Minister Ricardo Lewandowski, of the Federal Supreme Court (STF), voted today (10) to overturn an excerpt from the State-Owned Companies Law that prohibits the appointment of certain public agents to management positions or to the board of directors of public companies. 
Rapporteur of the direct action of unconstitutionality on the subject, Lewandowski partially responded to a request made by the PCdoB, which questioned different sections of Law 13,303, sanctioned in 2016 by then-president Michel Temer and whose declared objective was to provide greater professionalism and morality in the nominations.
For the minister, however, the legislation on the subject could not have prohibited the appointment of ministers of state or state and municipal secretaries, nor of people who already occupy a position without a permanent link with the public administration, whether of a special nature or of superior advice. .
In these cases, nominations must be allowed if the nominee meets other technical criteria provided for by law, such as knowledge of the area and unblemished reputation.
He also decided to give an interpretation according to the Constitution to another section of the State-Owned Companies Law, in order to allow the nomination of people who, in the last 36 months, have participated in the decision-making structure of a political party or in work linked to the organization, structuring and carrying out of election campaign. According to the rapporteur’s understanding, such restriction should apply only to those who perform such functions at the time of the nomination, requiring the untying of a position held in party leadership.
The theme is judged in a virtual session that started at 00:01 this Friday (10). So far, only Lewandowski has voted. The other ministers can demonstrate until March 17, at 23:59. It is also possible for the trial to be interrupted by request for a review (more time for analysis) or for a referral (referral to the conventional plenary).
The matter is closely monitored by the government, as it may pave the way for President Luiz Inácio Lula da Silva to nominate allies for boards and councils of various state-owned companies, in the quest to compose a favorable base in Congressional votes.
arguments
Lewandowski recognized the good intention of the legislator in seeking to shield state-owned companies from political apparatus and “spurious influences”, but pondered that this could not be done by discriminating against political party activity.
For the minister, by restricting the nominations of participants in government or party structures, the State-owned Law violated constitutional principles such as reasonableness, proportionality, political participation and equal access to public office.
On this point, he wrote 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”.
According to the minister, in order to preserve morality in the nominations, it is enough that other rules present in the Constitution and in norms such as the Law of Corporations, the Law of Conflict of Interests and the Law of Administrative Improbity are observed.
*Article amended at 10:44 am to add information.
