The Hermeneutics of Brazil’s Impeachment

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Dilma Rousseff speaks in the plenary of the Brazilian Senate before it votes on whether or not to impeach her, August 29, 2016. Photo Credits: Geraldo Magela/Agência Senado, CC BY 2.0, accessed via Wikimedia Commons.

 

On Monday, May 23, 2016, Brazilians woke up with another news bomb. Recordings of a phone call between provisional president Michel Temer’s planning minister and a former president of Transpetro, Brazil’s largest oil and gas transportation company, hit the front pages of one of the nation’s foremost newspapers. In the audio, recorded before President Dilma Rousseff’s provisional removal from office due to impeachment proceedings, Romero Jucá, the minister in question, claims that a new government, led by Michel Temer, the vice-president at the time of the recording, would succeed in stopping Operação Lava-Jato, the largest corruption investigation in Brazilian history.

This account, already difficult to understand, is just the latest episode in a series of stunning political events that has turned Brazil’s political establishment upside down and whose  plot rivals that of the popular Netflix series House of Cards. It has already taken its toll on Mr. Temer’s government, which was not even two weeks old when the recordings came out. On that very evening, Jucá licensed himself from the ministry, taking back his office as senator. Following that, Temer himself exonerated Jucá, replacing him with a high-ranking officer of the ministry, Dyogo Oliveira, who had already been investigated by Brazil’s Federal Police. Though the action was a significant departure from Dilma Rousseff’s style of governing—in March, she made Luiz Inácio Lula da Silva, Brazil’s president from 2003 to 2010, a minister so that he could escape investigation in a lower court—the audio and its ramifications have fueled anti-impeachment arguments by the Workers’ Party and its supporters.

That, indeed, has been the country’s main source of political antagonism after Rousseff was ousted by the Senate early in the morning on May 12. Brazilians have split into two camps: those who see the impeachment as an élitist coup orchestrated by the Workers’ Party’s opposition in Congress and aided by the country’s Supreme Court, and those who defend it as a rightful institutional process prescribed by Brazil’s 1988 Federal Constitution and necessary in light of Rousseff’s financial misdoings.

Petistas, as Workers’ Party supporters are called, have used Minister Jucá’s call to ratify their equation of Rousseff’s impeachment with an undemocratic coup. According to them, Rousseff is being unjustly ousted from office as the victim of an élitist move to end the leftist Workers’ Party government and replace it with a business-friendly one. They argue that the current crisis, the largest and most pervasive in Brazil’s history, is in fact a domestic ramification of a global economic crisis, and that, therefore, Rousseff is being tried for creating something that is outside of her control. Jucá’s recordings, they say, corroborate this focus on the economy in detriment to the country’s poor population. Brazil’s political establishment, in their view, is persecuting an innocent president to assume power, halt all corruption inquiries, and promote a return to the unequal status quo through market-friendly measures. Always the nonconformist in the Brazilian political spectrum, the Workers’ Party is still attempting to use its former outsider position to demonize the opposition and martyrize Rousseff. Whereas she has not stopped investigations, the new, provisional government and its cronies sure will—benefitting themselves and the country’s wealthy in the process.

Their accusations do not spare the media either: one of the main cries in the anti-impeachment protests around the country was “Globo golpista,” which can be roughly translated as “putschist Globo.” Rede Globo is the world’s second-largest television channel in annual revenue; it reaches almost 100% of Brazil’s population, and it has 36% of the country’s market share. Petistas charge it with manipulating coverage of the investigations surrounding the Workers’ Party to favor the opposition and create general animosity toward Rousseff and her government. After more audio leaks on Wednesday, May 25—this time involving Senate president Renan Calheiros, as well as former President of the Republic José Sarney—cited his name, João Roberto Marinho, president of Globo’s editorial council, dismissed charges of partiality. Even though people do ask him to favor certain groups’ points of view in Globo’s newscasts, he has never oriented the channel to do so because “a press vehicle must report everything freely.”

Indeed, both sides have made use of the press to attempt to swing the people’s opinion. Whereas VEJA, the country’s largest and most important magazine, is vehemently pro-impeachment, other outlets such as Globo’s own internet-based news portal, G1, are more neutral. Since the beginning of impeachment proceedings, Rousseff has called numerous press conferences, always seeking to defend herself from the alleged spurious charges made against her. Her most notable press appearance was her last speech as president, on May 12, when she outlined her entire defense. Dilma’s initial arguments were, at first, exclusively concerned with her legitimacy as ruler. The first minutes of the speech were dedicated to reiterating that she “was elected president by 54 million Brazilian citizens,” and that “what’s at stake” in the impeachment process “is the respect for the polls, the sovereign will of the Brazilian people, and the Constitution.” Rousseff appears to believe that a ruler’s actions cannot be challenged as long as he or she rose to power through popular support.

Of course, the removed president substantiates that argument later in the speech, defending the legality of her actions. Before that, however, she attacks the opposition for staging “a fraudulent impeachment—a true coup” against her. In Rousseff and her supporters’ view, the country’s current unrest is not a product of failed government policies, but of “intense and incessant sabotage” by the opposition to remove the Workers’ Party from the presidential palace in Brasília. With a lexicon reminiscent of Livy’s bloody account of Roman history, she stated that her adversaries’ only aim was “to take by force what they did not conquer in the polls.” Her attacks are caustic, and the speech’s very tone is bellicose and divisive.

Finally, in her attempt to defend herself from being ousted because of a crime that she allegedly “did not commit,” she issued veiled ad hominem attacks against her opponents while challenging the process’ legal justifications. Dilma’s pointed claims—“I do not have bank accounts abroad; I never received bribes; I have never condoned corruption”—are a very blatant denunciation of Eduardo Cunha, the President of the Chamber of Deputies who authorized the opening of impeachment proceedings in December 2015 and who was removed from office on May 5, a week before Rousseff, following a Supreme Court directive. Cunha is accused of multiple corruption charges related to the Petrobras corruption scandal as well as of abuse of power. For the past few months, Rousseff has attempted to paint the impeachment as Cunha’s personal vendetta against her, and the words above only reiterate her view of the process as an individual battle rather than as an institutional necessity. Next, she called the process “fragile,” “juridically inconsistent,” and even a “juridical farce.” Her acts, according to her, were “legal,” “correct,” “necessary,” and “executed by the presidents that preceded me.” To conclude this line of thought, she explains that “it was not a crime in their age, nor it is a crime now,” ignoring legal changes that made her allegedly commonplace administrative acts misdemeanors.

After explaining her supposed crime—which will be assessed later on—she goes back to attacking her opponents, vilifying Michel Temer’s nascent government. Rousseff holds that Temer “was not elected by the direct vote of the Brazilian population,” apparently forgetting that, as her running mate, he also received the 54 million votes she so adamantly insists on having obtained in October 2014. According to her, his government is “born out of a sort of indirect election,” ignoring both Temer’s direct election and the fact that the impeachment is a legitimate juridical-political process established in Brazil’s Constitution. Finally, in her opinion, Temer’s government “will be itself the great reason for the continuation of the political crisis in our country,” absolving herself and her party from the instability of the past two years. Much more rhetorically advanced than most of her previous speeches, Rousseff’s sour adieu seems to be the product of a new ghost speechwriter, yet it barely mentions the specific accusations made against the removed president.

Let us, therefore, return to those and analyze them in light of Brazil’s legal framework. Is Dilma actually guilty of an impeachable offense? She states that “they accuse me of having promulgated six decrees of supplementation, six decrees of supplementary credit and, in doing so, having committed a crime against the budget law,” only to emphasize twice, “It is false. It is false.” To confirm whether the accusation is valid, it is necessary to refer to the decrees themselves and to Brazilian budgetary and constitutional laws.

The six decrees of supplementary credit that Rousseff signed in 2015 were not approved by Congress. According to the impeachment request approved by Cunha, that violates the Law of Fiscal Responsibility, passed during Fernando Henrique Cardoso’s presidency in 2000. The Law of Fiscal Responsibility, a hallmark in Brazilian legislative history, was an attempt to control government spending and ensure a healthy national economy. Furthermore, by delaying a 3.5-billion-real payment to finance a credit program to a state bank and, thus, forcing the bank to finance it itself, the government borrowed money from one of its own institutions. This is seen as an example of a pedalada fiscal, an attempt by Rousseff to hide the true state of the nation’s finances, an equivocation that has serious consequences for Brazil’s fiscal credibility abroad. Rousseff’s alleged crimes, therefore, not only broke the law but also destabilized the already fragile Brazilian economy by undermining confidence in the federal government. The main question, however, is whether or not Brazilian law prescribes that a violation of budgetary laws such as the Law of Fiscal Responsibility is a valid basis for an impeachment process.

According to Brazil’s Impeachment Law, sanctioned by President Eurico Gaspar Dutra in 1950, and the Federal Constitution of 1988, it is. Article 1 of the 1950 law, also dubbed Law 1,079, explains that a Brazilian president is to be impeached in case he or she commits a crime of responsibility. This type of crime, contrary to a common or a white-collar crime, is intrinsically connected to the nation’s administrative duties. The law, therefore, prescribes a punishment for a chief of state that misdirects the country in direct consequence of his or her power. Rousseff’s claims that she does not have offshore bank accounts and that she is not corrupt, therefore, might very well be true; her personal innocence, however, is not what is at stake in the impeachment process. She affirms, “I may have made mistakes, but I did not commit crimes,” but she does not seem to grasp what a crime of responsibility entails. Rousseff is being tried for utilizing her power as president to violate a law that only that power could have allowed her to violate.

Indeed, much to her chagrin, Article 4, subsection VI of Law 1,079 outlines that breaking budget laws configures a crime of responsibility and can be, therefore, the basis for a president’s impeachment. Article 10 of that same law further specifies what a crime against the budgetary law is. It was heavily amended in 2000 through Law 10,028, which expanded the list of misdemeanors to include, among others, “ordering or authorizing the opening of credit in disagreement with the limits established by the Federal Senate” and “ordering or authorizing, in discordance with the law, the realization of a credit operation with any of the other federal institutions, including its indirect administration entities, even in the form of novation, refinancing, or postponement of a previously contracted debt.” It is significant that this law came into being in 2000. Since the presidents before it were not subject to it, Dilma is completely correct in stating that they might have committed certain crimes against the budget without being punished for them. However, the reason why they were not punished is because no law during their time in office characterized their actions as crimes of responsibility. Dilma, in fact, can only point fingers at Fernando Henrique Cardoso—if he broke Law 10,028 in his last two years in office—and her predecessor, fellow party mate, and political patron Luiz Inácio Lula da Silva. Finally, the aforementioned pedaladas, as government loans from daughter institutions, are forbidden by Article 11, section 3 of Law 1,079, further justifying Rousseff’s trial. Most importantly, Article 85 of the Federal Constitution of 1988 repeats Article 4 of the 1950 law word for word, recording the conditions for a presidential impeachment in the highest law of the land and linking it to the older piece of legislation.

Though Rousseff might not have committed a crime of responsibility, there are strong indications that what she did in the first year of her second mandate might qualify as one. As such, she is impeachable, like any other president in a democracy is—furthermore, since the impeachment is a juridical-political process, it does depend on her overall popularity and congressional alliances, both of which are at an all-time low. As such, calling the impeachment a coup is not only wrong, but it is also an affront to Brazilian legal and democratic institutions, including the country’s Supreme Court, which have followed constitutional principles and the precept of due process of law throughout impeachment proceedings.

In the days after May 12, the battle between petistas and the opposition became international as foreign governments expressed their support or revolt with Brazil’s internal political process. Venezuela, itself a quasi-dictatorship, called the impeachment a coup; Bolivia, Nicaragua, and El Salvador joined that chorus, daring to protest in a meeting of the Organization of American States. In that very assembly, after Argentina stated its belief in Brazilian institutions, it was the turn of the United States to speak. US Ambassador Michael Fitzpatrick claimed that “there is a clear respect for democratic institutions and a clear separation of powers,” and that “in Brazil it is clearly the law that prevails, coming up with peaceable solution to disputes.” As he ended his speech, which also heavily criticized Venezuela for its hypocritical stance on Brazilian affairs, he dismissed the coup thesis once and for all: “As we say in Spanish, por favor.”

About Author

Arthur Schott Lopes

Arthur Schott Lopes is a staff writer for the Harvard International Review. An occasional reviewer, he contributes mainly to the magazine and the blog.