CGU: Fight against corruption cannot be instrumentalized – 02/04/2023 – Power

In his first month at the helm of the Comptroller General of the Union, few topics were as much on Minister Vinicius Marques de Carvalho’s agenda as the Access to Information Law (LAI). And, apparently, that won’t change anytime soon.

As soon as President Luiz Inácio Lula da Silva (PT) took office, he received the mission to review the secrecy enacted during the administration of Jair Bolsonaro (PL), and the task should still take two or three months.

For the time being, he has issued 12 guidelines for assessing cases carried over from the previous government. Among them is, for example, the administrative process that cleared federal deputy Eduardo Pazuello (PL) for having participated, when he was still an active general, in a political act with Bolsonaro.

In addition, Carvalho intends to create guidelines to standardize the application of the LAI in the federal administration. The objective is to enforce transparency as a rule and to avoid decisions contrary to this guideline. This was the case, for example, with the secrecy of the guest list at Lula’s inauguration party.

“It was a mistake”, says Carvalho.

But the minister also has other plans for the CGU, such as taking the body back to a relevant role in the application of the Anti-Corruption Law and taking stock of the ten years that law has been in force.

“The anti-corruption policy cannot be forgotten, set aside. But it cannot be done in defiance of the rule of law. by the political agenda. And this can no longer happen in the country”, says the minister.

Mr. already mentioned more than once that the Bolsonaro government made a mess in the application of the Freedom of Information Law. Was it technical confusion or political decision? The two dimensions interconnected. I think there was an assumption that the government should be less transparent than it had been, or what was recommended in the Access to Information Law.

The law clearly states that, if there is specific information within documents that deserve reserved access, you label the information. But it went on to expand that to the entire document. I think this is a question of guidance, which may not even have been given from the top down. It may have been built piecemeal.

Fortunately, it’s reversible. We have noticed many public servants satisfied with the return of compliance with the law. There are many people who work with this, who know that ensuring transparency in public administration is a value.

But there are decisions that are difficult and, in doubt, the server closes. This dimension of personal data is very relevant. As we are all equal, this leads to the conclusion that our data has to be equally protected. But we have different roles in society. There are people who perhaps thought that the fact of being a public authority does not change this dimension of personal data, but it does.

An example is the ex-president’s vaccination card? There is a debate. I don’t have many doubts, for example, regarding medical exams, medical appointments. It’s private life stuff. But there is a discussion when there is a public vaccination policy in the middle of a pandemic. People were encouraged, or discouraged, to get vaccinated, and this had an impact on the rate of contamination, on deaths.

In a situation like this, is there a public interest in a vaccination card from a public authority? The discussion is legitimate, and the decision will be taken by the technical area of ​​the CGU.

What are the main obstacles to LAI within the public machine? The law has a great quality. In order to make transparency a real value for society, it spread its application in all ministries, in all Powers, in all entities of the Federation.

This generates a huge coordination challenge, in the sense of standardization. Because, when the press makes a request for the law and has an answer at the end saying “no”, it already assumes that it is a government policy.

From the outside in, people see government as unique. As much as you [jornalistas] know that there are appeal instances, when you receive a first one… At least that was the headline: “Lula government denies access”.

Mr. Are you referring to the secrecy of the names of the guests at the inauguration party? AND. The Lula government has four levels of access to information. I understand; I am not criticizing this view. That was something the law did. So our role here is to ensure the uniformity of understandings. And of course the way of convincing is always the best. But enunciations exist to be fulfilled.

Was it a mistake by whoever made the decision? It was a mistake. An excusable mistake, in a sense, because the person made the decision that was always made in this type of case. And based on this view: they are names of people, therefore personal data protection law…

Or security-related arguments. But the security argument applies even less in this case, because the party had already taken place. If I had been asked for access to the list before it happened, I would have denied it. But later?

It is always said that Itamaraty and the Armed Forces are more resistant to transparency. Will this be an obstacle? These are cases where concern is justified. We are talking about Armed Forces and international relations. These are international negotiations, commercial negotiations, in short, complex, difficult dialogues. The same thing for the Armed Forces in relation to their competences.

But not all activities need this kind of secrecy. However, when you are in a place where many things, for legitimate reasons, are restricted in terms of access, you create a more conservative culture. So these ministries are the target of greater concern because of this institutional dimension, not because of deviant individual behavior.

With the delivery of the report on Bolsonaro’s secrecy, what will be the CGU’s next priority? This topic will still be a priority. He can’t go off the radar. Either because of the complexity of the systems that we need to structure to achieve and increase our level of coherence, or because this policy is not limited to LAI. We have to create contexts to expand active transparency, for example.

The public integrity agenda is very important because it also involves a discussion of conflict of interest law. The lobby law is being discussed in Congress, and we have to enter into this discussion.

In the private integrity agenda, Law 12,846, called the Anti-Corruption Law, which we like to call the Clean Company Law, is now ten years old. It is time to take stock.

In this area of ​​fighting corruption, I want to use Cade’s eight-year experience to try to set up a more functional and more effective system. We are also the central body of the ombudsman system; we have to learn to use this as an input to improve public policies.

And there is the internal control agenda, with the Federal Control Secretariat, which is responsible for the various types of policy evaluation. The secretariat builds its audit agenda, but sometimes issues appear on the agenda that have to be incorporated.

An example is this very sad question of the Yanomami, on which we have already started working with the Court of Auditors [da União] to try to make a deeper diagnosis of the situation and see how we deal with this issue.

What anti-corruption tools will the CGU adopt? Public integrity tools are very important from a prevention perspective. The more transparency there is, the greater the possibility of scrutiny.

Regarding the “stricto sensu” Anti-Corruption Law, we have to reactivate the ability of the CGU to be a relevant actor. Unlike Cade, which spent ten years implementing a policy to combat cartels and entering into a leniency agreement until Lava Jato appeared, the Anti-Corruption Law had a year to live and came to Lava Jato. The Public Prosecutor’s Office went on to say that it had competence to enter into leniency agreements. The TCU started to establish parameters and say that it has competence to review the agreements.

All this created a strong discussion about these delimitations of competence and about how companies should be treated in this environment. We need to overcome any conflict that still exists in relation to competences. There is a need to move forward in discussions on dosimetry. It needs a leniency program that actually generates incentives for companies to cooperate.

Many critics of Lava Jato say the operation has broken businesses that could have been saved. What is your assessment of this dilemma? It’s a real dilemma. If there is a fine that goes up to 20% of a company’s revenue —not profit—, depending on how it is applied, few companies in Brazil would survive [a isso].

The fine cannot be the only pillar. There must be incentives aimed at the individual managers and controllers of these companies. They cannot live in a situation where there is an incentive to corruption because, if there is a fine, only the company pays. If people’s wealth can also be affected in certain situations, you can improve this incentive structure.

The question that arises at this time is: am I punishing whom I should punish when I decree the death penalty for a company? I am reaching the institutional dimension of the company. Is this the only dimension I should reach?

Mr. is part of the government of a party that has already been involved in two major corruption scandals. What guarantees does Mr. Do you have that you can act freely in the fight against corruption? There have been corruption scandals in several governments. These scandals improve the State’s ability to organize itself to fight corruption. I am sure that President Lula’s agenda is this. I’m sure that President Lula doesn’t want any more scandals. He doesn’t want it, his government doesn’t want it, no minister wants to live with what was lived in the past.

And I’m sure that Brazilian society doesn’t want the anti-corruption investigation to lose its objectivity and turn into a manhunt against one or two people.

The anti-corruption policy cannot be forgotten, set aside. But it cannot be done in defiance of the rule of law. Because then the fight against corruption becomes corrupted, and we enter an infinite cycle of instrumentalization of the fight against corruption by the political agenda. And this can no longer happen in the country.

Doesn’t the revision of the State-Owned Law go against this discourse? I will not make a value judgment about something that is not within my competence as a minister. But many criteria of the State-owned Law would have been fulfilled by the people who participated in the scandals. What has to work are the controls.

A state-owned company exists to implement public policy, or else it has no reason to be state-owned. It is natural that the government wants to direct the agenda of that state-owned company, as long as it is within the limits of legality and the fact that it is a company.

I don’t see it as a big drama. Many people who work in politics are competent and honest, and many people who work in the market are incompetent and dishonest. I don’t think that, as a rule, this stigmatization of the political agent in a state-owned company is healthy for the state-owned companies themselves. As a rule, the important thing is that the controls work.

How are the processes against civil servants who participated in the protests on the 8th? The government understands that participation in these acts, especially in an ostensive manner, deserves to be classified as a functional offense on the part of the public servant. But, for now, we are not anticipating prejudging anyone or speaking on behalf of anyone, because we have more cases of homonyms than servers.

---

X-RAY

Vinicius Marques de Carvalho, 45
He is the Chief Minister of the CGU (Controladoria-Geral da União). He presided over Cade (Administrative Council for Economic Defense) and was one of those responsible for the law that restructured the body, creating mandates for its leaders and making it more independent from the government. Doctor from the University of Paris-Sorbonne, he is a professor of commercial law at USP