A Freedom of Information Law in Brazil: Two Steps Forward, One Step Back

Article written for freedominfo.org, a site curated by the D.C. based National Security Archive,  18 April, 2011: http://www.freedominfo.org/2011/04/rousseff-praise-brightens-outlook-for-brazilian-foi-bill/

Heartening events and significant setbacks added more drama to Brazil’s bid for a freedom of information (FOI) law this past week, but the overall outlook is considerably more promising now than before.

Heartening Events: President Rousseff Declares Support for FOI bill

President Dilma Rousseff confirmed her support for the FOI bill, (41/2010), which was approved by the Chamber of Deputies in April 2010 and has since been awaiting passage in the Senate. This is the first time that President Rousseff has publicly expressed support for the law since taking over from President Luiz Inácio Lula Da Silva in January, 2011. Bandwagoning on the President’s commitment, the media has begun to cover the issue with greater enthusiasm— a positive development for fostering much needed public awareness.

Brazil and the Open Government Partnership

The timing of the announcement coincides with U.S. President Barack Obama’s recent visit and an invitation to join an ‘Open Government Partnership,’ an effort that will include more than 70 countries. The Open Government Partnership was established last year with India’s Prime Minister Dr. Manmohan Singh and is expected to be announced at the opening of the United Nations in September of this year.

President Rousseff has set May 3^rd, World Press Freedom Day, as the target date for enactment. At just over two weeks from now, this appears to be an excessively ambitious time horizon—barring some creative legislative maneuvering.

Significant Setback: the Unconstitutionality of Brazil’s FOI Bill

A second event of interest was the recognition of the FOI bill’s unconstitutionality last week in the Senate. Article 35 of the bill mandates the establishment of a ‘Mixed Evaluative Commission,’ to be composed of representatives of the Legislative, Executive and Judicial branches of government, to be responsible for deliberating on issues of classification. The problem is the Commission’s multi-branch composition, which apparently contradicts Article 2 of the 1988 Constitution: the three branches of government must be ‘independent’ of each other.

Why this issue was not discovered earlier, and debates of constitutional interpretation aside, nothing short of legislative wizardry will be required to pass the bill within the next two weeks let alone the next two months. The crux of the issue is that the lawmakers may have to amend the bill, sending it back to the Chamber of Deputies for re-approval and then once again to the Senate.

What makes things even more complicated is the feasibility of rushing legislation in a Congress stacked with ‘urgent’ executive orders (medidas provisorias), which have constitutional priority. Presidents tend to dominate the legislative agenda in Brazil with their urgency decrees. To place the FOI bill ahead of these urgent measures will require some adroit stage management.

Legislative Acrobatics?

Three work-arounds have been suggested. First, the Senate ‘arranges’ the text without amending it, obviating the need for re-approval in the Chamber of Deputies. The meaning of this sounds as mysterious as it seems. A second suggestion is to pass the law as is, and have President Rousseff line-item veto the unconstitutional clause, surgically removing undesirable parts. But this option again presents a constitutional dilemma: congressional passage of an unconstitutional law. The most likely scenario will see 41/2010 return to the Chamber of Deputies.

The question is whether Congress is willing to perform the legislative acrobatics needed to meet the President’s goal of a May 3^rd enactment. Although the President’s PT party controls wide majorities in both Chambers, its coalition is not one hundred percent reliable. What’s more, the leader of the Senate is former President José Sarney of the PMDB party, who is not likely to pander to Rousseff’s every whim. While the PMDB is the President’s principal ally, it is better known for its commitment to pork-barrel politics than transparency.

These, in short, are the legislative dilemmas currently facing the FOI bill that has been in Congress since May 2009. What is heartening in all of this is the President’s newly stated commitment. With strong control over both chambers, government should succeed in passing a FOI law— at some point.

Replacing a Truth Commission with a FOI Law

In 2000, Mexico’s President-elect Vicente Fox promised a Truth Commission to address human rights atrocities committed during Mexico’s Dirty War, from the 1960s to the early 1990s. But Fox cancelled the Commission because he needed support for his signature reforms in Congress and sought the legislative cooperation of the PRI, the party that had presided over previous decades of abuse.

A similar bait-and-switch may be happening in Brazil. The Brazilian military and the Department of Foreign Affairs (strongly connected to the former) have been the most salient resisters of greater transparency, let alone a Truth Commission. Yet establishing a Truth Commission to reconcile abuses committed during Brazil’s 1964-85 dictatorship was one of President Rousseff’s campaign promises, and the wheels of said Commission were set in motion soon after she took office. Over the past few weeks, however, consideration of the commission has come to a standstill in Congress.

While Rousseff may just be putting the Commission on the backburner for the moment—it boasts a rather narrow constituency of supporters—it could also be possible that Dilma Rousseff will accept a dead-letter Truth Commission if military resisters yield to a FOI bill. On April 4^th 2011 Foreign Affairs stated its preference for the FOI bill originally introduced into Congress in May 2009, which has since undergone considerable strengthening improvements. This was grim news, because the Senate Foreign Affairs Committee has yet to approve the FOI bill, and any change or rejection would send the bill back to the Chamber of Deputies. President Rousseff’s public commitment to a FOI bill and the quiet withdrawal of her pressure for a Truth Commission may be one of the FOI bill’s saving graces.

An Example of Brazil’s Need for Greater Transparency

The FOI bill in Congress is the first step to a fiscally stronger Brazil. On March 30th 2011, the lead opinion piece of O Globo newspaper reviewed a 2003 report by the Comptroller General on federal funds misappropriated by municipal government officials – approximately $60 billion reais annually, about the size of Uruguay’s GDP. It is of little surprise that Brazil has the highest tax-to-GDP rate in the western hemisphere, over 35 percent.

Legislative reforms such as the FOI bill currently stalled in Congress are the first step towards the type of monitoring that can help reduce corruption, put the country’s tax dollars to better use, and ultimately lead to a more reasonable tax burden. Government auditors are insufficient for the monitoring task at hand; the scope of the problem is too large and using auditors for enforcement is expensive. The media and citizens need to lead, and greater public sector transparency is a key precondition for effective oversight. The prospective passage of a freedom of information law will finally give Brazilians one of the tools they need.