The federal government has earmarked 1.7 billion reais in the Union budget to grant readjustments to federal civil servants this year. On several occasions, President Jair Bolsonaro (PL) has signaled that the increase tends to be exclusive to the security forces, while promising to increase the remuneration of all civil servants in 2023. But, since we are in an election year , the Brazilian legal system has constraints that can make it difficult to keep promises.
If he chooses to grant an adjustment during this election year, Bolsonaro can do so up to a maximum of 180 days before the end of his mandate, as determined by point II of article 21 of the law. Fiscal Responsibility (LRF). The deadline for granting the raise, in this case, is July 4.
Another rule that imposes limits on the salary readjustments of civil servants in 2022 is the electoral law (9,504/1997). It prohibits, according to point VIII of article 73, “a general revision of the remuneration of civil servants which exceeds the recomposition of the loss of their purchasing power during the year of the election” in the period which goes from 180 days before the election until the possession of the elected. In this case, the deadline is April 4. The reason for the restriction, according to the legislation, is that such an increase could “affect equality of opportunity between candidates”. The idea is to prevent the voter from being influenced.
However, the very formulation of this device opens a gap for readjustments. As it prevents a general increase greater than the loss of purchasing power, it is understood that the government can grant limited increases to the recomposition of wage losses caused by inflation. What is prohibited, therefore, is the real increase, above inflation.
Bolsonaro’s promise to promote some adjustment in 2022 has already seen several ups and downs. In the first public statements, even last year, the president had even affirmed that the increase would be for all civil servants, “without exception”. But the tight budget led him to change his speech afterwards and limit the number of beneficiaries.
More recently, last Friday (11), Bolsonaro said that if there is no “agreement” from other categories of civil servants, the readjustment to police officers and prison guards will be for 2023. – because that some are threatening to go on strike, etc. .-, we intend to grant this recomposition to the Federal Police, PRF [Polícia Rodoviária Federal] and prison officers,” he said. “If there is no agreement, we regret it and leave that until next year.”
Most of the categories mobilized are demanding at least 20% salary recomposition, taking into account the loss of purchasing power from January 2019 to January 2022, and having as a reference the broad consumer price index (IPCA). But there are categories that demand even more – 28.15% – given the cumulative inflation from January 2017 to January 2022.
In the event of non-compliance with the provisions of the electoral law, the sanctions imposed by the TSE on the president could range from a fine to the possibility of canceling the registration of candidacies, in addition to the application of the law on administrative improbabilities. The limits apply not only to the President of the Republic, but to other public officials, such as the presidents of the National Congress and the representatives of the judiciary.
Law sanctioned by Bolsonaro prohibits readjustment to be paid after current term
At the same time that he did not hit the hammer on the adjustment in 2022, Bolsonaro promised a raise for the civil service in 2023. a very reasonable percentage for all servers in Brazil,” Bolsonaro said in late January, in an interview with “TV Record”.
In this case, the limit is clearer and was included in the LRF in 2020 at the initiative of the Bolsonaro government itself. The legislation prohibits, in point III of article 21, that the director general foresees an increase in expenditure of this nature with installments to be paid after the end of his mandate, which ends on 31 December. The rule applies even if the president is re-elected.
The device was included in the LRF by Complementary Law 173, which created the “Federal Program to Combat Coronavirus SARS-CoV-2 (Covid-19)” and was sanctioned by Bolsonaro on May 27, 2020.
“It is useless, for example, that the public official wants to grant a lesser readjustment this year and already guarantee a readjustment for the following years because it will not be valid and will come up against the law of fiscal responsibility”, says Daniel Curi, director of the Independent Fiscal Institution (IFI) and consultant to the Federal Senate.
This limitation was welcomed by the head of the Special Council for Strategic Affairs of the Ministry of Economy, Adolfo Sachsida, during a conversation with journalists last week. “The last installment of a salary increase granted by the Temer government was to be paid by our government. But today the government can only grant salary readjustments within its mandate. We have achieved consensus for this It’s an improvement in fiscal rules,” Sachsida said.
Election law opens a gap for one-time, above-inflation readjustments in the election year
According to experts, the wording of the election law allows the president to grant one-time salary adjustments, even in the 180-day period before the election and even above inflation, since the rule does not explicitly veto than to the “general revision of the remuneration of civil servants which goes beyond the recomposition of the loss of their purchasing power during the election year”.
On more than one occasion, Bolsonaro announced a readjustment to federal security officials, but without mentioning the magnitude of the increase. This wink motivated other categories of civil servants to paralyze activities and threaten a general strike, also in search of a salary increase.
The interpretation that the electoral law authorizes localized readjustments was corroborated in an opinion prepared by the Office of the Attorney General of the National Treasury (PGFN). The document was reportedly requested by the Ministry of Economy at the end of 2021 and was revealed by the newspaper “Estado de S. Paulo”.
At the beginning, the economy did not intend to reserve resources for a possible salary readjustment, but it had to comply with Bolsonaro’s request and asked for the reservation of resources for this purpose in the 2022 budget.
According to the prosecutor, the text allows “corrections by category” – and possibly real increases, higher than inflation – in the 180 days preceding the election.
“Although the subject has different interpretations, it can be said that the current jurisprudence of the TSE is positioned in the sense that point VIII of article 73 of law n. 9.504, of 1997, does not prohibit, in the period between the holding of the elections and the inauguration of the elected officials, in the constituency of the election, the sectoral or career revision of the remuneration of civil servants which exceeds the recomposition of the loss of their purchasing power during the year electoral”, indicates the opinion of the PGFN revealed by the newspaper “Estado de S. Paulo”.
Another interpretation given to the law refers to the percentage of inflation allowed. “If the president sends a bill that provides for an election year inflation review, he will not comply with the general review. We could look at the loss for the entire year, that is, the previous 12 months, not four months [até abril]”, assesses the legislative consultant Luiz Alberto dos Santos, associate of Diálogo Institucional Assessoria e Análise de Políticas Públicas.
The “annual general review” of the salaries of civil servants is provided for by the Constitution
There are agreements that go even further, in the sense that the annual salary review is not subject to any of these laws, since it is a constitutional guarantee, and Magna Carta overlaps with other laws. The Federal Constitution, in Section X of Article 37, provides for the annual inflationary recomposition of the salary of federal civil servants, in an “annual general revision”, and binds it to the approval of a law to be sent to the National Congress.
“The general revision is above the LRF. The law even recognizes this, when, for example, it renounces the application of paragraph 1 of article 17, which deals with compulsory expenditure of a continuous nature derived from the law “, explains dos saints.
Generally speaking, the LRF requires that any act leading to an increase in expenditure “arising from the law” has, among other things, an estimate of the impact and a demonstration of the origin of the funds. “This is one of the main rules of the LRF, but it does not apply to debt service or to the adjustment of remuneration to comply with the general revision, according to paragraph 6 of the same article” , specifies the legislative adviser.
Santos notes that although an annual review of civil servants’ salaries is a constitutional guarantee and must be done through a bill, the provision has not been strictly enforced.
“Since it was enshrined in the Constitution to guarantee this annuality, after former President Fernando Henrique Cardoso froze the salaries of civil servants between 1995 and 1998, compliance with the rule has ended up becoming a mirage, even in under the STF’s own leniency maneuvers that have been adopted for this purpose,” he says.
According to him, the linking of the readjustment to the approval of the law came after episodes of granting wage improvements and benefits without regard to compliance with tax responsibility rules. “Certain rules were emerging in an attempt to prevent leniency, abuse, lack of control,” he says.
For Daniel Curi, of the IFI, it will be complex to use interpretations of the LRF and the electoral law favorable to readjustment in a situation of budgetary crisis.
“There will be a lot of pressure for readjustment, but the regulations will be remembered, not least because we are in an uncomfortable fiscal situation,” he says. “Unemployment is quite high, growth [do PIB] this year, it should be close to zero. The economic and social context will influence the discussions. We don’t know if pro-adjustment interpretations will prevail.”