The (Federal Supreme Court) may review a rule, defined two years ago, to maintain the validity of votes left by retired ministers. This could benefit, if the idea prospers, and Flávio Dino —both nominated by President Lula (PT).
Today, with the 2022 rule, votes cast in virtual trials by judges who later retired remain valid if there is a request for the issue to be considered in the in-person plenary.
At least two ministers, and , changed their view on the issue and now advocate that everything starts from scratch, which gives room for new ministers to express their understandings in place of the votes of retired people.
If approved, the change could impact cases such as the decriminalization of , or ISS (Service Tax) in the Pis/Cofins calculation base.
According to two members of the court heard by the Sheetthe idea is worrying both due to the risk of legal uncertainty and casuistry.
It was Moraes himself who proposed the rule in June 2022, during the Jair Bolsonaro (PL) government. and Kassio Nunes Marques were the most affected at the time.
They were appointed in 2020 and 2021 by the former president, who fueled tensions with attacks on the court. The two were received with resistance by the collegiate.
In 2022, the court was discussing a lifetime review of pension calculations, a highly anticipated case of the year. Discussed in the virtual plenary, the topic added 11 votes with a majority to the thesis that benefited retirees and pensioners, in line with the rapporteur (who retired in 2021) and Moraes.
Kassio Nunes Marques was pro-INSS, and asked for prominence (to take the case to the physical plenary), minutes before the trial ended in the electronic system. The movement generated criticism.
Moraes argued that validating the votes of retirees would be in accordance with both the internal regulations and the legislation. “Once given, the vote of the minister who has already given and who cannot debate and defend his vote must be maintained,” said Moraes.
He was one of the biggest supporters of the rule in 2022, which was approved almost unanimously.
André Mendonça was the only one against the idea at the time. He stated that it would violate the broad defense because, in a new trial, the parties would have no chance of convincing ministers who were no longer part of the court.
Kassio Nunes Marques followed the majority, but first expressed concern. He listed 25 cases that would be affected and asked whether the rule would apply to all actions from then on.
Ministers Gilmar Mendes, who was absent, and Dias Toffoli, who was in a videoconference and lost connection, did not vote.
Now, the idea for the new change was given by Fux, after consulting Moraes, and endorsed by Toffoli. The ministers say that the composition of the court has changed and the rules must follow the renewal. Those nominated by Lula have good circulation in the court and would participate in more cases with the review.
Apart from, formally, several cases, he has made comments and suggestions during debates in the plenary. Colleagues joke that he is a minister “with a voice, but without a vote”.
Moraes’ speech on the topic then changed. “We have had several cases in which, if everyone could have voted on the merits, we would not have needed to change the judgment in the analysis of embargoes. Even for those under jurisdiction, it is something strange,” he said in October.
Fux spoke of “rethinking the rules to allow new people to vote on issues that have not yet ended.”
The request for amendment to the Rules Committee has not yet been formalized. The group is chaired by Fux and has Moraes and Fachin as members.
Before leaving the STF, ministers usually leave votes in cases they consider important. The action to decriminalize abortion was the last one proposed by , in 2023. The minister defended the . Flávio Dino, occupying the seat that was hers, said, during the hearing in the Senate that preceded his inauguration, that he understands that the STF should not deal with the issue.
Rosa Weber also spoke out in the discussion about Justice determining how to investigate bodies. For her, the Marco Civil da Internet does not allow this possibility. The process has general repercussions, and the thesis will be used for all similar actions.
Another case, with votes from three already retired magistrates, is that of the ISS on the Pis/Cofins calculation basis, with a predicted impact of R$35 billion over five years on the Union. Rosa, and were favorable to the taxpayer.
Law professor at Uerj (State University of Rio de Janeiro), Gustavo Binenbojm understands that there is a basis for both models. On the one hand, until conclusion, ministers can change their position based on the debate. On the other hand, the replacement of votes creates legal uncertainty.
“When the minister gives his vote and retires, he can no longer change his mind. For his successor to change his understanding is an element that creates uncertainty”, he says.
For Binenbojm, this could happen when, close to retirement, cases are suspended as a maneuver for the successor to change the majority position. Another risk would be the incentive for parties to file appeals to review decisions.
The rules regarding votes from retired ministers
as it was
The internal regulations of the STF and the Code of Civil Procedure define that, when a trial is restarted, the vote of the person who retired due to retirement or for another reason must be maintained.
How it turned out
In June 2022, Alexandre de Moraes’ proposal was approved and this rule also applied to cases that were transferred from the virtual to the in-person environment, maintaining the votes of ministers who leave office.
How can it be
If the new proposal advances, the votes given by ministers who left the court both in the virtual plenary and in the physical plenary, in unfinished trials, could be replaced by the positions of newcomers. There are no details of the idea yet.
