By MARIA RITA LOUREIRO*
Commentary on the recently published book by Gilberto Bercovici and José Augusto Fontoura Costa
The book Nationalization: necessity and possibilities it may seem outdated to those who call themselves modern and defend rulers who propose to privatize everything with the justification that private initiative will save the country from the “inefficiency” of the State. Rejecting privatist rhetoric and the demonization of the State, in these times of neoliberal barbarism, this small volume dares to propose the need for the renationalization of sectors or strategic economic activities as a fundamental issue to be faced by the public debate on alternative projects for Brazil today .
In addition to updating the analyzes of the evils brought to the country by the privatizations of the 1990s, resumed after the 2016 coup, the authors of the book, Gilberto Bercovici and José Augusto Fontoura Costa, professors at the Faculty of Law of USP, specialists in Economic Law, respectively. and International Law, bring a new contribution to the debate, at least for those who are not in the area: they indicate that there are legal possibilities, both in International Law and in Brazilian Law, as will be indicated below, to challenge privatizations and reverse this frame.
With that, they bring a certain dose of hope in overcoming the policies carried out by conservative governments that, even against political majorities, carried out reforms to guarantee “legal security” to financial capital that circulates freely between different countries. Despite the historical context called “a permanent economic state of exception in which emergency measures are used at all times to save the markets” (p. 28), the text points to possibilities of breaking with the process of “shielding the financial constitution” that establishes rules to prevent any state action contrary to dominant economic interests.
Based on critical theoretical conceptions of the functioning of the international capitalist system and reflections on Brazilian economic history, the authors reiterate that the State's resumption of its ability to plan and promote development requires it to recover its economic sovereignty. That is, without breaking its subordination to external interests and without internalizing the most important economic policy decisions, the country will not be able to leave the context in which it lives today, of deep and wide setbacks. Therefore, the debate on the nationalization or renationalization of strategic economic activities involves decisive questions. It involves national sovereignty, the urgent need to reindustrialize the Brazilian economy and to promote urgent policies to overcome poverty and social inequalities.
An example of the sovereign economic decision of the Brazilian State and its significant impact on the country can be found in the oil regulatory framework established in 2010, during the Lula government, which gave great decision-making power to Petrobras, in the exploration of the enormous oil reserves discovered on the coasts Brazilians in 2006. As is known, the discovery of the so-called pre-salt made Brazil the holder of large oil reserves. And the laws enacted in 2010, even going against strong external geopolitical interests and generating internal criticism, allowed Petrobras, the largest company in the country, to assume a prominent position among the large international oil companies. In addition, this regulatory framework also created a social fund to reverse part of the mineral income in investments in education, health, combating poverty and in environmental projects, guaranteeing for future generations the fruits of the exploitation of finite resources in the present.
Unfortunately, all this began to be dismantled after the Temer government and the destruction continues at great pace in the current government, with the privatization of refineries, gas pipelines and other assets that have compromised Petrobras' historic role in leveraging the industrial and technological development of the country. country. The regulatory advances of 2010 are also being destroyed with the disastrous policy of international parity of the internal prices of fuels and gas – aiming to remunerate the national and foreign private shareholders of Petrobrás.
It should be recalled that in 1997, during the Fernando Henrique Cardoso administration, the Union's shareholding was reduced to 51% and the trading of Petrobras shares on the New York Stock Exchange, the so-called ADRs, was authorized, subjecting the company to the rules of the stock market. US capitals. Such decisions are taking place to the detriment of the mass of Brazilian consumers, because they are responsible for the resumption of inflation and, to a large extent, for the tragic worsening of social conditions in the country in recent times. As scholars on the subject have recently denounced, the profits of around 30 to 40 billion generated by Petrobras each quarter go into the pockets of shareholders at the expense of exorbitant prices imposed on the population.
Remembering an example of the sovereign economic policy of the Brazilian State, interrupted in such a disastrous way, allows us to update the topic discussed in this study on nationalization in Brazil. The great importance of the book lies in emphasizing that privatizations in Brazil were carried out contrary to constitutional and legal provisions. That is, they were perpetrated with very serious violations of the democratic rule of law. Therefore, they can be reversed, from a legal point of view, as long as there are political conditions for this. Its authors are clear that privatizations were not carried out for reasons of technical efficiency, as justified by the privatists' rhetoric, but due to political choices and decisions guided by internal and, above all, external economic interests.
In the case of Petrobras, with the law approved in November 2016, right at the beginning of the Temer government, several of its refineries and gas pipelines began to be sold, going against the declared objective of reducing debt, leading to the disruption of its production chain, in equally to the detriment of the declared objective of future cash generation. In addition, such sales took place without proper bidding, as required by law, and with prices below market value, setting up a situation that, according to the authors, can be equated with the crime of reception.
Even more serious, the sale of these Petrobras assets is unconstitutional because it violates article 173, paragraph 4 of the 1988 Federal Constitution. Such a sale process is leading to the formation of private monopolies, especially in the area of gas pipelines and their infrastructure, which goes against the foundation of this constitutional rule that guarantees the defense of competition in Brazil. Several legal actions contrary to the decisions have already had such violations recognized, including by the Superior Court of Justice and the Federal Court of Accounts, but unfortunately, without definitive outcome.
The privatizations carried out during the government of Fernando Henrique Cardoso, in particular that of Companhia Vale do Rio Doce, have also been the subject of lawsuits that are still pending in the Brazilian courts, contesting the legality of their sale. This, without mentioning those moved by the victims of the human tragedy that led to the death of dozens of people in Brumadinho and Mariana, in Minas Gerais, and the great environmental disasters produced by the company after its privatization, when it starts to be guided by the logic of exclusive profit maximization and thus producing such disasters. In fact, it should be noted that when the company was state-owned, tragedies of such proportions never occurred.
The most astonishing thing about the illegality and unconstitutionality of privatizations is that the issue is not properly publicized in the country, just as the lawsuits contesting them are not prominently reported in the media. Nor are the harmful effects of privatizations debated in public spaces, as would be expected in a democratic society, with an effectively plural press, willing to give space on equal terms to political actors and contradictory arguments. Few are aware of, for example, the 2016 publication of the Legislative Consultancy of the Chamber of Deputies or articles in scientific journals that analyze in detail the legal irregularities in the sale of Petrobrás assets. This information is available in this volume.
Finally, it is worth pointing out two gaps that, once filled, could reinforce the contributions that the authors bring to the political struggle for the renationalization of state activities in strategic sectors of the Brazilian economy.
The first, of a more strictly legal nature, refers to the absence of data regarding the processes that are still running in the country's courts against privatizations, including those that occurred in the 1990s, and the evaluation of the perspectives of the possible legal consequences of these actions and their consequences. potential impacts on the political struggle. The second and most important aspect that could enrich the present study would eventually require the collaboration of other specialists. It would imply examining the weight of the political forces committed to the struggle for the renationalization of strategic economic activities, a flag seen as a necessary condition for the development and reduction of social inequalities.
As the authors themselves recognize, the judicial contestation of the privatizations and the consequent renationalization will depend on the power of future democratic governments, supported by strong popular parties, to face the dominant coalition today, formed by financial groups, business and great media that count on the support decisive role of segments of the high state bureaucracy – the elites of the justice system and the military. This coalition to whom the issue of the economic sovereignty of the Brazilian State, unfortunately, is neither a value to defend nor a political objective to aspire to. On the contrary, as various surveys have shown, all these groups are unconditionally aligned with the hegemony of the United States and its geopolitical interests, even if to the detriment of national interests. Therefore, it will be a very difficult battle and the dynamics of these forces is a great analytical challenge, but also a political one.
Obviously, such gaps do not compromise the value of the book, because they emerged precisely from the analysis presented here. Its great merit lies precisely in placing the question of the economic sovereignty of the Brazilian State back in the public debate and thus raising the necessary reflection on the political conditions for its viability.
Maria Rita Loureiro, sociologist, is a retired professor at FEA-USP and FGV-SP.
Reference
Gilberto Bercovici & José Augusto Fontoura Costa. Nationalization: necessity and possibilities. São Paulo, Countercurrent, 2021, 100 pages.
