Por uma atuação democrática do Ministério Público: a crítica da guardiania na defesa dos direitos fundamentais

Abstract

The purpose of this thesis is to face the following problem: what defines a performance democratically legitimate role of the Public Ministry and what are the risks of adopting a model of guardianship in the defense of fundamental rights? The exercise of power state requires the imposition of limits, and it is essential to question the legitimacy decision-making by public agents. With regard to the Public Prosecutor's Office, it is justified this type of analysis even more so, as the decisions of its members can impact society deeply, especially when it comes to acting on political public affairs and in defense of fundamental rights. The thesis is developed based on the scientific and political methodology of Karl Popper (critical rationalism), based on his refutation of Plato's proposal of guardianship. To the thesis problem formulated, the hypothesis is raised that the member of the Public Ministry can adopt various role models, but there is a serious risk of a lack of democratic legitimacy when he acts based on a model similar to Platonic guardianship, taking decisions on fundamental rights in a solipsistic way and without the necessary debate democratic. By adopting this model, when acting to monitor public policies, employs utopian social engineering, envisioning a possible reality that considers it to be ideal and what it seeks to achieve. The thesis is propositional, with the purpose to warn about the risks of adopting the Platonic guardianship model, which should be replaced by ministerial action that is democratically legitimized through debate with the portion of the community that will be affected by their decisions, as well as as with other public institutions, anchored in partial social engineering of Karl Popper. To achieve the general objective of this thesis, which is to analyze the legitimacy of the exercise of state power, especially with regard to the criteria to define a democratically legitimate action of the Public Ministry in defense of fundamental rights, the text is divided into three chapters, each corresponding to one of the specific objectives of the research. The first chapter presents Plato's proposal for the government of a benevolent and aristocratic elite intellectual called the Republic of Guardians, which would be one of the models possible actions of members of the Public Ministry, acting as guardians of fundamental rights and collective interests. In the second chapter, the Platonic guardianship thesis based on Karl Popper's critical rationalism and his proposal of democracy as an open society. Based on this theoretical framework, the contours of a democratically legitimate action of the Public Ministry, a discussion that is crossed by an analysis of the crisis of democratic representation in the current historical moment, and the risks of rupture institutional consequences arising from it. The thesis ends with the third chapter, in which proposes to analyze the Public Ministry more closely, focusing on the process history that led to the development of an institutional mentality in which some of its members identify themselves as guardians of the collective interests of a hyposufficient society. It is necessary to break this model so that it can be the next stage of institutional maturity of the Public Ministry has been reached: fulfill the mission of promoting and defending democracy, starting with democratization of the activities of its members.