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How Bolsonaro could reshape Brazil’s regulatory agencies
Euan Marshall . Jan 30, 2020
President Jair Bolsonaro. Photo: Marcos Corrêa/PR
An often-mentioned fact about the presidency of Jair Bolsonaro is that by the end of his first term, he will have had the right to appoint at least two justices to Brazil’s Supreme Court. Members of the highest tribunal in the land retire automatically upon turning 75, which is the case of Justice Celso de Mello, this year, and Marco Aurélio de Mello, in 2021. With two of “his justices” on the bench, Mr. Bolsonaro will have more power to shape the Brazilian justice system to his liking. However, another less-mentioned perk of being president is the power to appoint the board members of the country’s regulatory agencies.
Seen as the “fourth level” of governance in Brazil, the decisions of regulatory agencies can have a huge impact on the daily lives of the population, establishing rules and standards in a number of key sectors. As these agencies are nominally under the umbrella of the Executive branch, whenever a vacancy arises, the president gets to fill it.
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<h2>A man on the inside</h2>
<p>A recent example of Jair Bolsonaro wielding this power came in the National Sanitary Surveillance Agency (Anvisa), Brazil’s biggest regulatory body. In charge of establishing rules for medicines and the food sector, the most prominent issue on the agency’s agenda in 2019 was a proposal to legalize the cultivation of <a href="https://brazilian.report/business/2019/12/04/cannabis-investments-blazing-in-brazil/">cannabis for medicinal use</a>.</p>
<p>The original idea of the regulators was to introduce rules allowing companies to <a href="https://brazilian.report/society/2019/06/28/brazils-cannabis-regulate-medical-marijuana/">grow medical cannabis</a>. However, the idea of permitting any form of marijuana cultivation in Brazil did not sit well with Jair Bolsonaro’s conservative far-right government, so the president moved quickly to appoint former Navy admiral Antônio Barra Torres to a vacant seat on the Anvisa board.</p>
<p>Mr. Barra Torres quickly took an active role in the case, and the proposal was stripped down to remove any mention of growing cannabis—laboratories would be allowed to manufacture and sell cannabis-based drugs in the country, but would still have to import their raw materials from abroad.</p>
<p>The former admiral has quickly taken a prominent role in Anvisa discussions, with Mr. Bolsonaro appointing him as agency president at the beginning of this month. He replaced outgoing board member William Dib, whose term came to an end recently.</p>
<h2>Regulatory agencies to have a frenzy of vacancies</h2>
<p>This year, there are many board seats for Jair Bolsonaro to fill, across a variety of important sectors. At Anvisa, William Dib has been replaced as agency president, but his board of directors position remains empty, as does that of his former colleague Renato Porto. In March, a third spot will open up, with Fernando Mendes Garcia Neto’s term coming to an end imminently.</p>
<p>The National Agency of Civil Aviation (ANAC) is in a similar situation. There, the board of directors has two vacancies, and another two will open up in March, leaving only one remaining executive and four empty spots to be filled by the government. The National Agency of Land Transport (ANTT) is set to lose two board members next month, the National Agency of Waterway Transport (ANTAQ) will lose its president on the same day, and there will be spaces opening up in the National Petroleum Agency (ANP) and the National Supplementary Health Agency (ANS).</p>
<figure class="wp-block-image"><img src="https://brazilian.report/wp-content/uploads/2020/01/33695479128_a00ba81cbc_k-1024x683.jpg" alt="Brazil's regulatory agencies" class="wp-image-31003" srcset="https://brazilian.report/wp-content/uploads/2020/01/33695479128_a00ba81cbc_k-1024x683.jpg 1024w, https://brazilian.report/wp-content/uploads/2020/01/33695479128_a00ba81cbc_k-300x200.jpg 300w, https://brazilian.report/wp-content/uploads/2020/01/33695479128_a00ba81cbc_k-768x512.jpg 768w, https://brazilian.report/wp-content/uploads/2020/01/33695479128_a00ba81cbc_k-610x407.jpg 610w" sizes="(max-width: 1024px) 100vw, 1024px" /><figcaption>Senate President Davi Alcolumbre (R) could block Mr. Bolsonaro’s nominations. Photo: Marcos Corrêa/PR</figcaption></figure>
<h2>A poison chalice?</h2>
<p>The process of appointing members to the board of regulatory agencies is not quite as straightforward as it seems. The way the Brazilian government works is that each nomination must first go through the Senate before becoming official. While the upper chamber of Congress will rarely block the choices made by the president, the timetable of confirmation depends entirely on the head of the Senate, the position currently filled by Davi Alcolumbre.</p>
<p>Last year, <a href="https://brazilian.report/power/2019/07/01/six-months-bolsonaro-congress/">disagreements between Jair Bolsonaro and Mr. Alcolumbre</a> left Brazil’s antitrust agency Cade with only one board member for three months, putting all mergers and acquisitions in the country on hold. An estimated 80 cases were delayed, with operations worth a total of BRL 500 billion.</p>
<p>A similar imbroglio is underway at ANAC, which, as mentioned above, will be down to one permanent board member come March. The issue, in this case, concerns the nominations themselves: Jair Bolsonaro put forward the names of Thiago Caldeira and Ricardo Canatant, hand-picked by Infrastructure Minister Tarcísio de Freitas, but Davi Alcolumbre has refused to begin the confirmation proceedings in the Senate. His reticence is down to the fact that he wants the president to <a href="https://valor.globo.com/politica/noticia/2019/10/05/governo-busca-resolver-vaivm-em-indicaes-para-a-anac.ghtml">choose Gustavo Saboia</a> instead, a lawyer who previously worked under Mr. Alcolumbre’s close friend, Goiás state governor Ronaldo Caiado.</p>
<p>All the while, the agency lays empty. Recent legislation on regulatory agencies allows the government to appoint interim board members in these situations, but their temporary nature means any decisions they do make are liable to be contested in court.
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