The ministers of the (Federal Supreme Court) have taken recent decisions that target the so-called paid penduricalhos in the public sector that exceed the constitutional ceiling.
Gilmar’s decision, issued on Monday (23), barred the payment of compensation amounts, in the Judiciary and in , based on state laws and those coming from normative acts below the laws.
Previously, at the beginning of the month, Minister Dino determined that remuneration and compensation funds that are not expressly provided for in laws, whether municipal, state or national, be suspended in careers of the three Powers.
Understand the difference between Gilmar and Dino’s decisions regarding the pendants:
GILMAR’S DECISION
Gilmar pointed out that compensation amounts stipulated by the states bring “huge imbalance” in the remuneration of members of the Judiciary and the Public Ministry. Following this logic, he defined that both cannot receive pendants provided for by state laws.
Gilmar evaluated the issue in a precautionary measure taken in an ADI (Direct Action of Unconstitutionality) on monthly allowances for prosecutors and judges in Minas Gerais. In the action, the (Attorney General’s Office) requested the suspension of a state rule that linked the remuneration of state attorneys to the PGR subsidy, as well as that of judges to that of STF ministers.
Gilmar understood that the equality and national character of the Judiciary and the Public Ministry justify the remuneration link. He stated, however, that regionally defined restrictions unbalance the balance.
He said that he sees no reason “to admit the stipulation of compensation funds by state political agents.”
Therefore, the judge determined that only allowances provided for in national law can be paid to members of the two institutions. He also determined that the (National Council of Justice) and the CNMP (National Council of the Public Ministry) act only in the regulation of funds established by national law.
It also stipulated that the councils must act together to create uniform regulations between institutions, with an explicit indication of the percentage and calculation basis. Finally, the minister gave 60 days for courts and state Public Prosecutor’s Offices to stop payments for outstanding amounts arising from state laws.
At not only state but also national level, it determined a period of 45 days for the suspension of payments in state and federal courts and Public Prosecutor’s Offices arising from administrative decisions or secondary normative acts (which are below the laws).
He also ordered the immediate interruption of retroactive payments. The precautionary measure was included in the agenda for judgment on the merits by the collegiate.
DINO’S DECISION
On February 5, Minister Flávio Dino determined that remuneration and compensation funds that were not expressly provided for in laws, whether municipal, state or national, would be suspended after a period of 60 days.
The judge defined that the heads of the Executive, Legislative and Judiciary Powers need, after the deadline, to publish a normative act detailing “each remuneration, compensation or aid amount, its value, the respective calculation criteria and the specific legal basis”.
In the decision, he stated that the Supreme Court has been provoked across the country to “arbitrate supposed exceptions” to the constitutional ceiling, a demand made worse by an article in a constitutional amendment that deals with the non-computation of penduricalhos.
The minister spoke of misrepresentation of compensation funds to exceed the ceiling, such as “turkey aid” or “panettone aid”. “This Supreme Court has already ruled on the unconstitutionality of several pecuniary benefits which, covered in the formal aspect of indemnity installments or payment for exceptional service, were, in reality, disguised remuneration advantages, resulting from the mere ordinary exercise by the state agent of functional activities inherent to the responsibilities of his position”, stated Dino.
He also asked Congress to issue a law that regulates which compensation amounts could exceed the ceiling.
The decision will be taken to the plenary this Wednesday (25). It was granted in an injunction granted in a complaint filed by an association of municipal attorneys against a decision by the São Paulo Court of Justice that limited remuneration to 90.25% of the STF ministers’ allowance.
