Extinção do quinto constitucional: uma análise acerca da pec 262/2008

Abstract

The purpose of this article is to present an analysis about PEC 262/08, which proposes the extinction of the institute of the fifth constitutional, so a brief evolutionary summary of the institute will be made in the Brazilian legal system, with the purpose of rescuing the initial concept of its application, analyzing if it is outdated in the current conjuncture of the Judiciary. In the background, the criteria for admission to the magistracy's career will be analyzed, and its changes will be analyzed over time, culminating in Constitutional Amendment 45/04. Next, the criteria for promotion of magistrates by seniority and merit will be analyzed. It will then analyze it through studies compared with the mechanism of access to the judiciary in other countries. Finally, it will analyze how the lists are given in the lists of the representatives of classes of the members graduated by the Fifth. Therefore, the present article responds to the following questions: the "lateral access" to the courts imposes a rule such as the indispensability of public competition for evidence and titles to join the Judiciary, the appointment of members of the fifth constitutional by the Executive offends the independence and neutrality of the Judiciary being an eminently political act, is there equality in access between members of the Fifth and the career magistracy?