Civil and administrative responsibility of public agents and regulatory choices in times of pandemic

Abstract

[Purpose] The purpose of this article is to analyze the role of the Regulatory State and regulatory choices in view of the impacts arising from the Covid-19 pandemic, the role of the three branches of government in disciplining civil and administrative liability of public agents in cases of “gross error” and “deceit” as one of the measures to contain the state of public calamity, as well as the practical applicability and influence of the theories of regulation.

[Methodology/approach/design] Therefore, it is essential to understand the systematics and bases of the Regulatory State, the concept of regulation and public choice from the perspective of the policies adopted during the Covid-19 pandemic. In this context, in addition to the judgment of the direct actions of unconstitutionality of reporting by Minister Luís Roberto Barroso, the constitutionalization of regulation through Constitutional Amendment n. 109/2021, by inserting article 37, §16, in the Federal Constitution of 1988, which imposes on the Public Administration the duty to carry out an evaluation of public policies with an indication of the object and expected results, among other changes also implemented.

[Findings] The constant social transformations have directly reflected in the evolution of the law and in the adjustments / misadjustments of the principle of separation of powers and in the performance of each one in the pandemic and emergency scenario. From the analysis of the regulation of civil and administrative liability of the public agent by the three branches of government, it will be possible to conclude that Brazil has adopted, albeit moderately, precepts that determine decision-making based on regulatory models, and for the benefit of the public interest.

[Practical implications] Develop reflections on regulatory choices in the face of new themes and social arrangements arising from the Covid-19 pandemic, notably on the conduct of the regulator and the regulated in dealing with the virus and the uncertainties and legal and social insecurity, based on contributions from assumptions of the Regulatory State.