Fundamental rights, equality and the performance of the Judiciary

the contemporary challenges of ethnic-racial quotas

Abstract

The debate on the effectiveness of fundamental rights is an elementary tool to remove structural racism and social inequality. These underlie the perversity of institutional and cultural practices, whether conscious or unconscious, of the use of race or ethnicity as a systematic basis of discrimination for the distribution of privileges and unjust sharing of the burden. In view of this, the State has implemented promotional policies, based on racial criteria, to provide quality of life and social justice to a population that has historically been deprived of its rights and is daily affected by discriminatory actions due to its color. In the first part of this work, theories on the subject of affirmative actions are offered, with emphasis on racial quotas, to discuss the influence of the human rights system, the principles of equality and diversity, as well as the role of law in rationalization and justification of affirmative policy. Soon after, a constitutional reading of the ethnic-racial quotas is offered, based on the decisions handed down in control actions concentrated by the Brazilian Supreme Court, focusing on competitions and selection processes. The aim is to verify the limits of the Judiciary's performance and the decision parameters related to ethnic-racial quotas. Finally, the current dilemmas imposed on material equality are raised. These are issues that, if not addressed, could cause even greater damage to the legitimacy of the performance of the powers of the Republic in reserving vacancies for blacks in public bodies and entities.