What is behind Lula's decision not to stick to the triple list for the PGR
President Lula announced that he will not stick to the three-name list for choosing the Attorney General of the Republic (PGR), whose term ends in September 2023. To the less attentive, it may seem that the president would be being casuistic and repeating what has happened in other cases, in which the attorney general would have acted in "benefit" of the acting president of the Republic. It is also alleged that Lula himself would have chosen members of the triple list for attorney general during his two previous terms. Is Lula, then, being contradictory?
I can already say no. The damage caused by Rodrigo Janot's management at the head of the attorney general's office still reverberates in the corridors of the courts. It is undeniable that Janot's tenebrous conduct has destroyed the practice of using the three-name list. Janot, used the prerogative of his office to start an unbridled hunt for the country's political and business class and, given the enormous repercussions of the press, migrated to an agenda of self-promotion and public visibility, incompatible with the liturgy of his office and the necessary care in the filing of lawsuits, which he did as a vehicle for his own promotion. It is worth remembering that he himself confessed to have entered the premises of the Supreme Court armed to shoot one of the ministers of the court and even directed a businessman to wiretap the president of the Republic in office, which defines well his inability for the job. Janot was chosen and reappointed as a member of the list of three nominees. President Bolsonaro himself, the biggest beneficiary of Janot's shenanigans at the head of the Attorney General's Office, stayed away from the triple list in the two opportunities he had to choose the Attorney General of the Republic.
The truth is that the Janot administration destroyed the reputation of the three-name list, and the elders of the prosecutors' associations did nothing to curb the disastrous actions of the then attorney general. On the contrary, they issued notes in support of the prosecutor. Now that the storm has passed, it is clear that the choice linked to this list was a mistake.
The three-name list is not a requirement in the law. On the contrary, the Federal Constitution of 1988 determines in article 128, paragraph 1, that the prerogative of choosing the attorney general is exclusive to the president of the Republic, whose only requirements are to be a member of the career and over 35 years of age, after his or her name has been approved by an absolute majority of the members of the Federal Senate, for a two-year term, with reappointment allowed. The National Association of Prosecutors (ANPR), created the practice and coordinates the election of the triple list to propose the names to the President of the Republic and maintains that this is the most democratic way of choosing the top leadership of the federal public ministry. Unless it is established by direct election by society, this list will always represent the corporate interests of its members and not necessarily in the interest of society. To claim that the office represents the state and not the government, and that, therefore, the president should necessarily limit himself to the three-name list does not hold water, because the president of the Republic was elected by popular vote to represent the state. The ANPR represents corporate interests and these cannot override the interests of the state. Under this argument, then, the heads of the armed forces should be nominated by a three-nominee list coordinated by the higher ranks of the armed forces. can you imagine, in this delicate period of threats to democracy and the rule of law, if the armed forces were sovereign when elected by popular vote?
The fact is that the solution is already given by the Federal Constitution of 1988 itself. As former Supreme Court Justice Ayres de Brito reminds us, the solution is always in the Federal Constitution. All you have to do is read it. Article 128 of the Federal Constitution, mentioned above, subjects the nomination of the President of the Republic to approval by a majority of the members of the Federal Senate. Therefore, the nomination goes through the political scrutiny of another branch to become effective, creating the necessary balance to avoid nefarious nominations by the president of the Republic. If the Federal Senate does not fulfill its function and only ratifies the name indicated by the president of the Republic, it is a failure of its members in the exercise of their functions. Changing the Federal Constitution, or creating a different mechanism for choosing the attorney general of the Republic, is to recognize the unnecessary existence of the Federal Senate.
