SIZE Diminuir tamanho da fonte Aumentar tamanho da fonte
Highlights Print

Court: Public Prosecution Office members may not hold public office outside the institution

The Brazilian Federal Supreme Court (STF) considered the appointment of members of the public prosecutor's unconstitutional to hold positions that are not related to the institution's activities. The decision was handed down in the arbitration for non-compliance of fundamental precept (ADPF) 388, and established a period of 20 days, from the publication of the minutes of the trial, so that the prosecutor’s office members acting in disagreement with the public administration with an understanding established by the Court may be exonerated - that is, in functions outside the scope of the Public Prosecutor's Office, except for one of magisterium.

The lawsuit was partially upheld by the Popular Socialist Party (PPS) to question the appointment of the General Attorney of the State of Bahia, Wellington César Lima e Silva, to the position of Minister of Justice. Subsequently, the initial request was also filed to request the declaration of unconstitutionality of Resolution 72/2011, issued by the National Council of the Public Prosecutor's Office (CNMP), which revoked the previous resolution that "provided for the prohibition of the exercise of any other public function to a member of the Public Prosecution Service, except for one of magisterium. At the trial, the justices dismissed the effectiveness of the resolution.


The Plenary was accompanied by a majority vote of the rapporteur of the action, Justice Gilmar Mendes, for whom the prohibition on the exercise of public office by a member of the Public Prosecutor's Office, expressly provided for in article 128, article 5, subsection II, "d", of the Federal Constitution, serves to strengthen the institution and guarantee its autonomy, which is derived from the very principle of the separation of the powers. The device places as an exception only the performance in the teaching profession. In the opinion of the rapporteur, the participation of members of the public prosecutor’s in the administration, in posts under political influence and under the hierarchy in the Executive Branch, could compromise the objectives of the institution, such as the inspection of public power.

"When exercising a seat in an Executive Branch, a member of the Public Prosecutor's Office becomes subordinate to the head of the administration.This weakens the institution, which may be potential target of capture by political interests and submission of institutional interests to the personal projects of its own members, " Said Gilmar Mendes.

The rapporteur adjusted his vote during the trial to adopt a suggestion from justice Dias Toffoli - a point where he was accompanied by the other ministers - to turn the trial of the ADPF injunction into a judgment of merit.

National Council of Public Prosecutions (CNMP)

The rapporteur criticized the CNMP's action on the issue. Since the department revoked in 2011 part of a resolution issued in 2006 in which restrictions were established on the performance of public prosecutor’s members in public administration.

For justice Gilmar Mendes, only changing the Constitution would allow the participation of members of the prosecutor’s office in positions in public administration outside the institution, except for the teaching profession. Thus, Resolution CNMP 72/2011 and the practice installed in its sequence are, for the justice, "under the pretext of interpreting, an attempt to informally amend the Constitution."

"The Council has not acted in accordance with its mission to interpret the Constitution and by its normative acts attribute it density. On the contrary, he proposed to change the Constitution on the basis of his own acts", says the vote of the rapporteur.

The argument used by the Council to substantiate its understanding is in accordance with article 129 of the Constitution, according to which it is the institutional function of the Public Prosecutors Office to carry out other activities, provided they are compatible with its purpose. For Gilmar Mendes, the argument does not hold, since the device deals with institutional functions of the Public Prosecutors Office, and not with the individual performance of its members.


First to vote after the rapporteur, justice Edson Fachin stressed that assuming the position of Minister of Justice or any other who places a member of the Public Prosecution Service in a condition of subordination is to subject the institution itself, which should control and investigate another body in degree of equality and with absolute freedom. For him, this situation damages the assured independence of the Public Ministry and its members.

According to the justice Luís Roberto Barroso, a member of the Public Prosecutors cannot hold a political position in the executive branch, such as the posts of Minister of State and secretary of state that has political-party action. "The role of the Minister of State, in addition to his subordination to the will of the President of the Republic, is to enforce the government program, the administration party, which has an essentially political dimension," Barroso said. For the justice, the member cannot exercise the function of government. "State function requires critical detachment and impartiality and function of government requires loyalty and engagement," the rapporteur added.

In the opinion of JusticeTeori Zavascki, the jurisprudence of the STF prohibits members of the Public Prosecutor's Office from accumulating functions, except for the magisterium. According to him, Article 129 of the Federal Constitution defines the institutional functions of the Public Prosecutors Office, assuming that a prosecutor holds, for example, a position in a council, but as a representative of the institution, without it being necessary to move away from the activities. "It cannot be considered an institutional function of the Public Prosecutor's Office which, in order to be exercised, owes its member to leave office," he said.

Justice Rosa Weber noted that, combining articles 127 and 128 of the Federal Constitution, it’s clear that there is an impediment to having members of the Public Prosecutor's Office perform other positions, even if they are available. The justice stressed that her vote for the systematic interpretation of Article 129, subsection IX, which allow the exercise of functions conferred on the member of the Public Prosecutor's Office, because, in her understanding this authorization refers to the representation of the institution.

According to justice Luiz Fux, the rule of article 128 is clear by prohibiting the members of the MP from exercising other public functions. He considers that the major constitutional rule over the Public Prosecution Service does not include the exercise of other public office. According to him, the functions that can be exercised by public prosecutors or prosecutors are only internal corporations or those of representation of the institution.

Justice Dias Toffoli followed the rapporteur's understanding and presented to the plenary the proposal to transform the analysis of the preliminary injunction into a merit judgment, in order to pacify the matter definitively, in addition to setting the deadline of 20 days counting from the publication of the minutes, so that the agreement signed in the action applies.

Justice Cármen Lúcia noted that the Federal Constitution prohibits members of the Public Prosecutor's office from performing another function. Because of the autonomy of the institution, the minister believes that it is incompatible that its members hold positions in which they will appear as auxiliaries of authority of the Executive power, as president of the Republic or governor of State. "The auxiliary is submitted, is submissive, and submission is incompatible with the principles established in article 127 of the Constitution for members of the Public Prosecutor's Office," she emphasized.

Justice Marco Aurélio has voted not to hear from ADPF, since he understands that the request presented by the PPS is not eligible. "This is an institutional issue and in this case it is not possible to make the rules of regency or the broad interpretation of these rules flexible," he said. The justice also noted that there should be no extension of the request formulated, that is, by removing the appointments made in the Brazilian states.

According to him, there is another effective means to question the appointment of the Minister of Justice and cited the citizen suit already admitted by the court of the 1st Federal Court of Brasilia and with a deferred injunction. Overdue as to the preliminary issue of order, the justice rejected the request for injunction. When he had cast his vote, the Plenary had not yet converted the final judgment of the precautionary measure.

Following the votes, justice Celso de Mello followed the rapporteur fully, emphasizing that the examination of the ADPF does not involve any personal question regarding the recent appointment of Minister of Justice. The dean of the STF recalled discussions during the time of the National Constituent Assembly regarding the Public Prosecutor's Office to point out that the extension of the same guarantees and prohibitions related to the magistracy was based on the need to preserve the institutional autonomy of the Public Prosecutor’s Office and the indispensability of making the functional independence of its members.

"Members of the Public Prosecutor’s Office will reverence only the supremacy of the Federal Constitution and the authority of the laws of the Republic," he said. According to Celso de Mello, the "hermeneutic flexibilization" introduced by the resolution of the CNMP establishes an imbalance favorable to the members of the Public Prosecutor’s Office in relation to the members of the Judiciary, although these are the reference as to the ownership of prerogatives and impediments that, on an identical basis, were extended by the Constitution.

STF President Ricardo Lewandowski began his vote by stating that the decision taken in this session does not nullify the appointment of the current Minister of Justice, nor does it curtail the right of the President of the Republic to freely appoint and dismiss ministers of state. "We are signing a thesis, the incompatibility of a member of the Public Prosecution Office take office in the Executive," the president said. "This is an abstract thesis. The Minister of Justice can remain in office if he wants to exonerate himself from the Public Prosecution Office."

Lewandowski, following the full report of the rapporteur, reiterated that he has followed his own longstanding position and in agreement with several precedents of the STF, including ADI 3574, of which he was the rapporteur. In its understanding, the exercise by a member of the Public Prosecution Office of any position or function that does not relate to the attributions of the body conflicts with article 129, subsection IX, of the Constitution of the Republic.


Contact us
Praça dos Três Poderes - Brasília - DF - Brazil - Zip Code 70175-900 Phone: 55.61.3217.3000