REFLECTIONS ON PRESIDENTIAL IMPEACHMENT

Likelihood of an impeachment process

The Brazilian press, social media and business elite have been raising the prospect of presidential impeachment in recent weeks. However, it can be said that the majority of these observers are approaching the subject from an emotional perspective rather than taking a more realistic and balanced approach.

We believe there is little likelihood that Congress would initiate an impeachment process against President Rousseff in the near future. Although the chances of impeachment were effectively nil before the 2014 elections and now we are analyzing the subject due to popular attention, we foresee no imminent political impeachment process.

Political history in democratic countries teaches us that, on average, in order for a presidential impeachment to go through it is necessary to have a combination of factors that include at least two of the following: strong legal case, political will and popular support; the latter usually been sparked by an economic crisis. Furthermore, political support for impeachment, in great part, depends on popular support. With unemployment at historical lows, popular support is not a given.

The street protests scheduled for this Friday and Sunday (March 13 and 15) represent an important test to this reasoning. Social media interaction indicates that these protests will mainly mobilize middle class urban voters, labelled “elites” by certain media outlets. Thus, in order for these protests to change political and societal perceptions of popular support, they must either be attended by millions of people or be violent in nature.

Politically, things are getting worse for President Rousseff who has lost the support of her broader political coalition. The Vice President, the president of the House of Representatives and the president of the Senate are all from the PMDB, the President’s onetime ally in Congress that has swung to form a moderate opposition group. In addition, the loyalist flank of her remaining coalition (PT, PCdoB, PR, PROS and PSD) only accounts for 31% of the representatives, which falls short of the one-third necessary to fend off impeachment.

Opposition parties, led by PSDB are using impeachment as a credible threat to further weaken the President and her party. Former President Fernando Henrique Cardoso, eternal PSDB leader, has stated publicly that he does not believe that the impeachment would be the best solution to Brazil’s current political turmoil. Both Mr. Cardoso and his party know that the process must be perceived as legitimate by the vast majority of the population in order to bring long-term political dividends.

In our view, presently there are not sufficient elements to implicate the President in the Petrobras scandal just as there is insufficient popular support for her resignation or impeachment. Thus, if congressional opposition were to initiate an impeachment process, it would likely have grave consequences for Brazilian democracy. The perception of illegitimacy will weaken public institutions such as the Supreme Court, the Federal Prosecutor’s Office, the Congress, and the electoral process, whose very strength have kept Brazil from following the more disruptive paths as other emerging countries.

Undisputed points about impeachment legal procedures according to the legislation in force

  1. The president must be found guilty of administrative wrongdoing while in office. Any accusations relating to the time Ms. Rousseff served as Chairman of the Board of Petrobras are inadmissible in the impeachment process.
  2. Any Brazilian person, including an elected representative, can present an accusation against the president before the House of Representatives.
  3. Two thirds of the House must approve the initiation of the impeachment process and send the accusation to the Senate for judgment. At this point, the President is suspended from office.
  4. The Senate then has 180 days to judge the accusation and formally impede the President from reassuming presidential power. Once this deadline expires, the suspension is cancelled and the President can return to her post while awaiting a final ruling from the Senate (the obvious deadline being the end of the presidential term).
  5. In the President’s absence, be it due to suspension or final impeachment, the Vice President assumes the Presidency until the end of the suspension or the end of the presidential term (December 2018).
  6. If for whatever reason the vice-president also steps down, the line of succession is as follows: president of the House of Representatives, president of the Senate and president of the Supreme Court (STF).
  7. If and only if the vice-president steps down before January 2017 (first half of the presidential term), independent of its successor, new general elections must be called up until a maximum of 90 days counted from the day the vice-president stepped down.
  8. If the Vice President leaves office for whatever reason during the second half of the presidential term (i.e. after December 2016), independent of his successor, Congress calls an election in order to elect one of its members to succeed as President until the end of the presidential term.

Controversial points about impeachment legal procedures according to the legislation in force

  1. Former Justice Minister, Miguel Reale Júnior argues that the charge of impeachment seeks to remove the president from power during its term in office. Once this term ends, it would be impossible to remove from someone a political post that has already expired. According to him, the Impeachment Law establishes that Congress can accept an accusation only if the accused has not left its position. Technically Ms. Rousseff has left her position as President of Brazil during 2011-2014 and has been sworn in as President for a second term. Therefore, if the administrative wrongdoing occurred during her first term there are not legal grounds for an accusation in 2015.
  2. In a different line of argument, renowned law professor, Ives Gandra Martins argues that the proof of fault would be sufficient to start the impeachment process. He argues that the legislation in force does not establish the proof of intent as a precondition for impeachment, leaving the door open for a simpler proof of fault. Therefore, there is already enough evidence to prove Ms. Rousseff’s fault in the Petrobras scandal.
  3. As in most legal systems, Brazilian Constitution and secondary legislation do not cover all the details and possibilities, leaving room for interpretation and controversy. However, as most jurists have recently publicly stated the impeachment process is more political than legal. Hence, controversial legal interpretation will only be in the backstage of this drama.

Concordia Pas

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