PALOTTI--Pedro-Lucas-de-Moura--PINHEIRO--Maurício-Mota-Saboya--DIAS--João-Paulo.-Brazilian-Instance-Public-Policies-and-Uses-of-Evidence-in-Brazil--Chapter-13---Institutional-Statativism-and-the-Episodes.-Brasilia--Ipea--2022..md

Pedro Lucas de Moura Palotti

Year

chapter title

http://dx.doi.org/10.38116/978-65-5635-032-5

Maurício Mota Saboya Pinheiro

João Paulo Dias

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http://dx.doi.org/10.38116/978-65-5635-032-5/capitulo13

Organizers

BRAZILIAN INSTANCE

PUBLIC POLICIES AND USES OF EVIDENCE IN BRAZIL:

CHAPTER 13 - INSTITUTIONAL STATATIVISM AND THE EPISODES

Series

Brasilia

Maricilene Isaira Baia do Nascimento

Janine Mello

2022

Natália Massaco Koga

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IT HURTS

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Book's title

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978-65-5635-032-5

'

IT HURTS

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AROUND THE CAUSES OF FIRST MAGISTRACY

CONCEPTS, METHODS, CONTEXTS AND PRACTICES

Institute of Applied Economic Research (Ipea)

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Machine Translated by Google INSTITUTIONAL STATATIVISM AND THE EPISODES AROUND THE

CAUSES OF BRAZILIAN JUDGEMENT OF FIRST INSTANCE1

“[We] at the CNJ, President Gilmar Mendes, the councilors, we all know that we are living in a country of extreme, profound, unjust and hateful social inequality. And inequalities are also included in the scope of the Judiciary!” (CNJ, 2008a), exclaimed the then minister Gilson Dipp, national inspector of the CNJ, at the II National Meeting of the Judiciary, in February 2009. But the minister's speech, as it might seem, did not refer to the inequalities in accessing the Justice. He referred to structural inequalities within the judiciary, to “inequalities between instances”, to inequalities between “inflated courts” and “abandoned first-degree justice”: “Brazilian justice is as unequal as inequality between people” ( op. cit.), in a tone of denunciation, concluded the minister. The body that would centralize the coordination of the administrative and financial organization of the Brazilian Judiciary (the CNJ) had already been in existence for a little over four years, and, as if in a discursive coalition, it seems that the theses about the causes of the slowness of Justice, in the speeches given at the event: “Although they differ in terms of competences, the Brazilian judicial bodies form a single Judiciary, hence it is commonly said that the Judiciary is a national power, whose image is immediately affected if the shortest of the rods weakens” (CNJ,

The first degree of jurisdiction is the gateway to Justice. It is the front line, the vanguard of the Judiciary. It is, in most cases, the only point of contact between the citizen and the Judiciary. It is where the service of Justice is visualized, felt, dreamed and achieved. It is the face of Justice that is perpetuated in the imagination of the thousands of men and women who seek help every year. (...). There is a pressing need to give a new perspective to the first degree. It is necessary to direct our eyes and attention to the gateway to Justice4

João Paulo Dias3

1. INTRODUCTION

Maricilene Isaira Baia do Nascimento2

CHAPTER 13

3. Assistant researcher at the Center for Social Studies (CES) at the University of Coimbra, in Portugal.

4. We are grateful for the debates, concerns and suggestions of Rebecca Neaera Abers, professor at the Institute of Political Science at the University of Brasília (Ipol/UnB), regarding the concepts proposed in this chapter, a partnership that made us reflect a lot on the inequalities of bureaucracy Brazilian judicial system.

5. Speech by then Minister Joaquim Barbosa, at the time President of the Federal Supreme Court (STF) and CNJ, in an opening speech at the VII National Meeting of the Judiciary Power, in Belém do Pará, in November 2013. Available at CNJ (2013c ).

6. Researcher at the Board of Studies and Policies of the State, Institutions and Democracy (Diest) at Ipea. E-mail: [email protected].

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2008b), declared the then president of the CNJ, Minister Gilmar Mendes. It was also a denunciation discourse: “just as in a well-organized machine, if a part does not work, no matter how small, it is the whole that is harmed” (op. cit.).

Six days before the aforementioned Second National Meeting of the Judiciary Power, where the first Strategic Planning of the Judiciary Power would be approved, President Gilmar Mendes arrived, to add to the statistical evidence of the Justice in Numbers report, the recent statistical results of the 1st Survey on the Working Conditions of Judges, carried out by the Association of Brazilian Magistrates (AMB), in the pioneer presidency of a magistrate of first instance of the Northeast region, Judge Airton Mozart Valadares Pires, of the Court of Justice of the State of Pernambuco ( TJPE). In the report, the conclusion was that “the working conditions of magistrates reveal[ed] a worrying situation and help[ed] to understand the delay demanded by the citizen when resorting to Justice” (AMB, 2009, p. 4-5): the “number of judges in Brazil is insufficient for the number of cases”; “only 15% of the units process up to a thousand processes – a number considered acceptable”. “In addition to the insufficient number of judges, the survey reveals that the number of technical personnel is practically half of what would be needed to meet the demands of the Judiciary”; we have “lack of transparency in the way the resources of the Judiciary are managed”; “almost [the] totality of magistrates are unaware of the percentage of the Court's budget that is transferred to their unit”; and “more than two thirds of the judges say that the allocated resources are insufficient” (op. cit.).

Highlighting one of the most impressive statistics from the latest Justice in Numbers report , created by statisticians from the Department of Judicial Research (DPJ), the president also highlights:

This investigation proposes to highlight how statistical ecology was central to support a wave of intra-bureaucratic protests against structural inequalities between instances of the Brazilian judiciary. The work carried out here explores how the actors and defenders of the magistracy of first instance in Brazil mobilized statistics to try to reach historical claims of this class, located in different episodes, since the installation of the CNJ, in 2005, such as, among others: i) the search for the standardization of objective criteria in the career movement of the judiciary; ii) the right to vote in choosing the

it matters little whether the congestion charge of a certain court is regular, or appears to be regular, if cases accumulate in the districts. (...) Many times, exactly this can happen: a given court may be giving the adequate answer in the second degree, precisely because the first degree has a high rate of congestion. [Therefore, there has to be] balance in the working conditions offered to the instances in order to prove adequate to the demands that pass through them, there needs to be an adequate distribution of resources between the second and first grades (CNJ, 2008b).

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As follows, after this introduction, section 2 brings the theoretical inspirations and proposed arguments; section 3 centralizes the proposed episodes; and, finally, section 4 presents the final considerations.

direction of the courts; and iii) the construction of a distributive policy to subsidize

improvements in the working conditions of the basic judiciary.

“Statistical institutions [treat] people as members of abstract groups rather than individuals with unique identities, histories and motivations”, situates Haggerty (2001, p. 100) as this statement being one of the most central criticisms made of the State when using of quantification. After all, agrees Bourdieu (2014, p. 38), “it is not [only] an instrument that allows measuring, that allows those who govern to know the governed”, it is an instrument of symbolic construction of the State, especially in the construction principles of division, of production of legitimate social identities. “It is not by chance that there is a link between the State and statistics”, refers Bourdieu (2014, p. 38).

To help with this research proposal, we dialogue with the conceptual proposal of Bruno, Didier and Vitale (2014), who argue that activism with statistics, which they call stativism, is a repertoire of action of social movements in contentious episodes for the search for representation and affirmation of the reality they experience, as well as to support criticism and denunciations of this reality. With inspiration from Abers' (2017) concept of institutional activism, we propose to characterize the episodes surrounding the causes of first-degree judiciary as institutional stativism, an activist movement with statistics by actors from the institutions themselves. From this, we seek to identify what we call statistics mobilization practices, a term referring to the construction of meanings with statistical principles, techniques and results to support and justify political causes. The methodology followed privileges the consultation of official and institutional sources, produced by social, professional and institutional actors, involved in the episodes surrounding the claims of the first instance judiciary in Brazil, whose data and analyzes were processed in the Atlas.ti software .

In this role of categorical production, what we discuss is that “statistics are frequently contested” and that “certain movements denounce them, accusing quantification of freezing human relations; of transmitting a cold image of society; of constantly evaluating human beings, citizens, workers”, as identified by Bruno, Didier and Vitale (2014, p. 199).

INSTITUTIONAL 2 INSTITUTIONAL STATATIVISM: ACTIVISM, STATISTICS AND MOVEMENTS

Machine Translated by Google 5. Body created by Constitutional Amendment (EC) 45/2004 , with the mission of coordinating the administrative and financial management of the Brazilian courts.

However, in the context of expectations leading to the creation of the CNJ,5 a statistics mobilization movement was born with a different approach from traditional denunciation movements and which has been institutionalized over the years, coming from internal and external voices of/in support of first instance judiciary in Brazil. The former general secretary and then advisor to the CNJ, judge Rubens Curado Silveira, representative of the first instance judiciary of the Labor Court, in an opinion published on the famous website Consultor Jurídica (ConJur), in August 2015, came to warn of the serious situations of inequalities experienced within the Judiciary. Specifically, he described:

These denouncing excerpts from judge Rubens Curado accompanied his defense of the National Policy for Priority Attention to the First Degree of Jurisdiction, which had recently been launched by the CNJ (in 2014). The magistrate's protest was based on statistics published by the Justice in Numbers report, which were mobilized in several episodes of contestation over the working conditions under which the first instance judiciary in Brazil is historically subjected, and is a demonstration that shows that “ there are also emerging forms of collective action that use numbers, measures and indicators as means of denunciation and criticism. In certain cases, activists use statistics as a tool for struggle and as a means of emancipation” (Bruno, Didier and Vitale, 2014, p. 199). After all, this is a “form of statistical politics that involves (...) trying rhetorically to 'do things' with numbers, with statistics being used as a persuasive device to advance political causes” (Haggerty,

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The burden on the shoulders of servers in the first instance is equally greater: 488 cases against 227 in the second instance. (...) by itself, it reveals the imbalance in the distribution of the workforce. That is to say: there are many servers where there are few processes and, proportionally, few servers where almost all processes are concentrated. This accumulation of collection can be explained, to a large extent, by the poor historical structure of the first instance, represented by counties and jurisdictional units lacking the minimum resources to meet the procedural demand. In contrast, the concentration of investments at the top of the courts is visible. As a result of a cultural inversion of priorities, sumptuous headquarters crowded with public servants share the scene with hovels crammed with processes (Silveira, 2015).

Data from the Judiciary show an alarming workload on the first instance, which translates into society in the form of procedural delays. Suffice it to say that 95% of pending cases (stock) are in the first grade, responsible for a congestion rate of 77%, 30 percentage points higher than the second grade (47%). The workload of first-degree magistrates is, astonishingly, 6,383 cases per judge, double that imposed on second-degree judges.

Machine Translated by Google 2001, p. 95). “Statistics are situated in broader discourses where they can be invoked to advance an agenda” (op. cit., p. 95). And that is a form of activism. More specifically, it is stativism.

(Bruno, Didier and Vitale, 2014, p. 199). Traditionally used by the workers' movement, as stated by Bruno, Didier and Vitale (2014), stativism is moving to many fields of action and by many types of actors, and is present, mainly, in terms of state restructuring. In this action repertoire, there are two roles that the actors grant to statistics: representation of reality and criticism of reality. Therefore, Bruno, Didier and Vitale (2014) propose that, in the production of a shared reading of reality, we can find two dimensions of stativism: denunciation and affirmation. “In other words, we will see the role of stativists in denouncing a certain state of reality and, also, in efforts to use statistics in creating equivalence between disparate conditions and in cementing emerging social categories” (op. cit., p . 198 ).

In the case of the episodes that will be narrated here, a coalition in defense of the claims of the magistracy of first instance in Brazil mobilized official statistics, in particular to try to advance causes in denunciation of budgetary and personnel distributive practices, criteria and practices in the movement of careers and the election system for the administrative tops of the courts in the country.

But, unlike what Bruno, Didier and Vitale (2014) propose to focus on, situating the mobilization of statistics in contentious causes as part of a broad repertoire of action by social movements, we propose to show that this tativism is also a repertoire of action by social movements . intrabureaucracy, a kind of action repertoire that we suggest conceptualizing as institutional stativism.

Bruno, Didier and Vitale (2014) draw attention to the urgency of “recognizing how much social movements use statistics and quantification as part of

This last term is inspired by the conceptual proposal of institutional activism6

Bruno, Didier and Vitale (2014) propose that stativism, a term formed by the contraction of statistics and activism, is a particular form of action in a wide repertoire used by contemporary social movements (the mobilization of statistics); “it should be understood perhaps as a slogan to be brandished in battle, but also a term to be used in the description of those experiments aimed at reappropriating the power of statistics of denunciation and emancipation”

by Abers (2017) – a proactive action that involves the search for opportunities by the state bureaucracy, the object of this action being the defense of a contentious cause, “even when it is opposed to the demands of its superiors” (op. cit. , p . 26).

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6. We recognize that we were inspired in an ultra-adapted way by the concept of institutional activism proposed by Abers (2017), which situates activism in the relations of bureaucracy with social causes. However, we dare to propose that the concept helps us to think about repertoires of action in causes that we deem contentious within intra-bureaucratic relations, a conceptual journey that, we agree, requires refinements and justifications to the debate proposed in this chapter.

Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

Machine Translated by Google Additionally, we also propose to show that, sometimes, statistics are mobilized to simultaneously criticize and represent, to denounce and

their repertoires of action, in the criticism of certain statistics, as well as in the use of others as powerful instruments in political struggles” (op. cit., p. 202). Stativism, the authors suggest, “designates those statistical practices that are used to criticize and free from any authority”, but they also agree that quantification, sometimes, plays a crucial role in the construction of authority, of domination: “we could also to say that today there is hardly a better example of authority capable of disarming any criticism than a number or nexuses of numbers” (op. cit., p. 200). An important distinction that these authors bring is that statistics is about representing – synthetically – reality and stativism is about challenging the representation of reality with statistics themselves. Thus, in order to advance in this instrumental recognition that make statistics these movements, and that also applies to the nature of the movement with which we propose to analyze in this chapter, we agree that an important aspect to be investigated concerns the practices of mobilization of statistics that , as well as the purposes for which they are mobilized, can help in understanding how this form of activism develops.

The examples of contentious episodes, around the causes of the magistracy of first instance in Brazil, which we will report in section 3, allow us to situate the practices of mobilization of statistics referring to the construction of systems of meanings with the elements of statistical ecology, such as principles, techniques, formulas and results, among other dimensions, to support, justify and represent political causes. On the battlefield, sometimes the mobilization of statistics occurs in reaction to criteria that have been established; “in other cases, stativism is not against indicators, but consists of quantifying data to make an issue visible and relevant” (Bruno, Didier and Vitale, 2014, p. 200). On this aspect, Nas cimento and Abers (2020) also show that, depending on where the actors are located in the intra-bureaucratic political dispute, different statistics mobilization strategies can be observed: actors producing statistics can mobilize statistical techniques whose resulting indicators are constituted in order to induce organizational changes, by classifying better and worse. Otherwise, the actors affected by such classification techniques – in particular, those who reach low positions in indices and indicators –, to mitigate socio-institutional losses, create and disseminate new interpretations, “sometimes abandoning, sometimes recombining some (...) elements [constituting the statistics], to propose positive interpretative trails of themselves” (op. cit., p. 138), which is the case they bring from the creation of the controversial Comparative Productivity Index of Justice (IPC-Jus), by the DPJ /CNJ, to assess the comparative productive efficiency of Brazilian courts.

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Brazil: concepts, methods, contexts and practices 432 | Machine Translated by Google Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

3.1 Episode 1: “Deserving is not falling to those who work the hardest” (AMB, 2010): questioning the criteria for career movement in the judiciary

3 THE STATISTICAL ECOLOGY OF THE CAUSES OF FIRST MAGISTRATURE BRAZILIAN INSTANCE

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claim. In the episodes that will be discussed around the causes of first instance

judiciary in Brazil, this simultaneous practice will be explained.

“This is a historic date for the Brazilian judiciary”, highlights the commemoration of

the president of the AMB, judge Rodrigo Collaço, on the Migalhas website (CNJ

welcome..., 2005). The commemoration was related to the reception of the request

for measures submitted by the AMB to the CNJ, which claimed that the vote in the

promotions by merit of judges from the first degree to the second degree should be open and reasoned. “It is the recognition of the importance of merit, the introduction of constitutional principles, such as transparency, impersonality and publicity in promotion based on merit. This will contribute to the appreciation of the judge before society” (op.cit .), stated the judge, situating the meaning of his commemoration.

Another claim that accompanied the open and reasoned practice of voting for

ascension to the second degree was the observance of the courts to what the

Organic Law of the National Judiciary (Loman) already provided for in terms of

promotion: the regulation by the courts of the verification and assessment of the promotion criteria.

In the application submitted to the CNJ, the AMB argued that Constitutional

Amendment 45/20047 – which brought changes known as the reform of the Judiciary,

among which it created the CNJ – established “four objective criteria for the purpose

of assessing the merit of judges, aiming at the promotion in the career”,8 and the

demand was that “the immediate observance of these parameters was necessary,

through an open and reasoned vote, by all national courts, in the acts of promotion

of magistrates”. The open and reasoned practice of voting was so important for

compliance with the adoption of objective criteria in the promotion process because

“until the moment that preceded EC 45/2004 , promotions based on merit were

made, in the national courts, through secret ballot, in which the magistrates on the

list did not have access to the motivation for promotion”; therefore, “the subjective

criterion prevailed over the objective”, denounces the AMB.

7. Available at: https://bit.ly/3Dgt4dH.
8. The quotations that follow were taken from the documentary files of the CNJ's procedural follow-up page. On this page, there are different images referring to the submission of the AMB action request. Available at: https://bit.ly/3nygDDG.

Machine Translated by Google 9. Available at: https://bit.ly/2YnCZ1I. 10. This defense of the quantification of criteria must be read in the historical context of the demands of the Brazilian judiciary, led by judiciary associations, such as the AMB. For several decades now, the excessive quantification and production of statistical indicators has been questioned, especially when its promoters forget to answer the question: what are data for? Gauléjac (2005) even calls it “quantyphrenia”. For more details of this discussion in other scientific areas, see, among other authors, Desrosières (2010), de Gauléjac (2005), Koga (2003) or Roy and Offredi (2011).

434 | Public Policies and Uses of Evidence in Brazil: concepts, methods, contexts and practices

Citing excerpts from Loman,9 the request for measures highlighted that, for the purpose

of composing a triple list,

The complaint was about the validity of objective investigations, when available,

without due regulation by the court. According to AMB's claim and complaint, in relation to

Loman's enrollment: “As can be seen, such criteria could only be considered effectively

objective in the face of any 'regulation issued by the court', because, if they were

considered as such in law, would not meet the legal requirement”.

This is a case in which the mobilization of statistics can be observed to defend that

the objectification of criteria is the only practice that represents the fair structuring of the

rationale for moving the career of the judiciary.

of the criteria teaches us that actors can direct statistical elements and quantification as

the only valid means of representing reality, including to dilute the autonomy of more

powerful actors that, otherwise, under another type of industriousness, would not be

possible. In this episode, statistics represent and guarantee more rights than any other

type of operationalization.10

The AMB further adds that: It

is necessary for each court to discipline, at least, (a) what the judge's conduct is (...), (b) what are the parameters in order to be able to quantify the industriousness in the exercise of the position, and (d) the valuation to be attributed to each improvement course. (...) [The] courts have never observed these criteria (...) promotions always take place by means of a mere secret ballot (...). A given judge received fewer votes than another without knowing which objective requirements the winner would have fulfilled to the detriment of his requirements.

The claim for parameterization, for valuation, for quantified industriousness

EC no. 45/2004 also legislated on the matter, specifying that promotion should take

place by “measuring merit according to performance and objective criteria of productivity

and promptness in the exercise of jurisdiction and

merit will be determined at the entrance and assessed with the prevalence of objective criteria, in the form of the regulations issued by the Court of Justice, taking into account the conduct of the judge, his industriousness in carrying out his position, the number of times he has appeared in the list, (...) as well as the use in improvement courses.

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But it was also not enough to resort to the CNJ to remind the courts about the

constitutional observance of openness and the objective justification of the vote; the

experience was still not ideal, especially in terms of grounds. The denunciations

continued, such as those of the then president of the AMB, Judge Mozart Valadares, in

defense of the draft of the new resolution proposed by the Commission on Prerogatives

in the Career of Magistracy, created during the administration of Minister Gilmar Mendes:

“The vast majority of judges treat the public space as if it were private”: “To be promoted

to the TJPE, the candidate must make a pilgrimage through the judges’ office, assuming

commitments that this collegiate does not waive”. “So you get there without

independence” (Magalhães, 2008), “deserving is not falling to the one who works the

hardest. If the magistrate knows that the work is not enough to get the promotion, the

result is discouragement” (AMB, 2010). The new resolution, which was open for public

consultation, and which would replace Resolution 6/2005 , regulated more specifically on

the parameterization and operationalization of the objectivity of the criteria for

for the attendance and success in official or recognized improvement courses”, he adds

in his request for measures to AMB. The petition motivated the proposal of one of the

CNJ's first resolutions, Resolution no. 6, of September 2005, which resolved on the

“measurement of merit for the promotion of magistrates and access to second-degree

courts”, guaranteeing, in art. 1st

In the words of the author of the original proposal, minister Ives Gandra, on the

Miga lhas website , “the idea is to provide more objectivity to the promotion of magistrates,

avoiding political criteria and standardizing the rules in the courts” (CNJ analyses..., 2010) .

, that

“promotions based on merit of magistrates will be carried out in a public session, in a

nominal, open and reasoned vote” (CNJ, 2005). Furthermore, it resolved that the courts

should issue normative acts regulating the objective assessment of the criteria provided

for by EC no. 45/2004.

the voting members (...) declare the foundations of their conviction (...) in the choice, which are: I - performance (qualitative aspect of the jurisdictional provision); II - productivity (quantitative aspect of jurisdictional provision); III - promptness in the exercise of functions; IV - technical improvement; V - adequacy of conduct to the Code of Ethics of the National Judiciary (2008) (CNJ, 2010).

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The parameterization structure and quantified workmanship for measuring merit in career movement from first to second degree

436 |

It is

Evaluation of technical improvement

V – adequacy of conduct to CEMN: 15 points.

III – Teaching classes in lectures and courses promoted by courts or councils of the Judiciary, by judicial schools or by educational institutions affiliated with the Judiciary

e) effective participation in joint efforts, in itinerant justice and other institutional initiatives;

II – Production volume

a) compliance with procedural deadlines, computing the number of cases with expired deadlines and unjustifiable delays;

Assessment of the quality of decisions

c) the average duration of the process in the court, from the distribution to the sentence;

f) the average time of the process in court.

g) inspection of judicial and extrajudicial facilities and prison and internment facilities for the protection of minors under its jurisdiction;

I – performance: 20 points.

b) clarity.

IV – technical improvement: 10 points.

a) attendance at forensic work; Productivity assessment

j) publications, projects, studies and procedures that have contributed to the organization and improvement of the public services of the Judiciary;

Assessment of the adequacy of conduct to the Code of Ethics of the National Judiciary (CEMN)

e) respect for the precedents of the Federal Supreme Court and superior courts.

I – Attendance and performance in official courses or courses recognized by the respective national schools, considering courses and events offered equally to all magistrates by the courts and councils of the Judiciary, by the court schools, directly or through an agreement;

c) administrative management;

I – Work structure a) sharing

of activities in the jurisdictional unit with another magistrate (incumbent, substitute or auxiliary); b) collection and procedural flow existing in the jurisdictional unit; c) accumulation of activities; d) jurisdiction and type of court; It is

k) alignment with the goals of the Judiciary, outlined under the coordination of the National Council of Justice.

a) independence, impartiality, transparency, personal and professional integrity, diligence and dedication, courtesy, prudence, professional secrecy, knowledge and training, dignity, honor and decorum;

the essay.

f) residence and permanence in the district;

b) the average time for the performance of acts;

a) number of hearings held; b) number of reconciliations carried out; c) number of interlocutory decisions issued; d) number of sentences handed down, by procedural class and prioritizing the oldest cases; e) number of judgments and decisions handed down in substitution or assistance in the second degree, as well as in appellate classes of special civil and criminal courts; It is

Evaluation of merit (maximum score of the criteria)

b) administrative disciplinary proceedings opened against the magistrate and sanctions applied during the evaluation period.

II – productivity: 30 points.

h) effective measures to encourage conciliation at any stage of the process;

Operationalization of the productivity assessment: the average number of sentences and hearings compared to the average productivity of judges from similar units, using, for this purpose, the median and standard deviation institutes from the science of statistics, privileging in all cases, judges whose conciliation rate is proportionally higher than the rate of sentences handed down within the same average.

d) the average duration of the process in the court, from the sentence to the definitive archiving, disregarding, in this case, the time that the process was in the appeal stage or suspended; It is

c) objectivity.

readiness assessment

b) punctuality in hearings and sessions;

d) relevance of doctrine and jurisprudence.

e) the number of net sentences handed down in cases submitted to the summary and very summary procedure and hearings handed down in hearings.

I - Dedication

II - Speed in the provision of jurisdiction

e) the branch's operating structure (human resources,

technology, physical installations and material resources).

d) acting in a jurisdictional unit previously defined by the court that is difficult to serve;

i) procedural and technological innovations to increase judicial provision;

II – Diplomas, titles or certificates of completion of legal courses or related areas and related to the professional skills of the judiciary, completed after entering the career; It is

III – promptness: 25 points.

Source: CNJ (2010).

TABLE 1

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Instead of drawing attention to the only valid way of constructing the basis of

the vote for career advancement, it was time to point out the specificities of the

elements of objectification, parameterization and quantification of the laboriousness

of the measurement. The movement of representation of the judiciary was still

around the quantitative assessment of those who work the most. The new resolution valued the criteria, in addition to specifying the operationalization of some variables, such as the variables belonging to the evaluation of productivity and the evaluation of promptness. Measures such as mean, median, standard deviation and indices were suggested for normalization. However, as can be seen in Table 1, the norm brought a hybrid operationalization of the criteria, which was the reason for the controversies that arose around the new resolution proposal. Despite the new standardization establishing the maximum quantitative score of the criteria that compose the assessment by merit, even the criteria for evaluating productivity and evaluating readiness, it was not specifically established in part of its variables how much and how to quantify. In addition, the new norm added new criteria that were difficult to measure quantitatively, such as the assessment of the quality of decisions and the assessment of the adequacy of conduct to the Code of Ethics of the National Judiciary. The hybridity and plasticity of some criteria leave room for different approaches, particularly by the evaluator, but it also interferes with the way in which the evaluated person defines the course of his professional performance, as can be seen in studies on the issue (Dias, 2004) .

The new norm generated many contrary repercussions by associations of the

judiciary; in particular, the AMB, the Association of Federal Judges of Brazil (Ajufe)

and the National Association of Labor Justice Magistrates (Anamatra), claiming that, with Resolution 106/2010, in fact, the proponents “ended up establishing subjective criteria and still violate the principles of independence of judges, isonomy and proportionality” (STF, 2010), argued the associations in the Direct Action of Unconstitutionality (ADI) No. 4,510, filed at the STF . Previously, the associations had submitted a request for measures to the CNJ, denouncing that many provisions of Resolution 106/2010 lacked constitutional support, such as the new criteria for measurement, in addition to the risk of subjectivity they entailed in the evaluation. However, this is the resolution that still applies today.

The date of March 31, 2014 marked the apex of what became known as the Direct

Elections Movement in the Brazilian Courts. On that day, male and female judges

from all over the country, coordinated by the national and local professional

associations of the judiciary, filed requests asking for changes in the internal regulations of their

3.2 Episode 2: “Putting these more than 80% of members of the Judiciary as protagonists in the management of the Justice system” (CNJ, 2016a): the Direct Elections Movement in Brazilian Courts

Machine Translated by Google FIGURE 1

Public Policies and Uses of Evidence in Brazil:

concepts, methods, contexts and practices

Campaign image of the Diretas Já movement in Brazilian courts

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Continuing the defense for democratization in the Brazilian courts, the then president of the AMB, the judge of the first degree of the Court of Justice of the State of Rio Grande do Sul (TJRGS), João Ricardo dos Santos Costa, explained that the date of March 31, 2014 was not random to proclaim the movement: “The choice of date by the Association of Brazilian Magistrates was (...) a way

respective courts, so that all lifelong judges of the first degree also had the right to vote to choose the presidency and vice-presidency of the courts (Diretas Já..., 2014). It was also an old claim that came from more remote times and that gained strength with the arrival of members of the first degree judiciary in the presidency of associations (Magalhães, 2008): “There is no internal democracy in the Judiciary (...)” , “(...) first degree judges are members of the Judiciary and have to participate in the administration of this power”, “We want a more accessible Judiciary, made to serve the population and not judges, judges and ministers”, “ We want good working conditions, functional buildings and not luxury” (op.cit .), denounced and claimed, at the time of his presidency of the AMB, the judge of the first degree from Pernambuco, Mozart Valadares.

Source: Cardoso (2014).

Machine Translated by Google Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

[Therefore] from the moment the choice process also has to pass through the expression of will of the judges of first instance, there will be, in principle, a tendency to make an administration also focused on the first instance (AMB , 2014, p. 2).

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to show that, 50 years after the military coup of 1964, 'the Judiciary has not yet reached

democracy in its fullness',(...) only judges, who represent 17% of magistrates throughout

the country, can vote” (Diretas Already..., 2014).

In fact, the opening of elections for the entire Judiciary "will enable a better

qualification of the Judiciary and the improvement of our jurisdictional performance"

The point is that

it is not just a matter of democratizing the administrative structure of the Judiciary, but mainly of allowing the choice of that magistrate who, for the majority of members of the judiciary, presents himself as the best manager, the best administrator of public affairs. , (...) while the process of choosing management positions is restricted to the electoral college formed by magistrates who are part of the second instance, the administration of the first instance will be relegated to the particular will of the elected magistrate (...) by the members exclusively of the second instance.

“After all, it is not credible that only 17% of the judiciary is allowed to define the

destinations of the Judiciary” (AMB, 2014, p. 9), claimed the president of the AMB, in

the request for measures to the CNJ, filed on April 8 of 2014, as a national symbol of

the coalition for Diretas Já in the Brazilian courts, requesting that the council issue a

“recommendation to all courts of Justice for them to change their internal regulations,

aiming to expand the college of voters in order to reach all magistrates linked to the

courts, in the process of choosing presidents and vice presidents” (op. cit., p. 10).

(Santos and Romão, 2014), published on the website of the Order of Lawyers of Brazil

(OAB), regional of Ceará, a second degree magistrate of the Court of Justice of the

State of Ceará (TJCE) in favor of the cause. According to Santos and Romão (2014):

“several Brazilian courts abandon the first instance, granting good working conditions

only to the second level; and this is nothing more than a reflection of the electoral

process for the administration of the court”, therefore, “through a direct election, the

monocratic judges will be able to charge the elected judges, demanding a management

focused on the first degree” (op. cit . .). It is not just a cause of the judiciary, “the direct

election reveals a way of inserting democratic management within the scope of the

Judiciary, because democracy enables a leadership committed to the aspirations of

those under jurisdiction and to the results desired by the institution” (op . cit .). Thus,

the magistrate makes the following statement: “No one is better than the first degree

judge to diagnose the needs of the district where his work is to be carried out, due to

his approach to the parties and lawyers” (op. cit. ) .

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The struggle comes from the country's pre-democratization period, and it turned out that the Constitution of [19]88 did not include a full democratization of the three powers of the Republic and the Judiciary was left pending. We made this request based on the possibility of the National Council of Justice, as manager of national policies for the Judiciary, issuing a recommendation, (...) it is a recommendation that we are proposing, in order for the courts to make progress on this issue of full participation of the judiciary in the choice of boards of directors (...). I would like to address this topic here from the perspective of the management of the Brazilian Justice system: one of the biggest difficulties we have today, perhaps the biggest problem, maybe not, the biggest problem of the Brazilian Justice system, is congestion, there are the lengthy services that the Judiciary has provided to Brazilian society. [In] these ten years of CNJ, we have not yet managed to advance in this aspect, and we understand that an important step for us to move forward would be to place these more than 80% of the members of the Judiciary as protagonists in the management of the Justice system (CNJ, 2016a) .

The difficulties we have to face are very visible, in conceiving a national policy on the basis of the Justice system, where all the demand for justice in the country is received (...) these difficulties (...) notably occur due to of the verticalized policies that are conceived by the courts. And this is due to the way in which the representation of the Brazilian Justice is constituted (CNJ, 2016a).

The movement for direct elections in the courts invokes the old relationship

between statistical principles and democratization. More than 80% of members of the Judiciary Power without the right to vote for the choice of the direction of the courts, which is the percentage of members of the national magistracy of first instance, justifies the criticism that there is no democracy in the Judiciary, that there is no a system of majority representation, of which the current proportion does not mean democracy. Only 17% of the members of the judiciary and belonging to another level of jurisdiction with voting rights was the proportional representation used by the actors to characterize the organizational government system of the courts as dictatorships, as indicated by the symbolism of the campaign I want to vote for president . Direct now in Brazilian courts.

And the day of voting arrived for granting or not the request for measures submitted by the AMB, specifically at the 238th Ordinary Session of the CNJ, which took place on September 28, 2016. Although, in the documented request, submitted in 2014, there was no mobilization of statistics to support the arguments for the democratization of the state courts, it was left to the crucial moment of the plenary sessions of the council, which is the oral support of the interested party. In defense of the claim, the presiding judge of the AMB, Ricardo Costa, reminds the plenary that this

The correlation between the non-election participation of almost 80% of members of the Brazilian Judiciary and the problems of the Judiciary was close, in the view of the claimants.

Machine Translated by Google Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

Judiciary (...) cannot remain immune, insensitive, to democratic activity; and democratic activity, it involves precisely the participation of first degree judges in court decisions (CNJ, 2016a).

The subject addressed today is of extreme importance for the judiciary. It is extremely important for the judiciary because we, first class magistrates, are, for the most part, so I don't generalize, excluded from the decisions of the courts to which we belong. (...) There is, in fact, in Brazil, a mismatch between the first-degree judiciary and the second-degree judiciary. While the offices of first degree judges have a maximum of two advisors, the offices of judges have at least eighteen advisors (...). There are situations of courts in Brazil that, despite having only 4% of the cases being processed in the state, have 26% of the employees allocated to the state Judiciary. This is a situation that we know is directly reflected in the issue of democratization, [and the]

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In comparison to the way in which the system of participation in other powers

is developed, emphasizes the magistrate, president of Ajufe, Roberto Carvalho

This correlation built by the actors exposes the administrative management

representation crisis that exists in the Brazilian courts. Still in the view of the judge

president of the AMB, “we have made a lot of progress in relation to this, but in many

courts we still practice the seniority criterion. So, today, the manager waits his turn,

he does not commit to a project, (...) and he is not accountable after he leaves” (CNJ, 2016a). In this excerpt, there is another denunciation of the system for establishing administrative leadership – and representation – in the courts, which is the existence of the seniority rule for candidates running for president. For reasons of this electoral structure, the president of the AMB denounces, “the members of Power do not know what will be carried out, the commitments they have, (...) there is already a problem of legitimation and a serious problem in representation, which is something expensive in democracy. This, in the scope of management, has quite evident consequences” (op. cit.). It is “about valuing that sector [in] which all demands for justice are involved and [in] which almost, much more than half, almost 90% of disputes are at the basis of the Justice system, and this basis is found become precarious in view of the way the courts have been managed” (op. cit.), he sustains.

There is another dimension of representation constructed by the actors when

they demand appreciation via the right to vote in that sector in which all the demand for justice comes into play: not representing the base judiciary means not also representing those under jurisdiction, society. This non-representation is supported, in the actors' view, by the proportion of structural working conditions between the instances, a dimension centrally brought up in oral arguments by the president of Ajufe, judge Roberto Carvalho Veloso, in support of the AMB:

Veloso, in his oral argument,

Machine Translated by Google Another aspect that draws attention is the strategy of the actors in invoking a system of terms that help to frame the meaning of the proportionality of disputes and the number of judges in the composition of the instances, in order to give rhetorical force to the claim for voting. Mobilized terms, such as the basis of the system, gateway, population, Diretas Já, representation, participation and manifestation of the [popular] will, approached the first degree judiciary as being compared to the people, society, the voter – a statist movement which proposed the meaning of the first instance as not being the lowest, but the most crucial for the Justice system, a meaning that had great repercussions in the construction of the National Policy of Priority Attention to the First Degree of Jurisdiction of the CNJ.

The fight continued even though the CNJ plenary rejected the request of the AMB for the issuance of a recommendation to the courts for the inclusion of the magistracy of first instance in the electoral process. In times of projection of what would become known as the apex of the movement of associations for the democratization of the administrative structures of the Judiciary, another mobilization around the cause was also born from within the CNJ, in the construction of a judicial institutional public policy that would try to change the course of the meaning of first instance justice in the organizational structure of the justice system:

This was an enthusiastic announcement, at the Preparatory Meeting for the 7th National Meeting of the Judiciary, by the counselor representing the first degree magistracy of Labor Justice, Judge Rubens Curado Silveira, one of the central actors in the idealization of this policy and coordinator of the group of work instituted by CNJ Ordinance No. 155, of September 6, 2013 (CNJ, 2013a). “And what made the National Council, especially the president, propose this working group, as a sign of a permanent national policy aimed at

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Even the Executive, the executives, mainly the municipal executives, who are elected by direct vote of the people, today, adopted the measure of the participatory budget, in which the population is heard in advance (...). Why can't we do this in the Judiciary too? And the path is the participation of first degree magistrates in the election of the board of directors (CNJ, 2016a).

Yesterday we also received, with great joy, the constitution of this working group, (...) something innovative on the part of Minister Joaquim Barbosa, of a group to present to him, to the National Council of Justice, (...) proposals that will consolidate and implement a future, but already launched, policy of prioritizing the first level of jurisdiction (CNJ, 2013b).

3.3 Episode 3: “Suffice it to say, I will not dwell on numbers, that 90% of cases in Brazil are at the first level of jurisdiction” (CNJ, 2013b): The National Policy of Priority Attention to the First Level of Jurisdiction

Machine Translated by Google Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

According to data from the Justice in Numbers report, 90% of the cases being processed by the Judiciary are in the first level units, giving rise to an average congestion rate of 73%, 23 percentage points above the existing rate in the second level, and the main cause of current systemic slowness; [in addition,] the data from that same report point, as a rule, to an inadequate distribution of public servants between the first and second levels of jurisdiction, disproportionate to the demand for cases (CNJ, 2013a).

Suffice it to say, I won't go into numbers, that 90% of cases in Brazil are in the first level of jurisdiction (...). A diagnosis that underlies all of our work, and that jumps to our eyes, in fact, and that is known to all of us, [is that the] (...) great bottleneck of the Judiciary is in the first degree of jurisdiction (. ..). Of the 89 million lawsuits that were processed in 2011, according to the latest official data from the [report] Justiça em Números, almost 80.79 million are at the first level of jurisdiction. (...) And we know, we all know the first degree of jurisdiction, and we know the difficulties faced (...), which are also portrayed in the congestion rate, which is more than 50%, on a national average, [ than second degree (CNJ, 2013b).

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In 2013, in the ordinance that established the working group, the presidency of

the CNJ, in the exercise of its attributions, already set the statistical tone that

legitimized the interpretation of this kind of statistical causal chain of the slowness of

Justice to justify the need to create this group , in order to think about the prioritization policy

prioritization of the first level of jurisdiction, were the data extracted from all this

strategic management work” (CNJ, 2013b), the counselor also justified.

The extracted data referred to those published in the Justice in Numbers report,

whose statistics systematize the comparative results of procedural, budgetary and

personnel demands between the first and second levels of jurisdiction of each

segment of Justice by the CNJ. The report ’s indices and indicators

Under such statistical justifications, the group created had the responsibility of

“developing studies and presenting proposals (...) with a view to the implementation

of a national policy aimed at prioritizing the first level of jurisdiction in the Brazilian

courts”, in particular “with a view to identify the main problems faced by Brazilian

courts” (CNJ, 2013a).

they were the central source of institutional evidence to support the entire argument in favor of the need to centralize the issue of the structural conditions of the Court of First Instance, as being a priority in the modernization policies of the Judiciary; in particular, an indicator that, in the view of the claimants, statistically translated the delay in the jurisdictional provision and the proportion of the procedural demand to the instances, at the same time that it represented the structural difficulties faced by the Justice of first instance (the congestion charge) :

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According to the Justice in Numbers 2013 report, of the 92.2 million cases that were processed in the Brazilian Judiciary in 2012, 82.9 million were in the first degree (...). The data also reveal that the first degree lowered 23.1 million processes, demonstrating that its annual production capacity is only 28% of the demand (new cases plus collection) imposed on its appreciation (...). Therefore, the first degree congestion rate is 72%, 26 percentage points above the second degree rate of 46% (CNJ, 2013c, p. 5).

In the report, one conclusion: the productivity of the first instance was compromised. The solution proposals translated into draft resolutions in the aforementioned report were named by the working group as being proposals of the National Policy for Priority Attention to the First Degree of Jurisdiction. In politics, lines of action were proposed, they were those that represented old yearnings and claims of the first degree magistracy almost in formulas, among which: i) equalization of the workforce between the first and second degrees, proportionally to the demand for Law Suit; ii) budgetary adequacy for the development of first instance judicial activities; iii) infrastructure and technology; iv) collaborative governance, favoring internal democracy; and v) social and institutional dialogue (CNJ, 2013c).

In this more mature episode of the claim of the first degree magistracy, in which a specific national policy of prioritization was already brought to the actions of the CNJ, the rate of procedural congestion linked to other statistics that showed the unequal proportion of structural conditions between instances, as the proportion of civil servants among them, was central to the mobilization of evidence by claiming actors to reaffirm, in diagnoses recorded in official documents, such as technical reports, that, in the view of the institution responsible for coordinating the modernization policies of the Judiciary, there was something wrong with the management of resources in the courts: “[The] first level of jurisdiction is the most overloaded segment of the Judiciary and, therefore, the one that provides judicial services that fall short of the desired quality” (CNJ, 2013c, p. 5 ), concluded the report published in December 2013, containing the studies and proposals carried out by the working group, which relied, among other institutional actors, on the technical support of the DPJ. But it wasn't a criticism of the first degree, it was the defense of old causes:

Among the proposed resolutions contained in the report, it was envisaged to empower the country's judiciary and first-instance officials to manage the policy, in the institution of the First Degree Prioritization Network: "the courts will indicate to the presidency of the CNJ, in the within thirty days, two first-degree magistrates to act as regional policy managers within the scope of their activities” (CNJ, 2013c, p. 22). It was the proposal for a system of representation and participation that attempted to dilute the majority system of second-class judiciary.

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instance in decision-making on court resources and the unequal allocative parameters of these resources. In order to seek to guarantee new ways of allocating resources, two other directives were specifically at the center of another draft resolution proposed by the working group within the scope of the policy: “The poor distribution of resources available in the courts, notably among the units of first and second degrees, is one of the main causes of insufficient performance in the first instance” (op. cit., p. 25), diagnosed the working group. It was a great opportunity for the base judiciary to institutionalize the search for equality in working conditions between instances: “In effect, the working group presents a proposal to issue a normative act to regulate the equitable distribution of budget, employees, positions in commission and commissioned functions between the first and second levels of jurisdiction, respecting the principles of efficiency and proportionality” (op. cit., p. 25); and to, furthermore, “strengthen the independence and autonomy of first-degree magistrates” (op. cit., p. 25).

The statistical parameterization project of the actors was aimed at the democratization of administrative structures. This proposed resolution, to regulate the matter, also mobilized other statistics used in the Justice in Numbers report, for the purpose of parameterization and distribution, including:

•

the IPS, “obtained by dividing the total number of processes downloaded in the previous year by the number

of servers”; the Productivity Index Applied to Warrant Execution Activity

•

(Ipex), “obtained by dividing the total number of warrants executed in the previous year by the number of employees in the warrant execution

area”; the congestion rate, “an indicator that [measures] the percentage of cases that were processed during a given base period (new cases plus pending cases), but that were not downloaded”; It is

The desires for the democratization of the administrative structures of the courts were embodied by the actors in statistical formulas, which operationalized the equalization between the instances. The proposed resolution discussed “identification and proportional distribution of the budget between the first and second degrees, (...) effective participation of magistrates and civil servants in the planning and execution of the budget, [and] improvement of the quality of budget execution” (CNJ, 2013c, p. 26). Specifically, the proposal established the application of “objective parameters [in] the distribution [and movement] of the workforce, linked to the demand for processes, with a guarantee of a minimum structure of the units in the end area” (op. cit. , p . 28); that is, the construction of distributive parameters was a function of the workload, a function that would favor the most overloaded instance.

•

Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

Machine Translated by Google SaJud - total servers in the areas of direct support to the judging activity: indicates the total number of servers allocated in the areas of direct support to the judging activity in effective activity at the end of the base year, covering effective servers - except requested assignments and commissioners with no bond . The sum of the first and second degrees is also considered.

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Applying the percentages obtained in the previous formulation to the total number of civil servants in the

Average number of new second-degree cases in the last three years.

Formula: proportion to the second degree

The statistical representations that proposed the formulation of the operationalization of distributive equity of the workforce

were around the proportion of new cases entering the instances (table 2).

Source: CNJ (2013c).

the quartile, “statistical measure that divides the ordered set of data into four equal parts, with each part representing

25%” (CNJ, 2013c, p. 30).

Formula: total number of employees in the areas of direct support for judicial activity in the first degree areas of direct support for judicial activity, there are:

Public Policies and Uses of Evidence in Brazil: concepts, methods,

contexts and practices

Formulas for operationalizing the equitable distribution of the workforce proportional to the procedural size between first and

second degree

CN1o – new cases in the first instance: indicates the total number of new cases in the first instance during the base year. It is considered the sum of the knowledge and execution processes.

–,

Glossary

TABLE 2

Formula: total number of employees in the areas of direct support for judicial activity in the second degree

This episode around the construction of an institutional policy that seeks to prioritize the demands of the first degree shows

that stativism as a repertoire of action of institutional movements is not limited to the action of mobilizing statistics as instruments of

claim or affirmation, the claiming actors they also create institutional fields to give voice to a discursive coalition, with the purpose of

legitimizing the argument that the parameters of the proposed statistical activity represent a chain of actors. This practice was proposed

and carried out by the working group, and, at its request, the CNJ presidency convened the first public hearing of the council, which took

place in February 2014, with a view to hearing the actors interested in the subject in order to formulate opinions on the proposals.

regulations, in addition to collecting contributions around the efficiency of the first degree of jurisdiction and legislative improvement

aimed at the Judiciary,

Formula: proportion to the first degree

CN2o – new cases in secondary education: indicates the total number of new cases in secondary education during the base year.

Average number of new first instance cases in the last three years.

•

Machine Translated by Google Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

The public hearing that now begins carries important symbolism. It is symbolic because it is

the first public hearing in the history of the National Council of Justice, the first opportunity in

which the CNJ, for two days, suspends part of its activities to listen to society to be represented

by the main actors of the Justice system, in the certainty that social and inter-institutional

dialogue oxygenates institutions and nurtures democracy. It is also symbolic because it raises

issues of the greatest relevance to Justice and Brazilian society. During these two days of

hearing, we will hear from representatives of prominent public and private institutions that

responded to the CNJ's call to comment on the topics under debate: (...) magistrates, members

of the Public Ministry, public defenders, public and private lawyers, servers and representatives

of the academy (...). First-class efficiency is not a wish, it is not a dream, it is an obligation

(CNJ, 2014b).

It is (...) a moment of great opportunity, a great opportunity to inaugurate a different discourse,

to adapt our Judiciary to the demand for justice of our time. (...) [As already mentioned here,

every demand for It is there that the judge is seen by society. justice that exists in the country

inside forum. It is the forum of the capital. It is the enters through the first degree. It's the Judiciary that is most frequented by the population (CNJ, 2014b).

Giving voice to the guests, voices supported by yearnings and technical studies, the parametric

proposals gave identity to the speeches. As the then president of the AMB, judge Ricardo Costa,

spoke, centralizing the demand for adequacy of court resources according to the procedural demand

received by the bodies:

theme of the hearing (CNJ, 2014a). The creation of this institutional field motivated around the

proposal of a priority policy brought together many causes around one (that of the first instance

judiciary). The statistical formulations around equity were situated in broader discourses, those

represented by society, convened to give strength to the proposed agenda: the democratization of

court structures, as stated by Minister Joaquim Barbosa, beginning the work:

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The president of the Association of Judiciary Servants of Bahia, in support of the policy,

highlights the lack of participation in the courts: “(...) I am delighted with this hearing, as justice

servants will have the right to talk about their problems in their states” (CNJ, 2014b). The general

secretary of the National Federation of Judicial Servants in the States, Volnei Rosalem, in support,

speaks and recalls that the “first degree” is much broader than a body of magistrates; it is “a counter”,

it is the “real world of the Judiciary”, made up of many civil servants, who also give a voice to the

users of Justice: “It is in the first degree that the population approaches the counter and comes into

contact with the Judiciary as a service public. Also [it is] in the first degree [that] the process is still

linked to the real world and real needs” (CNJ, 2014b).

Machine Translated by Google [Here] I am tempted to invoke the poet and playwright Bertolt Brecht, who says the following:

“what times are these when we need to defend the obvious?”. Every time I talk about this

subject, I invoke Brecht (...): it seems so natural that there should be prioritization of the first

degree of jurisdiction, that it even seems counter-intuitive that we are treating this as an

institutional public policy and terms, mainly, to explain what it means! (STM, 2016).

After collecting the contributions and protests, Resolution No. 194, of May 26, 2014, regulates

the institution of the National Policy of Priority Attention to the First Degree of Jurisdiction. But only

in 2016 was the controversial Resolution No. 219, of April 26, which deals with the distribution and

proportional movement of the workforce, approved by the CNJ (CNJ, 2016b). Since then, such are

these resolutions that have been supporting struggles and institutional strategies for greater equality

between instances of the justice system.

In the first episode presented (subsection 3.1), the search for merit for those who work the

most – that is, for new evaluation criteria for the purpose of moving up the career ladder from the

first degree to the second degree –, the

This was the speech of the then CNJ counselor and judge of the first instance of the Labor

Court, Carlos Eduardo Oliveira Dias, in his first moments of a lecture at the Military Justice Training

School, entitled Effective Meaning and Sense of Prioritization of the First Degree of Jurisdiction , in

November 2016.

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It was obvious because the statistics showed it, according to Carlos Eduardo Oliveira Dias, during

his lecture. But the advisory magistrate’s statement was also the temporal resonance of a

bureaucratic movement of the meaning constructed for those statistics – the new look at the first

instance: “improving the judiciary = improving the first degree” (CNJ, 2015), already disseminated

the advisor Rubens Curado in his presentation at the 1st Meeting of the First Degree Prioritization

Network, in 2014.

Public Policies and Uses of Evidence in Brazil:

concepts, methods, contexts and practices

4 FINAL CONSIDERATIONS

Inspired by the existence of a peculiar action in the battle repertoire in the field of social

movements, which is the mobilization of statistics, and by the fact that the state bureaucracy also

mobilizes to defend internal causes that are dear to them, the objective of this investigation was to

show how statistics were central to support a wave of intramagistracy movements against the

historically existing inequalities between instances. Especially, statistical mobilization practices

(construction of systems of meanings with elements of statistical ecology, such as principles,

techniques, formulas, among other dimensions, to base, justify and represent political causes)

helped us to understand this centrality in different episodes , which marked the movements for the

democratization of the administrative structures of the courts.

Machine Translated by Google claim was around the demand for open voting and based on merit-based promotion processes. In

that episode, statistics were central to preventing, according to claimants, subjective criteria from

prevailing over objective ones and helping to make promotion processes more transparent.

Under a different manifestation, statistical principles were equally central to the construction

of meanings around what became known as the Direct Elections Movement in Brazilian Courts. The

second episode (subsection 3.2) dealt with the causes of the magistracy of first instance for the

democratization of the structures of the courts, a movement that marked the national institutional

struggle of associations of the judiciary for the right to vote for the basic magistracy in the choice of

presidents and vice-presidents. court presidents. In this second episode analyzed, the quantitative

proportionality of magistrates entitled to vote was the statistical practice mobilized to criticize the

fact that only 17% of eligible voters chose the direction of the courts, characterizing the judicial

system as a dictatorship that did not represent the majority of the components of the judiciary. ,

which are more than 80%. In this movement for Diretas Já, the old relationship between statistical

principles and democratization was invoked. In addition, based on this proportion, the actors built

the justification that there is an intimate relationship between the non-electoral participation of the

majority of the judiciary and the existence of problems in the Judiciary, especially since, likewise,

the highest proportion of disputes is in the first instance, the true representatives of society's

aspirations, as they define themselves. Here, there is an example where, at the same time, statistics

are mobilized to criticize and represent the reality experienced by the actors.

Finally, the third episode (subsection 3.3) brought to this debate is marked by the construction

of an institutional policy of prioritizing the first instance around the equitable distribution of budgetary

and personnel resources.

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In that episode, statistics were central in the search for improvements in primary school working

conditions, mobilized to make the movement of workforce and budget proportional to the litigation

between instances.

Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

The objectification of criteria under claims through the practice of parameterization, valuation and

quantified activity was the only valid means of representing reality, including for the purpose of

diluting the autonomy of more powerful actors, establishing the foundations of their conviction,

which, under another type of industriousness would not be possible.

The construction of statistical formulas that made the base magistrates divide resources according

to new cases that enter the first and second levels was the central practice of mobilizing statistics in

this case. In addition, to reaffirm the importance of the statistical project of distributive allocation of

resources of the courts according to the proportion of litigiousness, the creation of an institutional

field to summon the vision and contribution of different actors to make the project representative

and legitimate through a chain of actors, who

Machine Translated by Google it was the occurrence of a pioneering audience on the subject, it sought to institutionalize the new

perspectives and meanings in the first instance.

Finally, in this chapter, we dare to identify that the central recurrence to principles, instruments

and statistical representations and quantification in episodes of containment in themes of intrabureaucratic inequalities can be thought of as a form of institutional stativism – that is, a creative

action of institutional actors denouncing the very organizational structure in which they operate with

statistics. A concept that shares with – and invites to – an agenda of debates on the heterogeneity

of the state bureaucracy, as well as on its struggles, causes and inequalities.

PowerPoint presentation. 55 slides. Available at: https://bit.ly/2ZsQJsY.

______.

REFERENCES

at: https://bit.ly/317CBpF.

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______. CNJ approves Resolution no. 106 and establishes objective criteria for the promotion of

judges. Brasília: AMB, apr. 2010.

BOURDIEU, P. On the State, courses at the Collège de France (1989-92). 1st ed. Translated by

Rosa Freire d'Aguiar. São Paulo: Companhia das Letras, 2014.

ABERS, RN Bureaucratic activism: pursuing environmentalism inside the Brazilian state. Latin

American Politics and Society, vol. 61, no. 2, p. 21-44, 2017.

Request for Provisions No. 1386908. Brasília, 18 Apr. 2014. Available

Public Policies and Uses of Evidence in Brazil:

concepts, methods, contexts and practices

The reflection presented and the cases exemplified question us about the power of statistics

in the interpretation of reality, in which quantification is far from exercising only the controversial role

of freezing and coldly representing individuals and social relations. Statistics are instruments for

interpreting and reading reality, for battles and fights for the arguments they support, for criticism

and questioning for the results obtained, for reaffirming and building new perspectives on actors

who are disadvantaged in the political game. And not just instruments for the action repertoires of

social movements. In the episodes of intramagistracy struggle in Brazil, it was possible to identify

which principles, techniques and statistical and quantification representations are central to the

construction of meanings that symbolize and base the justification of intrabureaucratic protests

against the inequalities that structure them. Likewise, it was observed that statistics are central to

change and the creation of institutional policies that, in a way, help to dilute such inequalities.

AMB – ASSOCIATION OF BRAZILIAN JUDGES. 1st Survey on the Working Conditions of Judges.

Brasilia: MCI Strategy, Jan. 2009.

Machine Translated by Google 1st Public Hearing on Efficiency of the First Degree of Jurisdiction.

2013b. Video file.

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YouTube, 16 Feb. 2008b.

______.

Lecture by Minister Gilmar Mendes. Strategic planning in the judiciary. In: NATIONAL MEETING OF THE JUDICIARY, 2. Part 1 of 2.

CARDOSO, R. Amapar requests admission as an interested party in a request for

measures at the CNJ that deals with direct elections in the courts. Amapar Notícias, Jul.

Available at: https://bit.ly/3iyHDRV.

BRUNO, I.; DIDIER, E.; VITALE, T. Statactivism: forms of action between disclosure

and affirmation. Partecipazione and Conflicto, v. 7, no. 2, p. 198-2020, 2014.

2010. Available at: https://bit.ly/3uIOn4H.

______. Resolution No. 106, of April 6, 2010. Provides for the objective criteria for

assessing the merits of promoting magistrates and access to the second degree

courts. Electronic Justice Gazette (DJe), Brasília, 6 Apr.

Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

CNJ – NATIONAL COUNCIL OF JUSTICE. Resolution no. 6, of September 13, 2005.

Provides for the assessment of merit for promotion of judges and access to the

second degree courts. Electronic Justice Gazette (DJe), Brasília, 16 September.

2005. Available at: https://bit.ly/3D7uWFs.

______.

______. Working Group (Ordinance 155/2013). National Policy of Prioritization of the First Degree of Jurisdiction. Final report. Brasilia: CNJ, Dec. 2013c.

______.

2014. Available at: https://bit.ly/3a5xWpn.

Electronic Justice Gazette (DJe), Brasilia, 26 May 2014a. Available at: <https://bit.ly/

3uIvpuN>. Ordinance No. 155, of September 6, 2013. Designates a working group to

prepare studies and formulate proposals for the implementation of a National Policy

aimed at prioritizing the first level of jurisdiction of the Brazilian courts. Electronic

Justice Gazette (DJe), Brasilia, September 6, 2013a. Available at: <https://bit.ly/

2Yjj30E>.

______. Resolution No. 194, of May 26, 2014. Establishes the National Policy of

Priority Attention to the First Degree of Jurisdiction and other measures.

Part 2 of 3. YouTube, 16 Feb. 2008a.

1st Presentation by the Opening Panel of the Meeting. Brasília: CNJ, 27 September.

First full day. Brasilia: CNJ, 17 Feb. 2014b. Video file.

______.

Lecture by Minister Gilson Dipp to the National Justice Department in

Strategic Management. In: NATIONAL MEETING OF THE JUDICIARY, 2.

______.

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ly/3mstMO6>.

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DIRECT NOW: association of judges from all over the country call for direct elections in the courts.

______. Resolution No. 219, of April 26, 2016. Provides for the distribution of civil servants,

commission positions and positions of trust in the bodies of the Judicial Power of the first

and second degrees and other measures. Electronic Justice Gazette (DJe), Brasília, 26

Apr. 2016b. Available at: <https://bit.

n. 24, p. 135-145, 2020.

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3mgNiOI>.

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is you. 1st Meeting of the First Degree Prioritization Network.

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CNJ WELCOMES AMB's request on the promotion of judges. Migalhas, 31 Aug. 2005.

Available at: https://bit.ly/2ZZlKVx.

Public Policies and Uses of Evidence in Brazil:

concepts, methods, contexts and practices

238th Ordinary Session of the CNJ: oral support from Judge Ricardo Costa, 28

Sep.2016a. YouTube. Available at: https://bit.ly/3nujtcV. Accessed in: 2

Paris Innovation Review, 30th October 2010. Available at: <https://bit.ly/3uGJz

ly/2YiMX5b>.

DESROSIÈRES, A. Economic crises and statistics: from 1880 to 2010.

______.

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Cortez, 2003.

Available at: https://bit.ly/3ixEC4r.

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Sociology, vol. 27, no. 1, p. 89-105, 2001.

oct. 2020.

DIAS, JP The world of magistrates: the evolution of organization and judicial selfgovernment. Coimbra: Almedina, 2004.

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wH>. Accessed on: 20 Mar. 2021.

______.

NASCIMENTO, MI B; ABERS, RN There will always be the best and the worst:

controversies, creativity and interpretative frameworks around comparative productivity

statistics of actors and judicial organizations in Brazil.

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ROY, AL; OFFREDI, C. Quantification au service de l'observation socialelocale: à

quelles conditions? Revue Française de Socio-Économie, n. 7, p. 191-220, 2011.

prioritization of the first degree of jurisdiction. 17 nov. 2016.YouTube. Available

AMB DELIVERS research on judges' working conditions to the CNJ.

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COMPLEMENTARY BIBLIOGRAPHY

Institutional Stativism and the Episodes around the Causes of the Brazilian Magistracy of First Instance

SANTOS, RNS; ROMÃO, PF Diretas Já, in the Judiciary: the democratization of

Justice. OAB Ceará, 30 April. 2014. Available at: https://bit.ly/3Fjarrm.

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