A few comments about the Judicial Review procedure n. 3.538/RS: the civil servants' wage rises as a counterfeit of the annual pay increase

Comentários à Ação Direta de Inconstitucionalidade 3538/RS: o reajuste de remuneração como contrafação de revisão geral.

Abstract

This brief comment examined the ruling given by the plenary of the STF when judging ADI n. 3.538/RS. The direct action was upheld to declare the unconstitutionality of Law n. 12.299/2005 of the State of Rio Grande do Sul, which readjusted the salaries of civil servants and members of the Judiciary. The main legal basis for the declaration of unconstitutionality was the dissimulation of the institute employed, because, despite the law mentioning that it was a general review of remuneration, in fact, the real configuration of the increase was a readjustment. The disguise through the use of signs endowed with a legal-positive concept for situations incompatible with them is examined in the theory of counterfeits. Counterfeiting, according to the theoretical proposal adopted, consists of the improper use of a positive legal concept for a legal fact that does not adequately correspond to its semantic boundaries with the purpose, conscious or not, of avoiding the incidence of its correct legal regime. In the case examined, the camouflage of readjustment through revision had an obvious desideratum, namely, to evade the corresponding initiative regime of the revision bill, which is the exclusive initiative of the Chief Executive. The understanding of the specific case reveals the importance of studying counterfeits by doctrine and jurisprudence in order to avoid the distortion of the institutes and the correct application of the Legal Order.