- Superior Electoral Court and / or National Elections Agency?
- January 10, 2018 | Author: Rodrigo Correia da Silva
- Law Firm: Correia da Silva Advogados - São Paulo Office
The regulatory agency to the ones to be appointing regulators can benefit from RIA - Regulatory Impact Analysis.
Brazil is approaching a new electoral cycle in which will be elected members of the federal and state legislative and executive branches.
Especially in the current moment of profound changes, challenges and disagreements we will have a moment of democratic joy in which by the voting process will be decided and we hope accepted by all Brazilians the ones responsible for the definition of destinies and path that will be tread by the Country.
The debates promise to be tough, tactics to be aggressive and combatants to be mercurial.
The confidence that the contenders will still be defended from the low blows, the Brazilian people will be protected from evil and the Country of the catastrophe that proceeds a vitiated electoral process will be sustained by the Electoral Justice.
As defined by the Brazilian Electoral Code, the Electoral Justice has a dual role, in addition to the habitual judicial function, it accumulates typical functions of the executive branch, namely:
1. a) Administrative function of the physical structure and activities of the election and,
2. b) Regulatory function
Although Superior Electoral Court vision as a regulatory agency is not the commonplace the Electoral Code leaves no doubt in determining that it has the authority to "issue the instructions it deems appropriate for the execution of this Code"(c.-TSE, 9.9.2014, in REspe nº 64770).
There is no confusion between the Court judicial activity in which it interprets the legal framework upon the situations that are presented to formalized in decisions, judgments and precedents with the regulatory activity that is formalized in Resolutions, Normative Instructions and other executive acts.
It is our view that exercising the regulatory activity the Superior Electoral Court must adhere to the constitutional requirements applicable to administrative acts: legality, impersonality, morality, publicity and efficiency with those instrumental to them such as motivation, reasonableness, proportionality.
In this sense, the regulatory act shall have a clear objective of public interest and publicly demonstrate the rationality of incentives to the regulated agents to adopt behaviors that will tend to reach this goal.
The most developed methodology for the evaluation of regulatory prototypes in relation to this consistency of ends and means is the Regulatory Impact Analysis supported by a process of social participation that is usually instrumented by public consultations.
The methodology has been applied gradually in Brazil as a result of PROREG's program of development of the regulatory activity in partnership with the OECD led by the Civil House that has been responsible for an accelerated maturation of the activity of the typical regulatory agencies.
Obviously, the methodology should be adapted to each regulated object and would not be different for the Elections in which we do not have the usual sellers and buyers of the regulation of economic activities, but rather the candidates and voters of the political activity.Still, we see the tool as useful to this regulatory activity that is so important for the Country.