SP court annuls vote on the privatization of Sabesp; decision subject to appeal

According to judge Celina Kiyomi Toyoshima, the vote can only take place after the conclusion of all public hearings and the submission of the required budget impact studies. The presidency of the House defends that any law approved must be subject to questioning through a Direct Action of Unconstitutionality.

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Scoreboard of the second vote by the SP City Council on the privatization of Sabesp - Photo Reproduction

The controversy surrounding the privatization of Basic Sanitation Company of the State of São Paulo (Sabesp) reached a new chapter on Friday (03) with the decision of the São Paulo Court to annul the vote that approved the bill that privatized Sabesp in the capital, held at the City Council on Thursday (2).

The text received 37 votes in favor and 17 votes against. Mayor Ricardo Nunes (MDB) sanctioned the project. The president of the House, Milton Leite (União Brasil), announced his intention to contest the preliminary decision by judge Celina Kiyomi Toyoshima, from the 4th Public Finance Court. The measure, announced last Tuesday, represents a serious blow to the state government's plans to transfer control of the company to the private sector.

Decision

The judge considered that there were irregularities in the process. According to the judge responsible for the case, the decision to suspend the Bill No. 163/2024, is based on the absence of essential public hearings, as well as relevant studies and opinions, disregarding the constitutional principles that govern the legislative process, in addition to constituting a clear violation of the judicial order, that is, the second and final vote could only take place after the holding of all public hearings, as well as necessary studies, according to the decision published on April 24.

Furthermore, the decision also stops "any subsequent action arising" from the vote on the bill. On the day of the decision, the mayor of São Paulo, Ricardo Nunes (MDB), had already enacted the measure. The Chamber assures that it has conducted all necessary hearings and presented the relevant studies. For the leadership of the House, any questioning about the legality of the approved law must be done through a Direct Action of Unconstitutionality (ADI), that is, the vote was carried out after all nine previously scheduled public hearings and the presentation of the impact study budget.

The Chamber stated that it sees no reason to suspend the effects of the session, as it understands that there is no place for judicial interference in the legislative process, especially after the end of the process, since the Bill had already been sanctioned by the mayor and became the Law 18,107, on May 2, 2024. In response, the City of São Paulo reiterates that the sovereign will of the councilors, expressed by the vast majority in the vote that approved the Sabesp privatization project, must prevail, since all the requirements constitutional provisions were complied with.

Criminal complaint

The architect and former councilor Nabil Bonduki, together with the Union of Water, Sewage and Environmental Workers of the State of São Paulo (Sintaema), filed a criminal complaint against the City Council this Friday. The criminal complaint argues that the budget impact study, prepared by the municipal administration, does not address the issues raised by the judiciary or clarify the methodology used.

The attached document is limited to a mere formality of the provisional decision, without offering details or real impact on the legal interests protected by it. This is because it does not include essential information about the scale of the project nor the consequences it will have for the municipality of São Paulo, thus failing to effectively fulfill the established obligation. Furthermore, a criminal investigation was requested to investigate the facts and hear those responsible for non-compliance with the court order.

Legal Confusion

At the request of the Public Defender's Office, the judge determined that the second vote would be conditional on the holding of all public hearings previously scheduled, as well as others, if necessary. This would ensure that all stakeholders have comprehensive access to the replacement project, its information, and a full analysis of its budgetary impact.

The City Council reported that the four-page budget impact report was sent by the secretary of the Civil House, Fabrício Cobra Arbex, to the president of the Chamber last Friday (26) and was duly registered in the process. Furthermore, he highlighted that all hearings were carried out as stipulated. According to the Public Defender's Office, the emergency protection was violated due to the lack of comprehensive public participation in the hearings.

In its statement, the Ombudsman's Office argues that the participatory process of public hearings, in the way they were conducted, was totally inadequate to promote a meaningful social debate: the method used it restricted access, limited the availability of information and did not include budget analysis, suggesting that it was just a formality to pass a controversial bill, without adequate public participation.

Therefore, it is concluded that the emergency relief issued by the court was not respected, reinforcing the request to suspend any voting on the bill until budgetary impact studies and all relevant information are provided in an accessible manner and in advance. to public hearings.

Later, the São Paulo Public Ministry (MPSP) declared that the decision of the São Paulo Court of Justice (TJSP) implied the suspension of voting on the project until a budget impact study report was presented. The MPSP emphasized that privatization, if implemented hastily and without further analysis, could harm the public interest, as such a proposed law could potentially cause financial damage to the public treasury and not guarantee the community's right to social control over the question.