BLOG BMJ

The final say on Huawei will be given by the head of the Executive Branch, President Jair Bolsonaro. And that is where the most important question lies: what about the Legislative Branch? How can Federal Representatives and Senators influence a process that attracts so much attention from society?

This article intends to unravel the possible actions that the Brazilian National Congress will be able to perform in this imbroglio and to evaluate how Parliament can influence such an important decision.

Let’s start at the beginning.

The Brazilian 5G auctions have been treated as the largest and most important radio frequency auctions ever held in the country due to the amount of the spectrum that will be offered.

Despite the complicated technical language, the importance of these auctions goes beyond their size. For private application networks - which may also be impacted by the banning of Huawei -, the arrival of 5G technology in Brazil should allow the country to accelerate the digitization of its economy, finally helping spread through the country what is commonly called the Industry 4.0 - based on Internet of Things (IoT) devices and artificial intelligence, among other disruptive technologies. This will only be possible with the new generation of mobile networks, which will considerably increase connection speed and signal coverage across the country, all of which will happen with a very low latency - or response time. It is no wonder that experts from all over the world refer to 5G as a new technological revolution.

It is no surprise, therefore, that such a disruptive technology is surrounded by controversies and disputes, either technical, commercial, or political. Currently, 5G is at the heart of what many experts have called “the new Cold War”. The epicenter of this dispute is Huawei, a Chinese technology company that has been accused by American President Donald Trump of using its presence in the telecommunications infrastructure of several countries to commit crimes against intellectual property, without insuring due data protection. Such accusations have made government officials around the world question whether or not they should allow Huawei participate in their 5G infrastructure. With a consumer market with over 200 million cell phone devices, it is no wonder that Brazil would become one of the main battlegrounds.

If, on the one hand, the Bolsonaro Government intends to maintain its alignment with the Trump Administration and to continue counting on the support of the greatest world power in all possible instances; on the other, it cannot damage its relationship with the Chinese to the point of causing retaliation by Brazil's main trading partner. From January to August 2020, China was the destination of 34% of Brazilian exports, totaling USD 47.3 billion, an increase of 14% compared to the same period in 2019 (during a pandemic!). The second place as Brazil's largest trading partner is, however, precisely held by the United States. From January to August 2020, the USA imported USD 13.4 billion (9.7% of the total) from Brazil - much less than the Chinese, of course, but an important number, especially when one considers that these refer mostly to value-added goods, as opposed to China's focus on commodities.

A real deadlock, isn’t it?

Well, that's not all.

Recently, President Bolsonaro made it clear that the decision on the matter will be his and his alone. He also said that he intends to hear from other authorities in his Government and even from other countries on issues related to national sovereignty, intelligence, and espionage before giving his verdict, but stressed that the responsibility will be entirely his.

A point that could ease the tension for Bolsonaro and facilitate his decision in favor of Huawei, if so he chooses, would be Trump's defeat in this year's elections. The election of Democrat Joe Biden could dampen U.S. resistance to the Chinese company - all the more reason why Bolsonaro postponed his decision until next year. This will be another ingredient in this already convoluted mixture, but it will be added only in November.

Having made this introduction we now come to our key point: how can the National Congress influence such an important decision? Here we will list some means Parliamentarians can make use of to make sure their voices are heard.

 

Presidency of the House of Representatives

New elections for the office of House Speaker will be held in 2021. Assuming that the Proposed Amendment to the Constitution (PEC) will not advance – the most logical scenario – the current Speaker, Rodrigo Maia, will not be allowed to run for reelection. As such, a new Speaker will be inaugurated in February, 2021. Should such Speaker disagree with Bolsonaro’s decision regarding Huawei, he or she could then support greater discussions on the topic. Additionally, as retaliation and bearing great consequences for the Executive Branch, this Speaker may put the Government’s agenda – such as the Administrative and Tax Reforms - in jeopardy. In such case, negotiations between the two powers would be essential.

Chairs of the House of Representatives’ and Federal Senate’s Standing Committees

Likewise, the House’s and Senate’s Committees will be receiving new Chairs in 2021. Those will be responsible for determining what its to be discussed at the Committee’s meetings. Assuming that different parties must hold such positions, odds are that the new Chairs may not be as ideologically aligned to the Government as they are now – which, in turn, could increase the chances of there being conflicts. At the House, three Committees are more closely related to discussions on 5G connectivity: the Committee on Science, Technology, Communication and Informatics (CCTCI), the Committee on Foreign Affairs and National Defense (CREDN), and the Committee on Economic Development, Industry, Commerce, and Services (CDEICS). At the Senate, the following are important: The Committee on Foreign Affairs and National Defense (CRE), the Committee on Economic Affairs (CAE), and the Committee on Infrastructure (CI). Deeper debates about the future of 5G may take place within the scope of such Committees, culminating in a possible summoning (when attendance is mandatory) of Ministers to provide clarifications on the subject.

 

Draft Legislative Decree (PDL)

The PDL proceeds just like a Bill of Law (PL) and can be proposed by any member of the National Congress. It is initially discussed at the Standing Committees and, when necessary, taken to the Floor. The specificity of such an instrument, however, lies in its objective, which is to revoke Normative Acts of the Executive Branch. In this case, it would be possible to overthrow an act issued by President Bolsonaro about the participation (or not) of Huawei in Brazil's 5G infrastructure - which could culminate in the suspension of the Presidency's act. Should a veto to the company's be overturned by the National Congress, this should be read as a clear political response to the President's decision, which could lead to the heating of relations between the Legislative and Executive branches. In this scenario, the National Congress would take up a leading role in the discussions of the issue in the country.

 

Parliamentary Fronts

Federal Representatives and Senators interested in such discussions may request the creation of a Parliamentary Front focused on 5G to increase debates on the topic. Such a front would have the prerogative of generating discussions within Committees, requesting information from the Executive Branch, promoting events and meetings, and even proposing Bills of Law (PL) related to the topic. In practice, Parliamentary Fronts tend to be insignificant unless the parliamentarians involved with them have a real interest in the topic. In general, however, the creation of a Parliamentary Front would serve as a good thermometer to verify the interest and positioning of the National Congress in relation to the upcoming 5G auctions, thus representing an important tool for the conduction of public policies related to the theme. The more active a Front, the greater the chances of it modifying the Executive's policies.

 

Public Hearings

In order to provide formal clarifications on the subject, parliamentarians may invite members of the Executive Branch to comment on their decisions pertaining to the country's 5G infrastructure. Such requests, as previously mentioned, can either be “invitations” (when they can be delegated to other members of the ministry) or a “summoning” (cases in which an unjustified absence from a Minister can be considered a criminal offense) - a scenario that represents a defeat for the Executive Branch and the disrepute of the Minister that was summoned. Public hearings, as well as Parliamentary Fronts, can be understood as important tools to ascertain the interest of parliamentarians on a topic. Not only that, but Representatives and Senators alike are free to invite anyone who understands the topic to speak at the National Congress, providing an important space for the civil society, companies, and other related stakeholders to express their views on the 5G policies proposed by the Federal Government.

 

General Committees

By means of a Request submitted by any member of the Parliament, the Floor of the National Congress can be transformed into a General Committee meant to discuss relevant issues or bills of popular initiative. The difference between the usual debates that take place during the voting of matters and those at General Committee is that, on these occasions, in addition to the Parliamentarians, members of the civil society related to the topic under scrutiny may be invited to speak. Such a situation would constitute a huge exposure of the 5G issue in Brazil, further increasing the political debate on the theme and the pressure on the Executive Branch.

Philosopher Montesquieu (1689-1755), influenced by John Locke, makes it clear that the autonomy of the Executive Branch should be limited. His Theory of the Separation of Powers, also known as the Checks and Balances System, is called forth in article 2 of our Federal Constitution, which reads: “The Legislative, the Executive, and the Judiciary are the independent and harmonical Powers of the Union”. Such harmony is fundamental.

President Jair Bolsonaro should revisit Montesquieu's valuable lessons so that his plans for the 5G in Brazil undergo the necessary discussions. The Legislative Branch (as well as the Judicial) will fulfill its role of supervising the conduction of this matter. Eventual delays and barriers in its implementation due to excessive protagonism by the Executive Branch may cause a huge loss for the Brazilian society, which can no longer wait for the implementation of this new technology in the country.

 

*Fábio Lobato is Manager at BMJ Consultores Associados and Luan Madeira is consultant at BMJ Consultores Associados.