Is Brazil Fit to Lead the Open Government Partnership? Secrecy vs. Transparency and the Ambivalence of Brazil’s Presidents

Is Brazil fit to co-chair the newly announced Open Government Partnership alongside the United States? On June 12, Hillary Clinton and the Brazilian Minister of Foreign Relations, Antonio Patriota, formally introduced the Open Government Partnership (OGP), a multinational, multi-stakeholder initiative to improve openness, transparency, accountability and good governance around the world. Encompassing more than 55 countries, 60 NGOs, and co-chaired by the United States and Brazil, the OGP appears to be a promising means of bringing governments into line with technological and socio-political trends toward openness.

Yet recent events in Brazil give reason to question this country’s role as a co-chair of the OGP. President Dilma Rousseff’s commitment to more open and transparent government has been the subject of strong criticism over the past months, the result of resistance to a Freedom of Information (FOI) Bill, secrecy surrounding public contracts for the 2014 World Cup and 2016 Olympics, and Brazil’s continuing resistance to opening up its past to greater scrutiny. Looking back over Dilma Rousseff’s first semester in power, her administration has done little to merit a position of international leadership on transparency and open government.

Wavering on the Freedom of Information Bill

Immediately after U.S. President Barack Obama’s historic visit to Brazil in March 2011, President Rousseff made a commitment not only to the Open Government Partnership (OGP), but also to one of the preconditions for the OGP—a Freedom of Information (FOI) Law.

Yet, less than three months after these commitments were made, President Dilma Rousseff ceded to demands to delay and reconsider a FOI Bill she had previously compelled the Senate to approve. The decision responded to the challenges of two former presidents and current senators, José Sarney and Fernando Collor. Sarney was President of Brazil from 1985-90, while Collor held office from 1990 until he was impeached on charges of corruption and influence trafficking in 1992. The goal of the ex-presidents is straightforward: to eliminate a cap on classification reserve periods for top-secret information.

Their defiance has been brazen. While Fernando Collor, Chair of the Senate Committee on Foreign Relations, boldly disobeyed Rousseff’s instructions by pocketing the Bill and refusing to move it forward, the president of the Senate, José Sarney, publicly insisted that the measure would make a “Wikileaks” of Brazil by revealing contentious territorial claims and other sensitive information. Neither leader has offered particularly compelling rationales for maintaining the current policy of sigilo eterno or ‘eternal secrecy’.

Rousseff responded to Collor’s intransigence by issuing an urgency petition, which would have forced the FOI Bill out of committee and put it to a floor vote in the Senate. Yet the possibility of losing Collor and Sarney’s legislative support forced Rousseff to re-think her position. On June 14 President Rousseff retracted the urgency requirement, which opened the bill to weakening amendments.

The decision caused a furor within Rousseff’s worker’s party (PT). PT Senate leader, Humberto Costa, spoke against the President’s decision and told the Folha de São Paulo newspaper, “the PT does not agree with changes to the project, because it is not in favor of eternal secrecy.” On June 21 Rousseff once again changed her position and supported the urgency requirement, but gave the Senate enough time to make changes. Collor has proposed 11 changes to the bill and it is unclear whether Rousseff will accept amendments. The measure will be voted on in September, after the winter break.

Opacity in Contracting for the 2014 World Cup and 2016 Olympics

Waffling on the FOI law has not been Rousseff’s only misstep with regards to transparency. Congress recently passed presidential decree 527/11, which effectively cloaks procurement contracting for the 2014 World Cup and the 2016 Olympic Games in secrecy. The government justified the measure as a means to avoid uncompetitive cartel-bidding, but few have found much merit in other obstacles to transparency that the measure imposes.

Even if the Auditor General (the Tribunal de Contas da Uniao or TCU) could vet the estimated costs of projects for the games, rules prevent investigations from being released until the end of the process. In other words, the media and NGO watchdogs would have limited access to initial budgets, adjustments, and other information, and thus, no means by which to compare final numbers to what was originally proposed.

The more pressing issue is the independence of Audit institutions. As Melo et al. argue in Political and Institutional Checks on Corruption: Explaining the Performance of Brazilian Audit Institutions, alternating parties in the executive office is associated with stronger checks on power. Given that the PT is now in its third consecutive term of office, now going on nine years, the TCU may lack bite.

The Promise of Transparency

According to Michener in FOI Laws Around the World, over the last 10 years 12 Latin American countries and over 90 countries worldwide have passed freedom of information (FOI) laws—seven in the last year alone. Freedom of Information Laws are commonly recognized as the foundation for any country’s transparency infrastructure; and although a relatively young institution (the U.S. passed the world’s first comprehensive law in 1966), they are a signpost of the great global opening currently underway–an opening that is at once technological, political, and cultural.

Former Brazilian President Luiz Inácio Lula da Silva promised a Freedom of Information Law in 2006 and introduced a bill to the Lower House in 2009. Lula shied away from approving the bill because of well-known pressures from Brazil’s armed forces and the Ministry of Foreign Relations. The FOI law passed the Chamber of Deputies in May 2010, but it has since been stalled in the Senate.

Prospects for greater transparency looked promising when President Rousseff first took office. It was Rousseff who introduced the Freedom of Information Bill in 2009 while Chief of Staff under President Lula. It was also Rousseff who accepted an offer to co-chair the Open Government Partnership and promised to pass the FOI law in April 2011, setting World Press Day, May 3rd, as the day for approval.

The failure to meet this self-imposed deadline is emblematic of Brazil’s evasive approach towards its national, regional, and international obligations for greater openness. Brazil’s Constitution guarantees the right to access public information in articles 5 and 37. Yet without comprehensive regulation the right is largely impracticable. Various decisions by the Inter-American Court also compel Brazil to achieve openness, including Claude Reyes et al v. Chile (2006), and Gomes Lund v. Brazil (2010), the last of which affirms the rights of family-members to access public information on those who were ‘disappeared’ or tortured during the last dictatorship.

Given that Rousseff herself was tortured during military rule (1964-85), her current support for establishing a Truth Commission is unsurprising. Yet it is also what makes her approach to FOI so much more difficult to understand. Most observers believe that Rousseff’s vacillation on issues of openness is a response to both allies and critics in Congress, including Sarney and Collor, both of whom wield procedural powers in the Chamber and leadership that can sway votes. The President’s legislative support is already somewhat precarious; as Pereira and Aramayo point out in a Brookings Institution commentary, the fall of her Chief of Staff, Antonio Palocci, is an institutional repercussion of a disproportionate cabinet. The imperative to maintain consensus also explains why the promised Truth Commission has come to a legislative standstill.

The Challenge of Leading on Openness

Given the disposition of Brazil’s former and current presidents, and the fact that the government has neither passed a freedom of information law nor opened past abuses to public scrutiny, the question is whether Brazil is fit to co-chair the OGP, much less whether it should qualify for the OGP in the first place.

It goes without saying that the unsteady commitment of its top political leaders on an issue critical to Brazil’s historical and civic obligations jeopardizes the nation’s democratic integrity.

If the Brazilian government is to honor its national and regional commitments and play a leadership role within the new Open Government Partnership, Congress and the President must act swiftly. If they do not, Brazil will not only put into question the credibility of its government, but also that of the newly minted Open Government Partnership.