The Latin expression pro tempore, translated literally as "for the time" or "temporarily," designates a transversal legal institute that underlies the precarious and transitory exercise of offices, functions, or mandates. Within the scope of Administrative, Constitutional, and Civil Law, the term qualifies the investiture of an agent on an exceptional basis, aiming to ensure the continuity of public service or the preservation of rights in situations of vacancy, impediment, or transition, without the finality of a permanent appointment.
1. Definition, Concept, and Legal Nature
The term pro tempore refers to the limited temporal nature of a legal situation or the exercise of a competence. In the legal lexicon, the institute is characterized by transience and precariousness. It differs from an effective or definitive appointment, as its existence is conditioned upon a future event (such as the holding of a public competition, an election, or the return of the incumbent) or the expiration of a pre-determined period.
The legal nature of a pro tempore charge is that of a substitution or interim status. It is a measure to safeguard administrative continuity and legal certainty. The pro tempore agent holds the fullness of the powers of the office or function, except for express legal restrictions, but lacks the stability or life tenure inherent to the legitimate incumbent.
2. Historical Origin and Evolution
The origin of the expression dates back to Roman Law, where temporariness was a hallmark of certain extraordinary magistracies. The concept of interrex, for example, served as a provisional leadership between consular mandates. With the evolution of Modern Public Law and the consolidation of the Principle of Continuity of Public Service, the pro tempore figure became essential to avoid a power vacuum (vacuum juris).
In Comparative Law, the Anglo-Saxon system uses the term President pro tempore to designate the member of the Senate who presides over the chamber in the absence of the Vice President. In Brazil, the evolution of the institute followed the structuring of the bureaucratic State, migrating from a practice of clientelism to a rigorous administrative technique, guided by the principles of impersonality and efficiency.
3. Legal Provision and Normative Framework
The application of the pro tempore regime finds support in several instruments of the Brazilian legal system:
- 1988 Federal Constitution: Although it does not use the Latin expression in its vernacular text, the 1988 Constitution bases the institute on Art. 37, item IX, which provides for hiring for a determined period to meet a temporary need of exceptional public interest.
- Law No. 8.112/1990: In its articles 38 and 39, it regulates the substitution of incumbents of administrative units, establishing the interim regime.
- Law No. 9.192/1995 and Decree No. 1.916/1996: Regulate the appointment of rectors and vice-rectors. Article 4, sole paragraph, allows for the designation of pro tempore leaders in cases of vacancy or the impossibility of completing the electoral process in federal universities.
- Civil Procedure Code (CPC/2015): Art. 760 and following deal with judicial administration in cases of interdiction or bankruptcy, where the administrator may act provisionally until the charge is regularized.
4. Practical Application and Jurisprudential Understanding
The jurisprudence of the Superior Courts has been invoked repeatedly to delimit the powers and duration of pro tempore administrations, especially in the academic and administrative spheres.
4.1. Supreme Federal Court (STF)
The STF, in the judgment of ADI 6565, discussed the appointment of rectors for federal universities. The consolidated understanding is that the choice must respect the triple list, but in situations of absolute impossibility of forming the list or judicialization of the election, the pro tempore appointment by the Executive Branch is a legitimate measure to avoid institutional paralysis, provided it does not convert into an oblique definitive mandate.
4.2. Superior Court of Justice (STJ)
The STJ has relevant precedents regarding the validity of acts performed by pro tempore administrators. The Theory of Appearance and the Principle of Protection of Trust are applied: acts performed by temporary managers toward third parties in good faith are valid, even if the appointment is subsequently annulled, aiming at the stability of legal relations.
4.3. Superior Labor Court (TST)
In Labor Law, Precedent (Súmula) No. 159 of the TST is the pillar of the pro tempore substitution regime. It establishes that, as long as the substitution lasts and does not have a merely occasional character, the substitute is entitled to the contractual salary of the substituted person. If the position becomes vacant and the substitute assumes it pro tempore, they have the right to the salary of the function until the position is filled definitively.
5. Related Principles and Doctrinal Divergences
The pro tempore institute dialogues directly with the following principles:
- Principle of Continuity of Public Service: The State cannot stop; the vacancy of an office does not authorize the interruption of public function.
- Principle of Efficiency: Temporary management must seek the same results as definitive management.
- Principle of Precariousness: Classical doctrine emphasizes that the pro tempore act is discretionary and revocable ad nutum (at any time), not generating a subjective right to permanence.
There is doctrinal divergence regarding the temporal limit of the interim period. Part of the doctrine argues that the pro tempore exercise cannot exceed 180 days, by analogy to provisions of strike laws or tax substitution. However, the majority view holds that the period is that which is strictly necessary to cease the cause of the provisional nature, under penalty of deviation of purpose.
6. Contemporary Relevance and Practical Impacts
Currently, the figure of the pro tempore manager is vital in corporate restructuring processes (judicial recovery) and in governance crises in autarchies and foundations. The most relevant practical impact lies in civil and administrative liability: the pro tempore agent is responsible for their acts with the same rigor as the incumbent, being subject to the Administrative Improbity Law (Law No. 8.429/92).
Furthermore, the use of the expression in International Law, especially in blocs like MERCOSUR (Pro Tempore Presidency), demonstrates the importance of the term for coordinated power alternation, ensuring that the leadership of international bodies does not perpetuate itself in a single nation, maintaining sovereign equality.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988. Art. 37, II and IX.
- BRAZIL. Law No. 8.112, of December 11, 1990. Provides for the legal regime of civil servants of the Union.
- BRAZIL. Law No. 9.192, of December 21, 1995. Amends provisions of Law No. 4.024/61, regarding the choice of university leaders.
- BRAZIL. Supreme Federal Court. ADI 6565. Rapporteur: Justice Edson Fachin. Judgment in 2020.
- BRAZIL. Superior Labor Court. Precedent No. 159. Non-occasional substitution.
- BRAZIL. Civil Procedure Code. Law No. 13.105, of March 16, 2015. Art. 760.
