Administrative morality and Minister of State
Article on administrative morality and the appointment of a minister of State with labor liabilities, Correio Braziliense, 2018.
Translated from the original.
The Judiciary must decide whether the President of the Republic may appoint and inaugurate a Minister of State for Labor who, on her résumé, has two labor claims against her that have become final. According to the first-instance judge and to single-judge decisions of the TRF2, which granted a preliminary injunction in a popular action, the appointment would have violated the principle of administrative morality, by virtue of the existence of those labor claims. Recently, in an informal setting, the Deputy nominated for the post stated that anyone can be a defendant in a labor claim, and that the decisions issued were unjust. Her statements sparked even greater controversy, since they were made on a motorboat, in the company of friends, and were publicized on social media.
The lawyers who brought the popular action alleged that the aforementioned statements would reinforce the perception that the deputy harbored a feeling of “disrespect” for the Labor Courts, which would make her appointment unviable in light of the administrative mindset. But is a popular action on this basis reasonable to suspend an act of the President of the Republic of such importance? Is there not an invasion of the principle of separation of powers? In reality, judges seek to appoint Ministers of State, subject to the most diverse arguments and grounds.
There are certain actions that should not even be allowed to proceed in the Judiciary, such is the absurdity they represent. Seeking to prevent the appointment and inauguration of a Minister of State because she is or was a defendant in two labor claims, for recognition of employment relationships, amounts to a complete subversion of the constitutional system in force. And to maintain that someone cannot publicly criticize the Labor Courts borders on mockery. The principle of administrative morality, set out in article 37, caput, of the 1988 Federal Constitution, is not the same as ordinary morality. Its main theoretical formulator, in France, was Maurice Hauriou, a great administrative law scholar, who, in commenting on the case law of the French Council of State, noticed that there were many unwritten rules that translated a kind of institutional morality, a duty of loyalty to the institutions.
From this emerged the principle of administrative morality, at the beginning of the 20th century, later complementing legality to give it a substantive meaning. Categories such as misuse of power or purpose flourished in French law in that period. With that meaning, administrative morality came to Brazilian law. Evidently, the Judiciary may judicially review administrative acts tainted by violation of formal or substantive legality, or even of the principle of administrative morality, but without invading others’ competences or inventing arbitrary rules.
Imagine the hypothesis of the appointment of a Minister of Labor who was involved in an investigation into slave labor exploitation on his properties, in collusion with the person who appointed him. There would be misuse of power and an affront to administrative morality. The STF has also already recognized misuse in the appointment of a Minister when the act aimed only at shielding against criminal investigation, which would amount to misuse of purpose. These are situations that require concrete evidence and admit of controls.
However, imagine a set of labor claims that any ordinary citizen may have to answer. Brazil, as we know, is prodigal in labor lawsuits. Indeed, one of the problems of the so-called “Brazil cost” is the industry of labor proceedings. Recognitions of employment relationships may result from legitimate controversies, involving the exercise of the right of petition. There is no scandal, no exploitation of child labor or slave labor, nothing of the kind, but the regular exercise of rights by the parties.
If this kind of precedent we are witnessing in the case of federal deputy Cristiane Brasil (PTB-RJ), mauled by the media and prevented from taking office because of two labor claims, as Minister of Labor, is to prevail, many questions and studies will have to be undertaken. It would be relevant, for example, to find out how many and which labor court judges are respondents in labor claims. Will the mere fact that they answer to lawsuits amount to a disciplinary offense? If there is a conviction or a settlement recognizing an employment relationship, what will the consequence be? Expulsion from the career? An administrative improbity action? Clearly this will open room for the absurd.
Artificially, one more obstacle will be created for people to hold public office. Doesn't the Clean Record Law suffice? It is worth recalling that this law does not cover labor claims. In facing a labor dispute, the citizen exercises a right and, if convicted, that does not always mean the conviction was fair. He must comply with the court judgment and nothing more. It is a matter of the private sphere. Obviously the examination of each concrete case can be deepened, as I mentioned at the outset. If we were dealing with certain unlawful acts, the situation might change. That is not the hypothesis we are dealing with. The Judiciary has no prerogative to create authoritarian rules for appointing Ministers of State. While there is a preliminary debate, the presumption of legitimacy of administrative acts prevails.
Fábio Medina Osório
Former AGU minister, lawyer, holds a doctorate in Administrative Law from the Complutense University of Madrid.