Judgment of the pension reform in the STF has a tied score

The virtual plenary of the STF (Supreme Federal Court) began to discuss whether the pension reform is constitutional. The changes to the INSS (National Social Security Institute) rules went into effect almost three years ago, on November 13, 2019.

With one vote for constitutionality and one dissenting vote, the trial is tied and was paralyzed after a request for view. In all, 12 ADIs (Direct Actions of Unconstitutionality) were condensed into a single trial, which began on the 16th and was supposed to end on Friday (23), but was interrupted.

So far, there is a vote by the rapporteur minister, Luís Roberto Barroso, in favor of maintaining the contested rules, and a divergence opened by minister Edson Fachin about part of Barroso’s report.

For the minister, the reform is constitutional. Fachin points out unconstitutionality on two points: extraordinary collection of civil servants and a different calculation rule for women in the RGPS (General Social Security Regime) and RPPS (Proper Social Security Regime).

The request to suspend the trial and better analyze the cases was made by Minister Ricardo Lewandowski. The processes will only resume when he presents his vote. From then on, the other ministers will be able to give their opinions.

Actions debated in the virtual plenary can be discussed in the physical plenary, in case any minister asks for prominence. A highlight was the maneuver used by Minister Kássio Nunes Marques in the judgment of the lifetime review for INSS retirees.

Barroso’s vote, with 153 pages, brings considerations about what was pointed out by associations and political parties regarding the reform. For him, however, the approved norms are constitutional and are in accordance with the social security legislation of several countries in the world.

“The Brazilian population is living longer. According to projections by the United Nations, in 2100, Brazil will be the 10th largest country in the world in proportion of elderly people”, he says in an excerpt in which he also points out concern with the Social Security accounts. .

“The pension deficit is undeniable and has worsened significantly in recent years. […] Reforms in Social Security that reduce public debt can have positive macroeconomic impacts, such as stimulating consumption and production”, he says.

For the minister, however, there is only one point to be observed, which is the creation of an extraordinary contribution to employees who are already retired. Although Barroso did not consider the issue unconstitutional, he says that it is necessary to have proof of deficit in order to impose an extra charge on inactive servers.

“The mere constitutional provision about the possibility, in theory, of creating the extraordinary contribution does not constitute an offense against the stony clause”, he says. According to him, if the extra contribution is approved, it is necessary to analyze, as the case may be, whether there is a violation of the Constitution.

According to the reform, when there is a social security deficit, there is authorization to charge extra for the benefit of those who are already retired or receive a pension, in order to remedy the gap. In the state of São Paulo, since 2020, retired employees and pensioners who earn between a minimum wage and the Social Security ceiling have a discount on the benefit. The charge already existed before for amounts above the ceiling.

Edson Fachin points out unconstitutionality in the pension reform

Minister Fachin differed from the rapporteur to point out what he considered unconstitutional in the reform. According to him, the extraordinary charge on retirees’ benefits hurts the “social and distributive character” of the Constitution.

The minister also considers the calculation rule that benefits women who retire by the INSS to be unconstitutional and does not extend to servants of their own regime. According to the reform, women will have a 2% increase for each extra year of contribution after 15 years of payments to the INSS. For civil servants, the additional only starts to be considered after 20 years of contribution to the proper regime.

experts contest

Lawyer Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), considers that the joint judgment of the actions is harmful to the insured and does not bring the legal certainty that was sought when associations, unions and parties went to the Supreme Court. For her, each point should be discussed separately.

“A general Direct Action of Unconstitutionality is very bad. I don’t think we have ever had an Adin in history that considered an entire law unconstitutional. The reform is very serious, complex, involves a series of technical issues”, he says.

Another point criticized by her is the type of trial that, in her opinion, should be in person and not in the virtual plenary. “It’s not the type of discussion for the virtual plenary; the face-to-face is important, because the ministers can discuss the topic among themselves, in addition to having oral support”, she says.

Lawyer Roberto de Carvalho Santos, president of Ieprev (Institute of Social Security Studies), sees the vote of the rapporteur in favor of the constitutionality of the reform as a loss for the population.

“Unfortunately, for us who defend several points of unconstitutionality in the reform, such as the calculation of the death pension and disability retirement, this position of Minister Barroso is at odds with several decisions already taken in other instances that understood the unconstitutionality”, he says.