O exercício das funções da advocacia pública como atividade exclusiva dos advogados públicos efetivos: uma releitura da Proposta de Súmula Vinculante nº 18 do STF à luz dos dados publicados no 1º Diagnóstico de Advocacia Pública Municipal no Brasil (2019)

Abstract

This article aims to demonstrate that the exercise of the public advocacy functions, in all political entities, should be developed exclusively by civil servants. The very nature of the subject is practical, as proved by the discussions concerning PSV (Proposta de Súmula Vinculante - Binding Precedent) nº 18. In spite of its mentioning such exclusiveness, it does not oblige the municipalities which have not organized their attorney offices to follow the decision. Such statement will be questioned on the basis of: i) the symmetry and the equality principles among the federation entities; ii) the fact that the public advocacy constitutes a typical State career that claims for inviolability, effectiveness and qualified functional stability; iii) the conclusions reached by the 1st Municipal Public Advocacy Diagnosis in Brazil, which show it is more economical to carry out the tender procedure in order to hire a civil servant lawyer than to maintain an office commissioned worker; iv) the adequate development of municipal administrative competence outlined in the Constitution always requiring juridical activities of internal control of legality. Subsequently, PSV nº 18 will be critically analysed and an ex officio amendment by the Federal Supreme Court will be suggested in order to exclude the remark of the original text and consign: “The exercise of the Public Advocacy functions, in the Federation, in the States, in Federal District and in the Municipalities is to be exclusively held by civil servant lawyers according to the articles 37, II, 131 and 132 of the 1988 Federal Constitution.