The car wash sphinx, chapter 7 – 09/06/2023 – Conrado Hübner Mendes

The Federal Public Ministry is the most innovative institution in the history of Brazilian constitutional law. Its attributions in defense of the environment, indigenous peoples, vulnerable citizenship and civil rights, combined with the functional autonomy of prosecutors, make the MPF an engine for the promotion of freedom.

In defense of minorities and public order, this central inspection institution must be well anchored to face conglomerates of public and private power and not need to give in to the retrograde forces of national politics. It must also be subject to limits. Managing the balance between independence and accountability is the task of constitutional architects and the prosecutors who operate there.

A public agent with such attribution needs to have not only courage and prudence, but also institutional protection and limits. It must submit to control procedures that correct errors and apply sanctions. These procedures cannot be occupied by the center.

The anti-corruption crusade through illegal means in Operation Lava Jato, sanctioned by the STF, as well as the disastrous management of Augusto Aras in the Attorney General’s Office, were episodes of tragic institutional failure.

They demonstrate the urgency of containing the carwash and anti-wash-jet outbreaks. From the dirty and poorly washed. Sectarian outbreaks that continue to sidestep political and economic interests in law enforcement. Manipulating the public sphere and confusing journalists.

Aras’ period in the PGR was marked by four main institutional failures. First, he was named. Second, he took the unappealable power of archiving to its ultimate consequences. Third, as a collaborator of Bolsonarist violence, he was able to fight for reappointment to the PGR and nomination to the STF. After all, this is legally possible. Fourth, he packed the National Council of Public Prosecutors with apologists who endorsed his policy of intimidating prosecutors.

These four flaws can be corrected or mitigated by good reforms.

The method of appointing a Chief Public Prosecutor is discussed worldwide. According to a report by the Venice Commission (“Opinions Concerning Prosecutors”, 2022), the method needs to “gain public trust and respect from the judiciary and the legal profession”. OECD report (“The Independence of Prosecutors”, 2020) states that “any risk of improper political influence” must be prevented.

Even if the current informal triple-list method is fragile, as seen in the previous chapter, the alternative of absolute discretionary appointment is far worse. One can think of a more institutionalized and independent procedure. Perhaps by a triple list, as attorneys general of justice are appointed in the states of the federation. Not to feed corporatism, but for autonomy and competence.

The unappealable power that Aras abused, unequaled in the Brazilian state, could be subject to review by a higher collegiate, such as the Superior Council of the MPF.

The possibility of a president promising to renew a PGR or nominating him to the STF for good services facilitates the capture of a vassal. It could be neutralized with a ban on reappointment and a quarantine for eventual appointment to the STF.

The CNMP rendered Augusto Aras a relevant service. The body headed by the PGR is made up of 14 members appointed by the president, including attorneys, prosecutors, judges, two lawyers appointed by the OAB and two citizens appointed by Congress.

Captured by the PGR, he opened sanctioning proceedings against dissident state prosecutors, much of which was left on the table awaiting an uncertain trial. A well-known fear-mongering and institutional paralysis technique.

To consolidate in the CNMP the spurious function of political persecution, it would be enough to expand the seats of party nomination (as in the proposed constitutional amendment 5, of 2021). To reinforce it as a democratic and plural control channel, there are other ways.

The MPF needs to be saved from its internal and external enemies, not annulled by lack of intelligence or bad faith. Letting the MPF be colonized by politics throws away the greatest creation of Brazilian constitutionalism. Organized crime inside and outside the state is also grateful.

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