“We the prosecutors”: Challenges to social participation in Brazilian public law litigation

Abstract

Abstract The Brazilian Ministério Público (MP) is an agency that aims to monitor the enforcement of criminal law, prosecuting wherever necessary, in addition to protecting relevant collective goods, such as those included in consumer and environmental regulations. These latter types of powers—established for the first time in the 1934 Constitution and consolidated in the 1988 Constitution—are uncommon from a comparative perspective. Although at first glance they could be seen to be useful for enforcing important principles and fundamental rights, I argue that the gradual empowerment of the MP could potentially have damaged civil society associations’ (CSAs) capacity for legal mobilization, since the areas of competence of this legal institution largely overlap with the niche in which civil society advocacy organizations operate. The experimentalist constitutional design combined with the gradual activist behavior from its members, have positioned the MP as perhaps one of the major institutional guardians of the public interest after Brazil’s re-democratization. I conclude by suggesting that the MP should develop strategies to enhance the representativeness and effectiveness of CSAs by engaging in a fruitful dialogue with them, including the monitoring of those cases once they leave the courtroom. In turn, CSAs also have strategic incentives to align with the MP, mainly to withstand current judicial skepticism about its institutional capacity for public law litigation.