Senate contest restricts approval of blacks – 04/11/2023 – Market

The Federal Senate placed the black candidates approved in the contest for the position of legislative analyst only on the list of racial quotas and, according to Educafro, did not comply with the legislation. In practice, says the entity, six black and brown candidates have already been harmed.

The law of quotas in public tenders —approved in 2014 by Congress— reserves 20% of vacancies for black candidates, but states that they compete for reserved vacancies and broad competition at the same time.

Thus, according to the law, black and brown candidates who have a score to be approved by the general list of the contest, within the number of vacancies offered to the broad competition, must be excluded from the list of quotas.

As of the last contest held by the Senate, in the second half of last year, 42 people were summoned for the position of legislative analyst specializing in administration.

Educafro claims, however, that, of the 8 blacks nominated, only 2 would really need racial quotas; the other 6 would have already been classified anyway.

The entity thus says that, in practice, the Senate transformed the floor of 20% of vacancies reserved for blacks into a ceiling, and made the inclusive criterion become an “exclusion criterion”.

In response to Educafro’s questioning, the Advocacy of the Senate prepared a 32-page opinion in which it defends that the appointment was made correctly, following the quota law.

In the document, the Senate states that the law does not provide “specifically the procedure to be observed for making appointments” and that, therefore, it is necessary “to obtain the most harmonious interpretation of the system”.

Thus, in order to meet the minimum of 20% blacks, Advocacia says that the competition committee decided to call one black person for every three vacancies.

As a result, black and brown candidates who had a grade to enter without the quota system ended up excluded from the list of broad competition —which, consequently, meant that candidates who could effectively be summoned within the 20% percentage were passed over.

The Senate also argued that the system is more beneficial for black candidates because the civil servant’s order of appointment is incorporated into the functional file and, in the future, can be used as a tiebreaker.

“In the event that the candidate has been successful in the classification of broad competition and, simultaneously, in the classification of black candidates, the rule that best benefits him will be observed at the time of the call (appointment),” wrote the examining committee.

In this specific case, the first approved black candidate was in 10th position on the general list. With the understanding of the Senate, he was the 3rd to be summoned, but by reserve quotas. One of the problems, according to Uneafro, is that the candidate would already be called regardless of the law (as well as 5 others who were in positions numbered 14, 24, 28, 30 and 31).

Since the nomination, candidates who feel that they have been harmed have contacted the examining committee of the public tender, without success. Now, Educafro is seeking the intervention of the President of the Senate, Rodrigo Pacheco (PSD-MG), and the board of directors.

In the document, signed by lawyers Irapuã Santana and Felipe Monnerat Solon de Pontes, the organization states that the example used by the Senate (of three vacancies) is different from the concrete case, and says that the application of the law is simple.

“In practice, the long explanations of the commission [examinadora] and Advocacy only show the hermeneutical double twist –in the happy expression of Minister Ayres Britto– that transformed the quota of 20% of reserved vacancies into a real ceiling, making it impossible for more black candidates to enter the ranks of this House.”

The lawyers also argue that, even if the law allowed room for the examination committee to understand (which, according to them, it is not the case), the Senate should adopt the most beneficial interpretation for black candidates because the intention of the law is to increase the number of blacks and browns in functionalism.

“Now, between 2 (two) possible interpretations of the norm, obviously the one that best meets its inclusive purpose and the constitutional principles that underpin the validity of the public policy of inclusion created by the National Congress should be adopted”, they say.

Aware of the impasse, the first secretary of the board of directors, Senator Rogério Carvalho (PT-SE), asked the Senate’s legislative consultancy for an opinion.

In the document, signed on March 15 and obtained by the report, the Senate consultancy reinforced Educafro’s understanding and stated that the quota law does not need to be improved, but only fulfilled.

In the opinion, the consultancy emphasizes that the main objective of the legislation is to increase the number of black public servants and employees, and states that no interpretation “that leads to the reduction of the maximum possible number of black candidates nominated should be admitted”.

“In the worst case scenario, from the perspective of building an inclusive and plural society, at least 20% of the vacancies would be occupied by blacks, in the event that no black candidate is approved in the vacancies destined for broad competition”, he says.

“Fortunately, this is not what we have observed. The number of black candidates approved in vacancies destined for broad competition has grown significantly, as shown by the result of the public tender of the Federal Senate 2022/2023”, he concludes.

To resolve the impasse, Educafro proposes that the Senate cancel the nomination of six non-quota candidates or call more quota candidates —which would obey the proportion defined by law.

In the manifestation sent to the president of the Senate, Educafro points out that it prefers this alternative “since everyone’s objective is the inclusion of blacks or browns, and not the exclusion of anyone”.

The president of the Racial Equality Commission of the OAB (Brazilian Bar Association) of the Federal District, Beethoven Nascimento de Andrade, claims that the Senate distorted the affirmative action policy and reduced access for blacks.

“What is perceived is a distortion of the affirmative policy, on the pretext of the benevolence of the evaluation board in placing candidates in ‘better’ positions, which sounds absurd”, he tells the Sheet.

“By acting like this, the assessment board not only distorts the quota policy, but throws the entire inclusive struggle into limbo, as it passes on information to society that blacks have ‘special vacancies’ exclusively for blacks, which is already a chimera society to those who are unaware of and act against affirmative policies.”

Sought after by the report, the Senate stated that it “fully complies with the legislation regarding quotas for black candidates and people with disabilities” and that the Advocacy’s opinion “corroborated the understanding adopted by the administration”.

“Regarding the nomination of the candidates for the current competition, the Federal Senate complied with all the normative provisions related to the matter, and the allegation that there was an error in the selection of those approved could not succeed”, he said in a note.

The Senate also sent the document prepared in response to Educafro and highlighted the section in which it says that the methodology used “guarantees greater stability and predictability to the nomination list, materializing the principles of isonomy and impersonality”.