What can be the impact of the provisional measure that protects public agents from punishment during a pandemic?

On Thursday (14), President Jair Bolsonaro issued a provisional measure (MP 966) that establishes that public officials can only be punished in the civil and administrative sphere for acts committed to face the coronavirus pandemic when they act with intent (intent) or serious error is committed The prognosis applies both to actions in the health area and to measures that seek to reduce the economic impacts of the disease.

The MP is temporarily in force and must be approved by Congress to be permanent. Its text also stipulates that a serious error must be considered “the manifest, evident and inexcusable error practiced with serious fault, characterized by an action or omission with a high degree of negligence, recklessness or malpractice”.

Opposition lawmakers criticized the provisional measure as an alleged attempt by the president to protect himself and public officials in general from being held responsible for mismanagement of resources or inappropriate conduct of public policies in the pandemic.

“Bolsonaro is not only an ally of the virus, he is an ally of corruption, of criminals and bag predators!” Senator Randolfe Rodrigues (Rede-AP), one of those who submitted a request to the president, wrote on Twitter. of the Senate, Davi Alcolumbre (DEM-AP) to return the provisional measure to the President.

The president of the Federal Court of Audit (TCU), José Múcio Monteiro, told the Estado de S.Paulo newspaper that the MP will stimulate a “pandemic of malicious people.”

Despite the strong reaction from the authorities, public law experts heard by BBC News Brazil say the provisional measure is in line with Brazilian legislation already in force, which protects public officials from being punished in case of errors that are not are intentional or very serious. .

This is what Article 28 of the Law of Introduction to the rules of the Brazilian Law says: “the public agent will personally answer for his decisions or technical opinions in case of intention or serious error”.

Article 22 of the same law, on the other hand, establishes that, “in the interpretation of the rules on public management, the manager’s real obstacles and difficulties and the requirements of the public policies in charge shall be considered, without prejudice to the rights of administrators. “

This section, point out the jurists interviewed, has a wording similar to the part of the new parliamentarian that establishes that, in the analysis of pandemic decisions, “the real obstacles and difficulties of the public agent”, “the complexity of the matter and the duties performed by the public agent “,” the circumstance of incomplete information in an urgent or emergency situation “, and” the practical circumstances that have imposed, limited or conditioned the action or omission of the public agent “.

According to Patrícia Sampaio, a professor at FGV Direito Rio, the protection guaranteed by Brazilian law serves to prevent well-intentioned public managers from being afraid to make decisions. “This provisional measure complies with the rules that already existed. It is important to provide comfort to the manager in good faith. At no time does it seem to me that this parliamentarian is eliminating the responsibility of the manager in bad faith, the manager with malicious intent, the manager who will commit acts of corruption, “says Sampaio.

“The rule applies from the President of the Republic to the head of a hospital unit, for example. This manager may have to decide if he should make an emergency appointment at his hospital and not have time to get the best price for the market “, exemplifies Professor FGV.

For the professor, the new norm could not protect the government of Jair Bolsonaro in case, for example, the Ministry of Health takes measures that contradict scientific research. There are reports in the press that the president has lobbied the ministry to guide the widespread use of chloroquine in the treatment of the coronavirus, even though studies have not shown the drug’s effectiveness.

“If the Ministry of Health issues a recommendation or determination that is not based on proven clinical studies, it does not seem to me that the context of uncertainty of the measures taken in the pandemic can serve as a shield for non-accountability,” he said.

Although he does not see any risk in the new parliamentarian in the sense of unduly protecting public officials, Sampaio considers the rule to be “unnecessary” and ends up generating controversy due to the political moment.

“New rules that come to say the same as others that already exist can create legal uncertainty precisely because people begin to try to find the reason to issue a new rule,” he says.

Prosecutor indicates “debacle” in the application of resources against pandemic

Prosecutor Marinus Marsico, of the Prosecutor’s Office of the TCU (Federal Court of Audit), told BBC News Brazil that “nothing will change” in his work if Congress approves the provisional measure.

According to the prosecutor, there is a “debacle” in the misuse of public resources during the pandemic, when the acquisitions were launched without tender, but he says that it is possible to punish public officials because they are decisions that fall under “serious error” .

“I would never hold anyone accountable, nor do I think any manager should be held accountable, for being in the midst of a pandemic and having to make an urgent decision. But what I have observed is that absolutely unreasonable expenses are occurring,” he said. to BBC News Brazil.

This week, Marinus Marsico launched an investigation to investigate a R $ 144 million contract between the Ministry of Health and a hospital assistance company for advice, information, monitoring and detection of suspected cases of covid-19, by phone. .

According to the representation presented by the MP-TCU, there are indications of overpricing in the contract, since the cost of each service was initially estimated at R $ 5.80, but, throughout the process, increased to R $ 21.

For the prosecutor, this case, for example, represents a big mistake because there would not even have been a quick survey to compare supplier prices.

“When in a process you go looking for a company to do a telemedicine service, even with the exemption of bidding, you are forced to look for options, do a mini search. The manager says that he simply does not know any company and that the system ( in comparison) the prices of the Ministry of Economy were out of order for consultation, “he points out.

“This is not a justification for saying that there is no other company. If you are looking for it, it is precisely because you do not know other companies. And if the price consultation system does not work, expect to come back and make the consultation. These are serious errors like those that have occurred, completely unjustifiable, “he argues.

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