Tag Archives: open government

Threats to Broad Consultation and Participation in Brazil, Co-chair of Open Government Partnership

14 Feb

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 13th 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 19th, 2011. It also recently posted an update on its OGP commitments, dated January 31st 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.

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

18 Apr

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 3rd, 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 3rd 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 4th 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.

Published at Brazil in Focus: Brazil needs a Tax Break

13 Apr

See the article, published on 12 April,  Brazil in Focus

During a recent gathering of industrial leaders in Rio de Janeiro, Eliezer Batista da Silva mused that Brazil has the “taxes of Sweden and the services of Angola.” It’s an old saw, but it gained an extra bite in the mouth of Batista, a founder of the multinational mining conglomerate Vale and the father of Brazil’s richest man, energy mogul Eike Batista.

While the elder Batista’s jab may sound like hyperbole, the comment fell on sympathetic ears at Rio’s Industrial Federation, FIRJAN. Tax reform is the business community’s top priority. And if anyone doubted the point, FIRJAN launched an aggressive television and media campaign – the big tax diet – in the run up to the 2010 elections.

The case for reform is well taken. Brazil has the highest tax-to-GDP rate in the western hemisphere, over 35 percent. Worse, Brazilian taxes are so numerous and their codes so complicated that experts say the system encourages informality (hence, tax evasion), discourages innovation, and retards Brazil’s development beyond commodity-based production. There has been no scarcity of proposals to fix the tax system over the years, but most have run into political roadblocks. The principal problem is resistance from federal, state, and municipal governments fearful that any reform, one way or another, will cost them tax receipts.

If the business community wants to make a compelling case for tax reform, the first step should be to shine a light on how government could be saving or allocating resources more efficiently— how they could be doing better with less.

It’s not a difficult case to make. On March 30th 2011, O Globo’s lead opinion piece reviewed a 2003 report by the Comptroller General on federal funds misappropriated by malfeasant municipal government officials— approximately $60 billion Reais worth, about the size of Uruguay’s GDP.

The key challenge for the business community, the media, and public policy advocates is to better monitor government spending and due process. Government auditors are insufficient for the 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, but greater public sector transparency is a key precondition for effective monitoring. To this end, Brazil has an important tool in its hand, the sort that insiders call comprehensive transparency infrastructure and what everyone else knows generically as a public information law (PL 41/2010) Introduced by Dilma Rousseff in 2010, when she served as Chief of Staff to former president Luiz Inácio Lula da Silva, the law passed the Chamber of Deputies in April 2010 and only awaits sanction in the Senate.

The law not only provides obligations for the Brazilian government to ‘proactively’ publish information about spending and regulation, but it also mandates that governments disclose copies of most primary documents upon request. This is key because greater transparency means better government.  Ever aware that society may be looking over their shoulder, public sector officials are driven to do their jobs in a more organized, efficient and accountable manner.

In the U.S. and Canada, businesses are the most frequent users of access to information laws, accounting for about 40 to 60 percent of all requests, with media, policy specialists, and citizens making up the remainder. These countries passed freedom of information laws in 1966 and 1983, respectively.

It is time for Brazil to join the vibrant global movement towards openness. Freedom of information is a fundamental human right enjoyed by more than 5 billion citizens in more than 90 countries. Half of these countries have enacted laws within the last decade, including 12 Latin American nations, the latest of which was El Salvador on March 3rd.

Some countries have already moved on to a new stage of openness, providing citizens with aggregate open-format datasets. Examples include the U.S.’ http://data.gov and the U.K.’s http://data.gov.uk. The proposed law now in the Brazilian Senate, 41/2010, includes a similarly modern provision for releasing open-format data.

The main obstacle to the passage of the law is not, apparently, the fear of exposing corruption, inefficiency, and incompetence, but those parts of government worried about exposing what occurred during the 1964-85 dictatorship. Certainly, the law 41/2010 prohibits information from being withheld if it is pertinent to the investigation of human rights abuses. But this is first-and-foremost a law designed for use by everyday citizens. It honors the right-to-information of Brazil’s citizens as stipulated in the constitution of 1988, articles 5 and 37.

If Brazil is to achieve good government, never mind saner taxes or a meaningful public sector reform, business leaders and citizens first needs to draw attention to spending, waste, and misplaced funds. Only by building laws that guarantee the free and unfettered access to information can an emerging society as important as Brazil’s monitor and enforce the efficient – and democratic – allocation of resources.