The presidential vetoes of LGPD representing governmental distancin

The acting of the legislative power of a nation, originally, is based on the demands and interests of society, and, as the terminological expression itself says, the typical function of this power is to legislate, that is, to elaborate legal norms. However, according to Kelsenian conception, there is an insurmountable separation between being and must-be. That is, the initial purposes of political institutions, including legislative power, are rarely pursued in the concrete world. The Brazilian General Data Protection Act (which acronym in Portuguese is LGPD) is proof of this mismatch.

This text will present the legal and political processes undertaken during the elaboration of the LGPD that culminated in the current scenario: the power of legislating being exercised by the Executive Power and popular interests away from decision-making centers. Therefore, in practice, the justification and initial function of the legislative power mentioned at the beginning of this introduction is not adopted. The motto of this controversial context is the presidential vetoes of the legislative project linked to the LGPD. 

Decision-making processes for drafting a law concern concessions and acquisitions by the actors involved. Not all agendas and demands enter the political agenda of a government. Thus, in the face of an environmental crisis that strikes the largest rainforest in the world, in the face of an educational crisis of abrupt budget restraint, and many other structural crises; the question remains: Does society’s demands for respect for the fundamental right to privacy and  the protection of personal data continue to be the object of engagement of our political representatives? 

Legislative processing of LGPD and its related norms

In 2009, the Ministry of Culture launched a website aimed at “aggregating in a web platform people and content flow linked to the construction of public policies and regulatory frameworks for digital”. In this platform, in 2010, began the debates institutionalized by the government on the elaboration of a Brazilian law for the protection of personal data. On this platform, some guests published texts on the theme and, through comments, citizens expressed their opinions. Besides, participants would be able to state their considerations on the Draft Law through public consultation coordinated by the Ministry of Justice. 

As Bruno Bioni points out in his article about the LGPD development journey, in 2015 was held second public consultation, of better quality and with the greatest amount of contributions. The result was PL 5276/2016, built in cooperation with more than 40 national and international entities. The commission made to analyze the bill was composed of parliamentarians from different parties, corroborating to the approval of the legal text by unanimity in the House of Representatives. While Bill 5276/2016 was in the House of Representatives, several public hearings were held with the participation of society and debates within the Senate on PLS 330/2013. This context has supported the civil society, the House of Representatives and the Senate led efforts the subject of data protection as a whole.

The political scenario in 2017, marked by the impeachment of President Dilma Rousseff, was not favorable to the advance of the data protection agenda in the congress. However, following the Cambridge Analytics scandal, legislative proposals were compiled and PLC 53/2018 was presented as the core project of the General Data Protection Act. At this time, the dialogue between civil society, the Senate and the House of Representatives was notorious. As Bioni states:

“From then on, for the first time since 2010, multisectoral demonstrations involving hitherto opposed sectors of the public debate were noted”

On 14 August 2018, LGPD was sanctioned by President Michel Temer. It was a day of celebration for informative self-determination, when the protection of the users identity get into the Brazilian legal system. However, it was the day when the dialogues between civil society and political representatives began to be silenced. And silence was imposed using an institutional resource: the presidential veto. 

Michel Temer vetoed, in whole or in part, arts. 23, 26, 28, 52 and 55 to 59 of Law 13,709 / 2018 (LGPD). These articles concerned the sharing of data from information seekers via the Access to Information Act, the transfer of data obtained by the government, sanctions for breach of the law and, finally, the creation of the National Data Protection Authority (which acronym in Portuguese is ANPD) was vetoed. The final LGPD text, approved and published at the time, can be accessed here.

In justifying the veto to the creation of the ANPD, Temer stated that only the Federal Executive would have the power to legislate on positions and expenses in the Executive Power, which would be the case of the ANPD. Since LGPD is applicable only in the existence of an Authority, its creation was (and still is) necessary. Therefore, at the end of his term, Temer issued a Provisory Act (MP, in Portuguese), MP No. 869/2018, to amend the text of the LGPD and create the National Data Protection Authority. As provided in art. 62 of the Constitution of the Republic of 1988, the provisional acts have immediate effect after the adoption by the President, but the effects are only maintained after consideration of the MP by the National Congress. During this period of consideration by Congress, several amendments were proposed to MP No. 869/2018. Therefore, a Conversion Bill, PLV No. 3 of 2019 was presented, with parliamentary amendments to the MP. The bill was approved by the National Congress and sent to the presidency of the republic for sanction. 

The President of the Republic, Jair Bolsonaro, vetoed 9 provisions of PLV No. 7 of 2019, disregarding about 80 amendments by parliamentarians, that is, statements by our political representatives; disregarding the opinions and demands presented at the 4 public hearings held during the MP’s assessment. 

Authoritarianism and Democracy – What is the Presidential Veto for?

The presidential veto may be one of those legal instruments that we initially associate with despotism. However, the origins of this instrument are directly associated with the maintenance of democracy. The authoritarian character, in turn, is related to the lack of satisfactory justifications based on the preservation of human rights.

Let us go back to the eighteenth century when Montesquieu conceived the theory of separation of powers. For the philosopher, the state should be strong enough to meet the demands of its citizens, but it could not be too powerful to keep its citizens totally submissive. To strike a balance, it was necessary that the exercise of state functions and powers be divided among different actors. Thus, the function of legislating was given to a group called the Legislative Power, the function of executing decisions was the responsibility of the Executive Power and the function of resolving conflicts to the Judiciary. To prevent groups from growing disproportionately, supervisory instruments and balances between the powers have been established. This model of political formation, called the system of checks and balances, was adopted by the Brazilian Constitution of 1988.

For example, the caput of art. 101 of the Constitution determines that the Ministers of the Superior Court of Justice are chosen by the President of the Republic, that is an interference of the Executive in the Judiciary. In turn, it is the responsibility of the Senate, to judge the President of the Republic in crimes of responsibility, art. 52, I of the Constitution, that is, legislative interference in the Executive. Thus, the Powers that make up the Brazilian state interfere within a “complex of cross delegations”.

The presidential veto is one of the pieces of this brake and counterweight system, as stated by Hetsper. Originating in Rome in the 5th century BC, the veto is a limitation of the Executive to the hegemony of the Legislature expressed from a disagreement of the President of the Republic with a law drafted by the National Congress. However, the power of veto is not undetermined: for the president to veto any law, must be presented reasons based on unconstitutionality or contradiction to the public interest, according to art. 66, Paragraph 1 of the Constitution. In addition, all the president’s vetoes must be accepted one by one by the National Congress. This obligation ensures that laws are passed in line with the interests of society, as the final text of the law must be approved by the direct representatives of the population, the Legislature.

However, two points should be considered in the analysis of Jair Bolsonaro’s recent vetoes on Conversion Bill No. 7 of 2019:

• In studies of coalition presidentialism and decision-making, Limongi demonstrates that normative acts (vetoes, provisionary acts, and laws) of the President are almost always approved by Congress. This is because the “plenary is extremely predictable,” meaning parliamentarians effectively follow the guidelines of government leaders. After the 1988 Constitution came into force, all presidents (with lesser relevance to Collor) had massive support from the majority of parliamentarians. That is, what is vetoed by the president has extraordinary chances of being approved by Congress. So it was with Temer’s vetoes of LGPD: all approved by the National Congress. We are facing an explicit violation of the checks and balances system, the basis of democratic regimes, due to the usurpation of legislative powers by the Executive.

“For there to be a balanced government… One who has the power to veto must be prevented from statuary.” (MOYA, 2006)

“The government controls legislative production and this control is the result of the interaction between agenda power and majority support” (LIMONGI, 2006).

• As mentioned, the vetoes must be presented along with reasons based on unconstitutionality or contradiction to the public interest, as per art. 66, Paragraph 1 of the Constitution. Let us analyze some of the justifications presented, considering the counterpoints disclosed by the Coalition Rights on the Network in a Note to Parliament against the vetoes:

1. Relief from automated decisions: The executive branch states that art. 20, §3 LGPD is contrary to the public interest, as it would be excessively costly for the business sector to provide citizens with a review, by a natural person, of decisions that were previously made by robots. However, as Kate Raworth points out, economic growth, as coined in 1960 and persistent to this day, is often unassociated with economic prosperity. Therefore, while additional expenditures are necessary to ensure that a natural person reviews an algorithmic decision, such expenditures bring social impulses, such as empathy and perceptions of peculiarities, that are unique to humans, and lessenalgorithmic discriminations such frequent. Human rights-based processes and technologies (in this case, the right to equal treatment and transparency of decisions) are processes and technologies that include people, maximize consumer participation and thus result in economic prosperity aligned with the public interest.
2. Sharing possibility of personal data of applicants the Access to Information Act (LAI): The reasons for the veto stating that the protection of personal data of the applicants LAI generates legal uncertainty for preventing the exercise of various public policies. However, the justification is completely incoherent, since item IV, art. 23 of the LGPD (veto in question) only mentioned the concealment of applicants’ personal data concerning  LAI’s request. Therefore, any data that the government had about the applicant (information about registration in SUS, Social Security, etc) would not be subject to confidentiality. 

This provision is necessary to guarantee freedom of expression and to achieve a transparent government that is open to citizen oversight.

Eduardo Galeano’s Utopia and Jair Bolsonaro’s vetoes

Earlier in this post, I mentioned that the original purposes of political institutions, including legislative power, are rarely exercised in the concrete world. After analyzing the likely presidential vetoes (approved by Congress) that withdrew important guarantees from users from LGPD, we found that popular participation, through hearings and parliamentary representation, was often pushed out of the law. 

Brazil, a country of dimensions, marked by  European colonization and the recent abolition of slavery, has many concerns. Excessive and discriminatory use of police force has yet to enter the legislative agenda, as well as income and territory redistribution policies. However, Brazil as one of the largest consumers of final technology in the world, with 62% of the population with social media accounts, must also monitor and demand that the right to privacy agenda be adhered to by elected representatives. 

Temer and Bolsonaro’s vetoes represent distancing from civil society dialogues and manifestations. We know that not all the demands of society will be met by the state, but this will not be a reason for giving up. As Eduardo Galeano states, the purpose of utopias is to keep society and society’s representatives on the various front lines by building a more inclusive, democratic and egalitarian society.

If you are interested in learning more about the implications of LGPD on citizens’ daily lives, follow the panel IRIS proposed for the Internet Forum in Brazil, “Data protection and public safety in Brazil: current regulatory context and future perspectives”, to be held on 04/10 and broadcast on the channel NIC.br.