The limitation of active legitimity in administrative improbity actions and the backward of law nº 14.230/2021: An analysis based on the constitutional model of collective process

Abstract

The exercise of public activities requires from the agent an own and specific performance of honesty, transparency and achievement of purposes that ensure the interests of society, being incompatible with practices that meet the manager's personal objectives. To guarantee good administration, the Administrative Improbity Law (Law nº 8.439/1992) established rules for the protection of diffuse rights and interests embodied in administrative probity and public property. The recent alteration of this legislation, through Law nº 14.230/2021, has been directing the spotlight of doctrinal discussions and, in a preambular way, of jurisprudence towards the legislative changes implemented by it. One of these changes refers to the restriction of the active legitimacy of actions of administrative improbity, which became exclusive to the Public Prosecutor's Office. Based on the critical-discursive method, this article seeks to analyze the (in)adequacy of this legislative change to the constitutional text, as well as its social costs, concluding, in the end, that it is a measure which, in addition to being unconstitutional, implies a real setback, with clear damages to the punishment and compensation for damages caused by the improbable acts, distorting the guidelines previously established by the Administrative Impropriety Law to guarantee an adequate and ethical public management.