It is not up to the Judiciary to establish the readjustment of public servants

Federal Court of Justice. PHOTO: DIDA SAMPAIO/ESTADÃO

According to the Correio Braziliense website, on January 13, 2022, “members of the Federal Supreme Court (STF) warned President Jair Bolsonaro (PL) about the legal risk of granting a salary increase only to police forces. The Chief Executive was warned that the readjustment should be granted to the entire civil service to avoid a flurry of actions in the Judiciary.’

It is observed that the initiative for granting this readjustment of Executive servants belongs to the presidency of the Republic, which could propose to the Legislative Power that, by law, this should take place.

It is discussed whether the Judiciary can grant these readjustments.

By the way, Precedent 339 of the Federal Supreme Court is in the sense that “It is not up to the Judiciary, which has no legislative function, to increase the salaries of public servants on the basis of isonomy”.

This understanding was reaffirmed by the Federal Supreme Court, in the judgment of Extraordinary Appeal 592,317, on a topic of general repercussion.

The setting of salaries and their increase are the responsibility of the Legislative Branch, which examines the readjustment proposal presented by the Executive Branch (RTJ 54/384). It is understood that the Judiciary is only responsible for examining the damage to the constitutional principle of equality. It is not appropriate to examine the fair or unfair situation of the server, who should be at the highest level; the principle “equal function corresponds to equal remuneration” is constitutional, fighting equality (RTJ 71/889, 75/198 and 68/423; exercise of functions other than those corresponding to the position held – RTJ 80/871, 78/ 307, 81/937; isonomy – RTJ 76/966, 81/202, 101/120, 105/391, 107/1,207, 106/1,221, 109/217 and 109/369), as recalled by Roberto Rosas, 7th edition, pg. 133.

It has already been said that the principle of isonomy must be characterized by the legislator (RMS 21.512-7, DJU d19.2.1993; Adilson Dallari, Constitutional Regime for Public Servants, p. 65).

In addition, pursuant to article 37, X, of the Federal Constitution, “the general review of the remuneration of public servants, without distinction of indices between civil and military public servants, will always be carried out on the same date.

By general revision we must understand that increase that is granted due to the loss of the purchasing power of the currency. This is not intended to correct situations of injustice or the need for professional upgrading of certain careers as a result of changes in the labor market itself, nor does it aim to compensate pecuniarily higher levels of responsibilities arising from restructuring or functional reclassifications.

Any procedure on the part of the Judiciary violates the dictates of the principle of separation of powers and the legal reserve, reserve of parliament, in the matter.

Therefore, the public servant is guaranteed the annual readjustment by article 37, X, of the Federal Constitution, which enshrines only the nominal irreducibility of salaries, and the interference of the Judiciary in the matter is inadmissible.

The constitutional norm, provided for in article 37, item XV, of the Constitution authorizes only the nominal irreducibility of salaries and not the real irreducibility, that is, the maintenance of purchasing power.

Added to this, the referenced constitutional norm does not have immediate application, as it depends on the enactment of a later law emanating from the Executive Power, so that it is possible to change the salaries of its servers.

In fact, in the judgment of RE 94,011, 96,458, 100,007 and 101,183, it was established that the decline in the purchasing power of currency does not generate the automatic review of maturities. This is because the readjustment depends on the initiative of the Executive Power’s law, in the form of article 57, item II, of the Constitution.

The Superior Court of Justice has already considered the matter in the judgment of RMS 18.361 – SP, Rapporteur Minister Laurita Vaz, j. October 26, 2004, DJU of November 29, 2004, when it was said:

“1. It is not possible for the Judiciary, under the pretext of remedying the omission of the competent Executive Power, to immediately grant a general and annual readjustment to public servants; to understand otherwise would be tarnishing the constitutional principle of the Separation of Powers. It is only possible to declare the delay of the aforementioned Government Authority, not even considering setting a deadline for the elaboration and submission of a bill aiming at the claimed correction, therefore, incapable according to art. 103, § 2, of the CF, as decided by the Federal Supreme Court in the judgment of ADI 2.061-/DF, among other precedents of this Court.”

Record judgment of the Federal Supreme Court, in RE – AgR 522656/PR, Rapporteur Minister Celso de Mello, j. June 26, 2007, when it was concluded that compensation for alleged losses resulting from delay by the Executive Branch was not applicable.

In fact, an administrative discretion is placed in the matter, which is the duty of the Public Administration to choose the solution, reasonable, proportional, within the limits of the norm, which is most compatible with the public interest, dictated by the Constitution within a hierarchy of dominant values ​​for the exercise of the administrative act.

Thus, if the Executive conditions the salary readjustment to the increase in GDP, this is a matter of administrative merit, within the limits of convenience and opportunity, obeying parameters of proportionality, within the limit of reason.

It is understood, therefore, that the initiative to trigger the legislative procedure for granting the annual general review to public servants is a discretionary act of the Chief of the Executive Power, and it is not up to the Judiciary to supply such omission.

The Federal Supreme Court unanimously approved PSV n.88.

In this case, the ministers approved the conversion of Precedent 339 into a binding precedent entry to provide for the impossibility of the Judiciary to increase the salaries of public servants on the basis of isonomy. Once published, the text will be equivalent to Binding Precedent 37.

This is how it was arranged:

“It is not up to the judiciary, which has no legislative function, to increase the salaries of public servants on the basis of isonomy”.

Initially, the nature of the binding precedent is discussed.

It could be said that we are facing a judicial act.

Jorge Miranda (Manual of Constitutional Law, page 25) classifies jurisdictional acts into acts of normative content and non-normative content. Those are the ones that, in Portuguese law, cover declarations of unconstitutionality and illegality and these are the sentences, judgments and interlocutory decisions.

Mônica Sifuentes (Binding precedent: a study on the normative power of the courts, 2005, p. 277) concludes that the binding precedent has a normative character. She said: “What differentiates, therefore, one judicial act from another is its normativity, that is, its ability to extrapolate the borders of the res judicata, projecting itself into the legal system with the attributes of generality and abstraction. To this requirement must be added the obligation, which, in a more restricted interpretation, would only reach jurisdictional acts endowed with erga omnes opposability, as is the case, in Brazil, of decisions rendered in abstract control of constitutionality. In a slightly broader sense, the binding precedent could be classified as a normative act of the jurisdictional function, which, although it does not have erga omnes effects, is mandatory not only within the courts, but is also enforceable against the Public Administration.”

In the lesson of Osmar Mendes Paixão Côrtes (Binding precedent and legal certainty, p. 200), the attribution of the binding effect to the precedent does not change its nature of a jurisdictional decision consolidated from the systematic repetition of an understanding in the same direction.

At most, a decision rule is created, specific to a concrete case that, due to the repetition of identical hypotheses, binds the interpretation of future cases.

Commenting on Precedent 339 of the Federal Supreme Court, a middle ground between the former seats of the Casa de Suplicação and the Labor Prejulgados, within a line of binding, Roberto Rosas said (Summary Law, 6th edition, p. 141)): “the setting salaries and their increase is the responsibility of the Legislative Branch, which examines the Executive Branch’s initiative project (RTJ 54/384). The Judiciary is only responsible for examining the damage to the constitutional principle of equality. It is not appropriate to examine the fair or unfair situation of the server, who should be at a higher level”. It is worth remembering: the equal function corresponds to equal remuneration based on isonomy (RTJ 71/889; 75/198; 68/423).

Be that as it may, the Federal Supreme Court already has a position on the matter: it will not be up to the Judiciary to replace the Legislature in the salary readjustment of servers.

*Rogério Tadeu Romano, retired regional attorney. Professor of Criminal Procedure and Criminal Law. Attorney

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