Last Thursday, the Senate rejected the opposition proposal that handed over 25 seats reserved supernumerary for indigenous peoples in the integration of the constituent body. The debate is now moving forward to the Joint Committee. This proposal has come to combat – congratulations and rightly so – a historical inequality and violation of the human rights of indigenous peoples. However, authors such as Amartya Sen and Ronald Dworkin once taught that equality cannot be universally achieved. In other words, every time equality is generated, at the same time inequality occurs. Our purpose is to reveal the inequalities that occur with this project, revealing the contradictions that have been overlooked – even by their detractors – in the legislative debate.
In this and other means, it has been argued to defend seats reserved for indigenous peoples with reasons that we could summarize in 3 points:
The first reason is the protection of indigenous peoples as distinct groups. This has been pointed out by the Inter-American Court of Human Rights: indigenous peoples have “a particular way of life of being, seeing and acting in the world”, protecting the right to a dignified collective life.
The second group of arguments – perhaps the most important – is the idea of reparation, pursuing a system of reparation for the serious damage and human rights violations that have suffered historically, and whose consequences extend to this day.
Thirdly, together with the claim by a multi-national state, it seeks to break down historic barriers to entry that have affected the political participation of indigenous peoples in the country.
It is very important to note that these arguments are, in our view, fully true, but the justifications for handing over reserved seats to indigenous peoples become irrelevant in their specific weight when compared to other groups that we can also indicate as minorities. The difference is that our legislator has chosen to favour the former to disreach the latter, that is, the indigenous peoples above other minorities, creating unjustifiable inequality sufficiently forcefully with the figures at hand. The capital question: is the criterion being used to justify the surrender of reserved seats valid, discriminating against one minority over another? The answer seems to be no. If the positive discrimination criterion is therefore not valid, democracy should therefore indicate that the criterion should not be applied.
Consider, as an example – of these, a dozen – people with disabilities. According to the II National Disability Study (2015), 16.7% of the population of 2 and over is in disability status, or 2,836,818 people. On the contrary, persons considered to belong to an indigenous or indigenous people, according to the 2017 Census, amount to 2,185,792. In other words, numerically, the group of persons with disabilities is greater than the number of persons considered to belong to an indigenous or indigenous people by 651,026 people.
Why is this figure important? Because if we follow the logic that the fewer people have a group, the greater the inequality or discrimination, because it is a minority with fewer people than another minority, and thereby justifying mathematically greater specific weight to hand over reserved seats, the figures should reflect this inequality.
Let us take the level of access to education, recalling that the right to education is a human right (second group of arguments of those who defend seats reserved for indigenous peoples). Following the logic of inequality in substantive – now – terms, it should be the case that indigenous peoples have a lower level of access to education than people with disabilities. However, this does not happen, even though there are 651,026 more people in a situation of disability of difference versus those who identify as belonging to indigenous peoples.
Of the same studies, respectively, 44.64% of the total people identified as belonging to indigenous peoples achieved full middle education. By contrast, only 23.4% of all people with disabilities reached the same level. The difference is maintained as the educational level progresses; 12.46% of the total number of people identified as belonging to indigenous peoples completed andcollege studios. By contrast, only 9.1% of people with disabilities completed them.
In fact, the above example should lead us to think that it is more valid to hand over a seat reserved to a person who is in a situation of disability and who belongs to an original people, than to a person belonging to an original people without being in a situation of disability. It should also lead us to think of other groups within these minorities, such as those represented by some within the same group of people with disabilities.
Consider, for example, the Deaf Community. Only 18% of the deaf population accesses education, the lowest figure by 5.4 points gathered by people with disabilities as a whole, despite representing (deaf people) more than 500 thousand within the group of people with disabilities (2,836,818). Why do indigenous peoples have the right to reserved seats and deaf people do not? The figures don’t justify it.
Nor do the 3 groups of arguments mentioned at the outset justify this discrimination of one minority over another. Do you really believe that a person in a situation of disability does not have “a particular way of life of being, seeing and acting in the world”? At what point did it be decided to forget that groups such as the Deaf Community or LGQBTI+ also present barriers to access to politics, education, dignity and life? The reasoning is not explained and the conclusions seem too hasty. There are many minorities in equal or worse conditions. Currently, and flat, we ignore them. It is the duty of the State to take care of them and to present strong arguments to privilege some minorities over others.
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