The TJ-SP (Court of Justice of the State of São Paulo) appealed this Wednesday (11) against the decision of the minister of the (Supreme Federal Court) in the three Powers of the Republic.
In an appeal to the Supreme Court, the president of the TJ-SP, judge Franscisco Loureiro, defended that the “general suspension” of compensation funds “can generate federative asymmetry, irremediably compromise the administration of justice, produce irreversible financial effects and create systemic legal uncertainty”.
“Respect for the constitutional transition regime avoids such consequences and preserves institutional coherence. Judicial self-restraint, in this context, constitutes an expression of fidelity to the constitutional design”, says the document.
The São Paulo court asks, if Dino does not reconsider his decision, that the judge at least give him a period of at least 18 months for him to issue a law regulating which compensation amounts could exceed the ceiling.
For the TJ-SP, it is not appropriate for the Supreme Court to establish a general rule on the subject – in this case, the suspension of penduricalhos – before the period given to the Legislature to formulate definitive measures to adapt the compensation funds.
“If, on the one hand, the mere recognition of the existence of the omission, with the late constitution of the Legislative Power, is insufficient – it is a legal measure of low effectiveness –, on the other, if the transition rule is positive, it is strictly necessary, in the prestige of the temporary solution and in deference to the Legislative Power, to wait, within a reasonable period of time, for the action of the competent body, before imposing a substitute discipline”, states the appeal.
Dino gave the decision last Thursday (5) in an appeal filed in a complaint by an association of municipal prosecutors in São Paulo. In this case, they claimed that fees paid to public lawyers were considered remuneration.
The minister stated, however, that the issue has as its backdrop the precedents regarding the salary cap in all entities of the federation. Therefore, he argues that it would have been necessary to redefine the effects of the action.
According to the São Paulo court, however, the measure taken by Dino “far exceeds the object of the controversy”. “Only this [honorários de procuradores municipais] and nothing more. There is not the slightest normative relationship with compensation funds from the judiciary. The inclusion of these funds in the decision now being appealed represents an immense reflex expansion of the object of constitutional control, incompatible with the system”, he stated.
The São Paulo court also claimed that the suspension of compensation installments that are not expressly provided for by law “creates a dangerous precedent by denying primary normative effect” to the resolutions of the CNJ (National Council of Justice) in the absence of action by the Legislature.
Last Thursday, Flávio Dino also set a deadline of 60 days for all administration bodies to review payments and suspend those without a legal basis. Among the trinkets mentioned are, for example, the turkey allowance and panettone allowance, distributed to servers traditionally at the end of the year.
The rapporteur states that the variety of compensation paid in the country generates super salaries that are unprecedented in the country or “in the richest countries on the planet”. He also highlights that these values are not computed for Income Tax.
