Portal Jota: Promising government posts to avoid impeachment may constitute a crime, says Fabio Medina Osório

Translated from the original.

The Jota portal, one of the most prestigious in coverage of the legal world, presented on Thursday (4/7) an exclusive interview given by Fábio Medina Osório to journalist Luis Viviani, from its São Paulo (SP) bureau. In his reflections, Medina Osório warned of the risk that officeholders may be found to have committed an impeachable offense by using bargaining in the public sector to serve exclusively private interests. See the full text below:

BY LUIS VIVIANI – SÃO PAULO (SP)

Does the Planalto Palace’s promise to appoint politicians and protégés to public posts with a view to the vote on opening impeachment proceedings against President Dilma Rousseff amount to misuse of purpose? Can it, ultimately, be classified as an impeachable offense?

Trivial matters such as forming a parliamentary majority take on broader and more complex contours when they occur in the turbulent political scenario of impeachment, whose admissibility was recognized in the vote of the rapporteur of the case in the Chamber’s Special Committee, deputy Jovair Arantes (PTB-GO), this Wednesday (06/04),

To try to answer these questions, JOTA spoke with the president of the International Institute of State Law Studies (IIEDE), Fábio Medina Osório.

Founder of the law firm Medina Osório Advogados, he holds a doctorate in Administrative Law from the Complutense University of Madrid and a master’s degree in Public Law from UFRS.

According to the lawyer, if bargaining is used in the public sector to serve exclusively private interests, it may possibly constitute an impeachable offense. For that, it is necessary to prove whether there was any kind of overstepping of the public interest, entering into the private.

It would also be possible to characterize corruption if the aim of the promises of appointments were the mere retention of Dilma Rousseff’s office, according to the lawyer.

“Drawing a parallel with the concept behind corruption that underlies nepotism itself, it could eventually be characterized as a form of corruption. And this would go beyond the very idea of a strictly political assessment and enter the field of impeachable offenses, not least because Law 1,079 of 1950 works with indeterminate legal concepts, with general clauses, with so-called political criminal law, and it is a law that draws a very thin border between the political sphere and the legal sphere”, he says.

Medina Osório also assesses the conduct of former president Luiz Inácio Lula da Silva in negotiating posts and other perks even though he is not chief minister of the Civil House. In the interview given to JOTA, he also speaks about the public statements of Justices of the Federal Supreme Court (STF).

Read the full text below:

Does the distribution of posts to avoid impeachment raise doubts about the conduct of the President of the Republic? If so, what would they be?

The President of the Republic may use the distribution of posts for political purposes, and this distribution is assessed by the voter. This may eventually be part of the political game; it may be called a clientelist or patrimonialist way of doing politics, and it should always be subject to a kind of political assessment as well, by public opinion and the electorate. It is not necessarily something subject to a legal assessment in the strict sense, but rather to a political analysis.

Eventually, the question of the position itself may constitute a possible misuse of purpose. The STF has been quite strict in its case law regarding nepotism. Nepotism has deserved a broad conceptual treatment as a form of corruption, that is, the use of public prerogatives to obtain private benefits.

In this sense, there may be a tendency, in borderline situations, to conceptualize as well, when any kind of public interest is exceeded, the analysis of poor public management.

That is, the use of bargaining in the public sector to serve exclusively private interests, in this case the defense of a term of office, which would be a private interest of the president, could eventually constitute an impeachable offense insofar as this type of exchange, that is, using posts simply to obtain the maintenance of her position, would have no public interest behind it, simply a private one, which would be to remain in power.

Along those lines, drawing a parallel with the concept behind corruption that underlies nepotism itself, it could eventually be characterized as a form of corruption. And this would go beyond the very idea of a strictly political assessment and enter the field of impeachable offenses, not least because Law 1,079 of 1950 works with indeterminate legal concepts, with general clauses, with so-called political criminal law, and it is a law that draws a very thin border between the political sphere and the legal sphere.

How would it be proved that the president went beyond the public interest into the private, so as to constitute the crime of impeachable conduct on the basis of nepotism?

The question of evidence always challenges the creativity of oversight authorities. In a technological society, in which public and private environments are increasingly exposed and transparent, those in government should not count on the cloak of secrecy. Illicit conversations can always come to light by the most varied paths. The best government strategy is to adopt compliance and bet on preventing wrongdoing, not on committing transgressions to achieve its goals. The ends do not justify the means. Documents surface, communications leave traces.

Does Lula commit any irregular conduct by offering posts when he holds no office? Which ones

Lula may well be committing unlawful acts, acting as a kind of de facto chief of staff and disobeying a court decision, namely the prohibition on his serving in the ministry.

If we consider that he is in fact acting as head of the Civil House and if his movements are tracked, from the institutional political point of view, as the movements of a head of government, it could be considered that he is in fact acting as a public official. If that is established, there may eventually be a series of offenses. He may be performing acts reserved to public officials, he may be engaging in unlawful conduct, and he may be charged with unlawful behavior.

Could you give some more specific examples of these unlawful conducts?

If he is speaking on behalf of the government, as if he were a de facto chief of staff. If he is in fact exercising the exclusive powers of that Ministry.

How do you view the anticipation of conclusions by Federal Supreme Court Justices in interviews with the press?

The posture of justices who anticipate their conclusions before their votes is mistaken. At first it seems to me a bad example for the judiciary in general. In some way this creates an erosion of the institution of recusal for suspicion. That is, it creates a perspective that any judge in Brazil can also follow this same pattern of conduct, that is, anticipating opinions before their judgments, value judgments.

On the other hand, some magistrates eventually come to play a role that is far more political than legal, and that is not positive for democracy either. The magistrate should reserve himself for a less political and more legal leading role, preserving the principle of impartiality of his office.

The Movimento Brasil Livre (MBL) filed an impeachment proceeding against Marco Aurélio Mello over the injunction ordering the opening of impeachment proceedings against Michel Temer. How do you see this issue?

The decision of the Speaker of the Chamber was grounded on reasoning founded on settled STF case law. That is, Justice Marco Aurélio’s decision was mistaken, perhaps even imprudent, and in some way also created an extremely pernicious political fact.

But to conclude from this that there is an impeachable offense on account of that decision is a very long stretch. I see no basis whatsoever for attributing to Justice Marco Aurélio an impeachable offense for having made a decision within the scope of his freedom, in the exercise of his jurisdictional autonomy.

Can a deputy lie to his peers? Example: a deputy who says he will vote one way for one group on impeachment and another way for another group, can he be prosecuted?

Well, politics is made on the basis of dialogue, of conversation. And we cannot enter into the intricacies of what would be the “word of honor” in politics, what must be honored or not in politics. It is up to the peers themselves, the deputies themselves, to assess that. It is not a matter concerning the law but honor and morality within the ethics of politics itself, and not legality strictly speaking.

PHOTO: Reprodução Youtube

Portal Jota: Promising government posts to avoid impeachment may constitute a crime, says Fabio Medina Osório

7 April 2016

Fábio Medina Osório

The Jota portal, one of the most prestigious in coverage of the legal world, presented on Thursday (4/7) an exclusive interview given by Fábio Medina Osório to journalist Luis Viviani, from its São Paulo (SP) bureau. In his reflections, Medina Osório warned of the risk that officeholders may be found to have committed an impeachable offense by using bargaining in the public sector to serve exclusively private interests. See the full text below:

BY LUIS VIVIANI – SÃO PAULO (SP)

Does the Planalto Palace’s promise to appoint politicians and protégés to public posts with a view to the vote on opening impeachment proceedings against President Dilma Rousseff amount to misuse of purpose? Can it, ultimately, be classified as an impeachable offense?

Trivial matters such as forming a parliamentary majority take on broader and more complex contours when they occur in the turbulent political scenario of impeachment, whose admissibility was recognized in the vote of the rapporteur of the case in the Chamber’s Special Committee, deputy Jovair Arantes (PTB-GO), this Wednesday (06/04),

To try to answer these questions, JOTA spoke with the president of the International Institute of State Law Studies (IIEDE), Fábio Medina Osório.

Founder of the law firm Medina Osório Advogados, he holds a doctorate in Administrative Law from the Complutense University of Madrid and a master’s degree in Public Law from UFRS.

According to the lawyer, if bargaining is used in the public sector to serve exclusively private interests, it may possibly constitute an impeachable offense. For that, it is necessary to prove whether there was any kind of overstepping of the public interest, entering into the private.

It would also be possible to characterize corruption if the aim of the promises of appointments were the mere retention of Dilma Rousseff’s office, according to the lawyer.

“Drawing a parallel with the concept behind corruption that underlies nepotism itself, it could eventually be characterized as a form of corruption. And this would go beyond the very idea of a strictly political assessment and enter the field of impeachable offenses, not least because Law 1,079 of 1950 works with indeterminate legal concepts, with general clauses, with so-called political criminal law, and it is a law that draws a very thin border between the political sphere and the legal sphere”, he says.

Medina Osório also assesses the conduct of former president Luiz Inácio Lula da Silva in negotiating posts and other perks even though he is not chief minister of the Civil House. In the interview given to JOTA, he also speaks about the public statements of Justices of the Federal Supreme Court (STF).

Read the full text below:

Does the distribution of posts to avoid impeachment raise doubts about the conduct of the President of the Republic? If so, what would they be?

The President of the Republic may use the distribution of posts for political purposes, and this distribution is assessed by the voter. This may eventually be part of the political game; it may be called a clientelist or patrimonialist way of doing politics, and it should always be subject to a kind of political assessment as well, by public opinion and the electorate. It is not necessarily something subject to a legal assessment in the strict sense, but rather to a political analysis.

Eventually, the question of the position itself may constitute a possible misuse of purpose. The STF has been quite strict in its case law regarding nepotism. Nepotism has deserved a broad conceptual treatment as a form of corruption, that is, the use of public prerogatives to obtain private benefits.

In this sense, there may be a tendency, in borderline situations, to conceptualize as well, when any kind of public interest is exceeded, the analysis of poor public management.

That is, the use of bargaining in the public sector to serve exclusively private interests, in this case the defense of a term of office, which would be a private interest of the president, could eventually constitute an impeachable offense insofar as this type of exchange, that is, using posts simply to obtain the maintenance of her position, would have no public interest behind it, simply a private one, which would be to remain in power.

Along those lines, drawing a parallel with the concept behind corruption that underlies nepotism itself, it could eventually be characterized as a form of corruption. And this would go beyond the very idea of a strictly political assessment and enter the field of impeachable offenses, not least because Law 1,079 of 1950 works with indeterminate legal concepts, with general clauses, with so-called political criminal law, and it is a law that draws a very thin border between the political sphere and the legal sphere.

How would it be proved that the president went beyond the public interest into the private, so as to constitute the crime of impeachable conduct on the basis of nepotism?

The question of evidence always challenges the creativity of oversight authorities. In a technological society, in which public and private environments are increasingly exposed and transparent, those in government should not count on the cloak of secrecy. Illicit conversations can always come to light by the most varied paths. The best government strategy is to adopt compliance and bet on preventing wrongdoing, not on committing transgressions to achieve its goals. The ends do not justify the means. Documents surface, communications leave traces.

Does Lula commit any irregular conduct by offering posts when he holds no office? Which ones

Lula may well be committing unlawful acts, acting as a kind of de facto chief of staff and disobeying a court decision, namely the prohibition on his serving in the ministry.

If we consider that he is in fact acting as head of the Civil House and if his movements are tracked, from the institutional political point of view, as the movements of a head of government, it could be considered that he is in fact acting as a public official. If that is established, there may eventually be a series of offenses. He may be performing acts reserved to public officials, he may be engaging in unlawful conduct, and he may be charged with unlawful behavior.

Could you give some more specific examples of these unlawful conducts?

If he is speaking on behalf of the government, as if he were a de facto chief of staff. If he is in fact exercising the exclusive powers of that Ministry.

How do you view the anticipation of conclusions by Federal Supreme Court Justices in interviews with the press?

The posture of justices who anticipate their conclusions before their votes is mistaken. At first it seems to me a bad example for the judiciary in general. In some way this creates an erosion of the institution of recusal for suspicion. That is, it creates a perspective that any judge in Brazil can also follow this same pattern of conduct, that is, anticipating opinions before their judgments, value judgments.

On the other hand, some magistrates eventually come to play a role that is far more political than legal, and that is not positive for democracy either. The magistrate should reserve himself for a less political and more legal leading role, preserving the principle of impartiality of his office.

The Movimento Brasil Livre (MBL) filed an impeachment proceeding against Marco Aurélio Mello over the injunction ordering the opening of impeachment proceedings against Michel Temer. How do you see this issue?

The decision of the Speaker of the Chamber was grounded on reasoning founded on settled STF case law. That is, Justice Marco Aurélio’s decision was mistaken, perhaps even imprudent, and in some way also created an extremely pernicious political fact.

But to conclude from this that there is an impeachable offense on account of that decision is a very long stretch. I see no basis whatsoever for attributing to Justice Marco Aurélio an impeachable offense for having made a decision within the scope of his freedom, in the exercise of his jurisdictional autonomy.

Can a deputy lie to his peers? Example: a deputy who says he will vote one way for one group on impeachment and another way for another group, can he be prosecuted?

Well, politics is made on the basis of dialogue, of conversation. And we cannot enter into the intricacies of what would be the “word of honor” in politics, what must be honored or not in politics. It is up to the peers themselves, the deputies themselves, to assess that. It is not a matter concerning the law but honor and morality within the ethics of politics itself, and not legality strictly speaking.