Public Ministry: Guardian of Brazilian Democracy?

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In Brazil, the actions of prosecutors and prosecutors are guided more by individual convictions than by the demands and needs of the population

By Fábio Kerche and Rafael Viegas*

Institutions shape behavior, have some stability over time and structure formal and informal rules known and shared by its members. Institutions have instruments to encourage certain behaviors and discourage others, reducing the chance of chance, ensuring a certain predictability, regardless of who occupies the positions in the institution. In the ideal type of institutions, the opinion of its members would be secondary, since they would submit to procedures and priorities decided by the leadership or by the politicians.

In the real world, however, the relationship of institutions with their members is not as predictable and harmonious. Inevitably there is tension between individual and management interests, as well as disagreements with external actors. For there to be an alignment, career incentives, sanctions for deviations and mechanisms for monitoring activities are necessary.

The Public Ministry in Brazil, after the 1988 Constitution, would be so free of these institutional incentives that it is almost the case of thinking of a “non-institution”. MP priorities and strategies, apparently, are given by prosecutors themselves, shaped by factors external to the organization, such as class origins, law schools and other non-formal mechanisms.

From this perspective, the book by Julita Lemgruber, Ludmila Ribeiro, Leonarda Musumeci and Thais Duarte, Public Ministry: Guardian of Brazilian Democracy? (Fortaleza, CESec) which presents a quantitative and qualitative survey among MP members, gains importance because the opinion of prosecutors is relatively more relevant than in other hierarchically structured state organizations.

With the new Constitution, prosecutors and attorneys “began to have only “the law and conscience” as their benchmarks, with actions tending to be guided more by individual convictions, by the experience acquired in certain areas of work and by the choices made during life professional than primarily by the demands and needs of the assisted population or by an institutional standardization ensured by specific regulations” (p. 27).

The low-hierarchical institution presents high fragmentation as a result of its practices, to the point of calling into question the notion of institutional unity. The stage in which the member of the MP finds himself in his professional career and the differences in profiles, ideological inclinations, political positions and individual expectations, were factors identified as, apparently, decisive for understanding the differences in the priorities and styles of action of the members from MP. Autonomy for agents would have resulted in a “blank check” to be “filled out according to the inclinations and ideological or idiosyncratic positions of the members of the institution” (p. 14).

Of the 12.326 prosecutors, the survey received 899 properly completed questionnaires. Of those who responded, the social background with an “elite” profile prevailed. “Although this is not necessarily an obstacle to acting on behalf of the less favored, it can influence the definition of priority interests and the perception of most prosecutors about their role in society” (p. 16). Priorities would not be chosen by the institution, its leaders or elected politicians, by the way, but selected individually by the promoter himself.

The fight against corruption, for example, is indicated by 62% as a priority and the defense of social rights for the elderly, people with disabilities and those related to gender do not exceed 10%. Most want to be like Deltan Dallagnol, the prosecutor for Operation Lava-Jato, even if the Constitution does not prioritize the fight against corruption to the detriment of other areas or if there is no decision by society in this regard. As the number of promoters and attorneys is scarce, as well as time, choosing a topic as a priority means giving up others.

The authors could have explored further how the career structure could create some kind of institutional policy decided by the higher instances of the MP. After all, a good part of the prosecutors, mainly assigned to sensitive positions, such as in MP bodies responsible for the external control of police activity and the fight against corruption, are not incumbent, but designated.

Would this designation work as a stimulus to follow an institutional policy? Another point that would be subject to reflection is whether the constant migration of prosecutors to occupy positions in the Executive would encourage an alignment with the government. The agents' self-perception, typical in research on Survey, may have hidden the potential of these instruments.

The book, while maintaining a tradition of listening to the opinion of prosecutors and prosecutors started in the 1990s at IDESP, updates the view of MP members, contributing to mapping similarities and differences in the opinion of these actors. In an institution that is so loose in terms of rules and hierarchy, and, above all, not very transparent, opinion becomes an important analysis tool. The book is an important piece for scholars of the Justice System in Brazil.

*Fabio Kerche He is a researcher at the Casa de Rui Barbosa Foundation.

*Rafael Viegas He is a researcher at the Nucleus for Research in Brazilian Sociology at UFPR.

Article originally published on the website Journal of Reviews.

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