CNJ becomes shortcut to advance progressive agenda

The Federal Constitution is based on the division of the three powers. The principle is clear: one power (the Legislature) makes the laws; another (the Executive) puts them into practice; a third party (the Legislature, judges according to the law). But this division does not always work as provided for in the constitutional text. Part of this distortion has to do with the actions of the National Council of Justice (CNJ) and the National Council of the Public Ministry (CNMP). Created at the same time and with similar attributions, the two bodies have been transformed into instruments for the promotion of their own agenda, without the approval of Congress.

The CNJ is not part of the original text of the 1988 Constitution. The body was only created a decade and a half later — when the National Congress approved Constitutional Amendment 45, of 2004. The CNJ came into operation in June 2005. the CNMP was born. The two bodies were created to deal with internal matters (budgetary, administrative and disciplinary) of the Judiciary and the Public Ministry, respectively.

The author of the proposal (PEC 96, which reformed the Judiciary) was then deputy Hélio Bicudo (PT-SP), who presented the text in 1992. The idea of ​​external control worried some names in law, such as the then president of the Federal Supreme Court (STF), Maurício Corrêa. In the speech he made at the opening of the Legislative work in 2004, he criticized the attempt to create a body like the CNJ. For him, the measure was unnecessary and would cause problems when creating a body in which people outside the Judiciary help decide on the direction of this power.

“I don’t know, honestly, how the functions of a body of this nature, made up of people outside its framework, can be reconciled with the independence and autonomy that the exercise of jurisdictional provision entails”, criticized Corrêa. The then president of the Superior Court of Justice (STJ), Nilson Naves, also opposed the creation of the council. The Lula government, which was in its first term, supported the measure based on the argument that judges (and prosecutors) needed to be subject to greater control by society.

misrepresented mission

The CNJ has 15 members with a two-year mandate and the possibility of reappointment. Members include the president of the STF, a minister of the STJ, six judges, four members of the Public Ministry, two lawyers appointed by the OAB and two citizens appointed by Congress.

The Amendment that created the CNJ states that “it is incumbent upon the Council to control the administrative and financial activities of the Judiciary and the fulfillment of the functional duties of judges.” The body can punish judges who violate the rules of the judiciary, and also has the mission of preparing an annual report with suggestions for measures to be taken to improve the performance of the Judiciary; the document is sent to the STF and Congress.

Since its creation, however, the CNJ has been moving away from its original attributions. One of the initial milestones of this deviation happened exactly a decade ago.

In 2011, the STF equated same-sex relationships with stable unions between men and women, but without mentioning the possibility of civil marriage. Based on this decision, the National Council of Justice determined, in 2013, that the registry offices should not only carry out same-sex stable unions, but also same-sex marriages, with exactly the same effects as traditional marriages, which goes beyond the decision of the STF . In other words: a simple resolution of a few lines, drawn up by an administrative body, ended a debate that, in other countries, occupied years of discussion in Parliament, which is responsible for modifying the legislation in force.

The recent actions of the CNJ also provide other worrying examples.

In February, a CNJ resolution decided to close the judicial asylums, where people who committed crimes are hospitalized, but were considered mentally incompetent. The text requires that, in six months, judges stop determining hospitalizations in these places. In one year, the judicial asylums must be completely closed. The resolution also establishes that, in “absolutely exceptional” situations, when some security measure is necessary, the person must be admitted to common hospitals. The text emphasizes that the Judiciary must act “so that no person with a mental disorder is placed or kept in a prison unit, even in a ward, or is subjected to hospitalization in institutions with asylum characteristics, such as Hospitals for Custody and Psychiatric Treatment.” The measure was criticized by specialists in public safety, by the Federal Council of Medicine and by the Brazilian Association of Psychiatry, according to which the end of psychiatric hospitalization units brings “great damage to public health”, and “risk to the patient, family members and population in general.”

Two weeks ago, the National Council of Justice also opened an investigation into Judge Joana Ribeiro, from Tijucas (SC), who did not authorize an abortion on an 11-year-old girl in an advanced stage of pregnancy – the baby was already viable outside the womb. . The CNJ erroneously states that the judge “imposed her personal convictions on a concrete case.” The pregnancy was not the result of a violent act, but of a relationship between the girl and her half-brother (13 years old). In addition, the pregnancy was already advanced, at 22 weeks. The medical literature records cases of babies who were born and survived childbirth at this age. Incidentally, the case only reached the Judiciary because the doctors refused to perform the abortion.

In April, the CNJ determined that 5% of the vacancies in the courts for women “in situations of violence or vulnerability.” The list specifies the criteria: “black and brown women, in conditions of special economic and social vulnerability, who have left the prison system, migrants and refugees, homeless people, indigenous people, rural women, as well as trans and transvestites will benefit .”

For Thiago Vieira, Master in Law and Brazilian Institute of Law and Religion, the recent performance of the CNJ indicates a departure from the mission assigned to the body by the Constitution. “The powers of the CNJ are provided for in art. 103-B. § 4 of the Constitution and are related to the administrative and financial management of the Judiciary and compliance with the Statute of the Judiciary, including the judgment of disciplinary proceedings involving magistrates”, he explains. For him, some recent decisions taken by the collegiate “are beyond the constitutional attributions of the CNJ.” Vieira claims that the cause of these excesses is the influence exerted by progressive groups. “This happens because organic elements of society are being manipulated due to ideological and social pressures from those who do not have the legitimacy to do so”, he says.

Analogous body to CNJ, CNMP also acts ideologically

With a structure similar to the CNJ, the CNMP has 14 members — in addition to members of the Public Ministry, the collegiate is made up of two judges, two lawyers and two citizens. The body has also acted ideologically and adopted a creative interpretation of what the Constitution says.

In a resolution published in 2019, the CNMP endorsed the thesis of “institutional racism”, imported from the radical left in the United States. According to this current of thought, it is possible for black people to be victims of racism even if there is no racist person in power; institutions, by themselves, already practice discrimination.

The resolution determines that, when evaluating police activity by prosecutors, the racial aspect must be taken into account. One of the items on the list calls for “the modification of the institutional structures of the police forces, for the adequate confrontation and overcoming of inequalities arising from prejudice and ethnic-racial discrimination, in the exercise of police activity.”

Here is how the text defines institutional racism: “The question of racial selectivity has to do with the multiple dimensions with which racism manifests itself in the set of established social relations, especially in Institutional Racism, based on discriminatory filters that integrate the subjectivity of public agents, referring to the need for specific action that appropriates appropriate coping strategies based on the identification and recognition of this Reality.”

The claim that institutions are racist is made on the basis of flimsy inferences. For example: the resolution cites that black people are proportionally more likely to be victims of murder. But it does not explain why the cause of the problem would be racism, and not other factors (such as the fact that this population has a lower income).

For Thiago Vieira, the adoption of an ideological agenda by the CNJ and the CNMP is the result of a “militant neoconstitutionalism”, which puts the text of the Constitution and the popular will in the background. “The problem is this neoconstitutionalism that allows elastic exegesis of the norm, at the whim of the interpreter”, he defines.

According to the Constitution, it is up to the Federal Senate to “prosecute and judge” the members of the National Council of Justice when they commit a crime of responsibility. To date, no member of the CNJ has been impeached by senators.