Shortly after being reelected President of the Republic with a relatively small margin of votes, under the pretext that she would not compromise workers' rights "even if the cows come home,"
Dilma V. Rousseff issued two provisional measures aimed precisely at cutting, reducing, or resizing constitutionally anchored social rights, such as unemployment insurance,
sickness benefits, and survivor's pensions. Provisional Measure No. 664/2014 "amends Laws No. 8,213 of July 24, 1991, No. 10,876 of June 2, 2004, No. 8,112 of December 11, 1990, and Law No.
10,666 of May 8, 2003," all related to social security. Provisional Measure No. 665/2014 "amends Law No. 7,998 of January 11, 1990, which regulates the Unemployment Insurance Program, the
Wage Bonus, and establishes the Workers' Support Fund (FAT), amends Law No. 10,779 of November 25, 2003, which provides for unemployment insurance for artisanal fishermen, and establishes
other provisions." It provides, for example, that Brazilian workers may only apply for unemployment insurance payments for the first time after at least eighteen months of employment,
compared to the current six months.
The changes impose a considerable number of restrictions on fundamental social rights, compromising guarantees that benefit, above all, the poorest population (e.g., unemployment insurance, affecting precisely those suffering the highest levels of job turnover, such as construction workers), in the absence of any clear counterpart (other than the predictable rhetoric of a "pension deficit" and misappropriation of funds—which exist, but must be combated with adequate oversight, not by curtailing social rights themselves, which is like weakening the patient to weaken the disease). From a minimally progressive perspective, one might well acknowledge that this legislative initiative has blatantly violated the so-called prohibition of social regression, which is enshrined in the Pact of San José, Costa Rica, to which Brazil is a signatory, and to which the Supreme Federal Court has recognized its supralegal force. In fact, the STF itself has already recognized, in several judgments, the implicit constitutional nature of the prohibition of social regression.
Indeed, several studies show that social security is, strictly speaking, in surplus; the deficits it experiences are experienced primarily because the system is universal (social security)
and not all of it is compensatory. The same can be said, moreover, of public servants' pensions, which would also be in surplus, were it not for the specific deficit in the pension microsystem for military personnel and district civil servants.
Social rights admit arrangements, scaling, and contractions, there is no doubt; it is the so-called "reserve of the possible." But they cannot be simply annihilated, without compensation and/or temporalities. J. J. Gomes Canotilho, among many others, at least in his early writings, attests to this. And what will the Supreme Court say?
Of all of them, one single certainty: Apparently, the cow coughed.
Brasília/DF, January 2015.
The Editorial Board