In Brazil during the Covid-19 pandemic, legal practitioners can complain about anything but boredom, given the sheer number of innovations and regulatory acts springing up every day.
The latest was the issuance of MP 966, published yesterday in the Federal Official Gazette, providing for the liability of public officials for actions and omissions in acts related to the Covid-19 pandemic.
At first glance, its content seems almost a repetition of what is already provided for in article 28 of the Law of Introduction to the Norms of Brazilian Law (LINDB) and its implementing regulation (Decree No. 9,830/2019).
The caput of article 1 of the Provisional Measure provides that public officials may only be held liable in the civil and administrative spheres if they act or fail to act with intent or gross error in performing acts related to measures to combat the Covid-19 pandemic. The wording of the provision is practically identical to that of article 28 of the LINDB, with minor additions.
However, in keeping with the saying that the devil is in the details, it seems important to examine these wording adaptations closely. In this regard, the first thing to note is the use of the adverb only before the liability action, with the clear intention of reinforcing that liability is impossible outside the two cases it indicates.
Next, liability is limited to the civil and administrative spheres in cases of intent or gross error, unlike the LINDB, which allows all types of liability in such cases.
Such a restriction on the types of liability, besides being unconstitutional for violating art. 37, §4 of the Federal Constitution, is extremely dangerous. A literal interpretation of the provision could lead to ruling out the criminal liability of public officials in cases of intent or gross error. Something unthinkable.
Third, still examining art. 1 of the Provisional Measure, the application of the rule is limited to actions related to combating the Covid-19 pandemic.
And here, another important observation: in addition to measures aimed at addressing the public health emergency, art. 1, item II, includes actions related to combating “the economic and social effects resulting from the pandemic”.
The rule therefore seems intended to shield political actions that have been or will be taken in the economic and social spheres.
Turning to §1 of art. 1, under which liability for a technical opinion will not automatically extend to the decision-maker who adopted it as grounds for their decision, it is a word-for-word (ipsis litteris) repetition of a provision of Decree No. 9,830/19 (art. 12, §6).
The same applies to art. 1, §2, which, in providing that a mere causal link between conduct and harmful outcome does not imply liability of the official, replicates art. 12, §3 of the LINDB implementing decree. The definition of gross error in art. 2 of the Provisional Measure is also not new, as it copies the text of art. 12, §1 of the Decree.
Finally, art. 3 of MP 966, in describing what should be considered when assessing an official’s gross error, in addition to what the LINDB and its Decree already provide, includes the need to consider incomplete information in urgent or emergency situations, as well as the context of uncertainty regarding the most appropriate measures to combat the pandemic. Nothing, therefore, that could not already be implicitly derived from the aforementioned rules.
As can be seen, MP 966, perhaps in its eagerness to protect good public administrators, reinforces or repeats what did not need to be reinforced or repeated, merely creating legal uncertainty — precisely what it seeks to combat.
And as if that were not enough, where MP 966 innovates in relation to the LINDB, it does so poorly, such as by limiting public officials’ liability to the civil and administrative spheres in cases of intent or gross error, freeing them from criminal liability in such circumstances.
In doing so, it violates the constitutional text, potentially tainting provisions already established in the LINDB and its regulation that have been embraced by case law, including that of oversight bodies.
Let us open a parenthesis here to note that much of the criticism of the text of MP 966 concerns the logic and content of provisions replicated from the LINDB, which has been in force for more than two years. It is curious and surprising to note how many experts and authorities have spoken out without noticing this fact, treating as new issues that have already been extensively discussed and matured by public law scholarship and case law. End of parenthesis.
It is certain that MP 966, if not revoked in time by the Presidency in view of its evident negative repercussions, will soon be examined by the Federal Supreme Court (six ADIs are already pending).
When this happens, it is hoped, at the very least, that the soundness of the provisions replicated from the LINDB will be preserved, taking care to separate the wheat from the chaff. Only then will it be possible to avoid the collateral dismantling of part of the long effort that resulted in this indispensable law.
Article originally published on the JOTA portal (in Portuguese), on 05.15.2020.
