The era of agreements with the public authorities
Article in O Globo, of 05/03/2019, on the expansion of agreements between the public authorities and private parties in Brazilian Law.
Translated from the original.
The new spaces for dialogue between public authorities and persons, whether natural or legal, are striking for the elasticity, temporality, formality and cross-cutting nature of the legal disciplines. Previously, the phenomenon was restricted to certain areas of private law, and always subject to restrictions; but now it has spread to public law indiscriminately, including criminal law and tax law (see ordinance 360 of the National Treasury Attorney General’s Office, of 13 June 2018, which deals with agreements on tax matters).
New technologies have burst into the domains of Law and created their own laws, generating a peculiar logic of speed and solutions, in light of the paradigms of artificial intelligence. To imagine that the old premises that permeated conflicts could govern interpersonal relations would be an illusion in the complex times we live in. Disruptive processes are permanent, and non-disruptive innovations also open surprising paths.
It is not merely a matter of recognizing digital relations as imperative, and therefore digital public services, digital public administration, and consensual solutions as mandatory. It is, above all, a matter of upholding the autonomy of the parties and even of the public authority, for resolving problems as essential vectors of contemporary development, based on the availability of all possible categories of rights, diffuse and collective.
In this way, the dogma of the unavailability of fundamental rights, something classic in modernity, is abandoned, in order to enter the nebulous field of the relativization and ductility of those same rights.
The right to liberty, for example, becomes disposable by the very party who holds it, and who is threatened by the State-Public Prosecution Service, with which he may negotiate a custodial sentence in exchange for information and confession.
It will also be possible to negotiate agreements involving restitution to the Treasury, with debtors or creditors, provided that the discount is advantageous to the public sector, something much better than paying debts with a high impact on taxpayers. Such logic will apply equally to the environmental, tax, civil, labor, or any other sphere in which rights affected by public authorities are involved. Law in abstracto gives way to law in concreto, built in the cases and in the agreements.
Who can say whether an agreement will be good or bad? One must trust the justice system, the quality of lawyers, and the legal assistance to be provided also to the unassisted and the poor, through public defenders, professionals who hold qualified expertise and who even work from home in numerous cases at present. It will be essential to trust in the rational, proportional, and reasonable parameters of agreements and in the prohibition of arbitrariness by public authorities.
Plea cooperation agreements, leniency agreements, or this information given for a reward that will come from “good informants” must be backed by solid corroborating elements. The model of agreements will be based on legal criteria, not on the whim of public managers and much less on human irrationality. And precedents will always be useful.
Fábio Medina Osório, lawyer and former minister of the Office of the Attorney General of the Union