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Minister Luiz Edson Fachin, of the Federal Supreme Court, cast a vote determining that the President of the Republic should nominate as rector and vice-rector of a federal university only the candidate best placed on the triple list. According to the minister, said appointment must meet three requirements; according to one of them, the choice must fall on “to fall to the teacher indicated first on the list.”
Carlos Humberto / SCO / STF
Fachin is the Rapporteur of Direct Action of Unconstitutionality 6,565, which challenges article 1 of Law 9,192 / 92. The provision -that modifies Law 5,540 / 68 and Federal Decree 1,916 / 96- establishes that the appointment of rectors must be made by the president through a triple list. However, the regulation does not establish that the person elected should be the one who heads the internal selection organized by federal institutions.
The trial, initiated by the Virtual Plenary on Friday (10/9), will decide whether or not the lack of election of the president in the election of the candidate best placed on the list violates the principle of university autonomy, according to which the institutions have Freedom didactic, scientific, administrative, financial and wealth management. So far, only Fachin’s vote has been recorded. The conclusion of the trial is scheduled for next day 19.
The minister’s understanding seems to contradict his own previous positions. In 2016, for example, it decided that “there is no hierarchy” within the triple list and that “the president can freely choose the candidate.” At that time, he was the relator of the commandment mandamus 31,771.
In this case, a professor from a federal university sued the STF against an act of the Presidency of the Republic that had brought a professor back to the rectory of the institution. According to the author, who was part of a triple list, should be the dean, since he would have the highest rating among the three candidates. Fachin, however, denied security, precisely because he understands that the President of the Republic has discretionary power, respecting the limitations provided by the respective legislation.
Experts heard by spells did not agree with Fachin’s most recent position. For them, forcing the nomination of whoever heads the list ends up invading a commission that belongs to the president. At the same time, they say, the autonomy of universities must be respected.
According to the constitutionalist Vera chemim, the contested provisions in the ADI do not establish with absolute clarity and precision that the president must choose the first indication of the triple list.
“The President of the Republic has the discretionary power to make decisions, as long as they are covered by the criteria of necessity and convenience. In this case, he can choose any name among the three most voted nominations by the institutions involved, without necessarily facing the principle of autonomy and the Federal Constitution ”, he says.
He points out that, from a logical point of view, the choice should fall on the first nominee. But, thanks to discretionary power, which is constitutionally provided, nothing prevents another candidate from being named on the list.
“The legal provisions questioned by ADI do not suffer from material unconstitutionality, unless the STF changes its understanding on the subject and creates a new jurisprudence with the aim of giving greater precision to these devices, complying with Fachin’s decision to maintain the interpretation according to the Constitution, and adding the mandatory choice of the first name on the list ”, he continues.
For Pedro Estevam Serrano, professor of constitutional law, it doesn’t even make sense to formulate a triple list if the president is obliged to nominate only the best-placed candidate.
“It is useless to speak of a triple list if it is considered that there is an obligation to nominate the first candidate. The president can choose any of the three. What the Constitution and the law establish is a balance of wills between popular sovereignty, represented by president, and the will of the university community, represented by the council. Autonomy is not independence, “he says.
He also commented on two other points of the vote. In the first, Fachin defines that the president cannot escape the triple list when appointing the rectors and vice-rectors. In the second, it determines that the composition of the list must be respected, without interventions.
The three points to which Serrano refers, contained in Fachin’s vote in the ADI, are:
“Precautionary measure partially deferred, with effect from the date of the action protocol, so that the appointment of Rectors and Vice-Rectors concomitantly meets the following requirements: (I) adhere to the names that appear in the respective triple list; (II) fully respect the procedure and form of organization of the list by the university institution; and (III) corresponds to the teacher indicated first in the list “.
“AGU issued an opinion seeking to condition the decision of the university collegiate. The collegiate consults the community, but is not obliged to follow it. AGU wanted to force the collegiate to adopt certain criteria in the elaboration of the triple list. However, the composition of the list is a space of absolute university autonomy and who speaks on behalf of the university is the collegiate. Therefore, points one and two of the decision are correct. What is wrong is point three [que determina a nomeação do candidato mais bem posicionado]”, he says.
For the lawyer Celso de Barros Correia Neto, a member of Medeiros e Barros Correia Advogados and a university professor, honoring the triple list is making the principle of autonomy more effective.
“Article 207 of the Federal Constitution is clear in prescribing that universities enjoy autonomy: it must be a space of freedom, open and plural. And the entire regulatory framework that supports it must be structured in the sense of this guideline ”, he says.
Click here to read Fachin’s vote
IDA 6,565
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