The secretary general of the CNJ (National Council of Justice), Valter Shuenquener, published an article on the Conjur website in which he defends Resolution 441, which allows the professional exchange of judges.
The program announced by Minister Luiz Fux, president of the CNJ, provides that magistrates will be able to work in courts in other states within a period of up to six months. The objective is to disseminate good practices and share knowledge.
Shuenquener says that it is “a novelty in the Judiciary, but already known by the private sector, which, for a long time, makes use of secondments and professional exchanges”.
“In the police and the Public Ministry, training, investigations and long-term joint operations are common, including in partnership with foreign institutions”, he says.
Shuenquener is a professor of Law at UERJ. He is a federal judge at the Federal Regional Court of the 2nd Region. He was assistant judge and instructor judge in Fux’s office at the Federal Supreme Court.
Criticism and contradictory
The secretary-general does not mention a report published in this Blog and an article by professor and jurist Lenio Luiz Streck, in Conjur, on the 10th. Both texts criticize the resolution.
In order to stimulate the debate, we reproduce some of these criticisms and excerpts of opinions in Shuenquener’s article:
Blog: Question from a federal judge: if a social security court judge goes to another social security court, what will he learn there that he didn’t already know?
Shuenquener: If the judge already specialized in a subject in the court of origin, what will he learn in the new location? As much as the subject is the same, each judge develops their techniques, methodology and management. The exchange created has, therefore, the lofty objective of letting everyone know the best way to do what must be done well. The judge who has solid knowledge in a matter may receive colleagues from other locations so that they can learn, in practice (hands on experience), the most efficient way to work with that subject.
Blog: “There is no law that supports this figure of the gypsy judge; but for this STF, the absence of a law is not an obstacle to its impositions”, says the prosecutor of the Republic Celso Três, from Novo Hamburgo (RS).
Shuenquener: But do laws such as Loman prohibit this practice? There is no legal or constitutional provision that prohibits the Judiciary from encouraging the professional improvement of its magistrates through professional exchange. On the contrary, the constitutional principle of efficiency, which is one of the basic principles of the Brazilian Public Administration, underlies the initiative.
Blog: Kenarik Boujikian, retired judge at the São Paulo Court of Justice, says that “the CNJ’s resolution violates the constitutional principle of the natural judge, one of the most dear to the democratic system”. According to her, it is a guarantee that is not addressed to the magistrates, but to guarantee the jurisdiction and democracy, with the safeguarding of legal rules of competence, access to the position, etc.
“What is in the Constitution is the principle of the natural judge and the CNJ should be the first to defend the principle, as well as all judges”, says Boujikian.
Lenio Streck: As much as there are noble interests — and I have no doubt about that — behind Resolution 441/2021, the Constitution guarantees the principle (not infrequently forgotten) of the natural judge. That it is not a right of the judge and that it is not an adornment that can be exchanged, but a guarantee of the jurisdiction.
If it is for the jurisdiction, the judge cannot renounce what is not his. There is neither in the constitutional nor legal system the possibility for a judge to exercise jurisdiction in another State: access to the position is by competition. As everyone legislates in Brazil — from Carf to CBF — Resolution 441 intends to sacrifice something that cannot be sacrificed and that does not even have the possibility of doing so. If giving up the Natural Judge is an administrative and financial issue for the courts, then anything can be given up in the name of the administration.
Shuenquener: The novelty also does not violate the principle of the natural judge. The judge’s performance in the new location will be formalized by an act of the court that receives him and, from then on, he will be irremovable from the court and will only be able to judge new cases. We cannot confuse the person of the judge with the court to which the case is distributed. No one has the right to choose the judge of their case, but only the right to demand the distribution of the action for the foreseen court, which, by the way, is fully observed by the instituted program..
Nepotism and legality
In April 2020, when he was occupying the vacancy of the Supreme Court at the CNMP (National Council of the Public Ministry), Shuenquener extinguished the Administrative Control Procedure established to challenge ordinances of the Attorney General of the Republic. Augusto Aras changed the statute and interrupted the mandates of 16 counselors and coordinators of the Escola Superior do Ministério Público da União (ESMPU).
Shuenquener understood that it is not a constitutional duty of the council to control the acts performed by the attorney general, who presides over the CNMP.
In his article in Conjur, Shuenquener states that the “CNJ was authorized by the Federal Supreme Court to edit acts for the concreteness of the constitutional text”. He cites as an example “the prohibition of hiring relatives which, even in the absence of law, became prohibited under the principle of administrative legality”.
“This principle, by the way, came at a good time to assume the leading role of the strict legality of the 1990s”, says the secretary-general.
At a bad time, so to speak, Resolution 441 was approved in an ordinary session of the CNJ with the endorsement, including, of the newly sworn counselor Mário Henrique Nunes Maia, son of Napoleão Nunes Maia, retired minister of the STJ (Superior Court of Justice).
The appointment of the counselor added nepotism and childishness, thanks to changes in the CNJ regiment on the first day of the administration of Minister Dias Toffoli in the presidency of the external control body of the Judiciary.
On the occasion, a former magistrate councilor of the organ vented: It’s a shame! The body that raised the flag against nepotism now welcomes it!