STF judges Law of State-owned Companies and has votes in favor of politicians in boards

The Federal Supreme Court (STF) began to judge, this Friday (10), rules of the State-Owned Companies Law that prohibit the appointment of politicians to the management of public companies. Rapporteur of the case, Justice Ricardo Lewandowski cast the first vote, in favor of ending the restriction.

For him, it is unconstitutional a device that prohibits the appointment of government ministers, state or municipal secretaries to the Board of Directors and board of directors of state-owned companies. He also voted to end the three-year quarantine, required by law, for party or election campaign leaders to assume these positions. For the minister, it is enough for them to leave these functions so that they can be appointed.

The judgment should last a week and takes place in a virtual environment, in which the 11 ministers vote remotely, inserting written votes within the procedural system. A decision favorable to the end of restrictions serves the interest of President Luiz Inácio Lula da Silva (PT), who seeks to reward parties interested in supporting the government, and left-wing parties and the Centrão that want to control the management of billionaire budgets of state-owned companies. .

The State-owned Law was approved in 2016 by Congress in response to corruption schemes discovered by Operation Lava Jato, in which party leaders and parliamentarians received bribes in contracts managed by political appointees who held command positions in state-owned companies such as Petrobras, Eletrobrás and Caixa.

At the end of last year, during the transition of government, on the same day that Lula announced the appointment of former minister Aloizio Mercadante – a historical figure of the PT who, in last year’s election campaign, was involved in the formulation of the government plan – for the presidency of the BNDES, the Chamber approved a bill to reduce the quarantine period for party leaders or campaign members from 3 years to 30 days.

Due to the bad repercussion of the maneuver in the market, the proposal stalled in the Senate. An eventual overthrow of the rule by the STF would save the government from political negotiations to make the change via Congress, which, in turn, would get rid of the wear and tear of loosening the law.

Lula sent a favorable opinion for the loosening of the law

The action judged by the Court was presented by the PCdoB, a historical ally of the PT, on December 28 of last year, two weeks after the approval of the changes by the Chamber. The strategy was to have a plan B to enable the appointment of politicians in case the project got stuck in the Senate, as it did. The day after the protocol, Ricardo Lewandowski asked for demonstrations by the government and the Attorney General’s Office (PGR). Lula sent opinions favorable to the end of restrictions. The Special Secretariat for Legal Affairs of the Civil House argued that the restrictions violate proportionality and reasonableness by presuming the bad faith of ministers, secretaries or party leaders.

The Attorney General’s Office stated that the restriction on politicians violates isonomy, freedom of expression and party autonomy. By reducing the range of government options in choosing executives, it would also remove names that could bring gains to management due to their experience in political activity. He added that control bodies, such as the Federal Court of Auditors (TCU), would be capable of supervising and preventing possible deviations.

These manifestations are at variance with the position of the Attorney General of the National Treasury (PGFN), which defends the government in tax and fiscal cases before the Judiciary. For the body, restrictions on politicians seek to “avoid conflict of interests between the interests of state-owned companies and party political interests”. The body also stated that the standard “converges with good governance and management practices in the business environment, contributing to the transparent management of state-owned companies”.

PGR changed its understanding from one week to another

Initially, the PGR had agreed to the restrictions, but later backtracked.

On February 28, the Attorney General of the Republic, Augusto Aras, sent an opinion to the STF with the argument that the law sought greater effectiveness in the management of state-owned companies, guaranteeing probity and integrity by avoiding conflicts of interest, with choices of leaders ” guided by criteria of professionalism and technical qualification, aiming to combat the undue interference of external factors to the corporate purposes and functions”.

In early March, however, Aras changed his mind. On March 5, he sent a new assent to the end of restrictions. He argued, this time, that the restrictions violated the “fundamental rights of participation in party-political life and active citizenship in the management of public affairs”. “It constitutes a kind of punishment for party-political participation, with deprivation of rights in the face of political conviction”, he said in the new demonstration.

“Hateful discrimination”, argues Lewandowski

In his vote, Ricardo Lewandowski said that the restrictions are neither effective nor adequate to prevent misuse of purpose or misuse of public resources in the management of state-owned companies. He recalled that, in past corruption scandals, many were directed by technical staff, career professionals, but who were sponsored by politicians for acts of corruption. To contain these abuses, other laws could be triggered, such as the Corporate Law, the Improbity Law, which in 2021 was also relaxed by Congress, and other rules of the State-owned Law that require technical qualification.

“Republicanism values ​​everyone’s role in managing public affairs, with political activity being the true lifeblood of society. Therefore, I think that indiscriminately removing people who work in public life, whether in the governmental structure, whether in the party or electoral sphere, from the management of state-owned companies, constitutes hateful and unjustifiable discrimination from the point of view of this core principle of our Magna Carta. ”

The minister added that, when voters choose a new president, they also approve his political program, which will be put into practice “through public policies developed by assistants that he appoints to the different positions of the state administration, direct and indirect”, that is, voters would evaluate political appointments in ministries and state offices.

The decision of the STF depends on a majority of 6 votes among the 11 Justices of the Court. Voting in the virtual plenary runs until March 17. Anyone can ask to take the discussion to a presidential session or ask for a view to suspend the analysis.