Democracy or Corporatism?

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By FÁBIO KERCHE e MARJORIE MARONA*

The forms of appointment of the Attorney General of the Republic and the dilemmas inherent in each of them.

The erratic behavior of the Attorney General of the Republic in the face of inquiries being processed by the STF, raising suspicions regarding the legality of the conduct of the President of the Republic and his closest allies, has reheated debates, including in the Legislature, about the role of the Public Ministry in the national political scene.

Accustomed to a role of control that raised the MPF to the status of an anti-corruption agency, prosecutors of the Republic are back in charge, mobilizing for the alteration of the constitutional model for appointing the PGR. The movement is not new and does not necessarily constitute a “democratic resistance front”, as it is once again organized to reinforce a corporation, taking advantage of Bolsonaro’s undeniable excesses.

As we have already had occasion to argue, the position of the PGR is undoubtedly strategic, with regard to the fate of the Bolsonaro government – ​​as indeed in relation to any government. It will be up to Aras to decide whether or not Bolsonaro should be tried on the charges of common crimes that weigh on the former captain. The form of appointment of the PGR, on which the proposed constitutional amendments that are processed in the National Congress fall, is, in fact, a fundamental element to understand Aras' performance. The process of choosing the PGR induces greater or lesser autonomy from the one who has exclusive competence to prosecute the President of the Republic in relation to the interests of the Planalto.

Fernando Henrique Cardoso, who, like Bolsonaro, ignored the proposals coming from the Public Ministry, always appointed the same prosecutor, throughout his two terms. Geraldo Brindeiro was re-elected four times and went down in history as the “general drawer of the Republic” for filing complaints against the president and members of his cabinet.

In the opposite direction, Lula and Dilma always nominated for the position the prosecutor most voted by peers, respecting the list of the National Association of Public Prosecutors (ANPR). Not by chance, the PT governments faced very aggressive PGRs in the conduct of Mensalão and Operation Lava Jato. Michel Temer also observed the ANPR list, indicating, however, Rachel Dodge, the second most voted. And this move had consequences. On the one hand, Dodge faced some resistance from his subordinates; on the other hand, it oscillated in relation to the Planalto. While she had hopes of being reappointed by the newly elected Bolsonaro, she maintained a more restrained performance in relation to the former captain, but once passed over, she became a “combative” PGR.

Incidentally, the same episode that today attracts the attention of prosecutors and sets in motion the lobby for the constitutionalization of internal elections for the appointment of PGR, explains a markedly strategic and corporate action. This is the confidential inquiry 4781, instituted, out of office, by the president of the STF, Dias Toffoli, to originally investigate threats, offenses and fakenews shots against members of the Supreme Court and their families.

From the outset, the initiative was opposed by the then PGR, Raquel Dodge, who determined – without success – the archiving of the investigation, on the grounds that the procedure rehabilitated aspects of the old inquisitorial penal system, when judges accumulate powers of investigation, prosecution and judgment . It should be noted that, at that point, the investigation did not involve Planalto interests and advanced, on the contrary, on Lava Jato prosecutors who, supposedly, attacked STF ministers.

Dodge was quite comfortable, therefore, to safeguard the institutional position that the Public Ministry had advanced under the constitutional framework of the adversarial model. This, as is known, is based on the division of the basic tasks that constitute criminal justice, protecting the Police from the investigation, the Public Prosecution from the prosecution and reducing the role of the Judiciary to the judgment. Incidentally, there was a political opportunity there for the head of the Public Ministry to restore good relations with her bases, minimizing the friction she had collected by opposing the fund created by Lava Jato in Curitiba to manage R$ 2,5 billion in fines paid by Petrobrás in the United States and also by the resistance to the immediate regulation of the Bonus for Cumulative Exercise of Office (Geco) right after attorneys lose their housing allowance.

Aras, who succeeded Dodge under a new grammar of fidelity to the presidency of the Republic, expressed from the beginning by the fact that he did not even run in the internal election held by his peers, changed his posture in relation to the investigations, manifesting himself favorably, in a first moment, when they still did not reach Bolsonaro's articulators and supporters. Only recently objected. But it is interesting to note that he did so by mobilizing arguments very similar to those of Dodge, demanding greater participation from the PGR in conducting the investigative phase, in compliance with the accusatory principle enshrined in the Constitution. But this time, the movement was not interpreted by colleagues as an indication of adherence to the corporation's interests. On the contrary, it was immediately identified with excessive submission to the interests of the government, generating efforts to regain the autonomy of the Public Prosecutor's Office, by changing the model for appointing the PGR.

The dilemma between independence and loyalty to the government is not exclusive to Brazil and the answers may vary. Having faced situations of this type, the United States, for example, has already oscillated between models of high and low autonomy, in the face of scandals involving Nixon, Clinton and, more recently, Trump. The latest setback in the degree of autonomy of the designated prosecutor is due to the perception of the political class that an excessively independent and discretionary actor can become dysfunctional in a presidential system based on predictability and stability.

In the Brazilian case, it would be more appropriate to discuss the issue based not only on the situation of the Bolsonaro administration. It is true that all institutional designs generate incentives for certain behaviors and discourage others. But at the same time, reforms can have unforeseen and even undesirable effects. The triple list, which brings together projects in Congress, encourages autonomy in relation to the president, but expands the dimension of discretion in the actions of non-elected actors who, incidentally, are not very accountable for their actions. From a certain democratic perspective, this would be a problem.

Furthermore, the presence of a virtually unimputable actor, with almost unrestricted freedom to accuse the President of the Republic and high-ranking politicians, can generate unnecessary crises. It depends greatly on the individual ethical dimension. That's what the Democrats and Republicans in the United States realized, once again establishing institutional constraints on the prosecutor's actions. and following the best practices.

It is still possible to argue that if senators supervised and exercised their veto power, the PGR would have to take into account other actors to guide its performance, tending to make the system of control over its performance more complex. The discussion is therefore more intricate than it appears. And more: it is not possible to assume that the current movement of prosecutors, in reaction to Aras' action, represents a breath of democracy. In this sense, it seems quite illuminating the fact that the movements and arguments of Dodge and Aras - both in the sense of halting the investigation of the fakenews on the allegation that they violate the accusatory principle – have generated different reactions from their colleagues.

In common there seems to be a concern of the Public Prosecutor's Office to safeguard its institutional position, by maintaining its unrestricted autonomy and discretion. With Dodge, inserted in a model that guaranteed the autonomy of the Public Ministry in relation to the Planalto, they focused on maintaining the space conquered in the face of the Judiciary itself, accusing a defect at the origin of the investigation of the fakenews, who had not counted on his participation in the seminal moment. With Aras, the parameters change, since we are facing a scenario that can, in fact, lead to a reduction in the autonomy of the Public Ministry in the face of the interests of the Planalto. Hence, the situation presents itself as a window of opportunity for, once again, the Public Ministry to advance its corporatist intentions.

It is worth mentioning that the recent mobilization of the Public Ministry has also put the Federal Police on alert, which intends to request the same procedure for the position of general director. By the way, does anyone know of any body that defends less autonomy and greater external interference?

It is to be expected that in the face of an asphyxiating conjuncture, to say the least, many are willing to make use of any expedient to shorten it. But Brazil does not end with the end of the Bolsonaro era. Too bad we have to change the tire while the car is moving. Even more so when the vehicle is out of control.

* Fabio Kerche He is a researcher at the Casa de Rui Barbosa Foundation, a permanent professor at the Graduate Program at Unirio and a collaborator at IESP/UERJ.

*Marjorie Marona is a professor at the Graduate Program in Political Science at UFMG. Researcher at the Institute for Democracy and Democratization of Communication (INCT/IDDC).

 

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