Nominations for audit courts favor politicians – 02/20/2023 – Power

The audit courts, which cost the public coffers around BRL 10 billion —the same amount that sustains the Electoral Justice and all the superior courts together— offer privileged jurisdiction and lifelong tenure to their advisers, who are often appointed ignoring the technical nature of the function.

At both the federal and state and municipal levels, several career politicians, some of whom are relatives of representatives or involved in legal disputes, are appointed advisers to a body that is also capable of making opponents ineligible.

There are legislative proposals to tighten appointments, but none of them have gone ahead.

Experts told the Sheet that the partisanship of these courts is detrimental to public administration, as it removes exemption from the control of government accounts and allows the state machine to be equipped.

The positions of advisers of the TCEs (State Courts of Accounts) are equivalent to those of judges of the state Justice, and the ministers of the TCU (Federal Court of Accounts) are equated by the Constitution to the ministers of the STJ (Superior Court of Justice), despite not linked to the Judiciary.

According to the constitutional text, someone who is over 35 years of age, in addition to moral integrity and unblemished reputation, notorious knowledge of public administration and more than ten years of exercise in a function that gives knowledge to exercise the powers of the administrative courts.

These requirements are evaluated by the Senate, in the federal case, and by the Legislative Assemblies and Municipal Chambers, at the state and municipal levels, respectively. Even so, there is no infralegal norm specifying these principles.

There are five legislative proposals in the pipeline to regulate the appointments of counselors to these courts, involving the need to have a clean record, public tenders, being outside political parties and elected positions and even term of office.

None of them, however, has advanced in recent years. Three texts are awaiting the designation of a rapporteur to begin processing, one of which needs to be voted on by the CCJ (Commission on Constitution and Justice) of the Chamber of Deputies since 2017 and the last one, at a more advanced stage, has been awaiting a vote in plenary since 2013.

The result of this is in the data — in 2016, a survey carried out by the NGO Transparência Brasil indicated that 80% of the 233 counselors in audit courts held, before their appointment, elective or prominent positions in high public administration. It also shows that 23% of them were prosecuted or punished by the courts and 31% were relatives of other politicians, such as governors.

A year later, research by the Federal University of Pernambuco showed that, of the 186 counselors of all TCEs, 85 were former state and district deputies, 5 were federal deputies and 29 were former state secretaries, 13 held other state positions and 40 had or had legal disputes.

Recently, reports from Sheet showed important political figures trying to place family members in the audit courts, such as the Minister of the Civil House, Rui Costa (PT), who is trying to include his wife in the Audit Court of the Municipalities of Bahia, and the governor of Maranhão, Carlos Brandão (PSB) , who has his nephew, Daniel Itapary Brandão, as a favorite for the TCE-MA (Court of Audit of the State of Maranhão).

For Fernando Menezes, professor of administrative law at the Faculty of Law of USP, every court of accounts has a degree of politicization that involves public debate and the diversity of the profile of the counselors, but the insertion of former politicians or the partisanship of the courts generates personality in decisions and pursuit of enemies.

Menezes also said that the politicians’ unwillingness to change the institution’s reality leads to the vulnerability of the audit courts to the interests of the majority political group and compromises the administration’s exemption from external control.

Despite noting that there are important indications for the audit courts, he understands that stricter rules should be applied, such as a quarantine after holding office and affiliation with parties.

The professor also highlights the possibility of creating a training path similar to what already occurs in the diplomatic career, professionalizing the exercise of the function of counselor or minister of the courts of accounts and bringing benefits to the entire public administration.

Juliana Sakai, technical coordinator of the NGO Transparência Brasil, understands that even for political appointments, some criteria, such as moral and unblemished reputation, prevent the appointment of counselors with pending legal proceedings, which has already occurred for the audit courts.

She claims that the speed of change in the profile of ministers and advisers in these courts is slow and that there is little desire on the part of politicians to change the current format of functioning and appointment. “It is not in the interest of the political group to lose power,” she said.

With the wear and tear of the anti-corruption agenda, Sakai believes it is difficult to change the current state of the audit courts, since the anti-corruption agenda has been closely linked to morality.

“The focus should be changed, corruption should not be treated morally, it should be dealt with within institutions and this issue serves to regulate and avoid state rigging”, he concluded.