The opening of three vacancies for lawyers by the fifth constitutional in the (Court of Justice in) rekindled the debate, among entities that address the racial theme, on the degree of effectiveness of actions in favor of diversity in.
Although it claims that recent advances were essential, the Anan (National Association of Black Advocacy) uses the opportunity for three simultaneous vacancies at the Court to request a proactive posture of -SP (Brazilian Bar Association in Sao Paulo) so that at least one is occupied by a black person.
The entity suggested to the Order the formation of three sextuplas lists (ie six names) designed from racial bias. While two of them would have white women or men, a third would be formed only by black people, thus ensuring that at least one of the vacancies were with this group.
The request refers to a notice published in April, whose proposal is to fill the vacancies left in the TJ-SP by the retirement of judges Cesar Ciampolini Neto, Luiz Edmundo Marrey Uint and Maria Cristina Zucchi.
The notice follows a resolution signed in February by the president of OAB-SP, which provides that 50% of candidates who will compose the sextupla list are women. From a racial point of view, the forecast is that at least 30% are black (black or brown).
As there are three vacancies, there will be the formation of three sextuplas lists, with a total of 18 candidates. They will be sent to the TJ-SP, which should form three triplices to be sent to the state executive branch, to whom it is up to the choice of three names.
For Anan, setting up a list made up of black people only could guarantee a concrete advance of diversity within the court.
“This model [proposto pela Anan] It maintains the 18 names that will compose the three sextuplas lists, without any exclusion, and ensures that racial diversity is not just a formal criterion in the composition of the lists, but a determining factor in the final appointment process, “says the open letter sent in March to OAB-SP.
For the president of Anan, Estevão Silva, the measure would be essential to enforce the movement of the (National Council of Justice) in favor of racial equality, pointed out at resolutions such as that of June 20, 2015, which provides for the reserve for blacks of 20% of the vacancies offered in public tenders to fill effective positions and entering the judiciary.
The discussion is especially important when considering the very low percentage of black magistrates in court, says Estevão. According to CNJ data, only 7 of 389 TJ-SP judges declare themselves black (one black and six brown). In percentage, this represents 1.8%. White judges are 97.2%.
The result goes against the racial reality of the population of São Paulo. According to Census 2022, 41% of the state’s population declares itself black or brown.
The proposal of a list only with black people, however, was rejected by the president of OAB-SP, according to Anan. According to the entity, Sica said that the measure could raise discussion about being unconstitutional.
Anan disputes and, as an argument, cites a recent decision by the Federal Supreme Court to make two lists, for two vacancies in the (Superior Electoral Court). According to the minister, the goal is to avoid an exclusively male court.
“I said: ‘If the minister [Cármen Lúcia] You are asking for this and not unconstitutional, why would it be for black lawyers? ‘ “Estevão says. According to him, the decision of the Supreme Court, made two months after Anan makes a similar request to the OAB-SP, reinforces the factibility of the measure.
He recalls that, just as the CNJ has talked about the importance of ensuring gender equality, there are also resolutions in favor of racial equity.
Therefore, Estevão says he expects OAB-SP to reconsider the possibility of forming an exclusive list for blacks in this contest, motivated by the unusual fact that there are three openings simultaneously opened.
For Tainah Pereira, MND political coordinator (black women decide) and a master’s degree in Political Science from Unirio (Federal University of the State of Rio de Janeiro), Anan’s demand is plausible in a scenario in which recent achievements of affirmative actions in the judiciary are not yet sufficient to overcome inequality.
It also compares the possibility of a list of only black people with the recent STF initiative in favor of an exclusive list of women. “We are talking about two structural questions in the country, racism and machismo. I don’t see why it would not be legitimate a list of only black lawyers.”
The report questioned the OAB-SP about the negative to the request of Anan. In a note sent to Sheetthe sectional did not cite the entity’s request nor spoke about the possible unconstitutionality of the request.
The sectional stated that “it has racial equity and diversity as institutional pillars.” He also said that the policy is present in the directive formation of the institution, among other actions, and that it was a pioneer in the implementation of racial equity criteria in the formation of sextuplas lists.
“In this process, the lists selected by OAB SP, which guarantee the participation of black people in the process, are sent for analysis and final choice by the judicial and executive powers.”
A Sheet He also asked the TJ-SP and the state government if they will consider racial criteria when choosing the new members of the court. The Court stated that “it does not speak beforehand about the criteria for choosing candidates, even because the vote is an individual act of the members of the special body and the appointment is made by the State Government.”
The management of the governor of São Paulo, (Republicans), did not respond to the report.
For Douglas Leite, professor at the Faculty of Law of UFF (Fluminense Federal University) and racial theme scholar, Anan’s proposal is constitutional.
He states that such proposals are important because, even with recent affirmative actions, the picture is still difficult to insert blacks in various sectors, including the judiciary.
“Public policies always advance responding to the boundaries of their own design. It has been shown that they do not advance if new forms of execution are not thought of within their viability,” he says.
