Racial Quotas

• Author: Alexandre Rocha Pintal
• Position: Lawyer & Consultant in Brazil
• Pages: 1-4

I Introduction

Very soon the Brazilian Supreme Court will issue a ruling on the constitutionality of racial quotas in place of concentrated control, which may end the debate that is spreading in other appeal courts.

The DEM - Democratic Party, filed a lawsuit ¹ to stop and declare the unconstitutionality of affirmative action at the University of Brasilia - UnB. Ultimately, the initiative also will guide the work of the Racial Equality Statute, pending in the House (PL 6264/05).

The issue of quotas is still controversial and raises controversy within the public, although the case law - with some design in the very Supreme Court ² - may be rooted in a favorable way.

In the specific case, both prosecutors and the Federal Attorney General's Office issued an opinion in agreement. The Justice Gilmar Mendes rejected the application for injunction for lack of urgency.

Seemed a good moment for no intransigent defenses and inviting reflection.

II Racial quotas and the principle of equality

Claims made racial quotas are many, as varied as the hues of skin, if wanted to be discriminated against by law. All placements have consistency there. And more. The legal depart opposed, interestingly, a common radical: the principle of equality enshrined in Art. 5, heading the Federal Constitution.

The legislature, within its field (constitutional) assignments, and has broad discretion given the opportunity to realize a social fact - the gap - and materialize it a compensatory rule of law.

Others understand that the principle of equality does not allow editing of the law of segregation. The provision would suffice to secure a judicial action against prejudice, as the repair or civil sanction and imprisonment of the offender concerned.

In brief summary, the main theses in vogue.

III Racial quotas and the democratic principle

Brazilian onstitutionalists as Dalmo de Abreu Dallari, Lênio Streck and Clémerson Merlin Cleve, have warned the crisis of democratic legitimacy plaguing Congress. Among the main reasons were the absence (or discredit) the party identity, and certain political apathy of the voters, based on barriers of cultural and legal. ³

The mismatch is severe, as it urges poor representation and, therefore, inconsistent legislation. It was what one might see in the referendum rejection of the seal to bear arms, as well as maintaining the presidential system.

Also suggests that the legislative process - yet - marginalized sectors without lobbying in Congress, even though, numerically, represent the majority.

This risk is no less democratic legitimacy when it comes to prosecution, because the lobbying is done - as much - by sampling. If the Supreme Court...