Limits for a former president, by Fábio Medina Osório for O Globo
Article in O Globo, of 09/08/2015, on the limits for former presidents to provide consulting services to private companies after leaving office.
Translated from the original.
It is a figure that belongs, to a large extent, to the nation, and its appropriation by private companies should not be allowed, given the magnitude of the office
A question has been gaining strength in Brazilian society: after holding a highly relevant public office, does a person have the right to provide consulting services to private companies? In what way can consulting become lawful or unlawful? What would be the limits of the relations between a former public official who held a post of great responsibility and the private sector, right after the end of his term, considering the full access obtained during that term to privileged information?
The reflections under examination can be unfolded into multiple segments. However, we will for now stick to the highest officeholder in Brazil: the President of the Republic. Holder of the nation’s most valuable secrets, aware of and guardian of privileged information in all areas that fall to public administration and to strategic interests, a former president should have, after the end of his term, conditions that ensure him full independence from political and economic agents, whether national or international.
The figure of a former President of the Republic belongs, to a large extent, to the nation, and its appropriation by private companies should not be permitted, given the magnitude of the office and the grandeur of its powers and representativeness. However, rules delimit the game and referees exist, in the separation of powers, to assess the content of those rules. Judges decide what is permitted or prohibited in a Democratic Rule of Law. And people are free to engage in activities that are not forbidden to them, above all in the private sector.
The definition of the conflict-of-interest prohibitions applicable to public agents who held positions in the Presidency of the Republic is found in Decree No. 4,801/02, now covered by the Conflict of Interest Law (12,813/13). Thus, not only is the law applicable to those who held the office of president, but it is also effective, by virtue of the pre-existing regulation, to the extent that it did not revoke it. Under this law, a conflict of interest is considered to be a situation generated by the confrontation between public and private interests that may compromise the community or improperly influence the performance of public duties.
The influence of a figure of the stature of a former president can be devastating, when exercised negatively. Privileged information is regarded as that which concerns confidential matters or matters relevant to the decision-making process within the federal Executive Branch, which has economic or financial repercussions and is not widely known to the public. Whoever has held the highest office in the federal Executive Branch must act in a way that prevents or averts possible conflicts of interest and safeguards privileged information. In case of doubt as to how to prevent or avert situations that constitute conflicts of interest, one may consult the Public Ethics Commission, created within the federal Executive Branch, or turn to the Office of the Comptroller General of the Union.
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A post-term probity is therefore required, a kind of observance of duties related to the administrative morality of former holders of the nation’s highest office, curbing spurious activities, improper relationships and, fundamentally, the use of privileged information obtained by virtue of the exercise of their functions. Privileged information is at the center of contemporary unlawful enrichment and, above all, at the root of veritable empires built through ethereal “consultancies,” devoid of factual support or empirical basis, and grounded only in the political position of the service provider.
Thus, after holding a position or job within the federal Executive Branch, at any time, the conduct of disclosing or making use of privileged information obtained by virtue of the activities performed constitutes a conflict of interest. There is a perpetual obligation of secrecy of privileged information on the part of those who have held the office of President of the Republic of Brazil. It should be stressed that conflicts of interest, when proven, give rise to legitimate reactions from society and the oversight institutions, notably in the handling of rules and principles of Punitive Public Law.
Fábio Medina Osório is president of the International Institute of State Law Studies