ABOUT THE CONSTITUTIONALITY OF ARTICLE 6, ITEM XIV, OF LAW 7713/1998: DIFFERENTIAL TREATMENT THAT DOES NOT OFFEND THE PRINCIPLE OF EQUALITY

Abstract

The Attorney General’s Office filed the ADI no. 6025 in order to obtain from the Supreme Federal Court the declaration of unconstitutionality of Article 6, item XIV, of Law no. 7713/1998. This provision recognizes the exemption from retirement benefits due to an accident in service and those paid by per-sons with certain illnesses. The aim of this paper is to present a point of view on the topic. To this end, I argue that the terms “retirement income” are not to be confused with the terms “salary”, “remuneration” or “allowance”, and I therefore assume that the success of the position that active workers are also entitled to exemption depends on arguments leading to the following conclusions: i) that Article 6, item XIV, of Law no. 7713/1988 is unconstitutional; ii) that unconstitutionality must be overcome by including active workers in the hypothesis of the norm. Therefore, I propose to address each of these fundamentals. With regard to the first of these, I focus on the allegation of breach of the principle of equality, as this is the most robust basis for those who hold this view. In so doing, I argue that the difference in treatment between retirees with those diseases and nonsick taxpayers does not offend the principle of equality. Next, I will consider whether the law hurts equality by not considering the wages, allowances, remuneration or fees of workers with such diseases to be exempt, and I take the opposite view. I argue that the fact that the law has granted special treatment to a group of persons does not in itself authorize the judiciary to criticize the legislature for not giving the same treatment to other groups deserving exemption. Finally, I argue that, even if the provision were unconstitutional, the judiciary could not extend the exemption to workers on active duty. In such a case, unconstitutionality should be overcome by the extirpation of the contested rule of law.