TABLE OF CONTENTS
LIST OF ACRONYMS
|CONCEPTUAL AND THEORETICAL BACKGROUND|
|Accusation 1: Fraudulent Delay in Payments to Federal Banks|
|Accusation 2: Unauthorized Budget Supplementation Decrees|
|Accusation 3: Connivance with the Petrobras Corruption Scheme|
|THE FRAUDULENT DELAY IN PAYMENTS TO FEDERAL BANKS|
|Did this constitute an impeachable offense?|
|Did Rousseff commit it?|
|THE LEGAL FRAMEWORK FOR THE PROCEDURES OF THE IMPEACHMENT|
|THE CONSTITUTIONALITY OF THE IMPEACHMENT PROCEDURES|
MACIEL, Lourenço: Democracy and Constitutionality in the 2016 Brazilian Impeachment Process.[Master thesis]. Comenius University in Bratislava. Faculty of Social and Economic Sciences; Institute of European Studies and International Relations. Instructor: Aliaksei Kazharski, Ph.D. Bratislava: FSES UK, 2018.
In 2016 the Brazilian Congress impeached the country’s elected president, Ms. Dilma Rousseff. Despite significant popular approval for impeachment, accusations of unconstitutionality and undemocratic conduct have arisen within various sectors of Brazilian society. As of 2018 thirteen Brazilian public universities have launched classes about the “2016 Coup,” indicating a perceived break in constitutional order. This dissertation investigates these claims, evaluating the accusations and the legal procedures for their constitutional compliance and their underlying nature concerning the relationship between governmental power and civil and political rights.
LIST OF ACRONYMS
ADPF – Motion of Non-Compliance with Fundamental Precept (Arguição de Descumprimento de Preceito Fundamental)
BNDES – National Bank for Economic and Social Development (Banco Nacional de Desenvolvimento Econômico e Social)
CAIXA – Federal Savings Bank (Caixa Econômica Federal)
CJG – Constitutionally-defined juridical guarantees during procedure and trial
CPMF – Provisional Contribution on the Movement or Transmission of Securities and Credits and Rights of a Financial Nature (Contribuição Provisória sobre a Movimentação ou Transmissão de Valores e de Créditos e Direitos de Natureza Financeira)
FGTS – Public Pension Fund (Fundo de Garantia do Tempo de Serviço)
GDP – Gross domestic product
IOF – Financial Transaction Tax (Imposto sobre Operações Financeiras)
LOA – Annual Budgetary Law (Lei Orçamentária Anual)
LRF – Fiscal Responsibility Law (Lei de Responsabilidade Fiscal)
Mercosur – Southern Common Market
OAB – Order of Attorneys of Brazil (Ordem dos Advogados do Brasil)
OECD – Organisation for Economic Co-operation and Development
PCdoB – Communist Party of Brazil (Partido Comunista do Brasil)
PT – Workers’ Party (Partido dos Trabalhadores)
SPF – Supreme Court-approved procedural framework for the impeachment process
TCU – Federal Court of Audit (Tribunal de Contas da União)
UFPE – Federal University of Pernambuco (Universidade Federal de Pernambuco)
USP – University of Sao Paulo (Universidade de São Paulo)
UnB – University of Brasilia (Universidade de Brasília)
There has been an ongoing debate among different sectors of Brazilian society concerning both the constitutional and democratic nature of the 2016 impeachment of president Dilma Rousseff. While establishing the constitutionality of the process is primarily a matter of examining constitutional precepts against the accusations and the undergone legal proceedings, determining whether the undertones of the political effort were of a democratic character is a more intricate endeavor that often requires an analysis of its underlying nature concerning the relationship between governmental power and civil and political rights. While these two analyses differ in nature, establishing the historical background surrounding the impeachment events is necessary before taking up either.
In 2014, Dilma Rousseff of the Workers’ Party (PT, for its acronym in Portuguese) was re-elected to the Brazilian Presidency. The PT candidate won the second electoral turn with 51.64% of the valid votes, making 2014 the most disputed presidential election in Brazil following re-democratization. Also in 2014, a reported GDP growth of 0.1% led analysts to speculate the beginning of an economic crisis in Brazil. The analysis was proven correct, and the economy shrunk by 3.8% in 2015, followed by a contraction of another 3.6% in 2016. In a study published in August 2016 by the National Confederation of Industry, 34% of respondents declared having abandoned paying for health insurance, 57% reported someone in their family recently losing a job, and 71% defined the economic scenario as either “bad” or “very bad.” Unemployment reached its peak in March 2017, with a rate of 13.7%. Lasting until September 2017, the recession was the longest and deepest ever recorded in Brazilian history.
Economic crises can often come accompanied by political turmoil; and while Brazil was no exception, the outset of the political crisis in Brazil predated the economic recession. In March 2014, Brazilian Federal Police started investigating what later would be described as “the biggest corruption scandal in history.” While investigating a money laundering ring that used a currency exchange service located at a gas station in the Brazilian capital, the Federal Police’s investigative task-force, named “Operation Car Wash,” was required to expand the investigation to reckon with corruption allegations directed at the state-controlled oil company Petrobras. Operation Car Wash gradually worked its way up to the highest echelons of Brazilian politics, unveiling a multi-faceted corruption ring that, from Petrobras alone, is accused to have stolen roughly 88,6 billion reais (over 21 billion euros). Over the next years, Operation Car Wash would expose corruption schemes involving parties on every side of the political spectrum. However, exposing the Petrobras scandal led investigators to scrutinize the political party in control of the government for the last 12 years: the Worker’s Party (Rousseff’s party) and its allies.
The gradual disclosure of the findings from the Operation Car Wash corruption investigations allied with the progressive worsening of the Brazilian economy produced a melting pot of growing outrage and dissatisfaction. In March 2015, when national polls showed presidential approval ratings dropping to a 23-year low of 13%, nationwide protests demanding Rousseff’s impeachment gathered from 1.4 to 2.4 million people (according to police estimates) in at least 160 cities. On 12 April 2015, similar protests gathered an estimated 700,000 people in cities spread around 24 Brazilian states and the Federal District. On 16 August 2015, 869,000 people gathered in 269 cities across every Brazilian state and the Federal District to once again demand for Rousseff’s impeachment. Over the course of 2015, private citizens, members of Congress, and the Order of Attorneys of Brazil (OAB) filled 50 separate presidential impeachment requests with the Chamber of Deputies. 39 were dismissed for not meeting formal requirements, lacking facts and evidence to support them. Of the 11 remaining, on 2 December 2015, former President of the Chamber of Deputies, Eduardo Cunha, accepted the request for presidential impeachment of jurists H´elio Bicudo, Miguel Reale Júnior and Janaína Paschoal. One of the allegations made against Rousseff stated that she had broken the Fiscal Responsibility Law by withholding payments to federal banks that were contracted to act as agents in the payment of social benefit programs. The banks would have continued to pay for the programs using their private resources, and the withheld money was still counted as part of the federal budget, giving citizens and international investors the impression that the nation’s finances were healthier than they were in reality. The operations were defined as responsibility crimes against the budgetary law, violations constitutionally defined as impeachable offenses. The impeachment case ended on August 31 2016, resulting in the dissolution of the presidential mandate without the loss of Rousseff’s political rights to run for and retain public office in the future.
The deposition of democratically elected leaders in countries with brief democratic traditions may understandably raise the suspicion of a breach in the constitutional order. In the first semester of 2018, thirteen Brazilian state-funded universities had opened political science disciplines to discuss the “Coup of 2016,” an allusion to the impeachment trial that removed Rousseff from office. According to the first professor to start such an initiative, Professor Luís Felipe Miguel from the Department of Political Sciences of the University of Brasilia (UnB, for its acronym in Portuguese), the goal of the discipline is to study the “…elements of fragility of the Brazilian political system that allowed for the democratic rupture of 2016, with the impeachment of President Dilma Rousseff.”The syllabus of the course also states that one of its goals is to “…examine the consequences of the current crisis and the possibilities of strengthening popular resistance and reestablishing the rule of law and political democracy in Brazil.” In previous articles, Miguel had regarded the events of 2016 as the “…effective end of the democratic experience started in Brazil from 1985 onwards,” explaining that the one essential requirement of a democracy should be the consent of the citizens given through their votes.
The allusion to a coup, an illegal seizure of the state by elites within the state apparatus, implying a collapse in the democratic order and the rule of law, may seem somewhat exaggerated for a country where polls show that up to 68% of the population was in favor of the ousting of its president, but Miguel is not alone in his convictions. In a manifesto entitled Manifesto In Defense Of The Democratic Rule Of Law In Brazil, 119 academics from world universities regarded Ms. Rousseff’s transgressions as “accounting irregularities in the administration of public funds.” According to the manifesto, these accounting inconsistencies should not be deemed serious enough to be considered a malversation, or a responsibility crime, an impeachable offense according to Article 85 of the Brazilian Constitution.
The academic effort to study what happened in Brazil in 2016 crossed national borders when Dr. Fiona Macaulay, Senior Lecturer in Development Studies from the University of Bradford in the United Kingdom, announced a lecture named “The coup of 2016 and the future of democracy in Brazil,” to be conducted on 16 March 2018. Macaulay defends her initiative, stating that, “Some people think that the removal of President Rousseff was an institutional coup, others believe it was due process, depending on the reading of all the circumstances, actors, institutions and motivations involved. But even if people do not agree, we all agree that academic freedom to explore different interpretations must be absolutely defended.” Similar initiatives were reported to have emerged in universities both in Mexico and Colombia.
While such a significant group of Brazilian and international intellectuals holds Rousseff’s removal as a break in the democratic order, there are some unique aspects of the impeachment process that can make the coup-d’etat narrative appear less convincing. Some of these aspects include the widespread popular support for Rousseff’s removal from office; the Supreme Court’s ruling to accept Rousseff’s plea for a stricter congressional rite of impeachment; the significance of Rousseff’s fiscal transgressions when compared with former governments; the decision by the Senate to maintain Rousseff’s political rights after impeachment; the repeated refusal of the Supreme Court (whose judges were mainly appointed by Rousseff’s party) to accept pleas against the legality of the process.
While it was not the first time Brazil had seen a president be deposed since the re-democratization of 1985, Rousseff’s impeachment process had some particular qualities that raise important questions. Fernando Collor de Mello, elected president in 1989, faced impeachment trials that culminated in his impeachment in 1992. The time between the submission of the complaint to parliament and the vote of the senators, which would define his removal from the presidency, was 31 days. To many who followed de Mello’s case, Rousseff’s trial was perceived as a much longer ordeal. In comparison, the time between the submission of the complaint to parliament and the vote of the senators was, in her case, 203 days. This difference in timeframe can be attributed to the perceived over-judicialization of the 2016 process, with the Supreme Court repeatedly being invited to intervene.
Concerns were raised about the active intervention of the judiciary in a trial process that should mostly be the prerogative of the legislature, and critics have suggested that the Supreme Court’s changes to the parliamentary rite of impeachment were an overstep of its constitutional prerogatives. In an article called The (In)Constitutional Mutation of The Rite of Impeachment In The Senate, professors of Brazilian constitutional law Martonio Mont’Alverne Barreto Lima and Maria Alice Pinheiro Nogueira conclude that the “…authorization granted by the President of the Federal Supreme Court [to change the impeachment proceedings by making them more strict] has created an unconstitutional mutation[…] that undermines the stability of the constitutional system and its legal certainty.”
While it is not the intention of this dissertation to analyze if the Brazilian Supreme Court overstepped its constitutional responsibilities by interfering in congressional practices to help Ms. Rousseff, it is relevant to recognize that the Court did intervene in her favor when it deemed her pleas fair. Additionally, in accordance with what dictates the law on the matter, the president of the Supreme Court was the person responsible for presiding over the congressional session in which the impeachment was voted.
According to Cristiano Paixão, a professor in UnB’s Law School and researcher in constitutionality and democracy, “The president of the Supreme Court has the important role of watching over the constitutional guarantees of the[impeachment] process,” which is why the law dictates he be the one to preside over an impeachment congressional session. Expanding on this subject, Tomás Paiva, Ph.D. in Constitutional Law by the University of Sao Paulo (USP), explains that, “Although the impeachment is a political trial, it is still a legal process that has many formalities. So the idea of having the president of the Supreme Court presiding it is to ensure the observance of all rules and to guarantee that the political side of the process does not overcome the legal one.”
Cognizant of the legal steps observed to pass the impeachment, it came as a surprise to many analysts in Brazilian society when universities started creating disciplines promoting the idea that the country had experienced a coup, implying a breach in the rule of law. To Rodrigo Jungmann, Ph.D. in philosophy and professor at the Federal University of Pernambuco (UFPE, for its acronym in Portuguese), “The impeachment of Dilma[Rousseff] followed all the applicable procedural rules regulated by the Constitution, with the full consent of the Supreme Court, whose majority of members was indicated by Rousseff’s political party.” To Jos´e Matias Pereira, Professor of Administration at UnB and author of the book Tempestade Perfeita (Perfect Storm), which portrays the Brazilian political events that culminated in impeachment, “The entire process was made on the basis of constitutional precepts, and a broad right of defense was given. We had a governance crisis, and when that happens, you have to find a way out. The coup narrative is not appropriate.”
If the commonly disputed notion that “history is written by the winners” has a truthful premise, it is that accepted narratives on historical events are composed by whomever can more effectively get their positions to become broadly accepted. While the winner may occasionally have a competitive advantage in doing so (and therein lies the logic of the quote), in free societies historical narratives are mostly formulated by academics, with their accepted views eventually working their way down the educational ladder to become mainstream. When so many university professors create disciplines to study the “2016 Coup” – their stance on the issue inferred in their choice of words – even if their opposition to the impeachment was not realized politically, they are the ones more effectively spreading their narratives about it.
As mentioned before, the accusation of a break in the democratic and constitutional order ought to be taken especially seriously in countries with younger democratic traditions. The fear of an unstable legal and political environment has long been known to drive off international investors and stall economic growth. Due to Mercosur’s (the South American customs union and trade bloc of which Brazil is one of the founding members) Democratic Clause, a perceived break in the democratic order can lead to a suspension from the trade block, and even give neighboring countries the prerogative to close the suspended country’s terrestrial and maritime frontiers. While it is not likely that Mercosur will sanction its most prominent economy, if the idea of a “2016 Brazilian Coup” becomes the consensus in the future, Mercosur’s failure to act will be brought into question, possibly undermining its future ability to enforce democratic standards within members.
If the “2016 Brazilian Coup” narrative is unlikely to affect Brazilian Mercosur membership, the same is not true concerning a potential membership with Organisation for Economic Co-operation and Development (OECD). Having recently intensified negotiations to enter the organization, Brazilian efforts were met with resistance, with the United States, who believes the organization ought to continue as a “wealthy nations’ club,” blocking the beginning of the process to analyze the request. Regarded by some as a potential “transformational leap forward” for the country, an invitation to join the organization would only follow the completion of a complicated list of 237 recommendations. Even then, the application for accession could still be rejected due to deliberations left to OECD’s own discretion, such as the one stated on article 17 of OECD’s General Procedure For Future Accession, which states that matters such as democracy and rule of law “… may be considered as particularly important parameters for judging whether a candidate country ultimately should be invited to join.” Considering the length of the accession process in such exclusive organizations, it is not impossible to imagine a scenario in which Brazil has followed all the requirements for admission, only to have its application dismissed due to an internationally-accepted narrative that regards the 2016 impeachment as a break in the country’s democratic and constitutional order.
Considering the magnitude of potential repercussions associated with an accepted narrative, it would not be prudent to advance with any analysis without returning to the fundamental premises of the matter. For the rule of law to have been broken, three options are possible: (1) None of the crimes under which Ms. Rousseff was convicted constitutes an impeachable offense. (2) Regardless of the offenses being impeachable or not, Ms. Rousseff did not commit them. (3) Independently of the existence of an impeachable offense, the impeachment process was not carried out in accordance with the Constitution.
Consequently, the initial aim of this dissertation is to produce an examination of the allegations and the proceedings in light of Brazilian law, in the interest of answering the following questions:
- Did any of the crimes Ms. Rousseff was accused of constitute an impeachable offense?
Did she commit it?
- Were the procedures of the impeachment process carried out in accordance with the Constitution?
If any of these questions can be answered in the negative, it will indeed be possible to affirm that the 2016 impeachment process generated a breach of Brazil’s rule of law. However, if they are all answered affirmatively, it becomes logically impossible for the rule of law to have been broken.
Although this thesis is mainly a legalistic exercise, answering these questions is of paramount importance to the legitimation of the debate. It’s not possible to speak of a breach of the rule of law without implicitly acknowledging that the rule of law did, in fact, exist before. Brazil being a constitutional republic, its constitution dictates the rules by which its leaders may be democratically elected and impeached, as well as the rules by which each branch of power – legislative, executive and judiciary – should independently abide. If Ms. Rousseff was, in fact, condemned by an offense that she committed and that was impeachable, and if the impeachment process followed the Constitution in its proceedings, the hypothesis of a breach in the rule of law is automatically proven false. The same is true for the theory of a “democratic rupture,” since a legal impeachment process is part of the constitutionally established democratic order.
However, if the impeachment of Ms. Rousseff did, in fact, signify a breach in the rule of law, establishing a breach as such will produce the necessary arguments to further challenge the process in national and international courts. Moreover, it will provide a firmer legal framework to better establish the assertion that the country did undergo an illegal political coup, thus granting legitimacy to the university professors currently presenting this notion as an established fact.
This dissertation will be presented in three parts. The first part will examine the alleged transgression in light of Article 85 of the Brazilian Constitution and related law to ascertain if it was truly an impeachable offense. The second part will analyze the actions comprising the alleged crime to establish whether Rousseff was legally responsible for them. The third part of this dissertation will investigate if the Congress conducted impeachment proceedings in accordance with the Constitution. Concurrently with the constitutional analyses, we will also establish the democratic character of the 2016 impeachment process by exploring the underlying nature of the accusation, the alleged crime, and the procedures, in regard to the relationship between governmental power and civil and political rights. The conceptual and theoretical frameworks underpinning the democratic analysis will be defined in the following chapter.
This introduction has established the background, relevancy, and problematic areas concerning the study of democracy and constitutionality in the impeachment of Brazilian President Dilma Rousseff. As in any politically-troubled historical period, it is natural to see competing narratives that fight for supremacy. This dissertation intends to establish a sober legal and political framework for these events, and aims that a rigorous analysis of the facts will contribute to their perpetuation.
Conceptual and Theoretical Background
In the Judeo-Christian world, the idea of a divine right of kings, which is the notion that a king’s authority derives from God and that God is the only authority to whom the king is accountable, traces its history to the story of the prophet Samuel anointing Saul and then David as kings of Israel. The anointing of Saul and David determined that the monarchy was sacred and inviolable. This doctrine survived millennia, and it is still legally recognized to a certain extent in some places. However, the convoluted nature of royal succession would often lead kings to seek monetary and military support to their claims of sovereignty and for the very social contract that guaranteed their power. Ensuring this support would, at times, involve setting limits to the Crown’s power in order to assure the nobility that the king’s mandate would not interfere with their perceived rights. In 1100 CE, King Henry I of England signed the Charter of Liberties upon his accession to the throne. An attempt to bind the king’s treatment of nobles, church officials, and individuals to specific laws, the charter limited the king’s power to meddle in matters of debt, trial, marriage, tax, and inheritance. Regarded as a landmark document in the kingdom’s legal history, the code would be considered a forerunner to the English Magna Carta of 1215 CE.
The codification of rights and laws is not, however, a phenomenon exclusive to the Common Era, nor is the need to limit the government’s ability to arbitrarily disregard the rules. Historians agree that in 462 BC, C.Terentilius Arsa, the plebeian tribune in Rome, proposed that laws should be written down to avoid their discriminatory application by aristocratic judges. The struggle led to the Leges Duodecim Tabularum, The Law of the Twelve Tables, which served as a foundation for Roman law. Known as one of the first codifications of civil procedure, the table contained many legal concepts that are present in legal systems to this day. The initial clause of the first table, “When anyone summons another before the tribunal of a judge, the latter must, without hesitation, immediately appear,” as well as its sixth clause, “If the plaintiff and defendant do not settle their dispute, as above mentioned, let them state their cases either in the Comitium or the Forum, by making a brief statement in the presence of the judge, between the rising of the sun and noon; and, both of them being present, let them speak so that each party may hear,” would set the grounds to the right of presenting one’s defense and confronting the accusation. The right to a public trial was also codified implicitly, with references to public places as the only sites appropriate for official statements and cross-examination. The risk of an unjust penalty was taken very seriously, and false testimony or accepting payments for professing sentences were both subject to capital punishment. The clause guaranteeing that, “Putting to death … of any man, whosoever he might be, unconvicted is forbidden,” implied the respect for the presumption of innocence.
Fast forward to 1215 CE, when another unpopular king would be required to sign away royal authority to keep the Crown in place. In an attempt to make peace with a group of dissident barons, King John of England signed the Magna Carta Libertatum, the Great Charter of the Liberties. The English Magna Carta further codified the limitations of both royal and judicial power and carried rights that were someday to become standard in most constitutions. Its Clause 39, still in force today, institutes the right to due process:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
During the following centuries, the role of elected officials would increase in significance, and the mandate of the people would slowly overcome the mandate of God as the accepted guarantor of governmental legitimacy. The shift did not come without struggles, however. Many peoples killed or exiled their royals. The English, on the other hand, devised a less dramatic solution. The English Bill of Rights of 1689 and the Act of Settlement of 1701 introduced the concept of parliamentary sovereignty, which significantly curtailed the authority of the monarch. Among the most significant changes to the power structure, no law was to be implemented nor any taxes were to be imposed without legislative consent. The English Bill of Rights greatly influenced the Virginia Declaration of Rights, which, in turn, influenced the first ten amendments to the United States Constitution, the United States Bill of Rights.
Predated by a war of independence fought against what was seen as an autocratic power, the United States Constitution preserved and amplified most of the anti-authoritarian restrictions the British had employed at home, while also implementing precepts similar to those Rome had begun to refine millennia earlier. The Constitution’s first three words—“We the People”—codify the notion that governmental legitimacy emanates from the people, and the first three articles of the Constitution systematize the authorities and the limits of the powers for each branch of government. Article 2 also establishes the crimes that would allow the legislature to impeach members of the executive and judiciary powers. The Bill of Rights guarantees to citizens the right to a public, “fair and speedy trial by a local and impartial jury;” to due process of law; to legal counsel in the case of a criminal accusation; to bring witnesses to testify on behalf of the accused; and to be aware of the charges the accused is facing. While the English Bill of Rights of 1689 introduced parliamentary control over taxation, a government’s right to tax its citizens would not be presupposed by political thinkers behind the U.S. Constitution. Having won independence against a colonial power accused of overburdening local taxpayers, the founding fathers of the United States had to consider the matter of taxation justifiability. In what would become part of the Federalist Papers, Alexander Hamilton wrote seven essays titled Concerning the General Power of Taxation. His view was that no government could enforce the people’s constitutional guarantees without the financial means to execute power, and the imposition of internal taxes was the only way to fully achieve such a monetary guarantee. Defining “the power of laying and collecting taxes,[…] a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes,” Hamilton would follow the precedent of the English Bill of Rights of 1689, requiring that the imposition of duties be enacted under the collective determination of elected legislative representatives, thus mitigating the possibility of abuse by the executive branch.
Hamilton would not be the last political thinker to limit a government’s financial decision-making to legislative deliberation. Austrian-American theoretical economist Ludwig von Mises would take the restraining of governmental power in favor of civil and political rights to a new theoretical level with the claim that congressional sovereignty over the executive budget was a pre-requisite for democracy. In his 1944 book Bureaucracy, he argued that “democratic control is budgetary control,” deeming the law and the budget the two pillars of democratic governance. In his view, a democratic country must always guarantee the supremacy of the law. If not empowered by the law, “no judge or officeholder has the right to intervene with any individual’s affairs.” He argues that an anti-democratic government, like the one led by the Nazis, is unable to stand by this principle. In Hitler’s National Socialist Germany, judges had to rule by the legal concept of “das gesunde Volksempfinden, i.e., in accordance with the sound feeling of the people.” Since judges had the power to arbitrarily determine this unspecified feeling, they judged “like the chieftain of a primitive tribe.” While the enforcement of defective laws may sometimes lead to injustices in democracies, he argues, they are a minor issue when compared to the problem of judicial arbitrariness in undemocratic countries. In democracies, if a representative acknowledges the inadequacy of some law, he is “the mandatary of the sovereign, the people,” to replace the unjust legislation for a better one. While Mises admits that despots, tyrants or dictators, may believe their leadership to be good, and may believe their spending decisions to be for the benefit of the people, he argues that their governments will never be “by the people.” For that, “the sovereign [the people] and their representatives” must be the ones deciding on the allocation of public funds. In book Omnipotent Government: The Rise Of The Total State And Total War, he would comprehensively illustrate the practical entailments of his theory:
The salesman thanks the customer for patronizing his shop and asks him to come again. But the socialists say: Be grateful to Hitler, render thanks to Stalin; be nice and submissive, then the great man will be kind to you later too.
The prime means of democratic control of the administration is the budget. Not a clerk may be appointed, not a pencil bought, if Parliament has not made an allotment. The government must account for every penny spent. It is unlawful to exceed the allotment or to spend it for other purposes than those fixed by Parliament.
Acknowledging that taxes are not the only tool for a government to increase its budget, Mises would also address executive actions that have brought hidden burdens upon taxpayers. In his 1940 book Interventionism: An Economic Analysis, he gives the example of an inhabitant of Berlin, who, in 1914, would be ecstatic to come into the sum of 1,000 marks, but, in 1923, would not deem 1,000,000,000 marks as worthy of attention. To explain this phenomenon he refers to a fundamental law of monetary theory, which establishes that the “service which money renders to the economic community is independent of the amount of money.” To understand this law, we must acknowledge money for its value as a legal tender that holds societal trust in its interchangeability for goods and services. The total offer of goods and services in a closed economy is defined by the output of this economy at any period. The price of a good or service depends on its perceived value, which depends on (1) the general demand for this good or service and (2) its availability within the economic output. Since the intrinsic value of money is its interchangeability for goods and services, the perceived value of this good or service is decoded and translated into a monetary value: the price. The price is the translation of a product’s or service’s perceived value into a corresponding limited share of the total number of monetary units available in the economy. If the total number of available monetary units increases artificially, the economic output is left unaffected, the relative value of a product or service within the economic output will not change, and therefore its corresponding share of the total number of monetary units available will remain the same. This phenomenon is known as inflation, the increase in the price of goods and services that follows the devaluation of a currency. Mises identifies two of the methods utilized by a government to artificially increase the total number of monetary units available in an economy as the “issue of additional paper money or borrowing from the commercial banks.” These methods, he argues, are used to allow an administration “the devil of easy money” for spending, independent of the amount raised in taxes. The main problem with the inflationary increase in prices, he explains, is that it is not evenly distributed throughout the economy. It is more a chain reaction of economically interconnected industries. Products with lower profit margins, like commodities, are the first ones to face price increases. The adjustment forces other products to increase prices, and this chain reaction of adjustments will eventually affect the whole economy. However, Mises argues, wage rates rise less, and they may not even increase at all. As a result, the artificial increase in the total number of monetary units available in an economy works analogously to a rise in taxation, effectively removing part of every citizen’s purchasing power. For this reason, Mises expands his theory on budgetary allocation to the governmental practices that increase inflation:
Inflation is essentially antidemocratic. Democratic control is budgetary control. The government has but one source of revenue — taxes. No taxation is legal without parliamentary consent. But if the government has other sources of income it can free itself from this control.
While Mises considers inflation as inherently anti-democratic for being taxation without democratic control, the problem of democratic control would have been mitigated by modern legislation. The Brazilian Constitution of 1988, for example, guarantees to Congress the right to decide on the creation/issuance of “taxation systems, budgetary directives, annual budget, credit transactions, public debt and[…] currency.” This constitutional guarantee efficiently binds any taxation effort, budget allocation and inflationary practices to congressional approval, effectively guaranteeing to the Brazilian society complete democratic control over the public funds. Alexander Hamilton knew that a government needs the ability to enforce constitutional guarantees. While taxation provides the financial means, punitive legal provisions guarantee the legal means of enforceability. In this wake, the Brazilian Constitution guarantees Congress the ability to prosecute the chief of the executive branch for crimes against the probity in the administration and the budgetary law. These guarantees ensure that the representatives of the people have the legal means to offer punitive measures against an administration engaging anti-democratic budgetary practices. These constitutional provisions represent a great recent example of the restraining of governmental power (in this case, the power of the executive branch) in favor of civil and political rights. They demonstrate that the writers of the Brazilian Constitution agreed with Mises in the notion that citizens have the right to exercise control, through their elected representatives, in matters of taxation and budget.
The Brazilian Constitution would also adopt other measures restraining governmental power in favor of civil and political rights (the collection of rights that protect individual freedoms from violations by the government). In the sole paragraph of its first article, the Constitution aligns itself with the notion that all power emanates from the people. Article 2 establishes the independence of the three branches of power of the Union. Article 5 declares all people “equal before the law,” and establishes that “no one shall be deprived of liberty or property without due process of law.” Article 5 outlines the aspects of the due process of law, guaranteeing the right to a public trial, to the “full defense,” and to an “adversary system.” Articles 44 to 75 regulate every aspect of the legislature, giving it the sole authority to, among other things, judge the Union’s annual budgetary reports, decide on the authorization of legal proceedings to be initiated against the President, put the President to trial, authorize the President to declare war, stop executive acts which exceed the government’s legal mandate, etc. Other powers can only be exercised by the legislature if acting together with the executive branch (and vice-versa), and they include the creation of laws, constitutional amendments, taxation systems, and, as mentioned before, also the issuance of “budgetary directives, annual budget, credit transactions, public debt and[…] currency.”
In Article 85, the Brazilian Constitution details the types of crimes that would allow the legislature to impeach the President. Regarded as malversations, or crimes of responsibility, they are any acts of the President that may harm:
The existence of the Union;
- The free exercise of Legislative Power, Judicial Power, Public Prosecution, or the constitutional powers of the units of the Federation;
- The exercise of political, individual, and social rights; the internal security of the country; the probity of the administration;
The budgetary law; or
- Compliance with laws and court decisions.
- Article 86 determines that “If two-thirds of the Chamber of Deputies accept an accusation against the President of the Republic, he shall be tried before[…] the Federal Senate for impeachable offenses.” The Constitution also asserts that these crimes “shall be defined in a special law, which shall establish rules of procedure and trial.” However, the special law to define the rules for procedure and trial was never created. While Brazil has a Law of Impeachment from 1950 that is still enforceable, and this law offers a detailed account of the definition of the “crimes of responsibility,” it leaves the part about procedure and trial moderately vague. This juridical uncertainty has led to the repeated intervention of the Supreme Court to define the constitutionally correct impeachment procedures to be carried out in Congress.
Brazil seems to fit into a category of countries that are slowly improving in restraining governmental power in favor of civil and political rights. Its Constitution provides similar juridical guarantees during trial as the U.S. Constitution. Power is constitutionally guaranteed to emanate from the people, the three branches of government are independent and mutually limiting, and the legislature is constitutionally guaranteed a great degree of control over the executive power. While the need to limit the government’s ability to arbitrarily disregard the law may be an ancient problem, in 2016, the clarity and strength of the Brazilian Constitution was put to the test when President Dilma Rousseff was tried under the accusation of doing exactly so.
In subsequent chapters, this dissertation will analyze the validity of the charges presented against President Dilma Rousseff to understand if they were legal under the law and to evaluate how they assess against the notion of “restraining governmental power in favor of civil and political rights.” Were the actions of Rousseff’s government expanding governmental power at the cost of civil and political rights? Or was the government within its rights? If the government was within its rights, was the legislature, then, unlawfully expanding its governmental power at the cost of other civil and political rights (as the right of citizens be governed by their elected president)? The impeachment accusations against President Dilma Rousseff involve the use of budget allocation and inflationary measures without proper congressional approval. If confirmed, they would meet Mises’ definition of essentially undemocratic behavior. Within this perspective, if accusations are verifiable, then Rousseff’s impeachment could fall under the definition of an inherently democratic process in defense of democracy.
Moving forward, the procedures of impeachment become the subject of examination. Cognizant of the uncertain juridical nature of the “rules of procedure and trial” for impeachment, we will produce what we comprehend to be the Supreme Court-approved procedural framework for the impeachment process (SPF) and evaluate it against the constitutionally-defined juridical guarantees during procedure and trial (CJG). This comparison will allow us to assess if the SPF is constitutional. Having done that, we will produce a timeline of the procedural milestones of Rousseff’s impeachment and cross-reference it with the SPF. The cross-referencing will allow us to quickly spot any rules of the SPF that were not entirely satisfied by the proceedings carried in Congress. Having established which rules, if any, were not observed, we shall be able to evaluate if their non-compliance violated any of the CJG. This process will allow us to determine whether the procedures of the impeachment process were carried out in accordance with the Constitution, or if they were an overreach of the legislative’s governmental power against the civil and political rights of the President and her electors.
As we scrutinize the request for impeachment that ultimately led to Rousseff’s removal from office, three main accusations can be identified. This section will briefly describe these accusations so that they may be further analyzed in light of the proposed research questions.
Accusation 1: Fraudulent Delay in Payments to FederalBanks
The authors of the impeachment request argued that President Rousseff had broken the Fiscal Responsibility Law (LRF, for its acronym in Portuguese) by delaying payments to federal banks that were contracted to act as intermediaries in the payment of social benefit programs. These banks continued to pay for the programs using their private resources, and the money that the government withheld was still computed as part of the public budget, which gave the public and international investors the impression that the nation’s finances were healthier than they were in reality. The practice, which misrepresented the country’s challenging economic situation in the year in which Rousseff was running for re-election, caused the Federal Government’s accounting reports for 2014 to be rejected by the Brazilian Federal Court of Audit (TCU, for its acronym in Portuguese). The authors of the impeachment request maintain that the practice violated the LRF, which explicitly prohibits loans from federal banks to the Union and, therefore, constitutes a crime of fiscal responsibility. These delays in payment, considered as irregular credit transactions, were not delineated in the government’s accounting report. Therefore, the authors argue, they would also constitute a crime of misrepresentation.
According to the authors, the 2015 financial statements of Banco do Brasil S.A. (Bank of Brazil) demonstrate that during the first semester of her second presidential term, Rousseff’s government once again delayed payments to a federal bank, thus repeating the same practice that resulted in the rejection of the 2014 accountability reports by the TCU.
Accusation 2: Unauthorized Budget Supplementation Decrees
In addition to these delays, the authors of the impeachment request noted irregularities in the government’s issuance of six budget supplementation decrees in 2015, which resulted in a budgetary surplus of 2.5 billion reais. The jurists have argued that the government issued these decrees because it already knew that it would not be able to meet its primary surplus target. According to them, the issuance of such decrees without prior congressional approval disrespects the Annual Budgetary Law (LOA, for its acronym in Portuguese), which would constitute an additional crime of fiscal responsibility.
Accusation 3: Connivance with the Petrobras Corruption Scheme
As she headed the board of Petrobras between 2003 and 2010, and signed off the controversial purchase of the Pasadena refinery (a fraudulent and overpriced acquisition that resulted in the loss of US$741 million to Petrobras), the authors argued that there was no possibility that Rousseff was unaware of the corrupt practices of the state company. Rousseff, the authors asserted, also had a close relationship with former Petrobras director Paulo Roberto Costa, the first of the accused to take a plea deal, and who agreed to return US$26 million to Petrobras. According to the authors, Costa was so closely tied to the President that he participated in the wedding ceremony of Rousseff’s daughter. Further evidence of Rousseff’s knowledge about these practices is found in the statements of black-market monetary dealer Alberto Youssef, who, under a plea deal validated by the Supreme Court, testified that Rousseff knew of the Petrobras events (the same would be confirmed by Delcídio do Amaral, former senator for PT, also caught in the corruption scandal). Moreover, the authors cite the fact that, long after charges related to Petrobras had come to light, Rousseff continued to deny the evidence, declaring her trust in the government and refusing to remove from office those government officials who were implicated in the scandal. Thus, the authors argue, Rousseff demonstrated her connivance with the corruption scheme, incurring in another crime of responsibility.
The Fraudulent Delay in Payments to FederalBanks
This section will analyze the first allegation against Rousseff and will examine it in light of the proposed research questions, taking into consideration the Brazilian law and the constitutional precept that the three branches of the Brazilian government be independent and mutually limiting.
Did this constitute an impeachable offense?
The Fiscal Responsibility Law of 2001 (LRF) was a legal instrument introduced to secure responsible finance standards for public budgetary management. This law was supported by Article 163 of the Brazilian Constitution, which states that a “supplementary law shall make provisions for public finances,” and Article 165, which states that a “supplementary law shall[…] establish rules for the financial and property management of the direct and indirect public administration.” The law defines output goals between revenue and expenses and establishes strict boundaries to be followed by public managers, among which the limits of the relationship between the federal government and public banks are delineated. Additionally, the Brazilian Constitution determines that the creation of credit transactions and public debt can only be exercised by the executive if acting together with the legislature. Clear restraints to the executive branch’s ability to arbitrarily indebt the nation, the constitutional provision and the LRF pay tribute to a long history of codified rights limiting the government’s ability to abuse its prerogatives.
Government misuse of public banks for illegal financing is a matter of established legal concern in Brazil. The issuance of bad credit can lead a bank to insolvency, causing great harm to both its depositors and to the economy. In this sense, Article 19 of Law 4595/64 provides that the Bank of Brazil be responsible, as an agent of the National Treasury, to “make the payments necessary to execute the Federal Budget[…] following the authorization of the Ministry of Finance, which may not exceed the total amount of resources referenced in the previous letter, and forbidding the Bank to grant credits of any nature to the National Treasury.” The spirit of Article 36 of the LRF is the same, as it prohibits any “credit transaction between a state financial institution and the entity of the Federation that controls it as the beneficiary of the loan.” According to Article 29 of the LRF, a “credit transaction” is defined as a “financial commitment assumed as the result of a loan, the opening of credit, the issuance and acceptance of securities, the financed acquisition of assets,[…] or leasing and other similar operations, including the use of derivative financial resources.”
The Brazilian Financial Transaction Tax (IOF, for its acronym in Portuguese) is a federal tax imposed on credit transactions, currency exchanges, and insurances. According to Law 5143/66, Article 1 and 2, the tax is incurred by credit transactions that are granted by financial institutions after the “delivery of the respective value or availability to the interested party[…] [based on] the global value of the loan, credit opening, and discount of securities, which are calculated monthly.” Article 3 of Decree 6306/2007 clarifies that the taxable event of the IOF occurs “on the date of the advance to the depositor, thus considering the overdraft balance in a deposit account” (emphasis mine). That the Federal Government is not itself a payer of this variety of tax does not weaken the legal logic that an overdraft, or the automatic opening of bank credit to allow for payments when a depositor does not have enough money, constitutes a credit transaction. Similar provisions were included in Article 3 of the law of Provisional Contribution on the Movement or Transmission of Securities and Credits and Rights of a Financial Nature (CPMF, for its acronym in Portuguese), which determined the incurrence of this federal tax on the “credit, by a financial institution, into current accounts that present a negative balance.” Moreover, Article 63 of the National Tax Code provides legal support to such laws by establishing that “Federal taxes on credit transactions[…] may be triggered by the execution of the total or partial delivery of the amount or value that constitutes the object of the obligation, or by its being made available to the interested party” (emphasis mine). Hence, it is possible to establish that, according to Brazilian law, the automatic opening of credit to cover for financial obligations that an account holder does not have the means to satisfy—thus creating a negative balance to be paid to the bank—configures a credit transaction between the account holder and the financial institution.
The consideration of a negative account balance as a credit transaction is not unique to Brazilian law. In fact, the very definition of an overdraft establishes it as a credit transaction. According to the educational website Investopedia, “an overdraft is an extension of credit from a lending institution when an account reaches zero.[…] Basically, overdraft means that the bank allows customers to borrow a set amount of money.” Moreover, due to the nature of fractional-reserve banking, which defines the amount of credit that a bank can open as a multiplier of its reserves, “banks cannot and do not ‘lend out’ reserves,” as doing so would vastly decrease the bank’s ability to open credit. The only exception to this rule is interbank reserve lending, which is exclusive to financial institutions. Consequently, any use of bank money to meet another party’s obligation is, by definition, the opening of credit, and therefore constitutes a credit transaction as defined by Brazilian law.
We have established, then, that the legal definition of a bank’s opening of credit to a customer is a credit transaction. We have established as well the legal recognition of overdrafts as credit transaction. Furthermore, we have established that the very nature of fractional-reserve banking prevents a bank from making money available to a customer by any method other than the opening of credit. Under these terms, it becomes clear that if a federal bank makes payments on behalf of the Brazilian Government without the government first offering the financial means to settle such an obligation, these payments cannot reasonably constitute anything other than a credit transaction.
While we have already established that a credit transaction between a state financial institution and the Federation that controls it is an illegal practice, how can we ascertain whether this is an impeachable offense? As noted earlier, Article 85 of the Brazilian Constitution recognizes malpractices, or crimes of responsibility, as impeachable offenses. These offenses could be any act of the President that may harm, among other things, “the budgetary law.” While the Brazilian Constitution does not explicitly define such acts, it asserts that these crimes “shall be defined by a special law.” This law is known as Law nº 1.079, from 10 April 1950, or “The Law of Impeachment,” which states in Article 2 that “The crimes defined in this law, even when simply attempted, are subject to the penalty of loss of office, with disqualification for up to five years for the exercise of any public function, to be imposed by the Federal Senate in proceedings against the President of the Republic, Ministers of State, Ministers of the Supreme Federal Tribunal, or the Attorney General.” When considering credit-related impeachable crimes against the budgetary law, the Law of Impeachment establishes in Articles 10 and 11 the illegality of “ordering or authorizing, in disagreement with the law, the execution of a credit transaction with any entities of the Federation, including indirect entities, even in the form of novations, refinancing, or the postponement of previously contracted debt,” “acquiring credit without a legal warrant or without following legal formalities,” and “[…] carrying out a credit transaction without legal authorization.”
In conclusion, the Constitution establishes credit transactions as a shared prerogative of the executive and legislative powers. The LRF prohibits any credit transaction between public financial institutions and the federal entity that controls such institutions. The Law of Impeachment defines credit transactions, if illegal, as responsibility crimes punishable with the loss of office, a notion supported by article 85 of the constitution. Moreover, various tax laws and the National Tax Code have determined that the automatic opening of bank credit to cover financial commitments that a depositor cannot pay, consequently creating a negative balance to be repaid to the financial institution, configure a credit transaction between the account holder and the bank. All things considered, it is possible to assert that the accusation of a fraudulent delay in payments to public banks, in fact, constitutes an impeachable offense on the part of Rousseff’s government, if they have indeed committed such an offense. Moreover, considering Congress’ constitutional requirement to approve credit transactions, unapproved transactions would signify an attack on the citizens’ right to exercise democratic control, through their elected representatives, in matters of taxation and budget.
Did Rousseff commit it?
It has been established that an account holder’s negative account balance with a financial institution constitutes a credit transaction, and a financial institution cannot extend a credit transaction to the governmental entity that controls it without this entity perpetrating a responsibility crime. It has also been confirmed that, if a President commits a responsibility crime, the punishment is impeachment from office. It is essential, therefore, to confirm whether Rousseff’s government made use of these illegitimate financing tools. Anyone analyzing the impeachment request filed against Rousseff can verify that the legal opinion offered by the TCU, when rejecting the Federal Government’s 2014 accounting reports, provides a significant number of examples of such practices. The official opinion of the Senate’s special committee to analyze the impeachment request also corroborates the opinion of the TCU. According to these opinions, Rousseff’s government had unlawfully indebted over 50 billion reais (12 billion euros) from federal banks under its control. Since the Law of Impeachment establishes that responsibility crimes, “even when simply attempted, are subject to the penalty of loss of office,” demonstrating that a violation was committed at least once would be enough for the purpose of this dissertation.
The Safra Plan, created by the Federal Government, is a yearly federal financing program that supports affordable credit for farmers to invest and finance production. The government designates part of its yearly budget to fund loans to agricultural producers at a subsidized interest rate. Since the government cannot act as a financial institution, banks can tap the allocated budget to offer the loans to rural clients that fulfil the program’s criteria. The banks can also self-fund the loans, in which case the government will pay for part of the interest rates, guaranteeing the rates established by the program.
The authorization for these economic subsidies was provided by Law No. 8,427 of 1992, which states that the government is authorized to support rural producers in the form of lower interest rates. According to article 3 of the law, the Ministry of Finance is responsible for establishing the criteria, limits and operational rules for the subsidy. In this wake, Ordinance no. 315, published by the Ministry on 21 July 2014, defined that the amount owed in subsidized interest by the Federal Government to Bank of Brazil (one of the public banks operating the program) should be calculated twice a year. Likewise, the Ordinance established that the equalization is due on the first day after the calculation period.
According to Rousseff’s impeachment request, the Federal Government’s liabilities to Bank of Brazil under the Safra Plan were equal to R$10.9 billion in December 2014. In the first quarter of 2015, they had grown to R$12.7 billion. These numbers are confirmed by examining Bank of Brazil’s accounting statements for the first quarter of 2015 (see fig.1).
According to the TCU’s legal opinion, the above accounting statement confirms that the government did not pay the bank the amount due for 2014, which caused the bank to start charging interest on the unsettled amount, leading to the increased deficit by the end of the first quarter of 2015. Notably, the lack of payments from the Federal Government indicates that Bank of Brazil itself financed the subsidized interest rates. The incurrence of interest on the amount owed to the bank confirms a credit transaction between the Federal Government and Bank of Brazil, a financial institution under its authority.
Now that it has been established that a credit transaction did take place, it is necessary to make something clear. In the past, whenever banks acted as operators of government programs, small delays or delays not involving a large sum of money, even if irregular and technically illegal, were never used to accuse a Brazilian President of a responsibility crime. Delays are natural to the public administration of a large country, and prosecuting every small infraction would make the nation ungovernable. It is the task of Congress, when voting to approve the Federal Government’s yearly accounting statements after receiving the official opinion issued by the Federal Court of Audit (TCU), to differentiate between minor delays and delays purposefully conducted to serve as illegitimate loans. To illustrate the extent of Rousseff’s delay of payment, the Federal Court of Audit prepared a chart demonstrating, through the years, the delays in payments from the Federal Government to one of its other controlled financial institutions, the Federal Savings Bank (CAIXA, for its name in Portuguese) (see fig. 2). The chart makes it transparent that the extent of Rousseff’s transgression during the period leading to her re-election campaign was unprecedented, accumulating credit transactions close to 6 billion reais with the federal bank.
On that same note, the official opinion issued by the Senate’s special committee to analyze the impeachment request introduced data from the Brazilian Central Bank, demonstrating the credit relationship between the Brazilian Federal Government and other of its controlled financial institutions since 2001 (the year after the LRF was promulgated). The charts show Rousseff accumulated liabilities of over 20 billion reais with the national Public Pension Fund (FGTS, for its acronym in Portuguese), liabilities of over 21 billion reais with the National Bank for Economic and Social Development (BNDES, for its acronym in Portuguese), and liabilities of over 12,5 billion reais with the Bank of Brazil. The total liabilities with the four federal financial entities (including CAIXA) reached 58,7 billion reais by November 2015 (see fig. 3).
It is also important to note that Rousseff is an economist by trade. She has always claimed to keep close watch on the public finances, and, during the 2014 election year, she insisted that the government’s accounts were healthy. In 2013, specialists from the Brazilian Federal Court of Audit handed over to the government a 97-page diagnosis of the country’s fiscal and economic situation. The official report, obtained by the economy newspaper ValorEconômico, warned the government that its budgetary policy was creating “a worrying scenario of continuous increase of liability with financial institutions.” Rousseff’s government disregarded the report and continued to insist on the practice with ever-increasing enthusiasm.
After reviewing the relevant evidence, it can be affirmed with no reasonable doubt that Rousseff’s government did, in fact, commit the responsibility crime of acquiring credit with financial institutions in its control. Since this was one of the accusations present in the impeachment request, and since the Law of Impeachment establishes that crimes as such, “even when simply attempted, are subject to the penalty of loss of office,” it is clear that Ms. Rousseff committed at least one of the impeachable offenses delineated in the accusation against her. Moreover, recognizing that Congress is constitutionally mandated the right to approve credit transactions, the actions of Rousseff’s government constituted a clear violation of congressional control over the executive budget, deemed by Mises to be a pre-requisite for democracy. Following this rationale, the illegal transactions would be classified as inherently anti-democratic governing, a breach of society’s right to exercise democratic control over the public funds. As mentioned before, the credit transactions allowed the administration to keep paying for social benefit programs while giving the public and international investors the impression that the nation’s finances were healthier than they were in reality. Considering the continuation of these irregularities during an election year, it could be conjectured that Rousseff’s government engaged in illegal behavior in an attempt to better Rousseff’s chances of reelection. If this conjecture were true, it would constitute a real assault on the democratic order, which requires and guarantees fair elections.
As stated before, if Ms. Rousseff was, in fact, convicted of an offense that she committed and that was impeachable, and if the impeachment process was constitutional in its proceedings, the hypothesis asserting that a breach took place in the rule of law is automatically proven false. Having, at this point, proved that Ms. Rousseff was convicted of at least one offense that she committed and that was impeachable, the only reasonable possibility for the impeachment process to have been a breach of Brazil’s rule of law is if the impeachment proceedings were unconstitutional. Acknowledging the legalistic nature of this exercise, understanding that one impeachable crime is enough reason to legally justify a President’s removal from office, we deem the analysis of the other accusations to be redundant for our purposes, and shall now proceed to the analysis of the constitutionality of the impeachment proceedings.
The Legal Framework for the Procedures of the Impeachment Process
The general procedures of an impeachment process are recorded in the Law of Impeachment enacted in 1950. In 1992, the president of the Chamber of Deputies accepted a request for impeachment of the president and instituted a comprehensive rite for the procedure, taking into consideration the 1950 law, the internal rules of the Chamber and the 1988 Constitution. Fernando Collor, the president at the time, filed a writ of mandamus with the Supreme Court alleging the nullity of the rules, for “not observing constitutional, legal and regimental provisions.” Upon admitting one of the president’s arguments, the Supreme Court granted precautionary measures, ordering the deadline for presenting the president’s defense to be ten parliamentary sessions rather than five as initially conceded by the Chamber. However, the decision also validated the other elements of the Chamber’s rite. In the lines below, we reproduce what we understand to have been the accepted rite and general rules for the impeachment process in the Chamber according to the 1992 Supreme Court decision and the efforts undertaken in the Chamber of Deputies at the time:
- While any citizen can present a responsibility crime accusation against the president, it is the prerogative of the president of the Chamber to accept the request or not.
- If accepted, the accusation should be read in the next session and forwarded to an extraordinary committee.
- The president of the Chamber will inform the president of the Republic of the accusation and grant ten parliamentary sessions for his or her defense.
- This committee is to be elected and to have members of each party represented in the Chamber in proportion to the size of their representation.
- After the president’s defense, the rapporteur of the committee has two legislative sessions to issue a legal opinion on whether or not the Chamber should authorize the Senate to begin the process of impeachment.
- The committee then decides by simple majority on the approval of the rapporteur’s opinion. If approved, it becomes the commission’s opinion. If rejected, the committee shall produce and vote for an alternative opinion corresponding to the opinion of the majority of its members.
- The opinion of the committee shall then be put to call-out vote in the Chamber.
- Before the voting session, the President should be allowed to speak in plenary about the committee’s opinion, either personally or through his or her lawyer. The same right is to be extended either to the rapporteur of the committee or to the accuser.
- If the committee’s opinion favors impeachment, 342 votes supporting the opinion (2/3 of the total) are necessary to send the impeachment process to the Senate. If the opinion disfavors impeachment, 342 votes against it are required for transmitting the impeachment process to the Senate. Recognizing that this rule may seem confusing, we attempt to clarify it in the table below.
|Committee’s Opinion||Votes in the Chamber||Result|
|In favor of the admissibility of impeachment.||At least 2/3 of the votes in favor of the committee’s opinion.||The Chamber authorizes the Senate to begin the process of impeachment.|
|In favor of the admissibility of impeachment.||Less than 2/3 of the votes in favor of the committee’s opinion.||The Chamber does not authorize the Senate to begin the process of impeachment.|
|Against the admissibility of impeachment.||Less than 2/3 of the votes against of the committee’s opinion.||The Chamber does not authorize the Senate to begin the process of impeachment.|
|Against the admissibility of impeachment.||At least 2/3 of the votes against the committee’s opinion.||The Chamber authorizes the Senate to begin the process of impeachment.|
Also in 1992, using the Law of Impeachment and the thorough Supreme Court decision on the matter as a basis, the Federal Senate published in the Official Diary of the Union the step-by-step procedure of the impeachment process in the Senate. We reproduce it translated below:
- The Senate receives the resolution of the Chamber of Deputies authorizing the opening of the process.
- The impeachment request and the Chamber authorization shall be read in the next Senate session.
- The documents shall be referred to a special committee, which is to be created to analyze the process. The committee must comply with the principle of representative proportionality in its composition.
- Once created, the special committee shall meet within 48 hours and elect its president and rapporteur.
- The opinion of the special committee on the admission, or not, of the request shall be issued within ten days.
- The opinion of the committee is to be read in a session of the Senate and published in the Official Diary of the National Congress and separate material to be distributed among the senators.
- The opinion shall be added to the agenda for the next sitting.
- The Senate Plenary shall discuss and call-out vote the opinion in a single shift. If rejected, the case is closed. If approved, by a simple majority of votes, the complaint goes on for deliberation.
- The presidency of the Senate shall be transmitted to the president of the Supreme Court.
- If the complaint is considered to be the subject of deliberation, the accused shall be notified to respond to the charge within 20 days. At this moment, the process of impeachment is formally instituted, and the president shall be removed from his or her functions for 180 days.
- The committee shall interrogate the accused. The accused has the right not to appear or not to answer questions.
- The committee shall begin probative instruction [phase of the process in which evidence is collected and produced] observing the principle of contradiction [audiatur et altera pars or “may the other side also be heard,” referring to the defendants right to offer his say on the evidence]. The possibility of procedural intervention of the complainants and the accused shall be guaranteed.
- The complainants and the accused shall be given the opportunity of offering final written arguments. Written arguments are granted a 15-day deadline.
- The opinion of the special committee on the merits of the prosecution shall be issued within ten days. The opinion, with all the pieces that instructed it, is to be published and distributed to the senators. The opinion shall be included in the plenary’s agenda at least 48 hours after its distribution.
- Discussion and call-out vote of the opinion, by the Senate Plenary, is to be held in a single turn. If the Senate finds that the prosecution has no claim, the case shall be closed. If a simple majority adopts the opinion as valid, the prosecution’s case shall be considered suitable.
- The accused and the complainants are notified of the decision.
- At any phase of the proceedings, the possibility of appeal to the President of the Federal Supreme Court against any of the deliberations of the special committee is open. Deadline for lodging an appeal: five days.
- The complainants, having been informed of the plenary deliberation, shall be given a hearing in the Senate Secretariat, within 48 hours, to offer the accusations and the list of witnesses.
- The hearing shall be open to the accused, or its counsel, to offer, in 48 hours, opposition to the accusations and a list of witnesses.
- The case shall be referred to the president of the Supreme Court who will appoint a date for the trial, notifying the complainants and the accused. Witnesses are to be subpoenaed. There will be a ten-day minimum interval between notification and trial.
- With the opening of the trial senate session, the parties shall be called and may appear in person or through their attorneys.
- The senators will attend the session as judges, except those who are involved in situations of legal and procedural incompatibility. The session will be presided over by the president of the Supreme Court.
- The case-file shall be read. The witnesses shall be interrogated. There has to be the possibility of contradicting, re-examining, and confronting the witnesses on the initiative of the complainants and the accused. Senators may submit questions to the witnesses, to be asked by the president of the Supreme Court.
- Once the interrogation is over, oral discussions shall be held, allowing the complainants and the accused the right of response and rebuttal, for the duration stipulated by the president of the Supreme Court.
- At the end of the debate, the complainants and the accused are to leave the room. Senators are to hold a single discussion on the subject of the indictment.
- The President of the Supreme Court shall report the case and summarize the grounds of the charge and the defense, as well as the corresponding evidence.
- The qualified senators shall each be called to process his or her judgment on the matter [excepting those who are involved in situations of legal and procedural incompatibility].
- The Supreme Court president shall draft the sentence, which shall be signed by him and by the senators who have participated in the trial. The resolution shall be transcribed in the record and published in the Official Diary of the Union and the Official Diary of the National Congress.
- The sentence shall be announced immediately to the accused.
- The proceedings end.
Without a change in the constitutional order, it would have been natural to consider the procedures defined in 1992 as the settled basis for any future attempts at a presidential impeachment. However, it would be a mistake to blindly compare the political situation in 1992 to the situation in 2015. President Fernando Collor was a political outsider who was not eager to establish bridges with parliament. When the first accusations of corruption surfaced, the necessity for impeachment soon became a de facto consensus amongst members of parliament, and the proceedings were mere formalities. When reelected in 2014, Rousseff’s government had 59% of the members of the Chamber of Deputies and 50% of the Senate in its political base. When the president of the Chamber received the request for Rousseff’s impeachment, motions requesting clarifying details on the exact steps of the process had already been and would continue to be raised by members of the Chamber. The matters required the Chamber’s legal analysis in light of its internal rules and legal precedents. The reviews offered a range of conclusions on how the procedure must be carried out, some of which would become matters of controversy.
One of the conclusions issued before the acceptance of the impeachment request dealt with the very process of accepting the accusation. Following a precedent established in 2005, the president of the Chamber admitted that a member might file an appeal against his decision to reject a responsibility crime accusation against the president. Only a member of parliament could submit an appeal, and no amendments to the complaint could be added. The appeal would then be taken to vote and, if approved by the majority of the Chamber, the responsibility crime accusation would be accepted. The government considered the rule to be a maneuver created by the opposition to grant democratic legitimacy to the acceptance of the impeachment request, presenting it as a decision of the majority of the Chamber rather than a monocratic decision by its president (who did not have a good relationship with Rousseff). Government-aligned Chamber members questioned the rule in the Supreme Court, which decided to suspend it, with allegations that impeachment procedures were a constitutional matter that could not be defined by the president of the Chamber. According to Supreme Court Justice Teori Zavascki, article 85 of the Constitution establishes that a special law the rules of procedure and trial depend on a special law for the impeachment. And while such a law was never approved by Congress after the promulgation of the new Constitution, the Chamber president could not define the rite of the process alone because his will would superimpose the will of the Constitution. The decision did not remove the Chamber’s president ability to simply accept the accusation, which he would end up doing about a month later.
After the accusation was accepted, other procedural decisions became a matter of controversy. When some party leaders in the Chamber appointed only government-aligned or independent party members to the impeachment admissibility committee, Chamber members in favor of the admissibility of the accusation decided to form a second candidacy to the committee. The president of the Chamber allowed the second candidacy, conferring that the law determined that the committee was to be elected, implying the possibility of an electoral dispute, and therefore the prospect of more than one candidacy. He also established that the election should transpire with secret voting. These decisions were not well received by government-aligned Chamber members. Secret voting vastly decreased the government’s ability to control the decision, allowing dissatisfied members of the base to vote for the independent candidacy without fear of further consequences. They alleged that secret voting was undemocratic, since citizens would be unaware of how their elected representatives voted. Regardless, the procedural decisions were implemented, and on 8 December 2015, the alternative candidacy was elected to form the special committee.
However, that would not be the end of the controversial events. On 17 December 2015, deciding on a Motion of Non-Compliance with Fundamental Precept (ADPF, for its acronym in Portuguese) filed by the Communist Party of Brazil (PCdoB, for its acronym in Portuguese), the Supreme Court voted to invalidate the Chamber impeachment proceedings carried until then, deeming the secret votes and the second candidacy unconstitutional procedures. In the decision, the Supreme Court also validated the notion that the Senate would have the ability to decide on the admissibility of the impeachment request upon receiving the Chamber’s approval for instating it. The decision indicated that the Chamber’s authorization for the Senate to open the process did not imply an outright obligation to do so. While polemic in 2015, the Court’s decision on the Senate’s sovereignty reflected its comprehensive 1992 ruling on the general procedures for impeachment. The 1992 ruling, they decided, should also be followed in 2015.
As would be the case with any interference by the judiciary in legislative proceedings, the Supreme Court’s intervention in the rite of impeachment received some criticism. Separating prerogatives between the branches of government is a guarantee in most constitutional republics, and Brazil is not an exception. According to the professors of Brazilian constitutional law Martonio Mont’Alverne Barreto Lima and Maria Alice Pinheiro Nogueira, the “…authorization granted by the President of the Federal Supreme Court has created an unconstitutional mutation[…] that undermines the stability of the constitutional system and its legal certainty.” While we respect and understand this perspective, we argue that an impeachment process is not like every other legislative proceeding. It’s an investigation as well as a trial. The Brazilian Constitution guarantees in a perpetual clause that to “litigants in judicial or administrative proceedings and defendants in general are assured an adversary system and a full defense, with the measures and recourses inherent therein.” Article 85 of the Constitution states that a special law “shall establish the rules of procedure and trial” for the impeachment. While Congress never passed such a law, it is our understanding that the procedures devised by the Supreme Court worked to assure that the constitutional rights of the accused were respected in matters of procedure and trial.
As mentioned before, article 5 of the Brazilian Constitution guarantees the right to the due process of law, represented on the right to a public trial, to an “adversary system and a full defense.” It is our understanding that the public nature of all the legislative procedures, coupled with the ban on secret votings, act to guarantee the constitutional right to a public trial. We consider that the rights to the “adversary system and a full defense” are guaranteed by rules 3 and 8 of the Chamber’s procedure, as well as rules 10, 11, 12, 13, 16, 17, 19, 20, 21, 23, 24 and 26 of the Senate’s procedure.
In conclusion, the Supreme Court-approved procedural framework for the impeachment process (SPF) acts to guarantee the constitutionally-defined juridical guarantees during procedure and trial (CJG), the right to a public trial, to the “full defense,” and to the adversary system. In the following section, we will produce a timeline of the procedural milestones of Rousseff’s impeachment and cross-reference it with the SPF. The cross-referencing will allow us to quickly spot any rules of the SPF not entirely satisfied by the proceedings carried by Congress. After determining which rules, if any, were not followed, it will be possible to examine if their non-compliance violated the Constitution.
The Constitutionality of the Impeachment Procedures
In the previous section, we used the Impeachment Law, historical evidence and juridical decisions of the Supreme Court to arrive at what we consider to be the Supreme Court-approved procedural framework for the impeachment process (SPF). To grant conditions for the constitutional analysis of the 2016 proceedings, we will now produce a comprehensive historical timeline of the undergone proceedings and cross-reference such timeline with the SPF.
On 2 December 2015, then-president of the Chamber, Eduardo Cunha, accepted the request for presidential impeachment of jurists Hélio Bicudo, Miguel Reale Júnior and Janaína Paschoal. The acceptance of the request was within Cunha’s legal authority as president of the Chamber.
On 3 December 2015, the first secretary of the Chamber, deputy Beto Mansur, read the accusation during the parliamentary session. Following the reading, the president created a committee for the admissibility of the accusation, determined its composition according to each party’s proportional representation in the parliament, and established that the committee was to be elected in plenary. The president of the Chamber notified the president of the Republic of the accusation and allowed her ten parliamentary sessions from the election of the committee to present her statements on the complaint.
On 17 March 2016, the Chamber elected the 65 members of the special committee to analyze the admissibility of the impeachment request. The elected committee was the only presented candidacy, its composition proportionally mirrored the size of the representation of each party in the Chamber, and the election was openly held.
On 4 April 2016, the attorney general of the Union presented Rousseff’s defense to the committee.
On 6 April 2016, the rapporteur of the special committee for the admissibility of the impeachment process presented a favorable opinion to authorize the start of the impeachment process.
On 11 April 2016, with 38 votes in favor and 27 against, the special committee voted to approve the opinion of its rapporteur.
On 15 April 2016, the attorney general of the Union presented Rousseff’s defense to the Chamber. The complainants, jurists Hélio Bicudo, Miguel Reale Júnior and Janaína Paschoal, were allowed to present their case as well.
On 17 April 2016, with 367 votes in favor and 137 votes against, the Chamber voted to authorize the Senate to open an impeachment process against President Rousseff.
On 18 April 2016, the Senate received the resolution of the Chamber of Deputies authorizing the opening of the impeachment process against President Rousseff.
On 19 April 2016, the president of the Senate read the Chamber’s authorization to open the impeachment process. The impeachment request itself was not read. The Senate’s president invited the party leaders to appoint members to the impeachment admissibility committee within 48 hours, requiring the number of members per party bloc be in proportion to each representation size in the Upper House.
On 25 April 2016, the president of the Senate informed the plenary to receive from party leaders all the names to compose the committee. He proceeded to read all the names, and put the candidacies to a “yes or no” vote. The names were approved.
On 26 April 2016, the committee met for the first time. The president and the rapporteur were elected.
On 4 May 2016, the rapporteur read his opinion on the Impeachment Admissibility Committee. He was favorable to the admissibility of the process.
On 6 May 2016, in the committee’s 9th session, the rapporteur’s opinion was approved with 15 votes in favor and 5 against.
On 9 May 2016, the summary of the committee’s opinion was read in the Senate’s session. Government-aligned Senators disputed the Senate president’s decision to abstain from reading the complete opinion. The Senate president ordered that the complete opinion, the transcription of the votes in the committee, the original accusation and every material received from the Chamber be distributed to all senators.
On 11 May 2016, the Senate initiated the session to deliberate on the admissibility of the impeachment process. President Rousseff, represented by her lawyer, was allowed to present final statements. Every senator received 15 minutes to declare a vote. Pro-government and pro-impeachment senators took turns voting.
On 12 May 2016, after 20 hours of deliberation, the admissibility of the responsibility crime accusation was approved by the Senate with 55 votes in favor and 22 against. The Senate authorized the beginning of the impeachment trial process and ordered Rousseff’s removal from office for 180 days. Rousseff was notified. Michel Temer, the vice-president, was told to assume the presidency during the interim. The president of the Supreme Court assumed the presidency of the Senate for the purposes of the trial.
On 1 June 2016, Rousseff’s lawyers presented her preliminary defense.
On 5 July 2016, after hearing 45 witnesses (40 of whom were presented by the accused party), analyzing 73 official reports from administrative bodies, and reading a 223-page forensic analysis drafted by the Senate’s team of budgetary accounting specialists, the committee ended its probative instruction phase.
On 6 July 2016, after deciding not to testify, Rousseff issued a 30-page defense letter read by her lawyer before the committee.
On 12 July 2016, the complainants presented their final written statements. Rousseff’s defense was allowed 15 days to present their final statements.
On 28 July 2016, Rousseff’s defense presented her final written statements.
On 2 August 2016, the rapporteur of the committee presented his opinion, claiming to have found proof to sustain the accusation that the President committed impeachable responsibility crimes. The opinion was published and distributed to the senators.
On 4 August 2016, the rapporteur’s opinion was approved by the committee, with 14 votes in favor and 5 against.
On 9 August 2016, after a 15 hour deliberative session presided over by the president of the Supreme Court, with 59 votes in favor and 21 votes against, the Senate voted to approve the committee’s opinion in favor of the trial. The accused and the complainants were notified of the decision. The complainants relinquished the 48-hour period for deliberation, and they immediately delivered the summary of the arguments for impeachment and the witnesses it wanted to hear at the trial.
On 12 August 2016, the defendant’s lawyer delivered a document with her defense statements and a list of six witnesses to be summoned in the President’s defense. The Supreme Court’s president set the first day of the trial for the 25th of August and notified the involved parties.
On 25 August 2016, the president of the Supreme Court declared the start of the trial in the Senate. The defendant filed 10 requests to remove, suspend or revoke parts of the accusation. The president of the Supreme Court rejected all requests. The defendant accused one of the plaintiff’s witnesses of having attended a protest against Rousseff, indicating political bias. The president accepted the accusation and demoted the prosecution’s witness to “informant,” removing legal power from his testimony. The informant provided his statement and was followed by the second witness from the prosecution. Following the second witness, the prosecution and the defense presented their arguments to the senators.
On 26 August 2016, one informant and two of the witnesses of the defense provided their statements and answered questions.
On 27 August 2016, Rousseff’s former Finance Minister Nelson Barbosa started the session, witnessing on behalf of the defendant. His deposition took 8 hours, as senators from both sides, the defense, and the complainants asked him several questions. After Barbosa, one more informant testified in favor of the defendant.
On 29 August 2016, president Rousseff attended the session to present her statements and answer questions from the senators.
On 30 August 2016, both parties made their final statements. Janaína Paschoal, one of the accusers, offered an emotional statement in which she apologized to the President for the suffering she caused, and reaffirmed the validity of the accusations, stating that “the forensic analysis confirmed the loans, confirmed that they were credit transactions, and confirmed that they were not accounted for.” The Attorney General of the Union, Eduardo Cardozo, who defended Rousseff in the trial, also offered a final emotional statement, stating that the accusations against Rousseff “are so technical, so sophisticated, so confusing, that most of the Brazilian population will not know exactly what they are.” Senators were allowed to make final speeches, and 63 of them chose to offer their final observations.
On 31 August 2016, the president of the Supreme Court reported the case and summarized the grounds of both the prosecution and the defense. He also highlighted that the impeachment procedures succeeded in guaranteeing Rousseff the right to a full defense. Government-aligned senators presented a request for two different votes: one regarding the impeachment and one regarding the temporary loss of the right to retain public office (an additional punishment for impeached presidents according to the Law of Impeachment). The president of the Supreme Court accepted the petition, a decision deemed unfair by Senator and former-president Fernando Collor, who complained that he was not given the same chance during his trial in 1992. The first voting began, with 61 senators voting in favor of impeachment and 20 voting against it, achieving the 2/3 majority needed for Rousseff’s removal. Regarding Rousseff’s temporary inability to retain public office, only 42 senators voted in favor, not reaching a qualified majority; therefore, Rousseff was allowed to keep that right.
Having provided what we gather to be a comprehensive timeline of all the procedural milestones in Rousseff’s impeachment case, we will now cross-reference them with the previously established SPF. A comparison table will allow us to demonstrate the itemized comparison easily, without needless prolixity. With nine general rules for the Chamber procedures and 30 for the Senate, we shall create one cross-reference table for each house. Each table will have a column for the number of the rule and the date(s) we understand the rule to have been addressed. Since some rules have different aspects to them, we will ascertain in a third column if the rule has been “fully addressed,” “partially addressed,” or “not addressed.” Subsequently, we will examine the rules that we did not consider to have been “fully addressed,” to evaluate whether the event constituted a violation of the constitution.
Cross-Referencing of the Chamber’s Procedural Framework and the Undergone Procedures
|General Rule Number||Date(s) Addressed||Status|
|1||2 December 2015||Fully Addressed|
|2||3 December 2015||Fully Addressed|
|3||3 December 2015||Fully Addressed|
|4||17 March 2016||Fully Addressed|
|5||6 April 2016||Fully Addressed|
|6||11 April 2016||Fully Addressed|
|7||17 April 2016||Fully Addressed|
|8||15 April 2016||Fully Addressed|
|9||18 April 2016||Fully Addressed|
Cross-Referencing of the Senate’s Procedural Framework and the Undergone Procedures
|General Rule Number||Date(s) Addressed||Status|
|1||18 April 2016||Fully Addressed|
|2||19 April 2016||Partially Addressed|
|3||25 April 2016||Fully Addressed|
|4||26 April 2016||Fully Addressed|
|5||6 May 2016||Fully Addressed|
|6||9 May 2016||Partially Addressed|
|7||11 May 2016||Fully Addressed|
|8||11 May 2016 and 12 May 2016||Fully Addressed|
|9||12 May 2016||Fully Addressed|
|10||12 May 2016||Fully Addressed|
|11||6 July 2016||Fully Addressed|
|12||From 2 June 2016 to 5 July 2016||Fully Addressed|
|13||28 July 2016||Fully Addressed|
|14||2 August 2016 and 4 August 2016||Fully Addressed|
|15||10 August 2016||Fully Addressed|
|16||10 August 2016||Fully Addressed|
|17||25 August 2016||Fully Addressed|
|18||10 August 2016||Fully Addressed|
|19||12 August 2016||Fully Addressed|
|20||12 August 2016||Fully Addressed|
|21||25 August 2016||Fully Addressed|
|22||25 August 2016 to 31 August 2016||Fully Addressed|
|23||25 August 2016 to 29 August 2016||Fully Addressed|
|24||30 August 2016||Fully Addressed|
|25||30 August 2016||Fully Addressed|
|26||31 August 2016||Fully Addressed|
|27||31 August 2016||Fully Addressed|
|28||31 August 2016||Fully Addressed|
|29||31 August 2016||Fully Addressed|
|30||31 August 2016||Fully Addressed|
On 19 April 2016, the president of the Senate read in plenary the Chamber’s authorization to open the impeachment process. The impeachment request itself was not read. Rule no. 2 of the SPF in the Senate establishes that, “The impeachment request and the Chamber authorization shall be read in the next Senate session.” According to the official transcriptions of the Senate session, no senator realized the mistake. We might conjecture that government-aligned senators did not want to give more publicity to the accusation piece at the time (Senate sessions are televised on public television), while senators from the opposition wanted to proceed to the next steps as soon as possible. It is also possible that senators were unaware that the full accusation piece had to be read at that time. It is difficult to know for sure. The full impeachment request had been read in its entirety in the Chamber’s plenary session of 3 December 2015, which was televised in full on public television.
On 9 May 2016, the summary of the impeachment admissibility committee’s opinion was read in the Senate’s session. Rule no. 6 of the SPF in the Senate establishes that, “The opinion of the committee is to be read in a session of the Senate.” Government-aligned senators complained that the opinion needed to be read in full. The Senate’s president referred to an internal rule of the Senate’s legislative procedure stating that opinions from committees could be read “in full or summarized.” Government-aligned senators complained that the Impeachment Law of 1950 overrules the Senate’s legislative procedures. The Senate’s president countered that the law only stated that the opinion had to be read, without any extra specification, and that the Senate’s legal procedure specified that it could be “in full or summarized.” According to the official transcriptions, it was 19:32 at the time. The Senate’s president ordered that all senators were given, on that same night, complete copies of every file related to process, including the Chamber’s impeachment request and the Senate committee’s opinion. The opinion of 441 pages had been read five days prior in the committee by its rapporteur. The reading, which took 3 hours and 10 minutes, was televised on public television.
It is our understanding that these were the only rules of the impeachment procedural framework that were not entirely satisfied by the proceedings carried out in Congress. Since there were no provisions for debate or discussion after the Senate readings, it is not the case that Rousseff’s right to full defense or to the adversary system was being curtailed. The necessity for the texts to be read in plenary is, then, plausibly connected to the constitutional guarantee of a public trial. Rousseff, however, was not on trial. Only three months after the contested event, on 9 August 2016, would senators vote on whether her trial would be admissible. The trial itself would only start on 25 August 2016. Five days before the 9 of May controversy, on 4 May 2016, the rapporteur read his opinion in full during the impeachment admissibility committee. The committee’s session was televised live on public television, widely broadcasted by the media; and the main Senate session was dismissed due to the importance of the committee meeting taking place. The senators who complained on the 9 of May were present in the committee during the reading of the opinion. Taking into consideration all these factors, it is unlikely that Rousseff’s right to a public trial was harmed in any way by not reading the rapporteur’s opinion in full in plenary on 9 May 2016. The same can be extended to the impeachment request not having been read on the 19 April 2016, since it had been read in Chamber of Deputies (and, therefore, on live public television).
Is it possible that Rousseff’s right to a fair trial was violated? We could theorize that the senators voted without enough information, having not heard the reading of the opinion on the 9 of May or the reading of the impeachment request on 19 April. Even if we disregarded the fact that Rousseff was not on trial on these dates (which would already dismiss this reasoning) and the fact that both these documents were public and highly publicized, on the 9 of May, all Senators were given complete copies of everything related to the process, including the two files. In a 2017 survey, it was shown that the Brazilian senator with the fewest advisors had nine people working for him. Therefore, even if a senator were not following the case, which, at the time, would be improbable, he or she would still have the means to study the paperwork in time to vote, three months later, on whether Rousseff should face trial.
Since these were the only rules of the impeachment procedural framework that were not fully obeyed, having established that their non-compliance did not result in harm to the constitutional rights of the accused, and having established that the procedural compliance of the other rules guaranteed the constitutional rights of the accused, it is our understanding that the procedures of the impeachment process were carried out in accordance with the Constitution. Rousseff was impeached for a crime that she committed, the crime was an impeachable offense, and the procedures of the impeachment process were constitutional. In light of the observed, it is logically impossible for Rousseff’s impeachment to have signified a breach in the Brazilian rule of law, constitutional, or democratic order. The acts of Rousseff’s government exemplify the executive branch’s propensity to broaden its natural prerogatives in disregard of the law. This propensity has historically led to ever-increasing legislative jurisdiction over administrative matters, as a measure to, among other things, prevent and punish executive abuses against the nation’s economic well-being and the citizen’s civil and political rights. Several of these legislative prerogatives were welcomed in the Brazilian Constitution of 1988, including the power to approve the budgetary policy, as well as the power to punish abuses against this same policy. President Dilma Rousseff’s impeachment represented the legitimate use of a constitutional tool that allows the elected legislature to protect citizens from a government that chooses to arbitrarily disregard the law.
When the Brazilian Congress impeached its democratically-elected president in 2016, many analysts claimed of a breach in the constitutional and democratic order: a “coup.” This notion gained support, and by the first semester of 2018, thirteen Brazilian state-funded universities had opened political science disciplines to discuss the “Coup of 2016.” A severe accusation by any measure, the validation of the “coup” narrative could bring harsh consequences for the Brazilian international image. The country is a member of, and intends to become a member of more, international organizations that do not allow the sort of constitutional rupture it was accused of experiencing.
Recognizing that the “coup” hypothesis was being treated as a fact before it was proven, this dissertation set out to establish the conditions under which the hypothesis could be validated. According to our understanding, under the accepted Brazilian constitutional order, there were only three possible circumstances in which President Dilma Rousseff’s impeachment could have been considered a breach of the country’s constitutional order:
(1) None of the crimes under which Ms. Rousseff was convicted constituted an impeachable offense.
(2) Regardless of whether the offenses were impeachable or not, Ms. Rousseff did not commit them.
(3) Independently of the existence of an impeachable offense, the impeachment process was not carried out in accordance with the Constitution.
To address the first possibility, we analyzed the accusation of a delay in payments to federal banks that were contracted to act as intermediaries in the payment of social benefit programs. The banks paid for the programs using their private resources, which allowed the government to consider the money that should have been spent to be part of the public budget, giving the public and international investors the impression that the nation’s finances were healthier than they were in reality. We characterized the practice as an overdraft, “an extension of credit from a lending institution when an account reaches zero,” or the automatic use of bank money to meet another party’s obligation when this party does not provide the assets to do so. The practice, we established, represented a credit transaction with a financial entity under the government’s control, which, according to Article 36 of the LRF, is an illegal practice. Law no. 1.079, from 10 April 1950, or The Law of Impeachment, establishes as impeachable offenses “ordering or authorizing, in disagreement with the law, the execution of a credit transaction with any entities of the Federation,” “acquiring credit without a legal warrant or without following legal formalities,” and “carrying out a credit transaction without legal authorization.” In conclusion, we learned that at least one of the crimes under which Ms. Rousseff was convicted constituted an impeachable offense.
We then proceeded to analyze the allegation that Rousseff’s government had unlawfully engaged in credit transactions, estimated to comprise over 50 billion reais (12 billion euros), with federal banks under its control. The claims were proven to be verifiable, and Bank of Brazil’s accounting statements for the first quarter of 2015 showed that the bank had itself financed obligations related to a governmental program that subsidized interest rates for rural producers. Since Bank of Brazil is a federal bank under the government’s control, the automatic use of its money to meet the government’s obligation constituted a credit transaction between the two entities. The practice, we observed, was common for Rousseff’s government; and data from the Brazilian Central Bank revealed that the same practice had been continuously perpetrated against several federal financial entities, despite alerts issued by the Brazilian Federal Court of Audit. Ms. Rousseff, we determined, was impeached for a crime that she committed, a crime that was an impeachable offense.
Lastly, the quest to analyze whether the impeachment process was carried out in accordance with the Constitution was a more complicated endeavor. The Constitution had defined that responsibility crimes, which are impeachable offenses, “shall be defined by a special law that shall establish the rules of procedure and trial.” While The Law of Impeachment from 1950 is meticulous on which offenses constitute crimes of responsibility, it left the part about procedure and trial moderately vague. This vagueness has led to the repeated intervention of the Supreme Court to define the constitutionally correct impeachment procedures to be carried out in Congress. Consequently, our first task was to analyze historical events, congressional rules and Supreme Court decisions to assemble what constituted the Supreme Court-approved procedural framework for an impeachment process (SPF). Having done that, we analyzed the 39 rules of the SPF in light of the constitutionally-defined juridical guarantees during procedure and trial (CJG) to establish whether the framework (SPF) implemented those constitutional guarantees (CJG). Having ascertained that the SPF upheld the CJG, we produced a comprehensive historical timeline of the undergone procedures of the 2016 impeachment process and utilized a comparison table to cross-reference the timeline with the 39 rules defined in the SPF. In the comparison table, we established that 37 rules of the SPF had been “fully addressed” by the 2016 procedures, and that two rules had been “partially addressed.” We then proceeded to analyze the two rules that had been only “partially addressed” to determine whether the non-compliance represented a breach of the CJG. In our analysis, we determined that the two partial non-compliances did not infringe on Rousseff’s constitutionally-defined juridical guarantees (CJG) during procedure and trial: the right to a public trial, to right to full defense, and the right to the adversary system. It was also our understanding that the other undergone procedures extensively guaranteed compliance to these same rights. This thorough examination allowed us to confidently ascertain that Rousseff’s impeachment was carried out in accordance with the Constitution.
Since Rousseff was impeached for a crime that she committed, since the crime was an impeachable offense, and since the procedures of the impeachment process were constitutional, it is logically impossible for the impeachment to have signified a breach of the Brazilian rule of law. If the rule of law was not breached, neither was the constitutional order nor the democratic order. The hypothesis of a coup, or an illegal seizure of the state by elites within the state apparatus, is determined to be inherently false. A legal impeachment is part of the constitutionally established democratic order in Brazil.
According to the Democracy Index, an index that measures the state of democracy in 167 countries, 19 countries are considered “full democracies” when taking into consideration factors like “electoral process and pluralism,” “functioning of government,” “political participation,” “political culture” and “civil liberties.” In 17 of these nations, parliamentary systems of democratic governance require that the executive branch derive its democratic legitimacy from its capability to hold the confidence of the legislative branch. Such a system makes the removal of an administration a much less destabilizing experience because a simple vote of no confidence from parliament is sufficient for the administration to be dismissed.
As previously established, the limiting of a government’s ability to arbitrarily disregard the rights of citizens and rules of operation is not a new constraint on governing bodies. From the written codification of laws to the institution of sovereign national parliaments, most western nations experienced a long and more-or-less continuous process of restraining executive power in favor of civil and political rights. While most of the countries considered to be truly democratic have procedures in place to allow a congress to dismiss an unfit government with a simple vote, countries like Brazil have chosen to enact an administration’s dismissal only under very well-defined conditions, which are expected to happen rarely, if at all. Due to this, when these conditions do occur, and a congress decides to use its authority, it is natural that claims of a breach in the constitutional and democratic order may surface. That was the claim of the group of 119 academics that signed the Manifesto In Defense Of The Democratic Rule Of Law In Brazil, which regarded Rousseff’s crime as an “accounting irregularity.”
The crime for which Rousseff was convicted was not a mere “accounting irregularity.” It was a transgression of constitutional rules limiting the government’s ability to arbitrarily indebt the nation. It was a transgression on the people’s political right to exercise control over the public funds. Governmental misuse of federal banks for irregular financing is an illegal practice for very valid reasons. The issuance of bad credit can lead banks to insolvency, which, as shown by the 2008 global economic crisis, can collapse entire economies. The practice, if it were not illegal, would also allow governments to spend much more during election years than is permitted by the budgetary law. The strategy, which was illegally adopted by Rousseff’s government in 2014, configures the use of state apparatuses to increase a political party’s chance of being reelected – a real assault on the democratic order, which requires and guarantees fair elections. Even if the strategy were unsuccessful and the party were not reelected, the next government would be responsible for covering the bill, hindering its abilities to govern and possibly forcing Congress to raise taxes to solve the situation.
Finally, there is a reason why taxes, budget, and other governmental financial commitments must be approved by Congress. Doing otherwise would be inherently anti-democratic. If taxes are the price people pay to guarantee the enforcement of their constitutional rights and for taking part in the benefits of civilization, and if there is justification for using them to finance investments that are necessary and advantageous to society, then it is natural that those who approve the investment decisions be the elected congressional members representing the citizens from every region of the nation. Since credit transactions must eventually be settled by the public budget, interest included, it is logical that the Brazilian Constitution requires that Congress approve such commitments. When the executive branch engages in such practices without congressional approval, it is violating the people’s democratic right to control, through their elected representatives, the use of the money they paid in taxes. According to Ludwig von Mises, the law and the budget are the two pillars of democratic governance, and there’s no possibility for democratic order without congressional regulation over the executive budget. While the leaders of anti-democratic countries base their budget allocation decisions on what they arbitrarily believe to be necessary for the people, in democratic countries the mandate of the people to regulate the use of these funds is granted to Congress through free, regular elections. When the holders of executive power violate this mandate, they are engaging in the anti-democratic type of governance wherein the executive leaders claim to know the needs of the people better than their elected representatives. Impeachment, in conjunction with the vote of no confidence, is one of the efficient tools modern constitutions provide to prevent this violation of democratic rights. Rather than a coup, an act of taking power that has been repeated many times in many places in the past millennia, Rousseff’s impeachment is something that could only have occurred in relatively modern times. It would have been impossible if the Brazilian Constitution did not guarantee the people the right of democratic control over the federal budget and the means to enact punitive measures on administrations violating this right. It would have been impossible without the long and arduous historical evolution of the restraint of executive power in favor of civil and political rights.
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