Fábio Medina Osório, to “O Antagonista”: “Unacceptable for a magistrate or member of the Public Prosecution Service to display a businessman's life”
Article on the unacceptability of magistrates and members of the Public Prosecution Service displaying a businessman's life, O Antagonista, 2019.
Translated from the original.
In the National Congress, the prospect of investigating acts of members of the Brazilian Judiciary is being discussed. At the same time, there are impeachment requests against members of the national judiciary before the Senate, which are pending there. And the possibility of improving the legislation on the principle of liability of members of the judiciary and of the Public Prosecution Service for acts falling within the broad category of abuse of authority is also being discussed.
In the same scenario, there is an intense exchange of criticism between members of the Judiciary and the Public Prosecution Service over the direction of the “Lava Jato” operation, culminating in investigations into alleged offenses against the honor of public agents. This is the context for a discussion on the responsibility of the oversight institutions in Brazil.
No Branch of Government stands above the Republic’s oversight bodies. If there are indications that members of the Judiciary or the Public Prosecution Service engage in improper practices, whether in the sphere of abuse of power or authority, in the field of illicit enrichment, or of improper prominence in the electoral field, such conduct must be investigated. It is evidently unacceptable for oversight bodies to use their prerogatives to leverage electoral candidacies or political benefits, just as it is impossible to tolerate crimes against the honor of anyone. Any debate among public agents, in court, on social media, or in any sphere, must be guided by duties of civility, institutional loyalty and respect for honor.
It is also unacceptable for public officials to disregard governing legislation and manage legal entities, earning profits incompatible with the status of their professions, a topic that may prompt a look at judges or members of the Public Prosecution Service who lead lives as businessmen. The entire universe of conflict of interest is to be demanded of members of the careers of the Public Prosecution Service, the judiciary and public law offices. Nothing is more natural than for society to want greater transparency from all the Branches of the Republic, in the present day.
It is certain, in this context, that greater responsibility must also be demanded of those who oversee, with regard to actions set in motion in court or outside it, concerning individuals or legal entities. And the rules of disqualification and suspicion must apply to all public agents, of any rank. The hollowing out of the rules concerning conflicts of interest deteriorates the principle of impartiality and the independence that should be demanded of members of the judiciary and the Public Prosecution Service. The behavioral standard of the STF Justices, as a paradigm for the other careers, is a consequence of the pyramidal system we have built.
A subject that should call for greater responsibility on the part of State agents, in the current historical moment, is that of plea cooperation agreements. It is worth recalling that an investigated person, when he levels an accusation against someone, formalizing it through the respective “annexes”, not infrequently together with his confession, should bring solid indications of corroboration to support his assertions. This game of plea deals, in the scandal market, opens dangerous precedents for reckless manipulations in other fields, including electoral and business ones, if there is no adequate filter regarding the integrity of plea cooperation and the responsibility of the oversight bodies.
In other words, it is imperative to ascertain whether there is, in fact, a lack of control over the investigations in the oversight institutions in Brazil, or whether there are rational, logical, legal criteria, and criteria of institutional unity, that guide the plea cooperation agreements and the investigative acts under way. In recent times, some confessions have emerged that ostensibly already reveal that they lack proof of what they allege, but provide a clear political and media spectacle, with potential harm in the business world.
At this pace, what prevents someone from deciding to inform on the very authorities who take the plea statements? Would it not be worthwhile to have minimum ethical limits on contacts between members of the Public Prosecution Service or the police and those under investigation, through filming of the negotiations? I believe this improvement will be essential for the institutions, at the current stage of maturity.
The theme of the liability of members of oversight institutions involves the republican principle and is extremely timely in terms of improving the Brazilian normative system. The impunity historically prevailing in the country has always reached members of oversight institutions, there is no doubt. Whoever oversees has greater immunities in the face of oversight. It is time to change that paradigm as well.
Fábio Medina Osório