The End of Institutional Multiplicity: A Drawback in the New Administrative Improbity Law

Brazil’s Administrative Improbity Law is one of the cornerstones of the country’s anticorruption framework. The law imposes administrative and civil liability on public officials and political agents for illicit enrichment, damage to the treasury, and acts against the principles of public administration. Before its enactment in 1992, these forms of misconduct were only punishable under criminal law, which imposes a much more demanding evidentiary standard. The enactment of the Administrative Improbity Law thus played a valuable role in enabling the government to hold corrupt actors liable in those situations where the evidence of corruption, though strong, was not enough to establish proof beyond a reasonable doubt.

This past October, the Brazilian government enacted significant amendments to the Administrative Improbity Law. Some of these changes were welcome, particularly those that clarified vague provisions and attempted to speed up the process. (Brazilian courts have taken on average six years to adjudicate administrative improbity claims.) But another change is much less welcome: The amendments to the law reduced the number of institutions that can file a suit for violations of the law. Under the original version of the law, a suit could be initiated either by the Public Prosecution Office (an autonomous body) or by the government entity that was harmed by the corrupt act (the federal Attorney General’s Office in the case of acts that harm the national government, and the state or municipal authorities in the case of acts that harmed subnational government entities). This arrangement is a form of what Brazilian scholars typically refer to as institutional multiplicity—an arrangement where multiple institutions have overlapping authority to enforce legal provisions. Institutional multiplicity is a key feature of Brazil’s anticorruption framework. The new version of the Administrative Improbity Law scraps this multiplicity, at least in this context, by giving the Public Prosecution Office the exclusive right to file administrative improbity suits.

This is a mistake.

In a country like Brazil, institutional multiplicity is a valuable feature of the anticorruption system. First, it introduces some redundancy into the system, so that if one institution fails to discharge its functions—if it is captured or subverted by corrupt actors, or simply lacks the capacity or resources to enforce anticorruption laws effectively against all possible targets—other institutions can step in. Institutional multiplicity can also encourage healthy forms of competition—as when each responsible institution seeks to enhance its own performance as a response to positive outcomes achieved by a similar institution—as well as productive forms of collaboration, as when different institutions can combine their human and technical resources, and their different forms of expertise.

These advantages have played a significant role in the context of the Administrative Improbity Law. Eliminating institutional multiplicity in this context will therefore undermine the effectiveness of the law. If, for example, the Public Prosecution Office is effectively captured by possible defendants, there won’t be any other entity to compensate for the Public Prosecution Office’s inaction. And even if we put the concern about capture to one side, the Public Prosecution Office may not have the adequate capacity to deal with all the cases. Several of the entities that previously could sue under the Administrative Improbity Law had developed specialized structures to detect and investigate fraud—for example, the federal Attorney General’s Office has a unit specializing in administrative improbity that filed an average of nearly 200 improbity lawsuits annually from 2016 to 2020. After the recent changes to the Administrative Improbity Law, the Attorney General’s Office may well shut down this unit, which no longer has a function to perform.

Proponents of the recent changes argued that giving the Public Prosecution Office exclusive jurisdiction to enforce the Administrative Improbity Law is necessary to prevent the political misuse of improbity lawsuits. The concern, these proponents explained, is that after a change in the political control of executive branch (at the federal or state/municipal levels), the newly elected chief executive would file improbity suits against his or her predecessor as a form of vendetta or harassment—a problem thought to be especially serious at the local level. The non-partisan Public Prosecutor’s Office, the argument continued, would be unlikely to misuse its enforcement authority in this way.

There is something to this argument, at least at the local level. In Brazil, most local governments have low budgets and lack an institutionalized advocacy body with tenured legal professionals, and these features make local governments more susceptible to political abuses of the law. But the concern is far less plausible when applied to federal and state governments, where improbity lawsuits are handled by institutionalized bodies with accountability mechanisms and tenured lawyers. In that regard, a more reasonable reform to the Administrative Improbity Law would have been to restrict the ability to initiate the procedure to entities with institutionalized advocacy bodies. The measure would simultaneously preserve institutional multiplicity and reduce the political use of the law. Additionally, concerns about abusive or politicized prosecutions were also addressed by some of the other recent changes to the Administrative Improbity Law. In particular, the narrowing of the acts that count as violations narrowed the discretion of enforcement agents, making it harder to bring pretextual lawsuits for political reasons.

In sum, while there may have been genuine concerns about the potential for abusive lawsuits under the Administrative Improbity Act, the decision to give the Public Prosecution Office exclusive jurisdiction to bring improbity lawsuits went far beyond what was necessary to address this concern, and has eliminated the institutional multiplicity that facilitates effective enforcement of this vital law. Brazil should reconsider this decision.

4 thoughts on “The End of Institutional Multiplicity: A Drawback in the New Administrative Improbity Law

  1. Thanks for the great post, Rafael. It sounds as though by giving the Public Prosecution Office exclusive jurisdiction to enforce the Administrative Improbity Law the Brazillian government has deliberately undermined the state’s anti-corruption capabilities. I’m curious whether there was a more explicitly political reason for this than the ones given by the proponents of the reforms. Given how intertwined accusations of corruption are with politics in Brazil (as in many parts of the world), was there a sense that national and state bodies were using the law not just to go after their predecessors but that anticorruption actions threatened the national government’s power at a time when the government has come under pressure from the opposition?

    • Hi, Justin. Thanks for your comment. You raise a very relevant question.

      The institutional multiplicity was never a big issue in the enforcement of the law. Before the reform, the two major concerns were: (1) some illicit conducts were described in a broad and ambiguos way that gave a lot of discretion for law enforcement agents; (2) the former version of the law had provisions to punish government agents for negligence rather than intent. Both of those problems were addressed and that decreased the possibility of political use of the law to harm political opponents.

      I don’t believe that government oposition was a relevant factor that motivated this modification. The scope of the law was a concern for politicians from all the political spectrum. Therefore, it is more likely that some politicians, regardless of their political affiliation, saw an opportunity to reduce the number of human and material resources employed in its enforcement. According to a Brazilian newspaper, 25% of Senate members were defendants in administrative improbity lawsuits (https://politica.estadao.com.br/noticias/geral,1-em-cada-4-senadores-e-alvo-de-acao-por-improbidade-administrativa,70003753505).

  2. Excellent post Rafael. I’m also intrigued by the point on healthy competition. Could the opposite be true? When multiple institutions share overlapping responsibilities, would the prosecution office feel reluctant to take action because the other harmed institutions could bring their own cases? You mentioned that several entities (e.g., the federal Attorney General’s Office) developed their internal “prosecution” organs to investigate cases; but for the other entities that did not have such resources, did the previous system make things harder for them?

    Do think it would be a good idea to expand the prosecution office and include a separate division designated to handle improbity lawsuits (if not already available)?

    • Thanks for your comment Emma. You raise really important questions.

      Regarding the Administrative Improbity Law, there was no reported problems of one institution refraining from acting. The most prominent problem of unhealthy competition among institutions has happened in the execution of leniency agreements under the Clean Company Act.

      The previous system provides a good example of the benefits of institutional multiplicity. Suppose a local government with very few resources that was harmed by an illicit act committed by a city councilor. In that situation, the government may not have the resources to bear the costs of an investigation and a lawsuit, and the Prosecution Office would act to enforce the law.

      At the federal level, Brazil has the Office of the Comptroller General, which is well-equipped to detect and investigate illicit conducts, and the Attorney General’s Office, which is well-equipped to file the lawsuit. By eliminating institutional multiplicity, the legislature is disregarding the expertise and resources that have been developed to enforce the law.

      Brazil has Prosecution Offices that operate at the state level and one Prosecution Office that operates at the federal level. Depending on the volume of lawsuits, it may be a good idea to have a specialized unit to handle Administrative Improbity cases. It is possible that some of them already have a specialized unit, but I do not know which of them.

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