Analysis: Investigating, but not punishing – how far-reaching are Brazil’s Senate Covid CPI’s powers?

RIO DE JANEIRO, BRAZIL –  Why is the Legislature conducting an investigation? Do legislators have any power to punish or is this exclusive to the Judiciary? What are the goals of a Parliamentary Inquiry Committee (CPI)? Can it have any practical consequences?

Start with the basics. CPIs exist at the municipal, state and federal levels. In the federal case, a CPI may involve only senators, only deputies, or senators and deputies jointly – in which case it becomes a mixed CPI. At least one-third of the Senate (27 senators) and one-third of the Chamber (171 deputies) must approve the opening of a CPI, irrespective of which House will conduct it.

The usual role of the Legislature, as its name implies, is to create, debate and vote on laws. But the three branches of government (Executive, Judicial and Legislative) must supervise each other to prevent excesses. The separation of powers dates back to the Enlightenment and is one of the pillars of contemporary democracies.

CPIs are one of the mechanisms foreseen by the Brazilian federal Constitution to allow this oversight to occur in practice. The purpose of a CPI is to shed light on a case of great public importance – and, ultimately, to find those responsible for wrongdoing.

CPIs have a very well defined deadline and purpose: precisely because they are exceptions, in which legislators do not exercise their typical duties, it is important not to overstep the mark in the oversight.

The Covid CPI was created with a 90-day deadline. For now, the end date is August 7 – which may vary depending on the parliamentary recess typically held in July. The deputy chair of the CPI has already submitted a request for a 90-day extension.

What a CPI can and cannot do

It can question witnesses (who have the obligation to tell the truth), hear suspects (who have the right to remain silent so as not to incriminate themselves), arrest only in flagrante delicto, summon ministers of state, lift bank and tax secrecy if needed, and request the cooperation of civil servants from the other government branches (Judicial or Executive) to help in the investigations.

But a CPI cannot judge or punish anyone under investigation; it cannot order precautionary measures such as provisional arrests; it cannot issue search and seizure warrants for people’s homes, seize their passports or tap their telephones. All of this remains the exclusive responsibility of the judiciary.

At the end of its term, even if the CPI has uncovered illegal acts by public agents, it is not responsible for enforcing punishment. The final goal is to produce a report detailing the findings in minute detail. This report is then forwarded to the entity responsible for taking the appropriate enforcement action. If there is evidence of crimes, the Prosecutor’s Office will take over.

Sometimes a CPI may conclude something less drastic, and recommend, for example, the creation of a law to prevent a problem from recurring in the future.

In summary: CPI members are free to disclose all the dirt on a controversial case in public life – but when it comes to taking action, they must respect the separation of powers and call on the Prosecutor’s Office (which, under Brazil’s constitution, is an independent body, with no direct affiliation or subordination to any of the three branches of government) to take all further measures.