Promotion of judge based on gender divides TJ-SP – 04/04/2024 – Frederico Vasconcelos

The São Paulo Court of Justice suspended the vote to choose the first first-degree judge to occupy a position as a judge based on merit criteria in an exclusive competition for female judges.

With the division between the members of the Special Body, the decision was taken this Wednesday (3) by a tie-breaking vote (11 to 11) of the president of the TJ-SP, judge Fernando Antonio Torres Garcia.

What is under discussion is whether the TJ-SP will follow the resolution of the National Council of Justice or comply with the Constitution, as opponents of quotas question.

Initially, a suspension was proposed until the judgment of the writ of mandamus filed by 20 judges. The delay in promotions in general was then questioned.

The thesis of suspending the promotion until the judgment of the internal appeal prevailed (against the non-granting of the injunction by the rapporteur, Gastão Toledo Campos Melo).

Melo is on leave. The process was distributed to Luiz Augusto Gomes Varjão, who denied the request for urgency.

The registered judges defend gender equality in the Judiciary. The National Movement for Parity in the Judiciary maintains that the CNJ has the power to issue norms that implement constitutional principles.

The Sankofa Collective enrolled judges with no chance of promotion, in support of the TJ-SP’s vanguardism. Now, 54 of them are passive co-participants in the writ of mandamus.

Last frontier

Judge Roberto Solimene brought forward his vote to suspend the trial due to the danger to the seniority list, “the last frontier of functional legal security”.

“Before urgency comes legal certainty,” he says. He sees no difficulty in quickly resolving the writ of mandamus. “This is about changing criteria in the middle of your career.”

Solimene says that one cannot deny some plausibility in the petitioners’ argument, which alleges the unconstitutionality of the gender criterion. He considers “it is imperative to check whether the insertion of a new criterion [pelo CNJ] transcended constitutional limits”.

“On the general list on the way to the last position are two judges with equally notable professional performance and who precede their esteemed colleagues registered”, says Solimene. He refers to judges Ely Amioka and Sandra Regina Nostres Marques. “If the promotion is voted as posted [pelo CNJ] they would be left behind”, he warned.

“Once the promotion is confirmed there will be no return,” he says.

This Tuesday, judge Maria Lúcia Pizzotti sent a message to the members of the Special Body, stating that “it would be a demeaning of the Court to judge the promotion before judging the writ of mandamus that questions it”.

“Although there is a need to continue our career, to fill vacancies, there is no need to do this at such a high and totally unfair cost.”

According to Pizzotti, it is up to the members of the OE to “avoid irreparable injustice”.

“A topic of such relevance cannot be assessed solely by a monocratic decision, which did not suspend the competition.”

“It is not at all a question of affronting the CNJ, but rather of demonstrating that the TJ-SP, the largest Court in the country, acts in accordance with legal and constitutional precepts and is not just a body executing orders which, in this case, suffer from vices of origin and need to be debated”, says Pizzotti.

“Being a woman is not a merit or demerit, just like in the case of men. Just a human condition. The legal criteria provided in Loman as a rule for promotion competitions in our career, do not cover this condition. Only the law can change these criteria” .

“Here, a judge has never been passed over for being a woman, by a magistrate. If there are problems like this in other states, the CNJ, which has the power to do so, can resolve them promptly”, he concluded.

The vacancy to be filled in the exclusive competition for judges is due to the retirement of judge José Tarciso Beraldo. Judge Eurípides Gomes Faim Filho was appointed, based on seniority criteria, with the retirement of Judge Gil Ernesto Gomes Coelho.

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