Can the chief of a constitutional organization akin to an ombudsman, but with other attributions to defend civil society’s interests, prosecute a law professor who criticized his acts and decisions in a newspaper article? The Brazilian Prosecutor General of the Republic (Procurador-Geral da República), Augusto Aras, appointed by President Jair Bolsonaro, was dissatisfied with criticisms that the Constitutional Law Professor Conrado Hübner Mendes addressed to him in the newspaper Folha de S. Paulo and on social media. Hübner Mendes characterized the prosecutor as an inactive authority (specifically, a ‘lightening post’), a servant to the president who acts “cowardly” in the application of law. Furthermore, he saw the prosecutor’s omission to hold the president accountable for his COVID-19 policies as a ‘waiting room’ to the International Criminal Court. In response, the prosecutor filed a complaint in the Ethical Committee of the University of São Paulo and threatened to file criminal and civil lawsuits against the law professor.
Considering the situation of constitutional and democratic erosion in Brazil, a country that frequently witnesses Bolsonaro’s aides resort to national security acts to persecute political opponents, Aras’ reaction does not come as a surprise. Nevertheless, from the point of view of the constitutional norms that define the role of the prosecution service and the right to academic freedom, it is not hard to see that the prosecutor’s complaints are legally flawed.
The Prosecution Service in Brazil
The organization of the Prosecution Service (Ministério Público) in Brazil dates back to legal acts from the time of the Empire (1822-1891). The Brazilian 1891 Constitution, in its Article 58, § 2º, provided that the President of the Republic should choose the Prosecutor General of the Republic, the chief of the Federal Prosecution Service, among the Justices of the Federal Supreme Court. The 1937 Constitution, Article 99, as an authoritarian constitution, stated that the Prosecutor General of the Republic could be freely dismissed by the President.
Under the 1964-1985 military dictatorship, the Constitutional Amendment 1, of 1969, to the 1967 Constitution, structured the Federal Prosecution Service under the auspices of the executive branch – Title I, Chapter VII, Section VII. This series of historical legal provisions led the Prosecutor General of the Republic to exercise two functions that should not be confused: on the one hand, the institution should preserve the rights and interests of the whole society; on the other hand, it should offer legal counseling to the executive branch, especially the President of the Republic.
The 1988 Constitution inaugurated a democratic regime in which the Federal Prosecution Service received enough autonomy to protect only the interests of civil society (Article 127). Prosecutors are now supposed to act not in the defense of the government but in defense of the legal order, the democratic regime, as well as social and individual interests. They act upon functional independence and are commanded, at the federal level, by the Prosecutor General of the Republic, who is appointed by the President among career prosecutors and must have his nomination approved by the absolute majority of the Federal Senate for a two-years term. Although the President can act to remove him, this removal only can be performed by a vote of the absolute majority of the Federal Senate.
Another innovation of the 1988 Constitution is the separation of functions between the National Prosecution Service, on the one hand, and the defense of the interests of the government and the president, on the other hand. The defense of the government’s interests was assigned to another office, the Attorney General of the Union (Advocacia-Geral da União). On the scheme of separation of powers adopted by the Constitution, this distinction is another element to ensure the independence of the Prosecutor General of the Republic, whose job must include the prerogative to oversee the legality of presidential politics.
Those constitutional changes, combined with the civil society’s engagement to hold political officials legally accountable, made the Federal Prosecutors Service one of the most activist entities in Brazilian democracy – for better and worse. Debates from the time of the transition to democracy came to the point of inquiring whether prosecutors would constitute a ‘fourth branch’, which is probably an overstatement of their constitutional status.
Since the enactment of the 1988 Constitution, federal governments always act to enhance the institutions’ autonomy. During President Lula’s term (2003-2010), a custom of appointing the General Prosecutor from a list of three names provided by the National Association of the Federal Prosecutors (Associação Nacional dos Procuradores da República) has been adopted. Under President Michel Temer (2016-2018), a flexibilization of this tradition took place because the president chose the second most voted name, instead of the first.
It was under President Bolsonaro (2019-), however, that such form of choice was substituted by simple ideological identification. In effect, Bolsonaro ignored the list made by the professional association and indicated a prosecutor with less support in the institution and more friendly to the president’s ideological views. His name was Augusto Aras.
While in office, Aras took a wide range of decisions that helped Bolsonaro in his crusade against the 1988 Constitution. He refrained from recommending that the president did not share false information on social media; ignored the president’s responsibility for his pronouncements or for the content he shared in his Twitter account, on the ground that they lack official character; ignored that one of Bolsonaro’s ministers threatened to imprison governors and mayors; concentrated most powers to hold the executive accountable in his office, halting procedures against Bolsonaro’s ministers that could be filed by other prosecutors; issued an advisory opinion in favor of one of Bolsonaro’s sons in a criminal investigation, in contradiction to a settled case law of the Federal Supreme Court; and performed other acts that run contrary to the Federal Prosecutors Service positions after 1988.
Academic Freedom in Danger
The complaints filed by the Prosecutor General of the Republic against Prof. Hübner Mendes are part of a general attack on academic freedom, based on an undue interference on the freedom of opinion of Bolsonaro’s critics. Although Aras does not mention the National Security Act of 1983, which is used by Bolsonaro’s aides, such as the Minister of Justice and Attorney General of the Union, to intimidate Bolsonaro’s political opponents, the lawsuits produce an impact on democracy and on the public sphere, undermining attempts to oversee the president. They appear as a result of Bolsonaro’s endeavor to capture state institutions with friendly officials who do not confront him – in contradistinction to the recent history of the Brazilian Federal Prosecutors Service.
The 1988 Constitution provides for the protection of academic freedom in its Articles 206 and 207. These provisions guarantee the freedom of thought, the plurality of ideas and the scientific autonomy. None of those liberties are respected by Bolsonarist officials. On the contrary, his Ministers attacked public universities by falsely imputing them the sheltering of crimes and severely restricted their budgets to compromise the continuity of their research and general services. This last form of attack can be seen as progressive steps toward future privatization. Moreover, Bolsonaro has been abusing his power to nominate the deans in federal universities, ignoring the choices of the university communities and appointing his personal allies. Instead of acting to account for the fulfilment by the federal government of its constitutional duties concerning the right to education, the Prosecutor General of the Republic put his office in service of defending Bolsonaro and attacking his critics.
The Federal Supreme Court more than once recognized the importance of academic freedom for constitutional democracy. In 2018, banners with slogans against fascism were stripped from public universities by local judges and policemen who classified anti-fascists symbols as electoral propaganda against Bolsonaro. In response to these acts, the Federal Supreme Court not only issued an order to protect such symbols, enjoining public authorities not to curb the manifestations, but also confirmed, in 2020, that academic freedom is the main norm in universities and is based on the plurality of ideas (ADPF 548). More recently, state acts that aimed at enforcing neutrality at schools by forbidding professors and teachers to express their political positions were also deemed unconstitutional for violating academic freedom (ADI 5.537).
The efforts of the Prosecutor General of the Republic can be classified as a Schmittian political mindset, which depicts politics and public discourse as a struggle between friend and foe that severely damages the constitutional principle of political pluralism. They follow the wave of democratic erosion that includes attacks on universities, intellectualism, and the diversity of ideas, as we have seen in Hungary, Poland and even France.
As other scholars have argued, the Prosecutor General of the Republic’s responses to Prof. Hübner Mendes’s criticism can be read as moves in a political game to please Bolsonaro, hoping to receive a nomination to a seat in the Federal Supreme Court. Regardless of the success of this intimidation campaign, the greatest loser in this game will be, again, Brazilian constitutional democracy.