ELAW has worked with Mauro Figueiredo, President of the Brazilian NGO APRENDER, for more than ten years. Mauro has more than 15 years of experience defending protected areas, promoting sustainable coastal management, and advocating for strong fisheries and forestry legislation. Many thanks to the Future Justice blog and Mauro for their permission to re-post this article, originally published June 23, 2013.
The Brazilian Ministério Público (Public Prosecution Service) is a national institution essential for justice, tasked by the Constitution for the defense of the legal order, the democratic regime and the social and individual inalienable interests. Under the 1988 Constitution, the Ministério Público (MP) which was previously linked to the executive branch, became independent of any branches of the republic. Due to this status, it is considered by some people as the fourth branch. The independence of the MP and its members is fundamental to the performance of its duties, so they have the following guarantees: lifelong tenure, irremovability, and irreducibility of compensation.
Operating throughout the country, the MP is divided into: Ministério Público of the Union and Ministério Público of the States. The Ministério Público of the Union has division to act in specialized courts as federal, labour, and military. The MP of the Federal District and Territories are also part of the MP of the Union.
Although it is an independent institution which should obey only the national legal system without any political interference, it has received some criticism related to this independence, especially because the heads of the Ministério Públicos, are chosen by the respective chief of the executive branch. At the federal level, the Attorney General (Procurador Geral da República) is appointed by the President from among prosecutors, after approval by the Senate. The MPs of states, the Federal District and the Territories form a list of three names from among prosecutors to choose their Attorney General, from which the appointment is finally made by the chief of the executive branch. The criticism is partly because it is hard to admit that an institution that acts in the control of public administration would have its leader appointed by the institution controlled. This, theoretically, may undermine the independence of the MP.
Among the MP’s functions, determined by the Constitution, are: Proposing, exclusively, public criminal action; protecting the public and social property, the environment and other diffuse and collective interests; defending in court the rights and interests of indigenous peoples, exercising the external control over police activities, and requesting investigation and the implementation of police investigation.
Acting in defense of diffuse and collective rights and the fight against corruption, makes the MP a great ally of present and future generations. The institution is essential to the enforcement of these rights in the Brazilian legal system. Although there are other legitimate bodies to defend these rights in court. The structure, form of organization and the personal commitment of many of its members allow the MP to be the biggest proponent of lawsuits in defense of the interests of future generations. Hence the MP is essential for access to justice in Brazil, especially when it comes to diffuse and collective rights. Without its performance, the enforcement of these rights would be severely damaged.
There are many important cases where the MP took the side of affected communities in the struggle for environmental conservation and human rights. A case that became known worldwide was the Belo Monte Dam in the state of Pará, in the middle of the Brazilian Amazon. The project is part of the federal government Growth Acceleration Program (PAC). Until today the project is sub judice and the action of the MP in the case is exemplary. Cases like this have provoked the government to attempt to disqualify the MP’s work. In this case, for example, government lawyers asked the National Council of Ministério Público (CNMP) oversight over the actions of the prosecutors in the state of Pará and even tried to pull off a public prosecution of the case.
The fight against corruption also requires strong action by the MP. The most notorious case in Brazil is the “mensalão”(monthly allowance), the famous criminal action number 470, brought against deputies, businessmen and high-ranking members of the executive branch by buying votes of parliamentarians. At the end of last year, 25 of the 38 defendants were condemned.
The Ministério Público has suffered attacks on its way of working. Perhaps the greatest of these attacks has been the Proposed Constitutional Amendment No. 37 (PEC 37) of 2011 that intended to remove from the MP and other institutions, the power of criminal investigation.
Protests across Brazilian society that began from the movement against rising public transport fares in São Paulo last month, have spread across the country and included other demands, including the filing of PEC 37. Through mass demonstrations and protests, the people of Brazil put pressure on politicians and have succeeded. The PEC 37 was voted at the Chamber of Deputies and was rejected by 430 votes, 9 in favor and two abstentions. Certainly after this, the MP has gained political strength and more support from the society to continue its activities in the defense of the legal order.
Despite being a brilliant institution, the MP can still be greatly improved to fulfill more effectively its role in defending the rights of future generations. Increasing the number of prosecutors and technical staff from various areas of knowledge, improve communication with society and approaching population in a more informal way so that the ordinary citizen can have more access to the institution. Those are issues that must be observed. Another important issue is that the heads of the MP should be chosen by their peers. Thus, the independence of the institution would be strengthened.
Mauro Figueiredo is an environmental lawyer. He is the president of APRENDER, an NGO in southern Brazil. He is also an elected director of the “Law for a Green Planet Institute” and a member of the Environmental Law Alliance World Wide (ELAW). He is a former member of the National Council of Environment (CONAMA) and represented Brazilian NGOs in the Group for Coastal Management of the Inter-Ministerial Commission for Ocean Resources. Mauro has fifteen years of experience, mainly in the following areas: Protected areas; coastal management, fisheries and forestry legislation, science, technology and innovation for sustainability.