CNJ has 2 votes to 0 due to gender rule in the Judiciary, but decision is postponed – 09/19/2023 – Power

The CNJ (National Council of Justice) postponed until next week the discussion that evaluates the creation of a gender alternation policy when filling vacancies for the second instance of the Judiciary.

The postponement measure was taken due to a request for review (more time for analysis) made by counselor Richard Pae Kim.

The counselor’s statement took place after reading the vote of the case’s rapporteur, Salise Sanchotene, who defends the application of the rule. Even so, advisor Mario Goulart Maia advanced his vote, following the rapporteur.

The proposed normative act establishes the alternation between women and men according to the opening of vacancies for career magistrates based on criteria of seniority and merit.

The discussion had been 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.

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%.

Within the CNJ, on the eve of the vote, movements of female judges roam the offices to defend the change while judiciary associations demonstrate against it.

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.

The topic was debated again at the end of August 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.

Ajufe (Association of Federal Judges of Brazil) stated that it carried out an internal consultation among members, in which the majority were against the text. In a petition, he said that the trade associations were not called into the discussion and asked for a deadline to express their views on the merits of the proposal, including for “improving the wording of the text”.