MPF considers unconstitutional municipal law involving commissioned civil servants and municipal attorneys – News of Brazil
It is unconstitutional law that confers exclusive attributions of municipal attorneys to commissioned public servants. The understanding expressed by the Attorney General of the Republic, Augusto Aras, is in an opinion sent to the Federal Supreme Court (STF) in the Claim of Non-compliance with a Fundamental Precept (ADPF) 1,037/AP.
The action, filed by the National Association of Municipal Attorneys, asks for the unconstitutionality of provisions of Complementary Law (LC) 136/2020, of the municipality of Macapá, which confers on civil servants who have not been publicized, occupants of commissioned positions, attributions that the Constitution assigns to Advocacy Public.
According to the Attorney General of the Republic, the ADPF must be judged partially valid, so that an interpretation is given according to the Constitution to article 43, item V, paragraphs 4 and 5, of LC 136/2020 of Macapá, in order to reconcile it with the nature of the attributions of the Public Advocacy. With this understanding, Aras defends that the occupants of commissioned positions who are holders of the Sectorial Legal Advice, provided for by the norm, cannot perform the functions of legal consultancy and advice, considering that they are exclusive functions of the municipal attorneys.
The PGR explains that, in the express text of the Federal Constitution, there is no obligation for municipalities to establish a Municipal Attorney’s Office. However, it points out that municipal prosecutors are part of the category of Public Advocacy inserted by the Charter of the Republic among the so-called essential functions of Justice, insofar as they also act for the preservation of fundamental rights and the rule of law. This is because municipal attorneys provide legal advice and represent – judicially and extrajudicially – the municipality to which they are linked, in addition to acting in various judicial bodies in the defense of the municipality’s interests.
“Since such activities are identified by the Constitution as essential functions of Justice, it is imperative that all provisions pertaining to Public Advocacy be applied to Municipal Attorneys, under penalty of incurring a serious violation of the uniqueness of the Carta Maior”, maintains the attorney general, when pointing out that the Constitution provides for Public Advocacy to be admitted through a public competition of tests and titles. In this sense, Aras argues that it is unconstitutional to attribute judicial representation, consultancy and legal advice to the municipal executive branch to civil servants occupying positions in commission, as well as the existence of organic structures parallel to the Municipal Attorney’s Office.
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