Prerogative

1. Concept and Legal Nature of the Institute

A legal prerogative is defined as a functional guarantee of an objective nature. It is ontologically distinct from "privilege," as the latter has a subjective character and aims at the individual's benefit, whereas a prerogative is instituted in favor of the function performed. The legal nature of prerogatives is that of an institutional guarantee or functional protection statute.

According to the teachings of Celso Antônio Bandeira de Mello, prerogatives are necessary means for a public agent or a professional invested with a public duty to perform their duties with independence. Therefore, the ownership of the prerogative ultimately belongs to society, which benefits from a jurisdictional or technical service that is impartial and protected from undue interference.

2. Historical Origin and Evolution

Historically, the concept dates back to the prerogatives of the Crown in English Law, where the sovereign held exceptional powers to maintain order. With the transition to the Rule of Law and the separation of powers proposed by Montesquieu, the concept was redefined. In Comparative Law, the American model of checks and balances consolidated the idea that each branch of government and its respective agents require safeguards to avoid being subjugated by others.

In Brazil, the evolution of prerogatives accompanied the democratization of institutions. The 1988 Constitution was the milestone that elevated the legal profession, the judiciary, and the Public Prosecutor's Office to the status of essential functions to justice, consolidating prerogatives that were previously merely infraconstitutional into constitutional guarantees.

3. Legal and Constitutional Provisions

Prerogatives are distributed throughout the Brazilian legal system according to the professional category and the function performed:

• Legal Profession (Advocacy): Based on Art. 133 of the Federal Constitution, which declares the lawyer indispensable to the administration of justice and inviolable for their acts and statements in the exercise of the profession. Details are provided in Arts. 6 and 7 of Law No. 8,906/1994 (Statute of the Advocacy and the Brazilian Bar Association - EAOAB).
• Judiciary (Magistracy): Provided for in Art. 95 of the Federal Constitution, which establishes the guarantees of life tenure, irremovability, and non-reducibility of subsidies, in addition to the provisions of Complementary Law No. 35/1979 (LOMAN).
• Public Prosecutor's Office: Disciplined in Art. 128, § 5, item I, of the 1988 Constitution, replicating the guarantees of the judiciary, reinforced by the National Organic Law of the Public Prosecutor's Office (Law No. 8,625/1993).
• Public Defender's Office: Guarantees of functional independence and irremovability provided for in Art. 134, § 1, of the 1988 Constitution and Complementary Law No. 80/1994.

4. Practical Application and Consolidated Jurisprudence

The jurisprudence of Superior Courts has been rigorous in protecting prerogatives, especially regarding the inviolability of the workplace and professional communications.

4.1. Inviolability of Law Offices

The Supreme Federal Court (STF), in the judgment of ADI 1,127, reaffirmed the constitutionality of the EAOAB prerogatives, noting that professional immunity is not absolute but must be protected against generic searches and seizures ("fishing expeditions"). Law No. 14,365/2022 amended the EAOAB to reinforce that search and seizure measures in law offices must be detailed and accompanied by an OAB representative, under penalty of nullity.

4.2. Oral Argument and Right to Speak

Recent debates in the STF and the Superior Court of Justice (STJ) concern the lawyer's prerogative to perform oral arguments in interlocutory appeals (agravos regimentais and agravos internos) in criminal matters. Although the internal regulations of some courts restrict such acts, Law No. 14,365/2022 amended Art. 7 of the EAOAB to expressly guarantee this prerogative, creating a normative conflict still under debate (see ADIs 7,200 and 7,218).

4.3. Absence of Hierarchy

Art. 6 of the EAOAB establishes that "there is no hierarchy or subordination between lawyers, magistrates, and members of the Public Prosecutor's Office." The STJ has consolidated the understanding that the treatment afforded to these professionals must be guided by urbanity and mutual respect, and the violation of this parity is subject to administrative sanctions and procedural nullities.

5. Related Principles and Doctrinal Divergences

The institute of prerogative dialogues directly with the following principles:

• Principle of Equality of Arms (Procedural Isonomy): Ensures that parties have equivalent means for the defense of their rights.
• Principle of Access to Justice (Inafastabilidade da Jurisdição): Prerogatives ensure that access to the Judiciary is free from coercion.
• Principle of Supremacy of Public Interest: Underpins the existence of the prerogative as a means of ensuring social justice.

The main doctrinal divergence lies in the extent of material immunity for offenses uttered in court. While one school of thought defends the lawyer's almost absolute immunity to ensure combativeness, another school, followed by the STF in recent rulings, understands that expressions flagrantly unrelated to the dispute that constitute the crime of injury or slander may be subject to accountability if they exceed the limits of reasonableness and professional exercise.

6. Contemporary Relevance and Practical Impacts

In contemporary times, the discussion on prerogatives has gained new contours with the digitization of processes and the use of artificial intelligence. The guarantee of access to case files (Binding Precedent 14 of the STF) now extends to electronic systems and digital evidence. Furthermore, the criminalization of the violation of prerogatives, introduced by Law No. 13,869/2019 (Abuse of Authority Law), represented a punitive advance against authorities who impede legitimate professional exercise.

The practical impact of preserving prerogatives is the maintenance of the health of the democratic system. When a prerogative is violated, it is not only the professional who suffers the restriction, but the litigant themselves who has their right to defense curtailed, compromising the validity of the entire procedural framework.