The Procedural Apartheid: The Engineering of Structural, Constitutional, and Jurisprudential Prejudice in Brazil
By Rogério Santos do Nascimento
- Specialist in Brazilian Constitutional and Administrative LawIntroduction: The Structural Nature of Legal Inequality
Just as contemporary sociology identifies structural racism as a phenomenon that transcends individual will to embed itself within the gears of institutions, Brazilian Public Law suffers from a structural prejudice. This is not merely a matter of isolated judicial decisions, but a sedimentation of norms, rites, and interpretations that, together, institutionalize the invisibility of the economically disadvantaged citizen. Under the cloak of legality, a segregation operates that violates the social order and the national project designed in the 1988 Constitution.
I. Constitutional Prejudice and the Neglected Social Order
The Brazilian Constitution, in its Article 193, establishes that the "social order is based on the primacy of labor and has as its objective social well-being and justice." However, what is observed is an interpretation that subverts this command. Prejudice becomes constitutional when the hermeneutics of the superior courts prioritize the "health of the public treasury" over human dignity.
By allowing the State to utilize exorbitant procedural prerogatives to delay the payment of alimony-like debts (back wages), the system validates the thesis that the rights of the "administered" citizen are secondary to the convenience of the public machine. The principle of equality (Article 5, Federal Constitution) is reduced to a rhetorical abstraction when confronted with the reality of differentiated legal rites based solely on the "value of the claim."
II. The Legislative Architecture of Disdain: The Special Court as a "Procedural Ghetto"
The legislator, by consolidating the absolute jurisdiction of the Special Courts of the Public Treasury (Law No. 12,153/2009) based exclusively on the value of the claim, has erected a normative apartheid.
This model assumes, in a prejudiced manner, that the legal demand of a base-level public servant—the school lunch worker, the soldier, the administrative assistant—is "simple" because the monetary value is low.
On the contrary, matters of functional job reclassification and career review are of high technical complexity.
By confining the "rights of the poor" to a rite of summary cognition, the system removes access to robust expert evidence and superior courts, transforming the Special Court into an instrument of procedural torture where speed serves only to bury legitimate claims swiftly.
III. Jurisprudential Prejudice and the Asymmetry of Treatment
Prejudice assumes its jurisprudential face in the sedimentation of understandings that shield the State while punishing the "alimentary" creditor (those seeking survival-related payments).
The Inexorable Collector: When the State is the creditor—such as in the collection of property taxes (IPTU) or minimal administrative fees—the jurisprudence guarantees the aggressive rite of the Tax Execution Law (Law No. 6,830/80). The system is implacable in collecting from the poor and ensures prevailing party attorney fees (sucumbência) for Public Prosecutors (Article 85, §19, of the Code of Civil Procedure).
The Evasive Debtor: Conversely, when the State owes survival-related funds to the servant, jurisprudence validates the manipulation of low ceilings for Small Value Requisitions (RPV) and the subjection to the "eternal" Judicial Debt Bond (Precatório) system (Article 100, Federal Constitution).
The public servant, suffocated by payroll loans and inflation, is faced with a tragic choice: wait decades in line or sell their rights for a fraction of their real value to "vulture" funds in the financial market or through leonine administrative settlements.
IV. Institutional Inertia and the Silence of the Bar Association (OAB)
This scenario of structural segregation is maintained by the inertia of the Legislative Houses, which fail to revise the ceilings for debt payments, and by the concerning silence of the Brazilian Bar Association (OAB).
The indispensability of the lawyer (Article 133, Federal Constitution) is debased in the Special Courts by the absence of court-awarded attorney fees in the first instance (Article 55, Law No. 9,099/95). By allowing the "base-level lawyer" to work for free against the State, professional institutions collaborate in the economic discouragement of private defense. Without a strengthened private bar, the poor citizen is left orphaned, while the Public Prosecutor is rewarded for every penny collected. It is the planned deprofessionalization of the defense of citizenship.
Conclusion: Toward a Rupture with the Paradigm of Exclusion
The structural, constitutional, and jurisprudential prejudice that governs claims against the Public Treasury is an affront to the Democratic Rule of Law. The dignity of a soldier or a school worker, governed by the same statute as a general or a doctor, cannot be quantified in minimum wages.
It is urgent that legal hermeneutics return to Article 193 of the Constitution, treating the social order as the supreme end of the State. Breaking this apartheid requires that the judiciary, the legislature, and the Bar Association awaken from their lethargy. The judicial process must not be the tool that sanctions the division of society; it must be the bridge that integrates it under the aegis of a justice that is, in fact, for all.