Three questions for Gustavo Ungaro
What is the importance of combating corruption, especially given the scenario of high impunity in which we currently live?
Impunity is certainly a stimulus to corruption. Therefore, it is necessary to adopt measures from governments and civil society to reduce situations in which deviations may occur. In this sense, the new Anticorruption Law [Law 12.846 / 13] represents an extremely relevant instrument. The rule brings the possibility of financially punishing companies that maintain improper relations with the State and discourages undue actions in the business environment. It also applies to civil society entities. Therefore, it is a large universe of institutions that is covered by the new law. Another important point is that the rule can be put into practice within the scope of administrative law, without the need for judicial measures, and provide a result with more speed and simplicity. And, if there is an inappropriate situation in the administrative sphere, nothing prevents the correction from being made in the judicial sphere. The Anticorruption Law is in line with society's expectations. The internal control bodies are preparing to apply it. The State of São Paulo has already regulated the provision and the Internal Affairs Department of Administration is already prepared to apply it.
Companies are a little afraid of the possibility that the standard will eventually be misused and generate new situations of corruption. How do you see this issue?
I want to believe that we live in a democratic rule of law, that has mature and strong institutions, zealous for legal security, and that all this can generate a favorable scenario for the application of the law, without injustice, persecution or misuse of the rule. Brazil has an important precedent in this regard. Since the 90s, the General Bidding Law has empowered the administrative sphere to apply sanctions against companies, which can go five years without making new contracts with the public administration throughout Brazil. This has been in place for more than 20 years, without, however, actually having a problem. Therefore, this is a favorable and optimistic precedent for the application of the Anti-Corruption Law. However, we must be grounded and clear that the law is not so attractive to anyone who wants to confess to an unlawful act, as is, for example, the Law on Defense of Competition. This rule provides for immunity from the penalty provided for companies that voluntarily report deviations from authority, through a leniency agreement. In the case of the Anti-Corruption Law, there is no immunity as a result of this type of agreement. There is only a reduction in the applicable penalty. From the point of view of morality, the solution of the Anti-Corruption Law is perhaps more appropriate. But this can, of course, make it more difficult for companies to recognize their own flaw and create a situation where law enforcement depends on investigation and complaints. This will be a challenge to the implementation of Law 12.846 / 13. But the rule already has its value in spreading a culture of ethical behavior, of integrity to avoid undue situations. In that sense it is very beneficial for society.
One of the bottlenecks of the law is the need to equip the public administration bodies responsible for its application with tools that make it possible, for example, to make investigations feasible. What do you think about that?
This is a very important aspect. The internal control bodies in Brazil need to be valued by the government, have an adequate budget, have a public tender and are prepared for the job. Considering that governments are large institutional devices, it is natural that they demand proportional control structures. I preside over Conaci, the National Council for Internal Control. Our institution has the strengthening of internal control bodies as a priority agenda. In Congress, there is a proposal for Constitutional Amendment No. 45, of 2009, which establishes that internal control is exercised by own bodies, with competitions for which they have competed. In Brazil, there are different situations, with very well structured bodies, equipped, with conditions, experience and trained people, and also organs in very precarious situations. It is in the society's interest that there is this advance in management self-control. Throughout the recent historical process of Brazilian democracy, with the Constitution of 88, there was a strengthening of external control, represented by the Public Ministry and the Courts of Accounts, which is very good for citizens. There are also good results in internal control, which should encourage institutional improvements in favor of defending legality and morality.
Article: The precariousness of the rule of law
Stability and clarity are minimum requirements for law enforcement. This is not what you see in Brazil. Standards are changed frequently, often with deplorable technical quality. The interpretation given to the norms also changes continuously, without plausible justification.