Marcelo Thompson

Brazilian Sunday TV news program “Fantástico” showed in its last edition that a gang of supposed fraudsters would be offering their services to Brazilian politicians. The services in question would involve the manipulation of electronic voting systems to elect illegitimate candidates in the upcoming municipal suffrage.

Though the swindlers did not sound very convincing, Brazilian Supreme Court Justice Carlos Ayres Britto – who since May this year is the President of the Superior Court of Elections (TSE) — felt it prudent to tranquillize the population about the trustworthiness of the elections system, whose management is under TSE’s responsibility.

To the fraudsters’ argument that they would have Justice Britto’s “password”, Justice Britto rebuted that that would be simply impossible, as his pair of cryptographic keys was yet to be generated. His reply was proclaimed with his usual candour and quasi-transcendent easiness. I am convinced that the Brazilian electoral process is taken very seriously by our courts.

But Justice Britto did not mention the most important. Just before the beginning of his tenure as TSE’s President all Brazilian electronic voting machines’ systems were replaced, moving from Windows to Linux, in an effort to enhance the auditability of the elections process, and the traceability of attempts to modify the system and corrupt the elections. Why does Justice Britto’s omission of this fact matter?

It matters because, had he acknowledged that, he would also be recognizing the merits of the defence in an important case that rests in his hands, ready to be judged, for more than 1 year already (precisely since May 11th, 2007).

In 2004 Justice Britto issued a preliminary decision suspending the effects of a pioneer State law in Brazil that established a mechanism of preference for the acquisition of free / libre open source software (instead of proprietary software) by the government. An ex-ante preference for the “product” free open source software, said Justice Britto, was unconstitutional.

After that, both the Attorney General of Brazil and the General Public Prosecutor of Brazil disagreed with Justice Britto in the process, arguing mainly that the preference was not for a kind of product but for a particular kind of licensing; a kind of licensing which more closely meets a series of principles established in the Brazilian Constitution — e.g. a principle of transparency, a principle of sovereignty, a principle of efficiency, and a principle of promoting the circulation of cultural goods, amongst which the technological ones (yes, the Constitution says that).

More than simply a matter of public procurement or bureaucratic organization, thus, the issue involves a clearly socio-economic and cultural question which is not foreign to the attributions of the State’s parliament. It lies in the very thin boundaries between the public and the private, rather than merely relating to the executive’s organizational belly button. Above all, the matter involves the principle of symmetry of state constitutions, and the implementation of constitutional norms by state law.

The legislator of the State of Rio Grande do Sul did not innovate in normative terms. He merely declared what was already there, latent as much in the State Constitution as in the Charter of 88. This is first and foremost a matter of principles.

I look forward to Justice Britto’s acknowledgement that the biggest triumph of migrating the electronic voting booths in Brazil lies precisely in upholding the Constitutional principles that I am sure he will honour.