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Impeachment in Brazil: another step in the fight against corruption

By Juristas pelo Impeachment*

  1. Brazilian democracy has been praised for having institutions which investigate corruption independently regardless of the support and objection of politicians. Paradoxically, the same institutional environment, including the Brazilian Supreme Court, has been criticized for supporting the impeachment of President Dilma Rousseff. Below is an explanation of (i) why the impeachment itself is a robust evidence that democracy is operating efficiently, (ii) the existence of crimes perpetrated by President Roussef and (iii) how there is no coup d’état underway in Brazil.
  2. At the outset, a plethora of crimes perpetrated by President Dilma Rousseff has been unveiled since March 2016. This explains why the impeachment claim, filed back in 2015, is focused solely on budget arguments. It is also important to understand that after her re-election, President Dilma Rousseff has repeatedly tried to block the corruption investigations in a clear contempt of court. To quote one example, the leader of her government and party in the Senate – Mr. Delcídio do Amaral – had his arrest ordered by the unanimous vote of the Supreme Court when he was offering support to an investigated person in the Petrobras corruption scandal to flee to Venezuela.
  3. Moreover, the impeachment is a mix of a legal and political trial. It is legal because the due process of law must be complied with – the Supreme Court has been playing a major role in this regard. It is political because it is decided by the National Congress. If the impeachment were solely a legal process, the Constitution would have ruled that judges, not politicians, could vote. Such a duality allows using a more discretionary view on the decision-making – in other words, the representatives will vote based on a technical reason, but they may have other kinds of motivation (for instance, the clear move by President Rousseff to obstruct the investigations).
  4. Let us turn to the technical reason behind the impeachment claim. In a very restrictive approach, the report by Congressman Jovair Arantes on April 6, 2016 reviewed the claim filed by a group of three, being one of them Helio Bicudo. Mr. Bicudo was a prosecutor in the 1970s who investigated the torture perpetrated by the military dictatorship and was threatened several times due to his role; on top of that, he was one of the founders of the Workers’ Party, to which both President Dilma Rousseff and former President Lula belong. Such a report was approved by 367 out of 513 representatives in the House of Representatives on April 17, 2016 and will be sent to the Senate for trial. Two crimes of misappropriation are listed in the report:
  • To open a supplementary credit by Presidential Decree without prior authorization of the National Congress (Brazilian Constitution, article 85, item VI, and article 167, item V, and Law No. 1079, article 10, item 4 and article 11, item 2).
  • To illegally use credit operations (Law 1079, article 11, item 3).
  1. Article 85 of the Brazilian Constitution defines the crimes of misappropriation among others as those that violate the budgetary law. Article 85 of the Brazilian Constitution also provides that a special law defines what should be understood by crimes of misappropriation against the budgetary law (Law No. 1,079/1950). Both the opening of additional credit by Presidential Decree without prior authorization of the National Congress and the illegal use of credit operations are listed in Law No. 1,079.
  2. Detractors of the impeachment try to minimize the importance of these crimes. Nevertheless, both crimes are very serious from a constitutional perspective.
  3. To open a supplementary credit by Presidential Decree without prior authorization of the National Congress indirectly protects the separation of powers. In a presidential system like Brazil, in which the President holds significant power, the legislative control is important to avoid the rise of authoritarian governments. When President Rousseff ignored such a rule, she subverted the separation of powers. Even worse was the fact that the violation took place during the elections: spending without the legislative authorization had a direct consequence on the democratic process, tainting the free outcome of the people’s will.
  4. Neither should the reader think that this technicality belongs exclusively to Brazil – similar rules exist in all the Western countries. For instance, the U.S. Constitution (Article I, section 9, clause 7) states that “no money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of Receipts and Expenditures of all public Money shall be published from time to time.”
  5. The second crime behind the impeachment claim is even more serious, since it protects the poor people against the irresponsibility of a populist government willing to win the election at any cost. To illegally use credit transactions meant that given the budget limitations, President Rousseff circumvented the lack of legislative authorization by borrowing money from state-owned banks to finance the public deficit. The laws above mentioned show that this kind of borrowing is outright forbidden. From an economic perspective, such a maneuver expands the credit in the economy and inflates the prices leading to inflation – it is worth reminding that Brazil suffered a lot with this kind of maneuvers in the 1980s and 1990s which led to the hyperinflation.
  6. Do you remember the Enron scandal? Well, to a certain extent, there are a lot of similarities between that case and President Dilma Rousseff´s acts. Her administration manipulated the books (note that we are not talking about a private company like Enron, but about a country!) and misled the entire country into believing that the fiscal situation was not of concern. What would have happened to Cameron, Merkel or Obama if they had done so?
  7. It is worth mentioning that the Supreme Court has repeatedly confirmed the validity of the proceedings to be followed by the National Congress. At the onset, a claim brought by President Rousseff, delineated every step of the proceedings. Note that 8 out of 11 justices have been appointed by either President Rousseff or her predecessor and sponsor, former President Lula. Eros Grau, a Supreme Court’s retired justice, arrested and tortured during the military dictatorship, appointed by former President Lula, in a recent statement heavily criticized the argument that there is a coup d’état. Several members of the current Supreme Court gave interviews to clarify that it is nonsense to state that Brazil is facing a coup d´état.
  8. In addition, if Brazil were to be facing a “slow motion” coup d’état, President Rousseff would have the legal duty, according to our Constitution, to declare State of Emergency and arrest all the conspirators. Otherwise, she would be committing the crime of prevarication for not defending the democratic regime. This does not seem to be the case. In every step undertaken by the House of Representatives to set in motion the impeachment process, the administration, through the Attorney General of the Union, took part in all proceedings, in accordance with the principles of full defense and the right to contradiction. In this vein, the creative narrative of a coup d’état is nothing more than a sham aimed at gathering support for an administration with no domestic credibility and paralyzed by repeated corruption scandals.
  9. To conclude, the impeachment represents a legitimate tool to fight corruption, yet it is focused on a budget violation. Most Brazilians support the impeachment as 6 million people in the streets during the demonstrations on March 13, 2016 have evidenced.

* Juristas pelo Impeachment is an alumni group from the Faculty of Law of the University of São Paulo (Largo São Francisco). supports their cause and proudly shares this statement.