STF considers law restricting political appointments to state-owned companies constitutional | Policy

The Federal Supreme Court decided, this Thursday (9), validate the restriction on the appointment of politicians and government authorities to command state-owned companies.

Miriam Leitão explains the rotation of nominees for the boards of state-owned companies

The prohibition is provided for in the State-Owned Companies Responsibility Law of 2016. According to the rule, Ministers of State, state and municipal secretaries, those holding commission positions (who enter without a public competition) and party leaders cannot be appointed to positions on the board of directors and the Board of Directors of these companies.

The rapporteur of the case, Minister Ricardo Lewandowski (retired from the Court) had voted to consider the rule unconstitutional, but Minister André Mendonça opened a disagreement regarding the validity of the law.

The majority of ministers sided with the divergence. Ministers Nunes Marques, Dias Toffoli, Alexandre de Moraes, Edson Fachin, Luiz Fux, Cármen Lúcia and President Luís Roberto Barroso accompanied Mendonça.

Minister Flávio Dino was against the ban in most cases, but stressed that it should be maintained if the authority lies with the state-owned company’s regulatory body. Gilmar Mendes came closer to Dino’s understanding.

The “entry quarantine” was also maintained, that is, the prohibition on nominating party leaders who had acted politically in the 36 months prior to the possible appointment.

Unanimously, the Court decided to maintain valid the indications that were made while the decision that suspended the application of the law, taken by the rapporteur in March of last year, was in force. In practice, this allows the appointments made under the Lula government to be maintained.

The case returned to the Supreme Court’s agenda on Wednesday (8), with the vote of Minister Nunes Marques, for the validity of the law.

Marques understood that the standard meets “ethical lessons” and “emphasizes principles of corporate governance”.

Minister Dias Toffoli, who also took a stand on the constitutionality of the law, proposed that the Court determine that the person already appointed to fill positions based on the decision that suspended the application of the rule has its continuity guaranteed.

Minister Flávio Dino voted partially in line with the rapporteur, Ricardo Lewandowski. Dino considered that the restriction should only exist in situations where the nominee is a member of the body that regulates the state-owned company. For example, when the minister is from the department to which this company is linked.

“There is no canonization through a public examination. And there is no demonization through participation in politics. And, therefore, the idea that any ‘technical’ nomination will result in a higher standard of probity than a political nomination is false,” argued Dino.

Minister Alexandre de Moraes pointed out that the law guarantees transparency and efficiency in the management of entities. But, he stressed, this does not mean that there should be prejudice against politicians.

“It doesn’t mean that public servants are better or worse than non-public candidates. It doesn’t mean that we should be prejudiced against the political class,” he stated.

The ministers analyze an action by the PCdoB that challenges the limitations on appointments to command positions in state-owned companies. These restrictions were set out in the 2016 State-Owned Companies Responsibility Law.

The legislation prevents the following people from being suggested to the Board of Directors and management of these companies:

• members of the structure of federal, state and municipal governments: ministers of State, state and municipal secretaries, those who hold commission positions in the Public Administration, those who have a mandate in the Legislative Branch (councillors, deputies), even if these authorities are licensed from the position;
• leaders of political parties who have worked, in the last three years, in the decision-making structure of parties.

The PCdoB told the Supreme Court that the restriction violates constitutional principles – among them, equality, freedom of expression and participation in parties.