By Fábio Kerche and Rafael Viegas*
The National Council of Public Prosecution (CNMP) has 40 times postponed the trial of prosecutor Deltan Dallagnol in the case of the infamous power point.
Nothing out of the ordinary. This is just one example of the difficulty of getting some kind of punishment for the almost unimputable members of the Public Ministry. The CNMP, in fact, is an organ that has been working more to reinforce the MP’s autonomy than to exercise effective control over prosecutors and attorneys who go beyond the legal limits in their activities. Therefore, the timid proposal that is being discussed in the National Congress of constitutional change (PEC 5/2021) changing the composition of the Council is opportune.
The PEC proposes changes in the composition of the CNMP in order to improve democratic control over the MPs of the Union (MPU) and of the States (MPEs). Its substitute now includes, in addition to these changes, other equally relevant organizational aspects, such as, for example, with regard to the composition of each internal Superior Council (administrative body of each MP), which has implications for the movement of the career, the outcome of civil inquiries and agreements entered into by members of MPs without external control. However, in this brief space, we limit ourselves to the proposal to change the composition of the CNMP, including its replacement.
Today, the composition of the CNMP is 14 members, with the presidency of the attorney general of the Republic. Most board members are members of the MP itself, which already discards any illusion that the Board is an external control body. This number of members would be maintained by the new proposal, but Congress would gain the right to appoint one more councilor in addition to the two it already had the right to.
The change proposal, however, is so timid that this councilor, chosen through a rotation between the two houses of the legislature, would necessarily have to be a member of the MP. In other words, the majority of members of the body in charge of overseeing the MP would continue to be members of the institution itself.
Other changes are planned regarding the composition profile. Three councilors, and no more four, would come from the Federal Public Prosecutor’s Office. The body is headed by the Attorney General of the Republic and composed of the Federal, Labor, Military and Federal District and Territories Public Prosecutors. This change is relevant from a federative point of view because it would mitigate an asymmetry of concentrated power in the hands of the PGR, slightly increasing the weight of state MPs.
Furthermore, according to the substitute, one of the 15 vacancies could be occupied by a former or current Attorney General of one of the State Public Prosecutors. The proposal also foresees the possibility of a minister of the Federal Supreme Court (STF) and of the Superior Court of Justice (STJ) to occupy a seat on the Council. Previously, this was reserved only for judges appointed by these two Courts.
The STF would have another nominee for the CNMP. With two vacancies, the interference of the Judiciary top on the Council increases, which does not necessarily mean more control. On the contrary. The victories of MPs members with the STF are not rare when the issue is resistance to control, and it is well known the lack of limits imposed by this Court on the abuses, in theory, practiced in the Lava Jato course.
In any case, considering the changes in the composition of the CNMP by the substitute, of the 15 planned members, eight would continue to belong to the careers of MPs from the Union and the States. Therefore, the Brazilian MP would continue with an “external control” being carried out by mostly internal actors.
The original wording of the PEC provided that the position of national inspector would not be exclusively occupied by members of the MP, as it is today, opening the possibility for those of external origin. Although an external one had less chance of being the most voted, since the majority of the CNMP is made up of internal members of the Public Ministry, a gap was opened to oxygenate control over the prosecutors and prosecutors. The substitute, probably due to the usual pressure exerted by the MP on any proposal for change, retreats at this point, abandoning the idea. For the substitute that is being discussed, the requirement that the magistrate is one of the advisers coming from the Public Ministry is maintained.
The substitute also provides that the vice-presidency of the CNMP is no longer, automatically, occupied by the deputy attorney general of the Republic. This is healthy because it takes a portion of its power over the Council from the PGR. However, as for the National Internal Affairs, the substitute reserves the position for a member of the MP, vetoing the possibility of the vice-president being one of the external advisers.
The CNMP punishes little. Less than 2% of cases that reach the Council have a verdict against the accused and almost half of the few sentences are quite lenient. On the other hand, the CNMP has already taken decisions regulating activities of the MP that would be attributions of the Legislative and not of a Council. The CNMP “legalized” prosecutors to conduct criminal investigations and authorized members of the MP not to take cases involving low amounts to the Judiciary, despite decisions by Congress and the 1988 Constitution.
When it is pointed out that the members of the Brazilian MP lack limits, their main argument is that there is the CNMP. The Council functions as a window dressing institution. Or, in good Portuguese, a facade institution, a window dressing. In practice, it does not meet the expectations of those who understand that, in a democracy, everyone must be accountable for their actions and choices to third parties. As Madison, one of the founding fathers of American democracy, used to say, men are not angels, and nothing indicates that prosecutors and prosecutors will gain wings when they take a public competition. The proposal discussed in the National Congress, in relation to the composition of the CNMP, deserves to be considered and approved. Even shy and, therefore, in practice, perhaps innocuous.
* Fábio Kerche holds a PhD in Political Science from USP, professor at UNIRIO and author, along with Vanessa de Oliveira and Cláudio Couto, of the article “The National Councils of Justice and the Public Ministry in Brazil: instruments of accountability?” (Re.Adm.Pub., n.54, 2020).
Rafael Viegas is a doctoral candidate in Public Administration and Government (FGV-Eaesp), author of “Governability and the Logic of Appointments in the Federal Public Ministry: The ‘Professional Political Prosecutors'” (Brazilian Journal of Political Science, n. 33, 2020). -Eaesp, together with Maria Rita Loureiro and Fernando Abrucio, develops research on the composition and normative activity of the CNJ and CNMP, which is currently in the publication phase.