Brazilian impeachment triggers debate on need to reform process

As Brazilian senators debate the impeachment of President Dilma Rousseff, lawyers have started discussing possible changes to the process. However, this focuses on technical improvements for future cases. The great weight of legal opinion appears to reject claims by Rousseff and her supporters that the current process was flawed through lack of proper opportunity for defence, or that some kind of ‘coup’ was under way.

Senators voted 55-22 on May 12 to initiate impeachment hearings, following a 43-hour debate and a 367-137 vote in the House of Representatives to accept an impeachment motion. This automatically suspended Rousseff and handed interim power to Vice-President Michel Temer, a 75-year-old professor of constitutional law at São Paulo`s Catholic University and a career politician in the centre-right Brazilian Democratic Movement Party (PMDB). In the event the Senate confirms Rousseff’s impeachment, Temer will serve out her mandate, which ends in January 2019.

The Senate has until early November to reach a verdict, but could wrap things up earlier. Some lawmakers mentioned trying to vote by September 10 when Supreme Court President Ricardo Lewandowski, designated under the Constitution to preside over the formal Senate impeachment hearings, was to end his two-year presidency.

Rousseff faced accusations of what translates, ipsis litteris, as a ‘crime of responsibility’. However, explains long-time IBA member Antonio Correa Meyer, a founding partner at Machado, Meyer, Sendacz and Opice, ‘the word ‘crime’ is not well applied.’ He suggests something like ‘administrative policy violation.’ Article 85 of the Brazilian Constitution defines a ‘crime of responsibility’ as – amongst other things – a lack of administrative probity, or a failure to comply with laws and judicial decisions or to respect budgetary law. It should not be confused with a straightforward criminal accusation such as theft or corruption. Neither should impeachment be confused with a criminal trial; there is no possible sanction beyond dismissal and a temporary prohibition against running for or holding office. Criminal-law safeguards such as habeas corpus do not apply.

Most of the 50 impeachment motions presented to Congress since February of 2015 by legislators, private citizens and organizations such as the Brazilian Bar Association (OAB) focused on alleged fiscal violations – the OAB’s impeachment motion was backed by all but one of its 27 regional chapters. Specifically, Rousseff was accused of running up debts of almost one per cent of GDP with state banks that implement government social programs, so effectively borrowing to hide a fiscal shortfall. These practises helped aggravate Brazil’s economic crisis, according to many analysts.

‘Mutatis mutandis, it would be like the owner of a bank lending money to himself,’ said Correa Meyer.

Once is enough

Representative Rogério Rosso, who served as rapporteur for the House admissibility hearings, has proposed a series of changes to impeachment legislation that dates from 1950, since when Brazil has had three new constitutions. Correa Meyer approves of Rosso’s suggestion to abolish the second round of admissibility hearings conducted by the Senate, when the impeachment motion is handed up from the lower chamber. But he rejects Rosso’s idea that the interim president should face special budgetary constraints or be supervised by a commission comprising one representative of each house, plus the longest-serving member of the Supreme Court: `This makes no sense; the vice-president was elected together with the president to act if ever the office should be vacant.’ Whoever is president is subject to the checks and balances specified in the Constitution.

Bruno Barata, a partner at Corrêa de Mello, Tolomei, Giglio, Damian e Barata and a member of the IBA’s BIC Policy Committee, says that in theory the House and Senate perform different evaluations: first an examination in the House to ascertain that there are at least minimum indications of a crime of responsibility, followed by a Senate decision on whether or not to proceed. `Technically it’s not two instances of admissibility, but in practice it functions like that.’ In matters of such magnitude, he argues, the more technical evaluations the better, to ensure that accusations hold water. `Perhaps any new impeachment law could clarify exactly what aspects the lower and upper houses have to evaluate.’

On one point Barata was emphatic: the process to date had been completely legitimate. `I do not see any violation, illegality or unconstitutionality. It (Congress) is following the process that the Supreme Court laid down.’ Last December, in response to requests by pro-government legislators to block the preliminary House hearings, the Supreme Court determined that Congress should follow the same basic process used in the 1992 impeachment of President Fernando Collor. Judges issued such detailed instructions on several procedural questions that they prompted mutterings about judicial activism, or interference in legislative prerogatives – something Barata rejects: `This was a proper, necessary and very technical ruling by the STF, it was not political’ The House accepted the ruling, even redoing some steps, and since then has stuck strictly to the STF route-map.

Rousseff`s Attorney-General José Eduardo Cardozo, speaking in her defence before Congress, said there was no proven crime of responsibility, and without that impeachment constituted a coup. Few lawyers gave him public support. ‘This is a defence strategy,’ said Celso de Mello, one of three STF judges to comment. ‘I`d say it is a grave error reducing the constitutional process of impeachment to a coup d’état. I’m saying this based on what STF members have said in rulings to date.’

For Leopoldo Pagotto, secretary of the IBA’s Anti-Corruption Committee, ‘questioning the legitimacy of the impeachment process is really the same as questioning the legitimacy of democracy itself, and the constitution-based rules.’ Pedro Freitas, Senior Vice Chair of the IBA’s Mining Law Committee and a partner at Veirano Advogados, agreed that the process was fully constitutional. ‘It’s with great satisfaction that I see a peaceful process to change the political command, everything done with open debate, no violence, and with the judiciary as the moderator. Insomuch as Brazil is still an emerging country, it’s a fabulous example.’

Denis Alves Guimarães, a lawyer and consultant in public policy and government affairs, agreed that the process to date had been `perfectly regular and correct` but said it could be speeded up for future cases. In particular, Guimarães dislikes suspending the president and handing interim power to the vice-president during Senate hearings. `This creates great insecurity, not so much judicial as political and economic uncertainty. We have a suspended president who continues to act politically to try to return to office, after a process that can take up to 180 days.’ Better, he says, to have the president remain in office and give the Senate just 90 days to vote.

Correa Meyer offers a different solution – a plebiscite, triggered once the lower house votes for admissibility. The House, he argues, represents the people, while the Senate represents the components of the federation – each of Brazil’s 26 states and the Federal District elect three senators. `The president is elected by national popular vote, and so should be removed from office – or not – by national popular vote, it does not make sense to have the president removed by the states.’ Brazil’s states vary greatly in size, from the 44-million population São Paulo to the 0.5 million population Roraima.

Rosso said he hoped to win support for congressional debate on proposals for impeachment reform before the next president takes office in January of 2019.