Bolsonaro set to silently review Brazilian entire regulatory system

. Dec 06, 2019
Bolsonaro set to silently review Brazilian entire regulatory system Photo: Alan Santos/PR

At the end of November 28, the federal government published Decree number 10.139/2019, requiring a review of all regulatory acts in the country within a period of 18 months. What at first appears to be merely another administrative act without any great importance, could, in fact, have serious effects on the entire federal apparatus.

The decree forces federal government agencies to revise and consolidate all normative acts currently in force which are inferior to decrees. In other words, all ordinances, resolutions, notices, normative instructions, letters, guidelines, directives—among others—will be reviewed and may have their wording modified, be merged with other administrative acts, or simply be revoked entirely.

</p> <p>Simplification is a good thing, and there is no doubt that there are a number of very old rules in place that have the potential to create problems and need to be revised. However, the risk of being forced to revise absolutely everything, <a href="">without any transparent planning</a> or strategy, is to make any hope of adequate and qualified analysis of what is being revoked or changed impossible. As they say in programming, for the government, this is a feature, not a bug.</p> <h2>The size of the job at hand</h2> <p>The first problem is the volume of administrative acts that exist: there is not even an accurate estimate of how many there are in total. In a preliminary survey of some agencies that actively make data available, we found that the Department for the Improvement of Higher Education Personnel (Capes) has at least 217 instruments in place. The National Agency of Electric Energy (Aneel) has around 12,000 rules which would have to be reviewed according to the decree in force; the Federal Revenue Service has a similar amount.</p> <p>Brazil’s <a href="">Central Bank</a>, meanwhile, has more than 37,000 rules in force. The Ministry of Health has more than 129,000. Evidently, most ministries and agencies should have a similar amount of regulations, meaning that the volume of instruments that will need to be reviewed could be in the millions. Even if the final number were half of that, it is still a gigantic amount which will result in an immense workload.</p> <p>With this in mind, I believe that the decree represents an extremely inefficient way to modify regulation in Brazil. The agencies affected are heterogeneous, both in terms of functions and administrative capacity, including ministries, regulatory agencies, autarchies and agencies such as the Central Bank, the National Sanitary Surveillance Agency (Anvisa) and the Federal Revenue Service, to name but a few.</p> <p>Instead of thinking of a strategy that directs efforts to the sectors and agencies where there is the greatest problem—for instance, the government could have applied the Pareto principle, by which roughly 80 percent of the problems can be solved with 20 percent of the effort—the decision was to adopt a generic and all-encompassing solution.</p> <h2>Smokescreen</h2> <p>This type of strategy has already been adopted by the current government in other cases. In April of this year, the government published Decree 9.759/2019, which simply eradicated all federal boards created by regulatory instruments. As would become clear later, the government knew exactly which boards they wanted to extinguish, but they used the strategy of a blanket extinction as a smokescreen to make it more difficult to account for the boards that were effectively targeted by the government.</p> <p>In this sense, part of the government&#8217;s strategy appears to be hindering transparency and control over the revision of regulations. By conducting a simultaneous review in all agencies, it will be impossible for civil society, the opposition, and control agencies to assess the content of what exactly will be changed. </p> <p>Consequently, only those who are able to shout the loudest will be able to block potential absurdities. Less well-organized sectors will not be able to assess these changes and will likely allow several alterations that are harmful to the public policies that society wants and needs.</p> <p>This situation resembles an experience I had while working for a private company, where we employed a strategy to rebuild a legacy IT system. As we didn&#8217;t want to waste time analyzing what each element of the system did, we decided to delete everything in the one go. When—and if—someone complained, it was because we had deleted something we shouldn’t have. In these cases, we were able to restore the data from our backup and put it on the new system. But the premise was: if nobody notices, it’s not important. </p> <p>The difference is that, in this case, we had already tried—unsuccessfully—to ask the other employees to actively inform us what couldn&#8217;t be erased, and we already had a clear idea of the risks that this strategy would bring to the company. Thus, the risks and contingency measures had already been defined. But this approach simply cannot be used in public administration, because the capacity for advocacy and negotiation in society is extremely unequal, and the current regulatory apparatus is the result of dozens of years of institutional construction, making the debate and adequate evaluation of the entire system unfeasible in a mere 18 months.</p> <p>The government’s strategy essentially comprises an undemocratic and inefficient attempt to simplify <a href="">Brazil&#8217;s regulatory apparatus</a>. It will generate very high legal costs by changing everything at once and will cause several unforeseen problems as a result of these changes. Measures such as these show that this administration doesn’t believe in governance that is open to contribution from society, and that it intends to hinder any possibility of democratic control over its actions. </p> <p>I sincerely hope that other branches of power, watchdogs, civil society organizations, and public services themselves will contest this measure, whether legally or politically. For instance, Congress could approve a legislative decree overturning the executive decree. Otherwise, the government will receive the signal that it can continue to take measures without any transparency or accountability—and suffer no consequences for doing so.

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Manoel Galdino

Manoel Galdino is the executive director of Transparência Brasil. He holds a bachelor's degree in economics and a Ph.D. in political science from the University of São Paulo. He is a member of the Transparency and Anti-Corruption Board of the Office of the Federal Controller General (CGU) and the Senate's Transparency Board.

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