Ives Gandra disapproves of the CNJ resolution and says that the “competence” of judges is more important than gender

At the request of São Paulo magistrates, a jurist expressed an opinion on a resolution approved unanimously by the National Council of Justice to promote equality between men and women in second instance courts

Judges and judges of the Court of Justice of São Paulo evaluate measures to try to annul the resolution of National Council of Justice (CNJ)the body that administers the Judiciary, which promotes the promotion of women in the courts of second instance.

The resolution was approved unanimously in December last year, in the last period of the mandate of Rosa Weber, who retired a few days later. The gender issue was one of the minister’s flags.

The text provides that lists made up exclusively of women are alternated with mixed lists for promotions based on career merit, until the courts achieve gender equality. The rule does not apply to promotions based on seniority.

25 magistrates from São Paulo – including only one woman – asked the jurist for an opinion Ives Gandra, professor emeritus at the Universidade Presbiteriana Mackenzie. The question was answered last week. The jurist concludes that the resolution is unconstitutional and that there is room for an unconstitutionality appeal in the STF.

Ives Gandra’s opinion has 49 pages. He states that the CNJ has gone beyond its normative attributions and that the criteria for the promotion of judges are only “merit” and “seniority”, as provided for by the Constitution and the Statute of the Judiciary.

“The aforementioned resolution cannot go beyond the limits of the law nor exercise constitutional control over communications promoted by the courts. This is because the competence of the National Council of Justice is precisely to implement constitutional and sub-constitutional rules, and it cannot contravene rules or innovate the legal system”, writes the jurist.

The professor claims that the resolution “would fatally undermine the principle of equality” and that the text was approved on the basis of “ideological criteria”.

In another part of the document it is suggested that “competence” should prevail over gender in promotion. “It is not in society’s interest for the magistrate to be less competent and respect gender criteria, since these are services of very high social importance.”

Gandra also claims that by seeking to ensure equality between men and women in the second instance, where the imbalance in gender representation is most evident, the CNJ creates a “burden” on female judges.

“They would be in that body not on their own merits,” he writes. “This would end up creating a certain discomfort for the women themselves, who will be classified simply on the basis of the fact that they are ‘women’ and, not on the basis of their ‘competence’ and ‘seniority’, objective criteria for their promotion within of the court they represent.”

The latest judiciary census, prepared based on consultations with all courts in the country, showed that 59.6% of judges are men.

Source: Terra

Rose

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