GESSICA BRANDINO AND JOSEPH MARKS
SÃO PAULO, SP, AND BRASÍLIA, DF (FOLHAPRESS)
The creation by the CNJ (National Council of Justice) of a gender alternation policy when filling vacancies for the second instance of the Judiciary has faced resistance from the country’s courts.
The discussion was scheduled for this Tuesday morning (19) by minister Rosa Weber, president of the CNJ and the STF (Supreme Federal Court), on the eve of her retirement.
The normative act that will be voted on establishes alternation between women and men according to the opening of vacancies for career magistrates based on criteria of seniority and merit.
Changes have already been made to overcome resistance from some magistrates. If approved, the text will come into effect in January 2024, and the first open vacancy must be filled by a judge of a different gender than the last one promoted. The rule will be maintained until each court reaches a gender ratio of between 40% and 60%.
CNJ advisors consulted by the report say that the matter is sensitive and there is the possibility of a request for review (more time for analysis), which would suspend the judgment.
One of them points out that seniority is a constitutional guarantee for magistrates and it would be more difficult to modify it. However, he says it is possible to make progress in relation to merit-based promotions.
The advisor also says that a review request can help to mature this idea and make the necessary adjustments to the text.
Another advisor states that the vote could take place until, at the latest, the next Tuesday (26th) because Rosa Weber has made calls for the topic to be voted on.
On the 28th, minister Luís Roberto Barroso takes over from Rosa as president of both the Supreme Court and the CNJ. She must resign from her positions before this date and retire at the beginning of October.
Measures to try to expand representation in the Judiciary have been discussed since the administration of Minister Cármen Lúcia. In 2018, when I presided over the CNJ, a resolution was approved establishing the National Policy to Encourage Women’s Institutional Participation in the Judiciary.
Despite this, experts say that women continue to face more barriers to being promoted in their careers.
Data from the CNJ’s Justice in Numbers report for 2022 shows that women make up 38% of the country’s more than 18,000 magistrates. While in the first degree they reach 40%, in the second instance the percentage is 25%.
The survey showed that there were 13 courts in the country without female judges and ministers.
This was the case of the TJs of Rondônia and Amapá, the TRT (Regional Labor Court) of the 24th Region, the Military Justice courts of São Paulo and Minas Gerais and the TREs (Regional Electoral Courts) of São Paulo, Minas Gerais, Distrito Federal, Rio Grande do Norte, Ceará, Santa Catarina and Rondônia.
This year, the Federal Regional Court of the 5th Region, which was also on the list, promoted a female judge for the first time.
Changing the seniority rule is the main focus of resistance among judges. Defenders of the change claim that, although the criterion appears objective, it disregards a series of problems, such as biases in examination boards.
In 2021, the CNJ prohibited private interviews in judicial competitions, a stage in which women were often asked about how they would take care of their children, whether they had a family or whether or not they were married.
At the end of August, the topic was debated again during a seminar promoted by the CNJ, with judges from across the country. To maintain mobilization and encourage new actions, they created the National Movement for Parity in the Judiciary.
“There is a naturalization of any collegial body formed exclusively by men and we need to problematize this. It is no longer natural for women, black people and minorities not to occupy these spaces of power”, says the judge from Rio Grande do Sul Josiane Caleffi Estivalet, member of the movement.
An opinion in favor of the creation of the rule was presented by the professor of constitutional law at UERJ (State University of Rio de Janeiro) Daniel Sarmento. He defended the constitutionality of the measure and the CNJ’s competence to decide on the issue.
“Having a court with a plural composition, including from a gender perspective, is important because you will have different world views. The tendency is for decisions to be better”, he says.
Anamatra (National Association of Labor Justice Magistrates) stated that it still has no position because the draft has not been officially forwarded. Ajufe (Association of Federal Judges of Brazil) and AMB (Association of Brazilian Magistrates) have not yet taken a position. After the CNJ seminar, the three entities issued a note in defense of diversity in the courts.
Consepre, the council that brings together the presidents of the 27 courts of justice in the states and the Federal District, is the main opponent, as shown in Folha de S.Paulo by journalist Frederico Vasconcelos’ blog.
In a technical note, the entity asked for the topic to be removed from the agenda and says that the modification should be made through formal law and is outside the regulatory scope of the CNJ.
“Despite the importance of the matter, the CNJ does not have the competence to innovate, in this way, the model of promotion criteria”, says Consepre, which states that in the Constitution there is “an eloquent silence regarding the gender criteria for the analysis of seniority and merit.”
The entity’s note forms the basis for the case to be taken to the STF, if the CNJ decides to modify the rules.
The TJ-SP also took a stance against it and asked for the vote to be postponed. Of the court’s judges, 90% are men, according to a CNJ report.
Retired lawyer and deputy attorney general of the Republic Deborah Duprah states that the issue of jurisdiction was already overcome by the Supreme Court in 2008, in the judgment on the CNJ rule against nepotism in the courts.
“The CNJ came precisely to give uniformity to the judicial organization. The great innovation of the Constitution of 88 is that it no longer conforms to formal equality, it has to be material. It is not possible for institutions such as the Judiciary to have a composition that represents a single population segment”, she says, for whom the reaction to the rule is disproportionate.
The post Gender rule for promotion of judges causes uproar in the Judiciary appeared first in Jornal de Brasília.
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