As co-chair of the Open Government Partnership, in a very few months Brazil will play host to a meeting among more than 50 countries participating in an unprecedented global initiative: a ‘multinational and multi-stakeholder’ effort to improve accountability, transparency, access to information, and greater participation in the affairs of government. A sort of club for countries committed to openness, the OGP was announced at the United Nations in September 2011 and will take on a more concrete character after the April 2012 meeting in Brasilia.

 Perplexing Participation

Ironically, the most difficult of the initiative’s goals is perhaps the least abstract – securing broad citizen participation. As the lead non-governmental coordinator for the OGP, U.S.-based Global Integrity developed a ‘Networking Mechanism’ to try to spur collaboration between governments, citizens, and organizations. But creating collaborative synergies from the outside-in is not easy. I signed up early for the Mechanism, as have colleagues of mine, but none of us has been approached by government or other NGOs here in Brazil. Indeed, not unlike other countries involved in the OGP, Brazil appears to be having a tough time fulfilling one of the 7 basic tenets of the initiative:

STEP 3: Undertake the broad public consultation to inform the government’s OGP commitments, and identify a multi-stakeholder forum for regular public consultation on OGP implementation.

Three threats may be preventing participation from being ‘broad’ and ‘consultative.’ First, some governments tend to act as the ‘command-central’ of participative initiatives, leading participation in a corporatist fashion. Second, participation in some countries exhibits elements of a clubiness that  goes against the plural and transparent principles upon which the OGP was established. Third, many governments are just plain behind, and as a result have not encouraged or facilitated meaningful participation. On February 13^th 2012 freedominfo.org reported that 21 governments are “tardy” on updating their commitments. For its own part, Brazil has not reported any developments on the OGP website since September of 2011 – notwithstanding its example-setting position as co-chair. What’s more, no ‘broad consultation’ or ‘multi-stakeholder forum’ has taken place on the web — the best medium for a forum in a country as big as Brazil.

What I was Told by the Brazilian Government

Brazil's Comptroller General is Leading the OGP

I spoke with a senior representative of Brazil’s Comptroller General (CGU) in October of this year, just after the announcement of the Open Government Partnership in September. This official communicated the government’s clear commitment to the initiative, but was short on plans for concrete participatory mechanisms. Afterwards, I thanked my interlocutor by sending an email and recommending a few specialists on various facets of open government within Latin America. I never received a response, which is perhaps to be expected when interacting with a busy senior official. I sent a second mail in mid January, inquiring about public consultations on the OGP, and I waited five days before sending a follow-up inquiry.

This second mail was calculated to elicit a response, and it hit a bit of a nerve. I received an email telling me that the Comptroller General has been having “frank and open” dialogue with civil society. The CGU has been in close consultation with three NGOs: IBASE (Rio de Janeiro), INESC (Brasilia), and Transparência Hacker (more a ‘collective’ than an NGO proper). The official also pointed out that government had set up an Inter-Ministerial Committee on Open Government (Comitê Interministerial Governo Aberto).

Yet thus far, the facts suggest a rather disappointing “broad public consultation” by the Brazilian government. A three-NGO consultation is, by any measure, inadequate for a country of 190 million people. And the last news on the internet about the “Inter-Ministerial Committee on Open Government” was from December 21st, around the time when this coordinating body was first established; the Committee also lacks any sort of official web presence.

Threats to a “Broad Public Consultation”

Anyone would plainly agree that these efforts fall considerably short of a “broad public consultation.” Yet while government efforts at interacting with the wider public still have much to be desired, it is ultimately civil society leaders who should be taking the initiative to urge government to move forward, and to undertake consultation on their own. The government-society consultation should be the last step in a broad public deliberation orchestrated by civic representatives in what is ultimately an initiative to benefit citizens.

Both government and the NGO community should be providing open forums for input, announcements, and updates on meetings with whoever is having ‘frank and open’ discussions. ‘Frank and open’ does not mean transparent unless the content of those discussions is visible and readily inferable to the public i.e. at a minimum, online.

The danger of government-led policy initiatives becoming a ‘club’ affair among a few civil society representatives is ever-present, especially within the Latin American political context. Much like other regions, Latin America has a history of civic-initiated movements that are summarily incorporated within an ‘official’ or ‘party-based’ framework. The result is often neutralization or co-optation.

But the other threat, the threat of exclusivity as opposed to inclusivity, is universal. One leading Canadian NGO, the Canadian Council on Social Development recently wrote:

To date, open government discussions have not included perspectives from grassroots and thematic public data and information users, producers, and those actively involved with deliberating with government. The discussion to date has primarily been within CIO and IT sectors.

To its credit, the Canadian government has at least provided a venue for public input, including a Twitter forum on December 19^th, 2011. It also recently posted an update on its OGP commitments, dated January 31^st 2012.

Three-level Dialogue

It is clear that dialogue should first start with “broad consultations” within society. Government might help by urging organizations to set up a broad steering committee that can reach out to various parts and sectors of the country. But ultimately, organizations should take it upon themselves to coordinate and reach out, avoiding an exclusive dialogue with government and a handful of other ‘elite’ organizations – as attractive as that might be. Second, government must set up a broad forum – on and offline – to entertain suggestions and concerns from all sectors and geographic regions.

Finally, it is worthwhile thinking about how civic leaders and governmental officials in one country might help those in another. This third level of dialogue is essential, and in this respect Global Integrity’s Networking Mechanism has been disappointingly under-utilized. Countries like Brazil – fledgling and uneven democracies with traditions of centralized control and a young third sector – might do well to reach outside of their borders and seek-out examples, direction and dialogue.

The strike is putting into jeopardy Brazil's signature event, Carnaval, in its two most representative cities, Rio de Janeiro and Salvador

“You get what you pay,” is a saying that doesn’t have an exact translation in Portuguese, much like other words, such as ‘enforcement[1],’ ‘check’ (as in a ‘check on authority), and ‘accountability’[2]. If language fashions our world view, as linguists suggest, it may help us understand why most Brazilians react limply to gross inequities, malfeasance, and impunity, as exemplified by the police and fire brigade strikes crippling Salvador and Rio de Janeiro just one week before Carnaval.

The Unacceptable Behavior of Brazil’s Police

Striking police and firemen have burned buses, occupied the state assembly, and are accused of inciting and participating in violence and looting. Homicide rates have nearly doubled from their already towering tallies, and now the military have been called in.

President Dilma Rousseff does not deny the right to strike – an activity in line with her political party’s first-order principles – but she does decry (Globo article) the way in which the strike is being undertaken:

I don’t consider an increase of homicides on city streets, burning buses, or entering buses in hooded masks the right way of conducting the movement.

But who can expect better behavior from front-line public servants receiving the equivalent of Rio and Salvador’s police officers, approximately R$1500 (about US$1000 a month)? A paltry R$1500 – adjusted for 5 to 6.5 percent annual inflation every couple of years –  doesn’t buy much dignity or discipline; which is probably why most citizens of Rio and Salvador view the Military Police (no association to MPs in other countries—they are regular police) with about the same temerity as common criminals.

I have personally observed petty protection rackets at work in Rio de Janeiro – just the start of police criminal activity. Earlier this year, masked gunmen in Rio de Janeiro rained bullets on the car of Patrícia Acioli, a federal judge prosecuting police paramilitary groups and militias. Her killing warned others off of similar police purges. There are a lot of good men and women in the police forces, but the monetary incentives do not favor the assurance of decent behavior.

Unacceptable Pay for Brazil’s Front-Line Public Servants

Much like firemen and teachers, the police are society’s front-line civil servants, determining our civic quality of life to a greater extent than public employees who earn salaries several multiples higher. Brazil’s 513 Lower House Deputies earn $26,700 a month (about US$190K a year), even more than the U.S.’ 435 Congressional Representatives. Yet Brazil’s National Congress is only responsible for approximately 15 percent of all approved legislation – the remaining 85 percent comes from the president. Just last week, a newly elected Brazilian deputy and former soccer star, Romário, tweeted his frustration over the Brazilian Congress’ inactivity:

It’s been 3 weeks since I came to Brasilia to work, and nothing is going on. And look, we’re in an election year… I hope that on my next arrival to Brasilia we have something to f____g do.

Something is very wrong with public priorities when congressmen are collecting huge salaries for relative redundancy, while society’s front-line public workers earn twenty times less. Heck, even secretaries and administrative assistants in the state bureaucracy receive higher wages than teachers, police, and firemen. State governors complain that increasing pay will bankrupt their states. Clearly, budgeting is a matter of priority, and the answer is to tradeoff and adjust. Federal transfers to the states might help. Certainly, the federal government should be making productive use of this year’s surplus and Brazil’s huge tax-take — the largest tax burden in the Americas as a percentage of GDP.

Recent ‘Occupy’ movements around the world have questioned the way capitalism and public policy works. We should also be questioning how we pay the front-line public servants who shape our society – we get what we pay for.

Globo newspaper reported today that new policies might soon open the door to fast-track visas for skilled workers. With recessions dimming prospects for professionals in both the U.S. and Europe, it is not impossible that Brazil may be about to experience a second golden age of immigration.

Current visa and immigration restrictions reflect the sort of ‘Brazil for Brazilians’ policies emblematic of the last dictatorship (1964-85), during which time authorities drafted the current ‘Statute on Foreigners.’

A team within the President’s Office, the Secretary of Strategic Affairs, has been assigned to consider alternative visa and immigration policies. The Coordinator of that team, Ricardo Paes de Barros, ventures: “now that Brazil is an island of prosperity in the world, there are a lot of good quality people who want to come here.” Paes admits that Canada and Australia are the models that Brazil seeks to emulate.

Total of foreign people authorized to work in Brazil by state in 2009 (source: Wikipedia)

From January to September of 2011 – President Rousseff’s first year in office – the number of visas issued increased by a full third, or 32 percent. There were 51,353 visas issued last year. The open approach of the Rousseff administration is consistent with its approach to governing more generally.

Spaniards are currently the largest demographic of skilled workers with visas. They experience greater ease in learning the language, adapting to the culture, and suffer from a woeful dearth of opportunities at home. Unemployment in Spain hovers at an untenable 25 percent. When asked about his experience settling down to work in Brazil, one Brazil-based Spaniard said to Globo, “the bureaucracy is more complicated than I imagined.”

For someone from a Latin country to admit that the Brazilian bureaucracy is complicated signals the inexplicable and unnecessary complexity of dealing with the Brazilian state. It certainly validates my own excruciating experience. Visa requirements – filling-out an application and certifying qualifications in the Brazilian consulate (at a cost) – are only the beginning of what it can mean to work in Brazil.

My Own Experience

In my own case, a long grinding bureaucratic process to validate my Ph.D. – in order to teach – caused me such heart-wrenching desperation that I had to give my feelings regular pep-talks. In disbelief, I asked why the process seemed to tell me that I was not wanted. What type of a country, after all, makes it difficult for Ph.Ds to immigrate?

The first step I had to take was to FedEx my UT diploma, signed by the university, to the “closest Brazilian consulate” – Houston. The cost of the FedEx aside, authentication ran me about US$25 for an official looking seal on the back of my diploma. The remaining ‘validation’ of my Ph.D. took over 10 months. I required costly “official” (juramentado) translations, a heap of paper-work, certified records of everything I have ever done academic-related, a dissertation assessment committee required to vet my work, and multiple visits to notaries, federal university offices, and even an appeal to the Dean of the Federal University of Rio de Janeiro. The entire process cost me about US$2000 and much premature aging. I do not wish this experience on anyone.

The implication of my own Kafkaesque journey through the Brazilian bureaucracy suggests that liberalizing the issuance of visas is not enough. The ‘validation’ of qualifications will also have to be streamlined if Brazil wishes to attract and keep talent. The Globo article that inspired this post provides the example of Technip, a Brazilian engineering company. In order to avoid the vagaries of the Brazilian visa process, Technip opened up an office in Portugal – so much for creating new jobs and stimulating the economy through skilled immigration.

A few words of advice for those seeking to immigrate to Brazil:

If you can afford it, get a good lawyer, like my brother-in-law, Hugo Porto.

• Expect to live in Brazil without working for anywhere between 6-16 months. Don’t give up your virtual job back in Europe or the U.S.
• Get to know people who live in Brazil, before and after you arrive. Work your contacts. Many things get resolved through personal intercession in Brazil; it’s about knowing people.
• Learn Portuguese. They just don’t speak much English here and you’d be foolish to come without any basic language skills.
• If possible, obtain strong interest or job commitments before you arrive.

If you have other advice, I’d love to hear your comments. GM

Brazil is a country known for its disappearing ideological debates, its de-politicized populace, and a ‘culture of consensus’ that renders political debate among strangers or even friends much rarer than in other parts of the world. So when I read Brazilian news online, I always take a minute to scan user-generated comments, a fascinating prism into the nation’s collective consciousness and often  a great source of context and additional data. 

             As in other countries the comment streams of Brazil’s major newspapers have become the underground battlefield for ideologues. But I’m pretty sure that commentators are not just occasional observers or pathological pundits – they are also hired hacks. You be the judge:

 Case Study: Folha de São Paulo

 This past week I was surveying comments after reading an article in the Folha de São Paulo on one of Brazil’s most sensitive issues: inflation – “Increase in the basic consumer basket [consumer-price-index] surpasses 10% in three capitals during 2011”. More so than faltering economic growth or unemployment, inflation is Brazil’s boogeyman, a source of unyielding spookage for those who experienced the despair of hyper-inflation in the late 1980s and early 1990s. But before describing my startling revelation, just a few numbers to reflect on newspaper consumption in Brazil:

 Paper versus Online News

 Folha is Brazil’s most widely distributed newspaper, with an average circulation of approximately 300,000 issues a day – about equal to Canada’s most printed paper, the Toronto Star. These numbers are pretty small if you consider that Canada has about 5 times fewer people than Brazil. In short, not many people read the big national newspapers in Brazil. But you might not either if you were a wage earner like 80 percent of the population[1] and a national newspaper costs a hefty US$1.25. This is precisely why online news has exploded in Brazil. The Blog Tribuna da Internet (The Internet Tribune) reports that the Folha de São Paulo broke all records for Brazilian online newspapers in June 2011, clocking-in 19.4 million individual visits – about 650,000 visitors per day. Folha does have a pay wall, but most articles are free.

           Conclusion: the internet is where most national newspaper-readers get their news, where opinions are formed, and where commentators wage words for the minds and hearts of fellow Brazilians.

 As most everyone who comments on comments has commented, online commenting is not for the faint of heart. It is where the extremes come out.

Explosive Comments on Rising Inflation

Back to my Folha de São Paulo  article: total inflation averaged above 10 percent in 17 Brazilian cities during 2011, according to the DIESSE, a government think-tank. In economic terms, this should give the PT reason to worry, especially with municipal elections coming up. In the Folha, a right-leaning newspaper, there were plenty of critical comments about the PT’s management of the economy. It was former President Fernando Henrique Cardoso (1995-2003), after all, who broke the back of inflation and smoothed the track for his otherly PT predecessors, Presidents Luiz Inácio Lula da Silva and Dilma Rousseff.  But for every handful of critics gibing at Brazil’s current mismanagement, there was a PT defender. Like “Adali Adali”:

During the government of President Fernando Henrique Cardoso of the PSDB the desperation of the Brazilian people reached close to 100%. We were the 14^th largest economy, we had an unpayable external debt, we created 87,000 jobs a year and the minimum wage did not exceed $100 dollars per month. With the extraordinary government of Lula from Dilma’s PT, today we’re the 6^th largest economy in the world, we’ve created 2,200,000 jobs per year, and the minimum salary is $350 dollars, we’ve paid the external debt and we’re creditors of the IMF.

 My suspicion is that some of these commenters are hired hands, and what is great about the Folha de Sao Paulo’s commenting system, unlike most newspapers, is that beside each contributor’s name Folha puts the number of comments they have made since registering for the website. Adali Adali has a total of 1119 comments, dating back to February 4^th, 2011. That’s an average of 3.3 comments a day, including weekends. Adali Adali’s comments represent a non-stop tirade against the PSDB, the party most associated with the Folha. Folha–Adali Adali–comments against PSDB, this contributor posted the same comment (with minor variations) more than a dozen times. The core message went like this:

 The PIG, the Party of the Coup D’État Press [Partido da Imprensa Golpista], associated with the demon-crats-of-the-PSDB, are lost, desperate, and in one more useless attempt to inveigle the worker and elector, embark on a leaking ship of lies, until they gain some trifling advantage with a foul news item like this…

 Thumbs up for poetic license, but an emphatic thumbs down for substanceless, repetive, filler calumny.

 What are we to make of people like Adali Adali? Hired hacks? Or pathological partisans?

 Can Comment Systems Keep Up?

 What is clear is that in Brazil and abroad, comment forums are being colonized by noise-makers, whether they be party hacks or common quacks. The comment-software industry is already becoming a highly contested and innovative marketplace. One of the industry leaders, Disqus, is now on more than a million websites, with Facebook social plug-ins offering a relatively new alternative. In the best of cases, one can sort comments by user, ranking (e.g. “like”), or newest/oldest comments, flag abuse or search by keyword.

             More options and metrics are needed, however. One idea is to post the average frequency of comment-making. But contributors can cheat, opening up new accounts and pseudonyms. Perhaps one IP address should be limited to one contributor. One extreme solution is to include textual analysis in commenting systems, suggesting whether a contributor writing style/vocabulary is somewhat/considerably/extremely similar to that of another.

 The Old Debate: Anonymity vs Accountability

 I don’t know about my readers, but I’d rather not hear from people who comment ten times a day, especially if their comments are re-hashed thoughless reactionism.   This debate will come down to the old “internet anonymity versus accountability” conundrum— irresolvable in a normative sense, but one can imagine that technical solutions are just around the bend.

 Greater political deliberation is needed in Brazil, as it is around the world. But it’s not going to come from extreme positions or hired contributors, but from thoughtful, engaged public debate.  

Six Ministers got the axe during President Dilma Rousseff’s first year in office, but that’s not all she cut. Rousseff has also pruned some small but significant taxes, improving the climate for business. Brazil’s economic vigor was on display in 2011. The Folha de São Paulo reports today that imports and exports broke all previous records, and it is little surprise that Brazil became the sixth largest economy in the world, overtaking the U.K. Add to these economic feats a package of transparency measures that should improve government efficiency, and Brazil may just have what it takes to make it through a looming world recession relatively unscathed.

 Tax Cuts

With record receipts and a record tax burden, it was about time Brazil’s government cut-back on taxes. The ‘Brazil Maior’ (Bigger Brazil) plan, adopted in August of 2011, provided immediate tax reimbursements for purchases of ‘industrial equipment.’ This initiative may lead to a jump in the country’s stock of capital goods and, in turn, its productive capacity.

In December, the government also gave consumers a boost. The financial operations tax was cut from 3 percent to 2.5 percent in an effort to save consumers money on credit operations. The Tax on Industrialized Goods (IPI) fell for domestic kitchen appliances: for fridges it went from 15 to 5 percent, and on dishwashing machines it fell from 20 to 10 percent, to name just a few examples.

Finally, the Brazilian government also gave some pep to domestic industry. It is now giving exporters a 3 percent credit to compensate for taxes paid on goods prior to exporting. The government has also eliminated a 6 percent tax on financial operations for foreign investors who put their money into the infrastructure sector. As an excellent article by Valor Económico sums up, there are many other little tax breaks on individual items and sectors.

Lower Tax Burden?

Does the cost associated with administrating all these different taxes and tax changes in all these different sectors offset the net amount of taxpayer savings…? Overall the net take of government may not have diminished much this year after all.

Government raised taxes significantly in some areas. On cars imported from countries other than Mexico, Uruguay, and Argentina, the Tax on Industrial Goods (IPI) was raised by 30 percent – a major blow to consumers and car importers. In March of 2011, the government also elevated the tax on credit card use outside the country, from 2.38 percent to 6.38 percent.

More Progressive Tax Policy?

All in all, tax policy in 2011 appears to suggest that richer consumers will pay more – those who buy imported cars and spend money abroad – while regular consumers –those buying domestic appliances and using credit domestically – will save a little money. The Rousseff administration also appears to boost domestic industry by helping exporters, boosting incentives to buy capital goods, and further protecting the national automobile industry. Whether these domestic initiatives will amount to real value for Brazilians is worth watching.

It will be even more interesting to see whether some non-financial measures will create greater efficiencies in Brazil. Will transparency measures that form part of Brazil’s commitment to the Open Government Partnership, including the country’s newly passed freedom of information law, help diminish the tax burden — already the highest in the Americas at close to 35 percent of GDP? The hope is that lower taxes result from waste and incompetence revealed, and that procurement and regulatory processes become fairer and more competitive, giving taxpayers greater value.

Now if the government and the court system would only do something to address impunity. According to investigations by the Folha de São Paulo, not one of the six Ministers dismissed from their posts this year on allegations of corruption have been punished. More on that later.

“Doing more with less.” As world population heads towards 8 billion, countries and companies across the world aim to use technology, organizational techniques, and training to do more with less: increase productivity and conserve resources while sustaining a decent quality of life.

One of the key concepts here is productivity. I recently participated in a forum[1] where I had the privilege of seeing a presentation by Dr. Carlos Pio of the University of Brasília, an examination of Brazil’s economic prospects through the prism of productivity. I was struck by the importance of this metric; productivity is one of the more neglected economic indicators, a gauge for how well countries use the factors of production – land, labor and capital. Productivity is a far more accurate indicator of a country’s potential for sustained wealth-creation than GDP or even per capita income.

Brazil’s Productivity Gap

My readers will probably find it unsurprising that Brazil does relatively poorly on productivity indicators. A 2006 report by McKinsey Global Institute found that between 1995 and 2005 Brazil’s productivity grew only 0.3 percent per year, in contrast to 2.8 percent in the U.S. and 8.4 percent in China. McKinsey assigns about one third of this sluggishness to Brazil’s development curve. The remaining two-thirds has to do with “macro-economic factors” (a rather ‘catch-all’ variable), the fact that labor is cheap relative to capital, a large informal sector, complex regulation, and a weak infrastructure. But much of Brazil’s productivity gap also has to do with the country’s tariff and educational policies, and politicians would do well to pay greater heed to these factors.

High Tariffs Limit Productivity

High tariffs provide Brazilian companies with protection from international competitors, giving them weak incentives to boost productivity. High tariff barriers increase the price of imports, allowing domestic firms to make up for low productivity by raising prices to meet or just beat the inflated price of imports. Imports in the most critical sectors tend to be about double the U.S. price-tag: a car in the U.S. that sells for US$30,000 costs about US$60,000 in Brazil, or more. I am constantly amazed that consumers are willing to get plowed with these kinds of tax-takes. Unsurprisingly, it is rare that you will find most Brazilian-made consumer durables, such as electronics, being sold outside of Brazil – they simply cannot compete.

Some will say that Brazilian consumer durables, much less other sectors, cannot compete because of the inflated value of the currency. But as South Korea, Japan and other countries have shown, productivity and research and development can partly overcome the negative industrial effects of a strong currency.

Another way of looking at the protected markets of Brazil is like this: the mostly poor population of Brazil gets to buy lower quality goods at higher prices because of the country’s tariffs. Although protecting domestic industry creates employment, it effectively transfers wealth from the poor –who could be buying better quality goods for cheaper – to elites. Because the effect is to re-circulate money within the domestic economy, there is no net gain in Brazil’s wealth, merely a redistribution. We should be reminded of one of the first maxims of the Wealth of Nations: countries grow wealthy by selling things to other countries. Brazil has traditionally sold mostly primary goods to other countries, and sustained high tariff barriers appear to ensure continuity here.

Why? Because you can’t win in the manufacturing export markets if your productivity stinks. And your productivity is not going to improve unless there is revolutionary investment in research and development (R&D) and education, among other areas.

 Investment in Research and Development: a Key Indicator

In most other significant economies, such as China, Canada, the U.S. and even Spain, the private sector tends to invest more in R&D than government. Indeed, this chart on R&D prepared by Brazil’s BNDES (a poor scan, I know) illustrates that it is only Russia and Brazil who share the distinction of securing less private sector investment in R&D than public sector investment. So in terms of R&D, Brazil is out of the game in most sectors, agriculture being one of the few exceptions.

The Education Conundrum

The easy way out is to blame low productivity on education, which is what Brazil’s private sector has tended to do. In 1946, the country’s electorate was more than half illiterate, so Brazil has come a long way to have achieved an average of seven years of schooling. Nevertheless, other countries have done much better. I’ve written about the education conundrum before, so I will not idly repeat old arguments, facts and numbers. Suffice it to say that an unequal redistribution is afoot here too. The country’s federal universities are understandably dominated by Brazil’s middle and upper classes, those who are privately schooled or tutored and are thus able to get into these tuition-free cradles of the elite, universities that consume nearly a quarter of the country’s educational budget but educate less than two percent of the country’s population.

Back to Basics

Brazil continues to get a lot of hype, being one of the BRIC countries and having enjoyed an unprecedented spate of good years in the commodity markets. Agricultural productivity has gone up, and is undoubtedly the sector that has seen the most significant gains. Agriculture remains Brazil’s comparative advantage in the world markets, and rightly so; the country is blessed with millions of square kilometers of productive land. Brazil might do well to face up to facts and focus on this comparative advantage, continuing to increase productivity in this sector and, in turn, ratcheting down the tariffs on manufactured goods to increase incentives for greater competitiveness, productivity, and better value for Brazilian consumers.

Transparency and Historical Reconciliation were Campaign Promises

When Brazilian President Dilma Rousseff promulgated the country’s new freedom of information law on November 18^th, she signed on to a measure that is among the strongest in Latin America, and perhaps more importantly, she endorsed a law that made inordinate improvements over bill (5228) introduced  by her predecessor, President Luiz Inácio Lula da Silva, in 2009.

Laws, Decrees, and Pending FOI Initiatives across the Region

As the blurb at the side of my blog describes, I am in the midst of writing a book on the adoption of freedom of information laws across Latin America. Part of the study requires to me to ‘score’ the strength of freedom of information laws across the region. For my dissertation, I originally scored the bill 5228, introduced by the administration of President Lula da Silva in May 2009. That bill earned a 1.8 out of a possible score of 3, qualifying it as ‘moderately weak’ in the benchmarks established by my index.[1]

By contrast, I recently finished scoring the newly enacted law, 12.527, and it earned a 2.4, qualifying it as ‘moderately strong.’ Although the bill has some significant weak points, it mostly reflects the trend towards internationally accepted better practice standards. Brazil’s achievement deserves a caveat: the laws now coming out generally tend to be legally stronger than older laws because they reflect more evolved standards and stronger pressures to join the fray of standard-bearing adopters. This is certainly not a rule, but I can marshall good empirical evidence to make the case.

Brazil is the 10^th country to adopt a modern, comprehensive freedom of information law in Latin America. Six other countries have yet to adopt such a measure. These include Argentina and Bolivia, which possess presidential decrees establishing FOI in the Executive branch; and Colombia and Costa Rica, which also possess certain administrative allowances for disclosure. [2] Until Brazil enacted legislation on the 18^th of November, it stood among the ranks of Paraguay and Venezuela, countries that possessed no generalized disclosure mechanisms of note.

In this Long Post

The current post analyzes six aspects of the Brazilian law, characteristics by which all freedom of information laws are measured. I examine the Brazilian law’s 1) scope, 2) procedures, 3) appeal system, 4) exceptions to disclosure and classification system, 5) the duties of government agencies to promote the law and publish information, and 6) the sanctions and protections for officials administrating access to information requests.

Scope

Because Brazil’s law regulates the country’s constitutional provisions for freedom of information (articles 5, 37, and 216), it regiments all branches and levels of government: the Executive, Legislative, and Judicial branches of government, and Federal, State, and Local governments. Positively, it also regiments non-profits receiving government funds and state-owned-enterprises. The law’s scope is just about as wide as it can get. This clear breadth is a vast improvement over the bill Lula introduced in 2009. That measure did not even define what government entities would be regulated by the law.

While the breadth of the law is impressive, it is also impressively daunting. Mexico discovered the scale of this challenge shortly after amending its constitution in 2007 to guarantee the right of universal access to information. In Brazil, it remains to be seen whether the territorial units will write their own disclosure policies, and what standards will regulate them. In the case of Mexico, there is an established ‘minimum standard’ for subnational units to follow. No such standard has yet been discussed in Brazil.

Questions of implementation and regulation aside for the moment, the law adopts a strong statement of openness in Article 3, referring to the “fundamental right of access to information,” and establishing the famous rule: “publicity as the general precept, and secrecy as the exception.”

The most significant problem with Brazil’s law is not the scope, but the oversight of its ambitious scope. Unlike other countries in the region, such as Mexico, Chile, or even Honduras, the Brazilian law provides no agency to define the implementation, regulation, and enforcement of the law. Even though it is widely assumed that the Comptroller General will oversee the law, the text does not specify responsibility. It merely states (Art. 41) that the President will appoint the oversight agency. As it stands, the Comptroller is only responsible for deciding appeals. The regulatory vacuum that the law implies is thus its most obvious shortcoming, and measures should be taken to establish a well-endowed, independent central authority. The Comptroller is inappropriate to the task; its multiple attributions and dubious independence from the presidency make it a sub-optimal oversight mechanism.

Procedures

The law’s procedures (Articles 10,11, 12, 13, and 14) are clear, user-friendly, and fall within international better standards. Officials have 20 days to respond to a request, and they may extend this timeframe by 10 days if they alert the requester in writing.  Officials also have obligations to help requesters file requests, convey misplaced requests to the appropriate entity, and inform requesters of their options for appeal in the case of a denial. The procedures also stipulate that denials must be justified (Art.11); fees can only be levied on the materials used for photocopying; the legally-defined poor are exempt from paying any costs; and requesters can receive responses in various forms. Perhaps the law’s most innovative feature is its emphasis on formats that are open, machine-readable, and non-proprietary (Art. 8 VI:3 ii & iii). This provision will help technologists, data-based journalists, and skilled citizens to re-use public information for analysis or applications with greater ease.

Promotion and Duty to Publish

The law obligates governmental agencies to actively publish a wide assortment of information, independent of requests (Art. 8). Active transparency obligations include official contact details of all employees, financial operations, spending, procurement contracts, and answers to commonly asked questions, among others.  Unfortunately, the law specifies no agency for promoting the law, as discussed at the end of the section on ‘Scope.’ The President must appoint this agency (Art. 41), who will annually present a report of activities to Congress, as is better practice. A key point is that the heads of all government entities are expected to specify their information officers within 60 days of the law’s enactment. I have already talked to my colleague Fabiano Angélico about this provision, and beginning on January 18^th 2012 we are determined to find out just how successful the process of assigning information officers has been.

Exceptions to Disclosure and Classification

The law provides the standard battery of exceptions to disclosure and also provides for a severability clause, meaning that citizens can have access to classified documents, albeit with sensitive portions ‘blacked-out.’ One standard exception is missing from a list that is otherwise in fine condition: ongoing legal cases. These cases are typically withheld from the public until concluded. Exceptions to disclosure could be strengthened by balancing tests, to see whether harm caused by information justifies withholding, or whether the public interest of possessing the information in question outweighs the public interest of maintaining it outside the realm of public knowledge. As with most other freedom of information laws, the measure does not override the secrecy statutes of other laws, i.e. subjecting the secrecy provisions of other laws to the freedom of information law’s list of exceptions. This is unfortunate, but lamentably the norm.

Finally, the most glaring deficiency of the law’s classification scheme is its three tiered secrecy provisions and its deviously long reserve periods. ‘Ultra-secret’ information is withheld for 25 years before being subject to a re-classification or de-classification process. The other two tiers are ‘secret’ (15 years) and ‘reserved’ (5 years). Twenty-five years is an outlandishly long reserve period, and three tiers of secrecy are wholly unnecessary. Chile’s reserve period stipulates 5 years, Mexico’s 12, and the highest in the region –before the Brazilian law was enacted – was Uruguay’s at 15 years. There is no rhyme or reason for information to be denied a re-classification process after 5-10 years.

Appeals and Complaints

The appeals and complaints system promises Kafkaesque journeys into the dark recesses of the Brazilian bureaucracy. Well, perhaps not that bad. Positively, requesters may ask for a written explanation when access to information is denied (Art. 14). Having this justification should greatly expedite the appeals process, as the need for a pre-ruling investigation should be all but obviated.

One problematic aspect of the appeal regime are the timeframes: requesters can lodge an appeal within 10 days, which is all fair and well, but decisions must be rendered within a very demanding 5 days. This period of time is hopeful, but unrealistic. The likelihood is that public sector entities will constantly transgress this timeframe, which may leaves citizens cynical and upset, and detract from the integrity of the law. Once a public sector surpasses the allotted timeframe, all bets are off as to when they may be disposed to resolve an appeal. Thus as my colleague Andrew Ecclestone points out in one of this post’s comments, it would have been better to set a more realistic timeframe for resolving appeals.

Petitioners must obligatorily appeal to the “hierarchically superior” official, as a first recourse. Failing a positive response, the requester can then lodge an appeal with the Comptroller General, which again, must be answered within 5 days. If that fails, the requester may appeal to the ‘Mixed Commission on Information Re-Validation.” No timeframe for a decision is given. The law makes no mention of recourse to the courts, and I am uncertain as to whether the courts will accept a case once the Comptroller has denied an appeal. This would seem to be the logical progression, especially given that the Comptroller should only have constitutional say over requests to the Executive Branch. I am interested to figure out how the courts fit into the appeal process—so if you have any ideas, please let me know.

All told, however, the appeals process does not look promising. Internal appeals are notoriously ineffective, and appeals to an institution that lacks the attributes of a strong oversight mechanism are not ideal. Finally, there is no established timeframe for the third and final appeal process.

Sanctions and Protections

Finally, the Brazilian law scores reasonably well on sanctions and protections. Article 32 provides a comprehensive list of offences for which officials can be punished, such as hiding or destroying information. The list even includes “using bad faith when analyzing access to information requests.” The punishments are dictated by a host of legislation on administrative conduct. Unfortunately, the law does not provide whistle-blower protections or protections for those who disclose sensitive information in good faith. But again, this shortcoming is so common as to be the norm among the region’s laws.

Conclusion

So there it is. There is much more, but these are some of the more important points. The law is much better than the original bill (5228) introduced into Congress by Lula in 2009. But one of the problems is that Lula set the bar so low that it was difficult to make that paradigm jump to a really exceptional law. As it stands, the law is good; it’s strong on its breadth, its duties to publish, and its exceptions from disclosure and sanctions and protections are mostly in order. Where the law really falls is on the issue of oversight – there is no central oversight agency to promote, implement, regulate, enforce, and protect the law and the disclosure process. It also comes up really short on classification: a three tiered secrecy scheme with a ghastly 25 year reserve limit.

Clearly, the surrender of secrecy will be an ongoing struggle in Brazil. The strong pull towards obfuscation and impunity gives reason to question whether Brazil can make good on the law. But here’s a new beginning. The question now is whether the enormity of implementation can be achieved in 6 measly months. According to a recent article, top officials from the Comptroller General’s Office are asking the same question.

Folha de São Paulo reports today that, for the second time this year, President Dilma Rousseff has let de-foresters off the hook. This Monday the President issued a decree to extend the date at which fines will be levied for failures to re-forest and register legally protected land. The last extension occurred in June, and the new extension is now for April 2012. Brazil’s controversial forestry legislation is heading back to the Lower House of Congress after the Senate amended the original bill several weeks ago. It is widely believed that powerful agri-business and construction groups will seek to have the bill weakened or killed.

The Código Forestal or Forest Code now being debated in Congress will determine the future of Brazil’s forests, including the world’s last great rainforest, the Amazon. In order to make good on a 1965 forest code that was rarely if ever enforced, President Dilma Rousseff introduced strong legislation in 2010. Legislators in the Lower House then weakened the bill substantially, and after being approved with minor alterations in the Senate, it is now heading back to the Lower House for congressional sanction.

Truckin'

The bill “constitutes one of the worst regressions for environmental legislation in Brazil,” according to Marina Silva, the rebellious Minister of the Environment under President Luiz Inácio Lula da Silva and the third place candidate in the last presidential election. The Forest Code’s policy example illustrates how representational democracy is not translating citizen interests into law, a universal problem that travels far beyond Brazil.

What Brazilians Want Done

One the country’s leading pollsters surveyed[1] 1,268 citizens across Brazil about the Forest Code in early 2010. They found high public approval for harsh measures against illegal forestry, as reflected by the bill President Rousseff sent to Congress in early 2010. An overwhelming 98 percent of respondents supported the President’s measures and rejected a proposed amendment in the Lower House to grant amnesty for offending de-foresters. It is estimated that amnesty for those who de-forested between 1998 and 2009 will disclaim 8 billion Reales, according to Greenpeace – a huge loss for tax payers.

What Legislators Do

Yet despite overwhelming public opinion in favor of stricter environmental measures, a huge loss in tax revenue, and the principle of accountability – making lawbreakers pay for their actions – legislators chose to favor the interests of big agro-business. No wonder – the Folha de São Paulo recently reported that agro-interests spent over R$15 million (nearly US$ 9 million) to stuff the party coffers of 50 representatives deliberating on the bill. Donating companies spent 42 percent more on lobbying in the past two years than they contributed to candidates during the entire 2006 presidential election. The largest donor was the cellulose industry (paper), which donated R$4.7 million. Influential governors, such as Bahia’s Jacques Wagner (PT), received R$4 million.

A Weaker Forest Code

In addition to the blanket amnesty for de-foresters, the bill as it now stands has substantially weakened the original presidential proposal. Whereas de-forested river banks had to be re-planted 30 meters back from the edge of ‘peak’ water levels, the new bill stipulates 15 meters from ‘average’ river heights. To comply with the legal forest reserve quotas – 80% forested in Amazon, 35% in the Amazon highlands, and 20% in the rest of the country – land owners may now use 50% ‘exotic’ trees for re-plantation, which opens up the possibility of mono-culture fruit orchards.

Given the way that representatives take action contrary to the expressed public interest, i.e. that business interests trump public interests, news that de-forestation in the Amazon has ‘slowed’ this year by more than 10 percent gives us little reason to be hopeful for the future of Brazil’s forests. Brazil needs to adopt and enforce mechanisms to ensure greater accountability – such as lobbying regulation – if true representational democracy is to take hold and do what is right for the country and the planet.

Check out an interesting video on issues surrounding deforestation in the Amazon (part III of IV).

This editorial was written by Sergio Abranches for Brazil In Focus and provides a brief overview of how Brazil’s environmental prospects are being compromised by short-termism and a government that easily succumbs to powerful lobbies:

Brazil sacrifices the enviroment on the altar of growth

A year ago presidential hopeful Dilma Rousseff went on record as a strong defender of the environment. On the campaign trail, she said she opposed the pardoning of scofflaws for past crimes against the environment. At the same time she spoke forcefully about the need to conciliate preservation with the imperative of feeding a hungry nation. But what has been the Rousseff government’s track record? Sergio Abranches weighs in.

by Sergio Abranches
The Brazilian government facilitates economic activity with scant regard for the environment. Brasília’s decisions on energy and on managing conservation areas, plus its negligence in discussions of the Forest Code, demonstrate that public policy flouts global concerns over climate change and irremediable environmental damage.

Go to Brazil in Focus to read more…