Civil servants: constitutional aspects
Ricardo Marcondes Martins2020, Revista de Direito Administrativo e Infraestrutura, v. 4, n. 14,
https://doi.org/10.48143/RDAI.14.mello.cabvisibility
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Author's Biography Celso Antônio Bandeira de Mello, Pontifical Catholic University of São Paulo (São Paulo, São Paulo, Brazil) Professor Emeritus of the Pontifical Catholic University of São Paulo – PUCSP. References Text originally published in Estudos de Direito Pública – EDP, São Paulo, n. 08, p. 81-92, Jan.-Jun. 1986, referring to the lecture given in the I Cycle of Public Law Studies, from December 9 to 12, 1985, in the auditorium of the São Paulo Cultural Center. Celso Antônio Bandeira de Mello Pontifical Catholic University of São Paulo (São Paulo, São Paulo, Brazil) DOI: https://doi.org/10.48143/RDAI.14.mello.cab Keywords: Servers, Fundamentals of validity, Legal rules, Legal regime Summary Gentlemen of the board, my colleagues, I would like, first of all, to thank you for the honor of this invitation, to be among the Municipal Prosecutors, to whom I am already linked by so many bonds of friendship, giving rise to another opportunity to debate a legal issue and propose a vision on this subject of the municipal servants and, who knows, during the debates, until I suggest something thinking about the future Constituent Assembly. I will take care of the constitutional angle and Prof. Adilson Dallari will then develop it from this same constitutional angle, but entering into considerations that also extract its foundation of validity of legal norms. The first consideration I want to make repeats something about what I have been insisting on for a long time. Usually, the theme of public servants is considered as if it were merely a work regime among several possible and that is peculiar only by typifying itself in a so-called statutory relationship. I think, however, that this issue has an often larger constitutional dimension. Strictly speaking, every constitutional discipline of the public servant is armed according to objectives closely linked to the purposes of the rule of law itself. It might seem surprising that a seemingly pedestrian theme – the basic legal regime of civil servants – had been covered in the constitutional text itself, giving it a position of emphasis, parallel to topics of marked magnitude such as the organization of the Executive, Legislative and Judicial Powers, structure of the State, individual rights and guarantees or minimum social rights. Indeed, in the first glance, perhaps it seemed, on the subject, inappropriate that a constitutional text intended to deal with supposedly minor issues, by groveing the fundamental lines of the civil servants regime. There is, however, a reason for this. And the reason is this: The rule of law presupposes, as we all know, the submission of power to a Civil servants: constitutional aspects 08/01/2021 18:18 https://www.printfriendly.com/p/g/bayHjm Página 2 de 6 framework of legality. The rule of law is born from a political movement that is worn both in the thesis of popular sovereignty and in the thesis of the need to contain power. Indeed, the objectives that inspire the legal consecration of the political project of the rule of law rest, above all, on the desire to protect the citizen against the untied exercise of power. However, the uncomerment of the exercise of power is particularly dangerous when coming from the Executive Branch. Well, the constitutional regime of civil servants aims exactly to establish basic rules that favor the neutrality of the state apparatus, in order to curb above all the Executive Branch from manipulating it with a disabbreacity capable of compromising objectives of the rule of law.
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Civil servants: constitutional aspects
08/01/2021 18:18
Civil servants: constitutional aspects
rdai.com/ojs/index.php/rdai/article/view/RDAI.14.flag_of_mello
Celso Antônio Bandeira de Mello Pontifical Catholic University of São
Paulo (São Paulo, São Paulo, Brazil)
DOI: https://doi.org/10.48143/RDAI.14.mello.cab
Keywords: Servers, Fundamentals of validity, Legal rules, Legal regime
Summary
Gentlemen of the board, my colleagues, I would like, first of all, to thank you
for the honor of this invitation, to be among the Municipal Prosecutors, to
whom I am already linked by so many bonds of friendship, giving rise to
another opportunity to debate a legal issue and propose a vision on this
subject of the municipal servants and, who knows, during the debates, until
I suggest something thinking about the future Constituent Assembly. I will
take care of the constitutional angle and Prof. Adilson Dallari will then
develop it from this same constitutional angle, but entering into
considerations that also extract its foundation of validity of legal norms. The
first consideration I want to make repeats something about what I have been
insisting on for a long time. Usually, the theme of public servants is
considered as if it were merely a work regime among several possible and
that is peculiar only by typifying itself in a so-called statutory relationship. I
think, however, that this issue has an often larger constitutional dimension.
Strictly speaking, every constitutional discipline of the public servant is
armed according to objectives closely linked to the purposes of the rule of
law itself. It might seem surprising that a seemingly pedestrian theme – the
basic legal regime of civil servants – had been covered in the constitutional
text itself, giving it a position of emphasis, parallel to topics of marked
magnitude such as the organization of the Executive, Legislative and
Judicial Powers, structure of the State, individual rights and guarantees or
minimum social rights. Indeed, in the first glance, perhaps it seemed, on the
subject, inappropriate that a constitutional text intended to deal with
supposedly minor issues, by groveing the fundamental lines of the civil
servants regime. There is, however, a reason for this. And the reason is this:
The rule of law presupposes, as we all know, the submission of power to a
https://www.printfriendly.com/p/g/bayHjm
Página 1 de 6
Civil servants: constitutional aspects
08/01/2021 18:18
framework of legality. The rule of law is born from a political movement that
is worn both in the thesis of popular sovereignty and in the thesis of the
need to contain power. Indeed, the objectives that inspire the legal
consecration of the political project of the rule of law rest, above all, on the
desire to protect the citizen against the untied exercise of power. However,
the uncomerment of the exercise of power is particularly dangerous when
coming from the Executive Branch. Well, the constitutional regime of civil
servants aims exactly to establish basic rules that favor the neutrality of the
state apparatus, in order to curb above all the Executive Branch from
manipulating it with a disabbreacity capable of compromising objectives of
the rule of law.
It is the Administration, in true rigor, that maintains the most intense
contact with the administered and therefore most intensely threatens their
freedom. If this has always been true, even in the historical period in which
the rule of law emerges, today, the dimensions of this risk are much broader.
No one is unaware that, currently, the Public Power assumes in social and
economic life a role of the most extreme importance. The interference in
individual conducts and, more than that, the very planning of the set of
social conducts is carried out by the State with cotio and without ends,
without any solid contestation, without any doctrinal or jurisprudential
heart sound.
The state has come to have an overwhelming presence that seems to be even
the result of reasons unrelated to any purely political projects or legal ideals.
It is possibly linked to phenomena that emanate from technological
development. This has made the action of individuals potentially much more
predatory. Individual behaviors, thanks to the progress of technical
resources, assumed the possibility of great resonance and their
repercussions exceeded the restricted scope of a small number of close
people. With this, the discipline of human conduct, the containment of the
free action of individuals and social groups, must be often more complete
and more intense, to organize an acceptable social life. Today, men with the
use of the machine, with the availability of the means that civilization has
provided, rub intensely, not only with those who are immediately close, but
even with those who are most distantly situated. Think that urban law and
its contemporary importance, for example, are direct results of this
phenomenon. This right became relevant due to imposing circumstances
generated by large human concentrations, by large city centers, which could
only multiply as a result of technological development, since they were
largely made possible by the possibility of building multi-storey buildings.
Think about environmental health legislation, required because the
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Civil servants: constitutional aspects
08/01/2021 18:18
proliferation of factories has made pollution control demanding. Think
about the consequences produced by computer resources. Think of the car,
which allows fast travel, over long distances, and which also promotes major
congestion. In short, the technological means in our time ended up
demanding, for their possible predatory action or, at least, for their
repercussion on social life, a very intense regulatory presence of the State.
Because of this, we have had our freedom much more regulated, supervised
and controlled than in the past and it is inevitable that this will happen. The
agent of this control, the agent of these interferences, the agent of this
programming is the state machine. But it is, above all, the Executive Branch
that acts, who promotes and who concretizes such constricting measures
and they can be, as they were in past historical periods, a source of very
violent oppression. Well, in a historical period like this, it must be that this
State, that this gigantic apparatus, that this omnipresent machine be
impartial, that it is neutral, otherwise the objectives of the rule of law will be
left over. Well, for such a machine to be impartial, to be neutral, it must be
given that the agents who operate it have certain minimum conditions to
perform their duties in a spirit of exemption, neutrality, loyalty to third
parties, isonomy in dealing with those administered. How would this be
possible if the agents of the state apparatus and, basically, of the Executive
Branch did not have a legal status, a legal regime, that guaranteed them,
that would give them the minimum of independence from the occasional
holders of power? If this machine is all powerful today and there are no
mechanisms conducive to an impartial performance of its operators, it is
clear that, through them, it will be able to lead the destinies of society to its
pleasure. And it can ensure the continuity of the occasional rulers, that is, of
their highest thrusters, which, by republican principle, must be transitory. It
can ensure the perpetuation of those who have been embedded in the top of
the Executive, even if simply through successors prepared for this and who
fulfill an interregnum assuring the persistence of the same group – almost
as in a circle of the same beneficiaries of power. Only a machine prepared to
be exempt, impartial, loyal, and that treats individuals isonomically can
guarantee the achievement of the objectives of the rule of law, preventing
and preventing the untied use of power in favor of factions that, through
favoritisms and persecution, would eternalize themselves in charge of
society. Thus, it seems to me, the constitutional provisions concerning civil
servants fulfill, above all, a function corresponding to that of the
predicaments of the judiciary and parliamentary immunities. It is easy to
see that parliamentary immunities are granted to members of Congress with
the point of giving them independence, preventing them from being
pressable men and, therefore, enabling them to truly represent the will of
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the community of voters. The preaching of the judiciary is also not put in
honor of the magistrates themselves, but as a defensive instrument of us
other citizens, so that these men are guaranteed and can be independent in
the face of pressure, giving them an opportunity to act impartially, with
neutrality. This same objective, undoubtedly recognized as such with regard
to the Legislative and Judicial branches, is equally sought by the
constitutional text when dealing with public servants. Only, the protective
form does not coincide with that adopted with regard to deputies, senators
and magistrates. However, it also reflects a mechanism that aims to ensure,
at least, two objectives: equality of all citizens in access to administrative
public office and protection of impartial, neutral, impartial behavior from
those provided therein. Free access to public positions honors entry through
sufficiency, through qualification, disputed in open positions by the various
interested parties. Otherwise, agents who were controlling power at a given
historical moment could channel to the state apparatus only their
supporters, their friends, their godchildren, the members of the same
political group, and could, of course, bar the access to the public service of
those who were opponents of them, of those who were enemies to them, of
those who were political contenders, of those who had different ideologies,
opinions, convictions of the dominant group. Evidently, they could, once
mastered of this machine, distribute as prebendes the public benefits, grant
favors to those who were complicit with them, including politically and, on
the contrary, carry out persecutions, cause inconvenience to those who did
not commune in the same line as the occupants of power.
Author's Biography
Celso Antônio Bandeira de Mello, Pontifical Catholic University of São Paulo
(São Paulo, São Paulo, Brazil)
Professor Emeritus of the Pontifical Catholic University of São Paulo – PUCSP.
References
Text originally published in Estudos de Direito Pública – EDP, São Paulo, n.
08, p. 81-92, Jan.-Jun. 1986, referring to the lecture given in the I Cycle of
Public Law Studies, from December 9 to 12, 1985, in the auditorium of the
São Paulo Cultural Center. The transcription of the text, for this
republication, was carried out by Bruno Vieira da Rocha Barbirato and
Evian Elias.
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CARVALHO, R. Discounts as a means for the public servant to reimburse
the State. Revista de Direito Administrativo e Infraestrutura, v. 2, n. 5, p.
201-227, Apr./Jun. 2018. https://doi.org/10.48143/rdai/05.rmuc
DI PIETRO, M. PUBLIC CONTEST IN INDIRECT ADMINISTRATION.
Revista de Direito Administrativo e Infraestrutura, v. 2, n. 7, p. 405-410,
Oct./Dec. 2018. https://doi.org/10.48143/rdai/07.mszp
MARTINS, R. What are the limits for the use of public tenders as an
affirmative action tool?. Revista de Direito Administrativo e Infraestrutura,
v. 1, n. 2, p. 335-367, Jul./Sep. 2017.https://doi.org/10.48143/rdai/02.rmm
MELLO, C. Notes on the theory of public bodies. Journal of Administrative
Law and Infrastructure, v. 2, n. 4, p. 423-434, Jan./Mar. 2018.
https://doi.org/10.48143/rdai/04.cabm
MELLO, C. Bid. Application of rules of Decree-Law 200, of 1967, to
municipalities: of the bidable object. RDAI | Revista de Direito
Administrativo e Infraestrutura, v. 3, n. 9, p. 353-363, May/Jun.
2019.https://doi.org/10.48143/rdai/09.cabm
MELLO, C. New aspects of the social function of property. RDAI | Revista de
Direito Administrativo e Infraestrutura, v. 3, n. 8, p. 409-418, Jan./Mar.
2020. https://doi.org/10.48143/rdai/08.cabm
MELLO, C. The content of the legal-administrative regime and its
methodological value. Revista de Direito Administrativo e Infraestrutura, v.
1, n. 1, p. 347-374, Apr./Jun. 2017. https://doi.org/10.48143/rdai/01.cabm
OLIVEIRA, S. SCORE OF SECURITIES IN PUBLIC COMPETITION:
COMMENTS ON THE JUDGMENT DELIVERED IN MS 33,527/RJ. Revista
de Direito Administrativo e Infraestrutura, v. 2, n. 7, p. 275-288, Oct./Dec.
2018. https://doi.org/10.48143/rdai/07.szo
MELLO, S. ; BØNSING, S. Ombudsman: a Brazilian-Danish approach.
Revista de Direito Administrativo e Infraestrutura, v. 2, n. 5, p. 109-128,
Apr./Jun. 2018. https://doi.org/10.48143/rdai/05.ssfm
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