Justice Among Equals and the Dignity of the Unequal

Rogério Santos do Nascimento, Attorney

“All are equal before the law.” Thus proclaims, with solemnity, Article 5 of the Constitution. But there is no lie more elegantly told in the halls of the Republic than this one. For equality, in Brazil, is an episodic phenomenon, confined to a singular instant of civic life: the moment of voting. In that instant, rich and poor possess identical political weight, measured by a voter registration card. Once the election is over, however, equality dissolves, vanishing in the institutional labyrinths and revealing the chasm between the dignity promised and the reality endured.

It is proclaimed that the Special Civil Courts were created as instruments of democratization of the judiciary. That they were designed to ensure swift, simple, and low-cost access to justice for ordinary citizens. A noble promise, which in practice, transmutes into a silent trap.

The poor, often semi-literate, are reminded that they may file a claim without an attorney in the Special Court. But of what use is such a prerogative if they do not even possess the words to articulate their pain, let alone translate their anguish into legal language? There, before a crowded public counter, their voice echoes weakly, buried beneath bureaucracy and indifference.

And where are the attorneys, the supposed defenders of the underprivileged? They are absent, not out of lack of compassion, but due to a harsh economic reality: the Special Court does not award attorney’s fees in lawsuits against the Public Treasury. It is written clearly in Article 55 of Law 9,099/95, applied subsidiarily to Law 12,153/2009. Without fees, there is no incentive. And without incentive, there is no lawyer.

But there is a glaring exception, one that exposes the structural flaw of the system: when the State is the claimant. Then, there is no ceiling value, no Special Court. No law restricts the voracious appetite of the tax authorities. The legislator was crystal clear in item I of paragraph 1 of Article 2 of Law 12,153/2009, which reads: “Tax enforcement proceedings are not under the jurisdiction of the Special Court of the Public Treasury.”

To collect taxes, the State is not satisfied with a summary proceeding. It drags the citizen into the Court of the Public Treasury, where the Code of Civil Procedure reigns in all its pomp, rigidity, and formality. And if the taxpayer loses, they must still pay attorney’s fees as stipulated in Article 85 of the CPC, even if the debt is insignificant.

So where, then, does equality reside? It does not. For the very same State that demands speed, simplicity, and value limits when being sued, refuses those limitations when it comes to expanding its revenue. This is the core of the injustice: there are two systems of justice, one for charging, another for being charged.

The poor suffer the same pain as any other citizen when denied their salary or rights by the State. Yet, the solution offered to them is the Special Court, where proceedings are swift but devoid of technical defense. For expedited justice without a lawyer is like medicine without an active ingredient: it cures nothing.

Meanwhile, the legislator folds his arms. He grants the poor the right to file a petition alone, yet abandons them to their own fate in a hostile, technical, hermetic environment. He transforms the promise of access to justice into institutional farce. And thus remains intact the structure that ensures only high-value litigation attracts willing defenders, those that nourish attorney’s fees and generate financial interest.

But the tragedy deepens because the external oversight bodies, which ought to safeguard legality and defend society’s interests, remain inert. Shackled by political appointments that the Constitution itself binds to the Executive’s discretion, they fall silent before the most flagrant violations of human dignity. The Public Prosecutor’s Office, at times, plays blind, just as blind as the statue of Justice with her eyes covered, not as a symbol of impartiality, but increasingly as a metaphor for omission.

And to think we fervently chant verses from the National Anthem that claim, “If the pledge of this equality we have conquered with a strong arm…” But what kind of equality is this, if the poor are only worth the same as the rich on election day, and nothing beyond that? What kind of equality is this, if after the ballots are counted, the strong arm of the State turns not to protect the vulnerable, but to guarantee for itself procedural privileges, value thresholds, and institutional shields?

“You shall see that a son of yours does not flee from battle,” the Anthem goes on, but it forgot to foresee that, alone, such a son may indeed not flee, but will be defeated at the very first hearing, crushed by the judicial machinery of the State, by the absence of legal counsel, and above all, by a bureaucracy that speaks a language foreign to his pain.

Dignity of the human person, they say, is a founding principle of the Republic. But how can one speak of dignity when the State itself, the supposed guardian of the Constitution, is the very first violator, leaving public servants unpaid, denying effective legal assistance, limiting rights with value ceilings, while never imposing limits upon itself when collecting taxes?

The poor, in the realm of justice, remain as invisible as ever. It is proclaimed that the Special Court exists to facilitate access to justice, but what we see is a narrow funnel through which only cases of little value, little interest, and little complexity pass, and where there is no one to speak on behalf of the voiceless.

If something must be reformed, let it begin with the essential: that attorneys, even with modest fees, be assured payment when facing the State on behalf of the poor; that a properly equipped Public Defender’s Office be created to handle litigation involving the Public Treasury.

Or let it be acknowledged, once and for all, that speed is not an absolute value, because justice only exists when there is dignity, equality, and voice for all.

For it is not enough to guarantee the poor the right to enter the courtroom alone. One must guarantee them the right to prevail. So that we may one day sing, without shame or hypocrisy, that “our lives in your embrace, more love,” may indeed be the dignified life that the Constitution once promised, but has yet to deliver.