Guest Post: The World’s Biggest Anticorruption Legislative Package You Haven’t Heard About Is in Brazil

Today’s guest post is from Professor Michael Freitas Mohallem (head of the Center for Justice and Society at Fundação Getulio Vargas (FGV) in Rio de Janeiro, Brazil), Bruno Brandão (Director of Transparency International, Brazil), and Guilherme France (a researcher at FGV).

Transparency International’s Brazilian chapter, together with scholars at FGV’s Rio and Sao Paolo law schools, are leading a wide-ranging effort, with input from multiple sectors of Brazilian society, to develop a package of legislative, institutional, and administrative reforms—the “New Measures Against Corruption”—that will address the systemic causes of corruption and offer long-term solutions. The project, which was developed over approximately 18 months in 2017 and 2018, was prompted by two related developments. First, so-called Car Wash (Lava Jato) operation has uncovered one of the biggest corruption scandals in modern times, implicating hundreds of politicians, civil servants, and business leaders. Second, although the Lava Jato operation led to a proposal, spearheaded by some of the Lava Jato prosecutors themselves, for “Ten Measures Against Corruption,” which was endorsed by over 2 million people, that effort was stymied by the National Congress. So, despite the success of Lava Jato in exposing and punishing corruption, Brazil has not yet developed the necessary long-term reforms to address the underlying sources of the problem.

The New Measures Against Corruption are intended to provide a path forward for Brazil, setting out a bold reform agenda that addresses issues relating to prevention, detection, and prosecution of corruption. The New Measures consist of a package composed of 70 anticorruption measures—ranging from draft federal bills, proposed constitutional amendments, and administrative resolutions—in 12 categories:

  1. Systems, councils and anticorruption Guidelines;
  2. Social accountability and participation;
  3. Prevention of corruption;
  4. Anticorruption measures for elections and political parties;
  5. Public servant accountability;
  6. Public servant investiture and independence;
  7. Improvements in internal and external control;
  8. Anticorruption measures for the private sector;
  9. Investigation;
  10. Improvements in criminal persecution;
  11. Improvements in the fight against administrative improbity;
  12. Tools for asset recovery.

The complete report on all 70 proposals (which runs 626 pages, and so far is only available in Portuguese) is here. Further discussion of the specific proposals would be welcome, both from domestic and international commentators, and we hope that at some point soon we will be able to provide summaries and translations of all of the measures. But in the remainder of this post, we want to offer some more background on the process that we used to develop the New Measures, as well as the prospects going forward for pushing the government to adopt these reforms.

The process for generating the New Measures proceeded in five stages:

  • First, Transparency International Brazil compiled a set of best practices and anticorruption proposals, drawn from successful experiences across the globe, and adapted these ideas to the Brazilian context.as appropriate.
  • Second, we invited approximately 370 Brazilian organizations—including public institutions, non-governmental organizations, educational and religious institutions, commercial associations, and workers unions—to send ideas and to propose draft bills that would help prevent, detect, or combat corruption in Brazil.
  • Third, specialists with renowned expertise and professional experience were asked to transform these ideas and suggestions into concrete legislative proposals. The specific background of each of expert determined the proposal assigned to them. The experts were also asked to consider potential overlap with bills already formally under evaluation by Brazil’s Congress, with the goal of improving the reform package’s political viability and to give the necessary acknowledgment to authors of similar ideas
  • Fourth, a new batch of experts performed a double blind peer-review process. The goal was to avoid excessively controversial ideas, to prevent unnoticed suppression of rights, and to remove proposals that have not been sufficiently debated in academic or professional fora. The peer-review stage improved the quality and effectiveness of the proposals and led to the final list of refined bills that would compose the package. In all, more than 200 experts, from a variety of academic, political, and professional backgrounds, took part in the development of the anticorruption measures.
  • Fifth, we conducted a public consultation in which 84 proposals were placed on a website for comments and criticisms. In addition to the online forum, the public consultation also involved meetings with civil society and academia stakeholders across Brazil. The consultation was open for two months, and almost 1,000 people took part in this process.

That, in a nutshell, was the process we used to generate the New Measures Against Corruption. But in order for this to be more than an academic exercise that produces yet another report that politicians ignore, we recognized that we needed to support the New Measures with an aggressive public advocacy campaign. That campaign, dubbed ”United Against Corruption,” aimed to build public support for the reform package and to set the terms of the public debate over the anticorruption agenda before the 2018 general elections in Brazil. The coalition of organizations supporting the New Measures met with many of the presidential candidates and received substantial attention of the traditional media. The package was debated in talk shows and included in regular dialogues between candidates, parties, and the press.

What do the election results mean for the prospects of the New Measures Against Corruption to be adopted and implemented? It’s still not clear. The new Congress is, on the whole, more conservative, and with a greater number of small parties represented, though it’s not entirely clear what that means for the anticorruption reform agenda. It is at least somewhat encouraging that 34 of the newly elected Deputies have pledged to advance the anticorruption measures, once in office, as have 11 Senators. And what about President-Elect Jair Bolsonaro? As Matthew discussed in a recent post, Bolsonaro’s has nominated Judge Sergio Moro, the leading judge in the Lava Jato Operation, as his Minister of Justice. While Matthew criticized Judge Moro’s acceptance of this post as a setback for the anticorruption movement, there’s at least some reason for optimism, given that Judge Moro indicated a willingness to embrace the New Measures Against Corruption as “the main starting point and basis of the future administration” for the cabinet department that he will head. This suggests that, especially given how much Brazilian voters care about corruption, the leverage is there to push ahead with this agenda in the new Brazilian administration.

6 thoughts on “Guest Post: The World’s Biggest Anticorruption Legislative Package You Haven’t Heard About Is in Brazil

  1. Thank you for this interesting information. I have two questions that I am curious about:

    1) Of the organizations you invited to propose ideas about anticorruption measures, were there any specific types of organizations that were more responsive than others?

    2) Jessie Bullock mentioned recently in a GAB post that Judge Moro “is keen on implementing […] a reform that would require a defendant convicted of corruption to start serving jail time upon conviction, instead of after the full appeal process, which could take years.” (https://globalanticorruptionblog.com/2018/11/16/four-steps-brazilian-judge-sergio-moro-can-take-to-remain-an-anticorruption-fighter-as-the-new-minister-of-justice/)
    Does your offered legislative package address that proposed reform? What is your opinion on this?

    Thanks in advance, and I am looking forward to having access to a future English translation of your legislative package.

    • Guy, thanks for the interest.
      Regarding (1): the level of participation, in phase 1, was limited. We made an effort to include organizations, such as NGOs and public institutions, also in the latter phases, by having meetings and preseting the ideas which were being developed. Many of the experts were also chosen because they represented relevant institutions, besides their personnal experiences.
      As for (2), the discussions on that topic were taking place in the country’s Supreme Court during the development of the package and there were already legislative proposals being discussed in Congresso, so we felt that was an issue already being taken care of.

  2. This sounds truly impressive! My only thought is that it may be useful to have clear priorities for what are the most pressing issues, because most likely not even the most good willing government would be able to implement all 700 pages of the proposals in one breath and such a volume might be quite discouraging without clear priorities.

    Somewhat related to that – did you aim to set clear progress measuring tools for the proposals? Over the years, I have become a fan of clear, measurable results for any reform. Reduced bribery in one specific field by X percents? More cases of successful asset recovery? More citizens participating in a specific governance procedure? etc.

    • Hey Ruta, thanks for the questions.
      Naturally that are some proposals which would have a bigger impact than others, so in that sense there are priorities. I believe, however, that the political process will take care of pointing which proposals are more viable, politically, and which will demand a bigger effort. And different paths and opportunities will present themselves to different proposals. But we remain wary of selecting a few proposals because that may leave the others for dead, in the public eye at least.
      We haven’t yet set out indicators, but that would be an important step once a particular proposal is approved.

  3. Thank you for your response! It will be interesting to follow what kind of indicators you are going to agree on. For me, that is a very interesting field of anti-corruption.

    I understand your sentiment regarding setting clear priorities. Quite frankly, I have mixed feelings on that. At least from my experience working in anti-corruption, I have become a fan of the “small victories” approach. I was working for Transparency International in Lithuania for 7 years and we had gradually shifted towards having very clear priorities and calling the government to do at least one thing in one particular field (say, healthcare) with clear measurable results (we would pick one that, in our opinion, would result in most impact), then would start advocating for another one, citing success of the previous one and so on. Of course, the systemic change is important and it is important to always keep its importance in the background, it is just that it is so complex that it can often get lost in details… Besides, we have learned that it is harder to have public support on complex issues – and it easier to ensure it when people understand the small goal for which we are advocating. So we decided to try out another approach (similar to what the Heath brothers suggest in their book on making change, ” Switch” – shrink the change, celebrate victories, keep the change going).

    I do understand that the national contexts vary greatly – in Lithuania, we had the advantage of working in a very well researched environment. There is so much data on the levels of corruption in different sectors, that it was easy for us to make informed decisions on where the change is most needed and address that. I understand that in other contexts it may be very different. Perhaps Brazil, indeed, needs a very strong message that systemic change is needed in may sectors and fields.

    I will curiously follow your fight!

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