Disrespect for antiracist struggles

Conectas expresses condemnation over Selection Notice for experts of the National Mechanism to Combat and Prevent Torture

A revista vexatória segue acontecendo mesmo em estabelecimentos que possuem o scanner corporal, diz pesquisa (Foto: Marcello Casal Jr./Ag. Brasil)

The civil society organizations and trade associations that form the National Committee to Combat and Prevent Torture (CNPCT) hereby publicly condemn the removal of the affirmative action policy from Selection Notice No. 002 of 21 November 2017, referring to the 4th Process to Select Experts for the National Mechanism to Combat and Prevent Torture (MNPCT).

The CNPCT is the body legally responsible for choosing the 11 members of the Mechanism, pursuant to Law 12,847/2013 and the Internal Rules of the CNPCT.

At its 16th Regular Meeting, held on 24 October 2017, the CNPCT approved the aforementioned Selection Notice, including the affirmative action policy in article 4.3 and using, by analogy, the provisions of Law No. 12,099/2013, which reserves 20% of the places on the Committee for black people, based on self-identification, under the supervision of the selection commission instituted by CNPCT Resolution No. 8 of 21 November 2017.

However, on 20 November, Black Awareness Day, the undersigned organizations were surprised to receive an email from the auxiliary body of Committee, which reports directly to the Minister of Human Rights, Mrs. Luislinda Valois, notifying that it would publish the Selection Notice without the passage agreed at the meeting on racial quotas.

The auxiliary body of the Committee based its decision on a report by the legal office of this Ministry that maintains that the application of Law No. 12,099/2013 is not mandatory, although it does recognize, however, the autonomy of the Committee to formulate the selection process and recommends the reformulation of the Selection Notice in order to expressly reserve places for blacks and also to include the possibility of quotas for people with disabilities, under the following terms:

“In view of this, we understand that affirmative action policies, which are in keeping with the duties of the Ministry of Human Rights, are a clear example of correcting, in a practical manner, the principle of equality before the law, since the premise of breaking isonomy is not sufficient to ensure that material equality and equal opportunities exist at acceptable levels.

Therefore, should it be in the discretionary interest of the administrator to establish quotas for blacks and people with disabilities, there are no legal impediments, however, this may not be grounded on Law No. 12,990/2014 but instead on the principle of association with a bid notice, by analogy the aforementioned norm. As a result, we recommend reformulating the Selection Notice to include this quota (for blacks and people with disabilities).”

The creation of the National System to Combat and Prevent Torture was an arduous victory for Brazilian civil society, including the combative work of the current members of the Committee. This System emerged as an international obligation of the country after the ratification of the 3rd Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which is particularly pertinent to Brazil given its history of appalling human rights violations that occur in its detention centers and the difficulties faced by civil society accessing these facilities. It is shocking, precisely because of this, that the contribution of civil society to the Committee has been disregarded and disrespected by a unilateral decision by the Ministry of Human Rights signed by the vice president of the Committee, Mr. Paulo Maldos.

The undersigned organizations contend that the decision by the vice president is invalid, since it disrespects the decision of the CNPCT concerning the inclusion of quotas in the Selection Notice, ignoring the Internal Rules of the Committee established by Resolution No. 1 of 14 August 2014. According to article 14 of these Internal Rules, “The president of the CNPCT (and the vice president, when substituting the president) shall be responsible for: observing and enforcing the resolutions and recommendations made by the Committee”.

Meanwhile, article 2, item XVIII, and article 13, item V, on the responsibilities of the CNPCT and the duties of the Committee, leave little doubt about its autonomy: “The CNPCT shall be responsible for selecting the 11 (eleven) experts to serve on the MNPCT from among people with outstanding knowledge, a higher level of education and experience in the area of combating and preventing torture and other cruel, inhuman or degrading treatment or punishment.”

It is worth noting that the decision taken by the Committee aims to guarantee the effectiveness of one of the most important victories in the historic struggle of the black movement for racial equality in Brazil. In the voting meeting, the representative of the Ministry of Human Rights alleged that the Selection Notice could not accommodate the legislation due to potential procedural difficulties that could arise during the selection process (see minutes of the 16th Regular Meeting of the CNPCT). However, it is inappropriate for the public administration to justify not applying affirmative action policies on the grounds of internal difficulty, and it should instead work towards the full implementation of public policies within this scope.

On account of the disrespect for the democratic process, ignoring the majority decision and resisting the application of Law No. 12,099/2013, which demonstrates the racist and anti-democratic nature of this process in a space that should be the first to make affirmative action policies a condition for public selection processes, the undersigned organizations requested, at the 17th Regular Meeting of the CNPCT, the immediate correction of the published Selection Notice, with the inclusion of article 4.3 that includes the adoption of quotas, as decided by the CNPCT, under penalty of adopting the applicable administrative and legal measures to challenge the publication of the Notice.

Once again, the members of the federal government chose to maintain the Selection Notice published unilaterally by the vice president unchanged, without article 4.3 (that deals with racial quotas), in an illegitimate and anti-democratic vote, since this decision had already been taken by the Committee in the previous meeting, in October 2016.

We note, finally, that during the 17th Regular Meeting of the CNPCT, the National Department of Policies for the Promotion of Racial Equality (SNPPIR), which reports to the Ministry of Human Rights, published an Explanatory Note recommending the application of racial quotas in the selection process for the MNPCT, based on Federal Law 12,288/2010 (Racial Equality Act), the international treaties to combat racism to which Brazil is a signatory and the discretionary power of the public administration, considering that “affirmative action is a means of combating indirect but subtle and veiled forms of discrimination that result in the exclusion of individuals based on the racial criteria of certain social spaces”.

Finally, SNPPIR, when conducting its survey on the selection processes for the MNPCT, found that 4 of the 11 experts identify as black, which demonstrates the need for measures to maintain or increase the number of blacks in the MNPCT, “guaranteeing the representativeness of the black population in positions of power”. This Explanatory Note was ignored by the federal government when it kept the Selection Notice without the quotas and signed off on it for publication on 20 November, Black Awareness Day.

5 December 2017

Conectas Human Rights
Maranhão Society of Human Rights
IBCCRIM
ISER
Justiça Global
ANCED
ASBRAD