The challenges of Administrative Sanctioning Law

Translated from the original.

With the evolution of Administrative Sanctioning Law in Brazil, what are the contemporary challenges in the field? Watch the interview of Fábio Medina Osório, head of Medina Osório Advogados, for Portal Migalhas:

The former Attorney General of Brazil discussed his views on the contemporary challenges of the field, such as the regulation of social media and the prominent role of the STF on the political stage. He also spoke about the influence of technology and the importance of legal certainty.

In addition, he comments on how these aspects appear in the recently released 10th edition of his work Administrative Sanctioning Law.

Migalhas: What does the new edition of your work bring that is relevant to Brazilian law?

Fábio Medina Osório: The 10th edition celebrates 25 years of the work, a pioneer in consolidating Administrative Sanctioning Law in Brazil. New theories were included, such as the prohibition of retrogression in the protection of fundamental rights and the liability of the legal entity, in addition to deepening the relationship between Administrative and Criminal Law. There is also a more detailed analysis of the application of strict liability, which connects to Administrative Sanctioning Law in the context of the coup-plotting acts of 8 January. In addition, the book addresses the theory of sanction, its history and development, as well as the material concept of administrative sanction and due process, considering the case law of the United States Supreme Court. In other words, the work was significantly improved, with new theoretical strands explored from recent case law and scholarship.

Migalhas: How does this discipline relate to other areas of law?

Fábio Medina Osório: Administrative Sanctioning Law covers sectors such as the environment, taxation, the financial market and consumers. It also applies to administrative improbity and the anti-corruption law, allowing sanctions to be imposed by both the Administration and the Judiciary.

Its importance has led universities to consider including it in Law courses, and the OAB has already recognized its relevance by creating the Special National Commission on Administrative Sanctioning Law, which I chaired for two terms.

Migalhas: What are the main current challenges of Administrative Sanctioning Law?

Fábio Medina Osório: Technology has accelerated the production of norms, making it essential to balance legal certainty and pragmatism. The law needs to incorporate new interpretive approaches, such as legal consequentialism, without compromising the predictability of decisions and academic freedom.

My work reflects this concern, by analyzing the case law of the STF and the political influence of the Judiciary, as well as the challenges of freedom of criticism in Brazilian academia.

Migalhas: How has Brazil been dealing with the regulation of social media?

Fábio Medina Osório: The Marco Civil da Internet (Brazil’s Internet Civil Framework) does not cover every gap, and court decisions end up filling this void. In the last elections, restrictions on freedom of expression were applied without a clear legal basis, undermining democratic transparency. A balanced regulatory consensus is needed to guarantee legal certainty and the protection of freedom of expression.

The problem is not only the content of opinions, but the arbitrary definition of what can or cannot be debated. This excessive censorship can produce the opposite effect, encouraging distrust in institutions. The political protagonism of the STF has intensified, expanding its influence over the electoral process and the definition of the limits of freedom of expression. This role can compromise the balance between the Branches and needs to be debated in greater depth.

Brazil needs to find a cross-party consensus to regulate social media in a clear and transparent way, protecting both freedom of expression and legal certainty. After all, precedents created today may have unpredictable consequences in the future.

Migalhas: How do you assess the prominence of the Federal Supreme Court in the political scene?

Fábio Medina Osório: The STF has expanded its influence in politics and the electoral process, a phenomenon consolidated since Car Wash (Lava Jato).

A striking example was the ineligibility of former president Lula. It was not then-judge Sergio Moro who removed him from the electoral race, but the STF. Likewise, in the following elections, Bolsonaro did not face electoral fraud, but rather a legal environment in which candidate Lula had more efficient legal advice and a more favorable institutional setting.

The Judiciary has acted in an increasingly active way in regulating politics and freedom of expression, often through sub-legal norms, without due constitutional support. This stance may create imbalances between the branches of government and undermine legal certainty. It is important that the political class recognize the need for an institutional rebalancing.

Migalhas: The concept of fake news has been widely debated. How do you see this issue?

Fábio Medina Osório: The lack of legal precision in the concept of fake news has led to restrictions on freedom of expression.

Recently, the PGR presented a complaint involving accusations related to fake news and attacks on the electoral system. The Prosecutor General of the Republic, Paulo Gonet, is a constitutional scholar of great reputation, but the complaint raises important questions about the limits of the repression of public speech.

The Law on Crimes against the Democratic Rule of Law, used as the basis for some of these accusations, was passed during the Bolsonaro government. This shows that the regulation of freedom of expression must be thought through carefully, since generic norms can be applied imprecisely and end up undermining fundamental guarantees.

I have always defended the security of the electronic voting machines, but when an environment of censorship and lack of transparency is created on certain subjects, the population tends to distrust the institutions even more. The solution lies not in indiscriminate repression of speech, but in strengthening transparency and encouraging responsible public debate.

Migalhas: What is the future of Administrative Sanctioning Law?

Fábio Medina Osório: The ideal path is a rights-protective (garantista) model. Administrative Sanctioning Law cannot be a space for abuses of the State’s punitive power. It must respect criminal and procedural principles, ensuring predictability and legal certainty.

The discipline has grown to the point of becoming an autonomous field in law courses. The Brazilian Institute of Administrative Sanctioning Law, in which we take part, has played a fundamental role in this consolidation, promoting academic debates and driving the evolution of this field in Brazil.

The country has the potential to become a global hub in the study of Administrative Sanctioning Law, provided it keeps its doctrine aligned with the principles of the Democratic Rule of Law.

Watch the interview here