87 black prosecutors out of a total of 1,003.
“The Public Prosecutor’s Office today does not reflect, in terms of race, the diversity of Brazilian society. One of the reasons for this is the means of entry into the profession, which favors the same profile of candidates. In general, they are people who have not experienced the worst conditions of exclusion and inequality,” said Sheila de Carvalho, a lawyer for the Justice program at Conectas.
In her address to the Council of the Public Prosecutor’s Office, the lawyer highlighted the naturalization of the absence of representation by the black population in the corridors of power:
The debate on racial inequality in the judicial profession is also occurring in the Public Defender’s Offices. The Higher Council of the São Paulo State Public Defender’s Office recently decided to introduce affirmative action policies for people working at the institution as public defenders, public servants or interns. In a historic session, the Council reserved 20% of the vacancies for black and indigenous people. Conectas, JusDh and CEERT submitted a brief in support of the decision.
“What was at stake was the consolidation of a more pluralistic and democratic Public Defender’s Office. An Office that allows us to rethink and reinvent social representation in the institutions of the justice system,” said Sheila de Carvalho.
Click here to read the full brief by Conectas, JusDh and CEERT.
Click here to read the article published by Conectas, CEERT and the Luiz Gama Institute.
Affirmative action is fully compatible with the Federal Constitution. Article 3, III, article 23, X and article 170, VIII expressly require the government to establish positive policies for the promotion and integration of disadvantaged groups.
Moreover, the Supreme Court has already ruled, on 26 April 2012, in the judgement of ADPF 186, that affirmative actions are constitutional, since they aim to enforce the principles and fundamental rights of the Brazilian Constitution, and that prohibitive laws, such as Law 7716/1989, are insufficient to reduce discrimination.
The Racial Equality Act, which came into effect more recently, is intended to promote equality and combat discrimination. It states that the government should introduce affirmative action policies in the field of education and in the labor market.
According to data from 2010 published by the IBGE statistics institute in 2012, more than half the Brazilian population (50.7%) is black, and most are women (there are nearly 4 million more women than men).
Among the population aged 25 and older, the percentage of blacks with a higher education degree (4.7%) is three times lower than among whites (15%). The data also reveal that blacks make up 82.3% of the country’s poorest and only 16.3% of its richest people.
In a report published in September 2014, the UN confirmed a long-time claim by social movements and civil society organizations, that racism in Brazil is structural and institutionalized.
Studies have found that blacks are overrepresented in lower valued jobs (civil construction, travelling sales and the services sector), while they are underrepresented in professions that are more valued by society (judiciary, non-travelling sales, liberal professions, auxiliary economic services).
“A heterogeneous and diversified society like ours deserves an equivalent justice system that can fight to reduce racial inequality and racism in Brazilian society, including in the very professions of these institutions,” said Rafael Custódio.