Judges from São Paulo ask for the annulment of the women-only competition – 03/27/2024 – Frederico Vasconcelos

A group of 20 judges from São Paulo filed a writ of mandamus, with a request for an injunction, questioning the act of the president of the Court of Justice of São Paulo, judge Fernando Antonio Torres Garcia, who ordered the opening of a competition to fill a position of judge intended for promotion by merit only for women.

54 judges who registered for the competition must be notified as passive co-joiners. Applications are being analyzed by the Special Body to form the triple list.

The rapporteur is judge Gastão Toledo Campos Melo.

The TJ-SP does not comment on jurisdictional issues, informed the press office.

In October, when the National Council of Justice approved the resolution to reduce gender inequality in the Judiciary, this blog recorded the prediction that there would be “a judicial war and a dispute between men and women in the next promotions”.

There was resistance in the courts and tension due to the risk of injustice.

The petitioners want an order to cancel the competition, with the publication of another notice, guaranteeing them the right to register and compete for the vacancy.

The competition was opened in January by act of the Superior Council of the Judiciary.

The petitioners question the concrete effect of Resolution 525/23 of the National Council of Justice.

“The concrete act is violating the clear and certain right of each petitioner, since due to the fact that he is male, he is excluded from the promotion competition, and prevented from exercising what is guaranteed by the Organic Law of the Judiciary and the Federal Constitution itself “.

“It must be asked, with due respect, whether the Superior Council of the Judiciary verified where they are and what are the provisions in the Statute of the Judiciary, which deals with the promotion of Magistrates and which granted the CNJ the authority to provide for promotion rules by gender? “

“No guidance was discussed or established, as far as we know, for situations like the present one, when the mandatory action is not directed against the National Council of Justice, but rather, in the face of an act that materialized its regulation, and that, in theory, will harm the clear and certain rights of members of the career, as is the case of the Petitioners”.

The authors state that “it is not possible to take the claim directly to the Federal Supreme Court, because the mandatory action is not being filed against the CNJ; and the petitioners do not have the legitimacy to file a direct action for unconstitutionality in the STF.”

Citing the Constitution, the petitioners claim that nothing can take away “their right to submit the issue and their theses to the Judiciary”.

“The only path left for them (…) is to seek this security before this Special Body.”

The judges are represented by lawyers Samuel Alves de Melo Júnior and José Roberto Machado, from the firm Marçal Alves de Melo Advogados Associados.

Here are other arguments that support the request:

“The resolution on which it was based contains irremediable defects of a constitutional nature, therefore not justifying the opening of competitions only for women. It should be noted, once again, that security is not being sought against the resolution in theory, which would fall outside the competence of this Board, and could not be postulated in the chosen remedy”.

“The insurgency is in the face of the materialization, as highlighted more than once, that is, the practice of concrete acts exclusively based on it, and which authorize the analysis, incidentally, of the constitutional aspects that involved the determination made and that is being followed .”

“And whoever it is, even if they hold a certain amount of power, determines changes in direction or, as in this case, as the notice proves, the effective change in the orientation that has always been observed, to open a competition only for the female gender , without the practice of any act characterizing unequal treatment of such gender previously, is, at the very least, in violation of the principle of equality”.

The judges emphasize that “no censure is being made against the political and social movement that seeks to guarantee and effectively guarantee the rights and opportunities for women, in the exact same way as they are granted to men, in the various activities of life.”

The order cites excerpts from Professor Ives Gandra Martins’ opinion:

– “The universal nature of social quota rules serves to give equal opportunities to their beneficiaries, without having the power to achieve privileges or exclude those included in the system. It is a rule of educational equality and not of professional equality”

“If merit is a requirement required for the good of society, since the better the magistrate, the better the service provided, it cannot be provided, it cannot be overcome by a criterion that seeks to benefit the gender, that is, for the personal benefit of the judge…”

The request cites a statement from the TJ-SP when the CNJ debated the issue of parity: “In the State of São Paulo, in promotions, whether in terms of seniority or merit, there is no and never has been gender discrimination.”