The Minister of the Federal Supreme Court, Gilmar Mendes, gave a period of 60 days for “hanging” payments to members of the Judiciary and Public Prosecutor’s Office throughout the country based on state laws, internal decisions and administrative acts to be suspended. In the case of the Federal Court and the Federal Public Ministry, Gilmar’s order also provides for the interruption of amounts that are not supported by law approved by Congress. Only funds expressly provided for in federal legislation may continue to be paid.
Gilmar’s decision follows a request from the Attorney General’s Office, filed six years ago. The then attorney general, Augusto Aras, filed four direct unconstitutionality actions in 2020 against state laws that deal with the remuneration of judges, prosecutors and members of audit courts.
Gilmar’s order comes within the scope of a Minas Gerais law, published in 2015, and is related to the text approved by the State Legislative Assembly that deals with the salaries of public prosecutors and judges set at up to 90.25% of the allowance of the Attorney General of the Republic and the ministers of the Federal Supreme Court, respectively.
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For the PGR, this type of link violates the Constitution because it creates automatic adjustments whenever the reference remuneration is changed. Therefore, the Prosecutor’s Office requested the immediate suspension of the laws and, on the merits, that they be declared unconstitutional.
In Gilmar’s assessment, “day after day, countless amounts are created disguised as compensatory in nature with the sole objective of concealing the manifest non-compliance with the Federal Constitution, notably the constitutional subsidy regime”.
“I cannot help but express perplexity regarding the disorder we are experiencing with regard to the remuneration of public agents in general and, in particular, of members of the Judiciary and the Public Ministry”, highlighted Gilmar.
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“The institutional audacity is obvious: it is an attempt to reap only the system’s bonuses, seeking to circumvent the burdens inherent to it, which reveals a stance that is incompatible with the loyalty expected of the constitutional text,” said the dean.
Synonyms for mess were also used by minister Flávio Dino in a decision last Thursday, 19th, when he expressly prohibited the publication of any new law that authorizes the inclusion and payment of “remuneration or compensation installments” in the salaries of public servants that exceed the constitutional ceiling.
In an unprecedented crusade against civil servants’ millionaire paychecks, Dino maintains that the country is experiencing a “mixture” of payments to judges and that “it is a basic duty of those who handle public money” to act within the Constitution.
In the action against the Minas Gerais law, approved on December 23, 2015, the Attorney General’s Office claims that the linking of the remuneration of State Attorneys of Justice to the allowance of the Attorney General of the Republic and the linking of the allowance of judges of the Court of Justice to that of ministers of the Federal Supreme Court contradicts the provisions of articles 25 and 39 of the Federal Constitution.
It argues that, in practice, remuneration linking implies adjustment of a category of public agents automatically, without specific law, whenever the category to which it is linked is covered by readjustments or increases. It maintains that the STF jurisprudence prohibits any type of remuneration link, which includes linking for automatic adjustment purposes.
It alleges, along these lines, that the clause prohibiting remuneration linkage constitutes a result of the absolute reserve of law with regard to remuneration in public service, given that the linkage entails automatic readjustment, without the need for a specific law for such purpose, which highlights its unconstitutionality.
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The PGR adds that the remuneration linking of state public agents in relation to federal agents ‘results in a serious transgression of the federative pact, as it results in an automatic increase in expenses for the States when there is an increase in the subsidy of agents linked to the central entity’.
He requested, as a precautionary measure, the suspension of the effectiveness of the contested rules. On the merits, he postulated the declaration of unconstitutionality of article 1 of Law 21,941/2015 and article 1 of Law 21,942/2015, both of the State of Minas.
See what Minister Gilmar Mendes determined about the ‘hanging fruit’ of the Judiciary:
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- It establishes that the allowance for judges at the Courts of Justice is linked to the allowance for STF ministers in the proportion of 90.25%, so that any change in the amount paid to ministers implies an automatic review of the judges’ remuneration.
- It determines that the subsidy of the attorneys general of Justice is linked to the subsidy of the attorney general of the Republic, also in the proportion of 90.25%, with automatic review in case of change in the amount paid to the PGR.
- It establishes that only compensation funds provided for in federal legislation can be paid to members of the Judiciary and the Public Ministry.
- It establishes that the action of the National Council of Justice and the National Council of the Public Prosecutor’s Office regarding compensation funds is limited to the publication of acts necessary to implement what is provided for by law, and a joint normative act from the two councils may be required.
- It requires that, within 60 days, all payments based on local laws, administrative decisions and secondary normative acts be suspended in the States. At the federal level, within the same period, payments based on administrative decisions and secondary normative acts must be stopped.
- After this period, it only allows the payment of funds expressly provided for in laws enacted by the National Congress and, when necessary, regulated by a joint act of the CNJ and the CNMP.
