Not There Yet and Running Against the Clock: The New Ordinance Regulating Racial Classification for Racial Quotas in Brazil

Isis Conceicao - 31st May 2018

On April 10th, regulatory ordinance no. 4 was signed by the Human Resource Management of the Ministry of Planning, Budget and Management in Brazil. The ordinance regulates the procedure of complementary heteroidentification, an external racial identification process by using phenotypic criteria. In Brazil, candidates for office can declare themselves as black for purposes of filling reserved seats for black people at federal public positions. The heteroidentification procedure is in addition to the self-declaration process and will help eliminate fraud in the racial identification process.

The purpose of the Racial Heteroidentification Commission and the normalization of its functioning are to guarantee that the candidates who occupy reserved civil servant positions for black people are themselves black. There have been reported cases of fraud in racial declarations in the past where candidates socially recognized as white occupy vacancies reserved for black people. Furthermore, some heteroidentitfiation committees ‘decisions have been subject to judicial appeal. Thus, one of the objectives of the recently approved law is to reduce the possibility of fraud, it also aims to reduce the number of judicial proceedings appealing decisions of the heteroidentification committee. Another objective of the law is to bring predictability and security to the proceedings.

The Brazilian Federal Supreme Court, in Constitutional cases on affirmative action in universities and on affirmative action in public service positions, held that in addition to mandatory self-declaration, the heteroidentification process could be used as subsidiary criteria provided that there is respect of the right to human dignity in the process and that there is an opportunity to defend against incorrect heteroidentification.

According to the Ordinance, the Heteroidentification Commission will consist of five members of immaculate reputation, residing in Brazil. The Ordinance further requires that the heteroidentification procedure be filmed and recorded. Candidates who refuse to be filmed will be excluded from standing for election. This brings transparency and accountability to the identification process.

The commission will use phenotypic criteria to confirm the racial self-declaration, thus embracing, in addition to self-identification, socially visible minorities. Recognitions based on past records or documents submitted, including images and confirmation certificates in heteroidentification procedures conducted in federal, state, district, and municipal public contests have been removed.

The Heteroidentification Commission recognizes that the formation of racial identity is also relational – it does not depend only on an individual’s perception of themselves, but also on confirmation by the group to which they are declared to be part and by other groups. The phenotypic criteria are the only possible metric in Brazil because it is phenotypic traits that induce discrimination more than ancestry and heritage. Professor Oracy Nogueira pointed in their seminal work ‘Racial prejudice of mark and racial prejudice of origin’, that the most important driver of discrimination in Brazil is whether or not you have ‘African traits’, not your actual racial ancestry or heritage.

With the new ordinance, self-declaration as black will be presumed to be true, but the declaration can be appealed to the Heteroidentification Committee. The principle of full defence is preserved in the procedure of heteroidentification by the creation of a committee that can review appeals of the commission of heteroidentification´s decisions. The committee is composed of three members, distinct from the members of the Heteroidentification Committee.

The new law reflects the necessary commitment to effective implementation of policies that combat racism and promote equality, but the road to racial equality continues to be long.

Author profile

Ísis Conceição is an international law professor at public federal University for International Integration of the Afro-Brazilian Lusophony. She holds a PhD and a Master’s degree in Public Law from the University of São Paulo - USP (Brazil) and a Master’s degree in Critical Race Studies from University of California – UCLA (USA). She worked as law clerk at the Supreme Federal Court (Supremo Tribunal Federal – STF) in Brazil during the years of 2013/2015.

Citations

Ísis Conceição, “Not there yet and Running against the clock: The New Ordinance Regulating Racial Classification for Racial Quotas in Brazil” (OxHRH Blog, 31 May 2018), <http://ohrh.law.ox.ac.uk/not-there-yet-and-running-against-the-clock-the-new-ordinance-regulating-racial-classification-for-racial-quotas-in-brazil> [date of access].

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