Rapporteur extinguishes writ of mandamus against promotion of female judges – 04/09/2024 – Frederico Vasconcelos

Judge Gastão de Campos Mello Filho, from the São Paulo Court of Justice, extinguished the writ of mandamus filed by 20 judges who intended to annul the competition to fill a judge position intended for merit-based promotion only for women.

The petitioners questioned the act of the president, judge Fernando Antonio Torres Garcia, who ordered the opening of the competition. The rapporteur understood that “the petition is directed against the illegitimate protesting party.”

“Strictly speaking, the attack is not aimed at the local act [do tribunal]but against the content of Resolution 525/2023, of the National Council of Justice”, he stated.

According to Campos Mello, the president carried out an act of simple execution. “If what the petitioners want is the recognition of the invalidity of the CNJ’s resolution, the conclusion that the demand was poorly addressed is inescapable.”

The day before, the rapporteur had denied security in relation to the members of the Superior Council of Judiciary. With this, the process was terminated in relation to the vice-president of the TJ-SP, the general inspector of Justice, the dean and the Section presidents.

Campos Mello also rejected, on Monday, the request for judicial secrecy made by the petitioners of the writ of mandamus. He understood that there was no exceptionality that justified secrecy.

In the previous session, the Special Body was divided (11 to 11). The vote was suspended with Torres Garcia’s tie-breaking vote.

The case returns to the Special Body’s agenda this Wednesday (10). It is item No. 2024/4,775.

Decision surprises

The rapporteur’s unexpected decision surprised petitioners and defendants. The extinction prevented a broader debate by the Special Body, which would allow it to be known whether the Superior Council of the Judiciary would act as a mere executor of an order issued by the CNJ, as the petitioners questioned.

In addition to deeming the writ of mandamus extinct, the rapporteur judged the assessment of the appeal filed against the rejection of the injunction to be impaired.

This Monday, a group of 35 judges registered in the competition stated that they were harmed “because they were, against their will, drawn into a legal dispute with serious procedural flaws”.

They also criticized the suspension of the competition that would adopt, for the first time, the resolution approved by the CNJ.

Judge Maria Lúcia Pizzotti Mendes says that “the intention of the writ of mandamus was to see the Special Body, the one competent to decide institutional matters, judge in a collegial and democratic way. With the monocratic decision that it saw fit to extinguish the MS and consider it harmed the judgment of the appeal, a necessary and essential debate for the entire career of the São Paulo judiciary was obstructed”.

“The Special Body needs to debate the matter in this Wednesday’s session, as the appeal is on the agenda. Only the Board, and not just the rapporteur, will have the power and competence to decide on the merits of the appeal and the writ of mandamus itself, by votes of the 25 judges”.

“We have seen in Brazil, regrettably, issues of enormous relevance addressed to an entire court, but decided monocratically by one judge. I cannot even imagine that this fashion will catch on in the TJ-SP, under penalty of the largest Court of Justice in the country becoming tiny”, concluded Pizzotti.

Judges applaud extinction

The National Movement for Parity in the Judiciary celebrated the decision. In a note, he reaffirmed “confidence in the effective application of Resolution CNJ 525/23”.

“Judge Campos Mello’s decision did justice by recognizing the passive illegitimacy of the president of the TJ-SP to judge a demand against an act by the CNJ. This is what is expected from a respected court like the TJ-SP, as well as from all Brazilian courts .

In a statement, the Sankofa Collective expressed “satisfaction with the lucid decision, in which the reporting judge accepted the arguments that were presented by the defense of the passive co-joining judges in the writ of mandamus”.

The collective hopes that this Wednesday’s session will promote the promotion of judge Maria de Fátima dos Santos Gomes to TJ-SP judge.

“The event will be celebrated with great joy not only by the members of the Collective, but by women from all over Brazil, who have come together around the just cause that we defend: equal and more diverse courts”, he concludes.

Retired TJ-SP judge Kenarik Boujikian said she was “sadly perplexed by the filing of the writ of mandamus, as it was clear that there was an attempt to escape the natural judge, the STF, which has a firm decision on the competence to demand resolutions of the CNJ, from the perspective of constitutionality”.

He lamented the fact that the authors of the warrant “are judges and the first principle that guides jurisdiction is that of the natural judge, established in the Federal Constitution.”

“Male judges can seek help from the Judiciary, but in a proper manner,” said Boujikian.

“Unfortunately, they wanted to choose their judge,” he said. “Everyone has guaranteed the right to action, also supported by the citizen Constitution, but they must do so in their own way.”