The debate regarding the autonomy of regulatory agencies has taken over the press. The discussions comprise the fixed term mandates of their leaders and their decision-making autonomy. It has been said that the creation of the agencies has promoted a true “outsourcing” of the government in Brazil, in a truly anti democratic manner. Since the decisions that will result of such debate shall affect not only the management of infrastructure sectors but also the country’s credibility as to domestic and foreign investors, especially those who invested significant amounts in such sectors, certain issues must be clarified.

It has been said that the agencies are not democratic because their leaders are not elected by the people, because they have strong decision-making power, because they manage strategic sectors of the economy and they can not be laid off without cause when a new government assumes, like now, the direction of the country. Such line of thought, however, is too simplistic and contains strong ideological charge. One possible type of democracy is the one where state and government are closely associated with each other. In such a model, all decisions taken by the state derives from Congress or from a central Executive Branch that, along with its ministries, concentrates all decision making power, and which is legitimated every four years through the vote of the Brazilian citizens. Society, thus, only participates in the political process once every four years, delegating to the representatives all power to take decisions on their behalf. Had this been the only possible notion of democracy, one should conclude that the regulatory agencies are actually anti democratic. However, there are other possible ideas of democracy, and the agencies model is based in one of them, where the society’s participation in the political process is more constant, more direct and less dependent on political party intermediation.

In other countries, the independent agency model has served not only to guarantee the regulatory stability necessary to maintain investments in infrastructure sectors, but also to foster a new type of institutional arrangement, where groups of interest may make their opinions heard by means of direct and transparent channels of political action, accessible with no distinction to any > The reforms achieved in the nineties created agencies with such role, and they have been performing that democratic dimension by means of frequent public hearings and consultations, by means of which all regulatory decisions are submitted to the prior and direct scrutiny of all possible interested parties. Here, like in most developed countries, there has been great concern in implementing a type of administrative-decision-making process that would involve the maximum participation of the society and that would be open to interference from not only private-owned companies providing services, but also from consumers and customers, de associations, NGOs, etc. In such an arrangement, the command of the Executive Branch stays responsible just for the definition of the chief regulatory landmarks of each sector, maintaining as well the power to appoint every year a new member of the management bodies of the agencies, being responsible, thus, for the gradual renewal of their direction.

The agencies model reflects a political participation mechanism that is more sophisticated than the model that foresees the centralization of all powers in the command of the Executive Branch. That is exactly why its implementation has been accompanied by difficulties, and the debate about the agencies should develop towards the improvement of the model in force, with especial emphasis to the low use, by society, of the existing channels of participation, perhaps a result of the fact that “associationism” is still incipient and, and emphasis also to the greater accountability on the part of agencies. Notwithstanding, the attack to the agencies’ autonomy in name of a central democracy model smells like yesteryear, leaving society out of the direct political participation in state policies.

The regulatory agencies model can be used as an instrument of institutional improvement and an incentive vector towards the civil society organization’s recurrent participation in the political process. Instead of preaching the extinction of the agencies, we should work toward their improvement, what is compatible with the democratic regime and is also a mandatory commitment assumed by the Brazilian state with investors, which commitment includes the maintenance of the autonomy granted to the regulatory bodies.

Sources:   Valor Econômico March 27, 2003 p.E2
Date of insertion:   27/03/2003 - 21:45:08