By Constitutional Amendment No. 45 of December 8, 2004, new wording was given to Article 93, II, c, of the Federal Constitution, whereby, in the promotion of judges,
merit was now measured according to performance and objective criteria of productivity and promptness in the exercise of jurisdiction, in addition to attendance and success
in official or recognized advanced training courses. This need for objectivity is strictly aligned with the imperatives of publicity and transparency, present
in several of the innovations provided by the aforementioned Amendment, such as items IX and X of the same provision. By enabling oversight of the acts of the Judiciary, in the specific case of the criteria for promotion based on merit, the innovation is primarily intended to safeguard the independence of the judiciary, which is why, ultimately, it guarantees the very stability of the Democratic Rule of Law.
In April 2010, the National Council of Justice issued Resolution No. 106, designed to establish objective criteria for the promotion of judges and access to the courts. The initiative was preceded by a thirty-day public consultation process, which included input from judges, lawyers, and representative entities, such as the National Association of Labor Court Judges (ANAMATRA).
However, paradoxically, in addition to removing the political element from the selection procedure — which is commendable — the wording of the rule also brought with it a strong and serious amount of subjectivity and several elements that were detrimental to the very prerogative of independence of the judiciary that it was intended to protect, which even led to the filing of a request for action by the aforementioned national association before the Council. Consider, by way of mere example, the provision for linking the quality of jurisdictional decisions to the “relevance of doctrine and jurisprudence, when cited (art. 5, d)” or to “respect for the summaries of the Supreme Federal Court and the Superior Courts (art. 5, e)”, circumstances that clearly demonstrate, both, on the one hand, an unacceptable attempt at ideological and intellectual control of the judge’s activity, and, on the other, a serious violation of his duty-power to provide reasons according to free reasoned conviction: a mere unfolding of functional independence, a mere guarantee of the Democratic State of Law.
Indeed, by truly forcing judges to obey certain doctrinal and jurisprudential lines, the Council's Resolution also goes against the very conditions of the scientific development of law, since, according to the Austrian philosopher Karl Popper, it is precisely the constant critical tension between always conjectural knowledge and its infinite possibilities of refutation that gives science its dynamism. Closing the doors to criticism is to suffocate the law, as a cultural object and, therefore, always subject to factual and evaluative updating.
Although it is even intuitive that assessing the quality of a predominantly intellectual activity may always slip, to a lesser extent, into some subjectivity on the part of the examiner (which should not be confused with arbitrary judgment), it is essential that the judiciary remain alert and react calmly and firmly against any and all attempts at ideological and intellectual control, whether out of a duty to defend their functional prerogatives to protect society as a whole, or out of a need to uphold the legal order itself within the Democratic Rule of Law.
Editorial Board