Global Independent Analytics
Natalia Rezende
Natalia Rezende

Location: Brazil

Specialization: Politics, International relations

The Impeachment Process in Brazil

Once the impeachment process became an almost exclusive political game, the government’s minority represents the biggest risk for the President.

The North American political scientist Kathryn Hochstetler concludes that since 1978, 40% of elected presidents in South America have been challenged by civilian actors trying to force them to leave office early. 23% have fallen either to impeachment or resignation. Challenged presidents were more likely to pursue neoliberal policies, be personally involved, or else, have their party implicated in a scandal and lack a congressional majority.

In the case of Brazil, we have all three things going on at the moment. The strongest factor in the government breakdown is its minority in Congress – caused by a hyper-fragmented Congress and the difficulties stemming from the management of a “rainbow coalition”, both of which take us to the low popularity of the President.  Ms. Rousseff has seen the lowest ever approval rate of her political agenda and her (deplorable) economic performance. Such externalities do not depend directly on the President –since Brazil is a dependent economy, which made the country vulnerable to fluctuations in the international markets –thus forcing her to implement the much loathed neoliberal policies of the past.The president´s party is also deeply involved in the biggest corruption scandal in Brazilian history. So it seems that we have a “perfect storm” scenario in the eyes of those who don´t approve of the sitting President, who then voice their wish to kick her out of office alleging political malpractice or ethical misconduct… But what about a legal basis?

The act of taking out a loan from a state-owned bank that the president is accused of is probably not a crime since a loan is defined as such when it is taken by a private company or an individual citizen.

Is it a sufficient reason for a president to be impeached!? 

According to the Constitution of the Federal Republic of Brazil, a sitting president has to be impeached after a complaint is launched against him or her, an investigation is carried out, and he or she was found guilty. None of this happened in this case.

The fiscal dribbling of President Rousseff’s case

The so-called fiscal dribbling is an accounting trick invented by the government for decades to cook the federal budget numbers while using money from the state-owned banks to pay for public expenditures, instead of the original resources earmarked for such, so as to give the (false) impression of fiscal balance. As it happens, Ms. Rousseff is accused of withholding funds that should have been transferred to Caixa Econômica Federal, Banco do Brasil, and Banco Nacional de Desenvolvimento Econômico e Social to cover for the social programs carried out by them.

Given that the current budget surplus is not at all “flexible” and that the budget is approved by Congress six months prior to the start of the fiscal year, the manipulation of the numbers from the budget seems to be a plausible, if not “acceptable”, political strategy in times of economic troubles, as is the case of the current deep recession. And to be real, such “creative accounting” was widely carried out by previous federal governments and it is still considered fair game in sub-national government levels. Thus, taking these to be a crime of responsibility by the president, overnight, is bound to create a very serious and complex impasse and is legal, morally and constitutionally questionable, if to say the least.

Another technicality to bear in mind is the fact that the financial loans taken reportedly took place in her previous term in office – and legally speaking, the current Administration cannot be held accountable for the deeds of the previous one, even though it is the same president who got re-elected. This issue is debated by Brazilian jurists who have different interpretations.

Even though this is highly controversial within the legal establishment, the so-called fiscal dribbling should not be taken as a sufficient legal breach of the constitutional order so as to be prosecuted as a crime of responsibility by a sitting president. And since the legal basis for such an action is questionable, to say the least, the whole procedure becomes highly political, thus creating an opportunity for the notorious give and take typical of behind the scenes negotiations between an outstanding number of lobbying groups that rushed to stand behind the two warring factions, those of the president and those that sided with her vice-president, who, incidentally, broke away from the coalition, quite publicly and loudly, while still in office, and despite also having, himself, signed at least seven of the ill-gotten secret decrees, while in the exercise of the presidency. 

As for the Planalto Palace, the only thing left to muster political support is to give away political positions within the federal bureaucracy and to keep on pumping federal funds into wannabe supporters in organized social movements. President Rousseff will keep on pledging no wrongdoing and that all charges are “inconsistent and unbecoming. For I committed no crime”.

As it goes, however, both the Vice-President and the opposition parties intend to form a new cabinet solely by the corruption charges already brought forth before Congress and on the blatant economic fiasco managed by the current Administration so far. Thus, the mobilization of Civil Society and Congress to have the impeachment vote cast expeditiously.  And according to Kathryn Hochstetler’s detailed analysis of the minority vote in Congress, of the ongoing economic crises, and of the neoliberal policy agenda now being put in place, besides the involvement of the president’s party in repeated corruption scandals, things look increasingly bleak for Ms. Rousseff.

The impeachment vote, therefore, comes awfully close to becoming a vote of no confidence, a common procedure in Parliamentary Regimes, very much in line with the political conveniences of legislators playing a two-pronged strategy, slapping a thin legal coating of inflamed rhetoric over what really is a political struggle based on very shady group interest in order to oust the sitting president and to form a new cabinet, after what effectively amounts to be an election by Congress itself.  All this really hurts both democracy and the Constitutional regime since democracy demands free political competition among able citizens, through the “direct vote” by the people, and not the political give and take between warring party factions within the Parliament, and since the Constitution does not allow for a “vote of any confidence”, so typical of Parliamentary Regimes all over the world. Furthermore, and to top it all off, the accusation piece, itself, does not seem to be proficient as to proving intent on the part of the president in the alleged charge of crime of responsibility.

So, what happened in the Brazilian House of Representative was a process of "vote of no confidence" – a common practice in parliamentarian regimes when the representatives oust the Prime Minister alleging political or administrative reasons for such a move. Up until last week it had never been adopted in presidential systems, but on Sunday the Brazilian House of Representatives, in already what is considered a historic session, decided to innovate adopting a new concept of "impeachment" which does not adhere strictly to the letter of the Federal Constitution, decrying the government’s fiscal irresponsibility and its astounding low levels of popularity as sufficient 'legal' and 'constitutional' reason for impeding the President.

The mixing up of public and private interests has never been so blatantly displayed before as it was elicited by the impeachment vote session in the House of Representatives last Sunday.  The House of Representatives put on a freak show in which its members shouted, wailed, cheered and deprecated the president and her party, hugged one another and their relatives, and sang either religious or leftist songs, while paying homage to their loved ones before casting their votes on the microphone. Very few of them bothered to mention the Constitution or the Law of Fiscal Responsibility as a solid-enough legal foundation. It goes without saying, that most of them made a connection between the apparent fiscal fraud at hand with the corruption scandals the president´s party has been involved in, chin-deep, since the middle of the last decade. The elephant in the room, however, is the fact that about 150 of them are also under investigation by the Lava Jato Operation. The vote will now be taken to the Senate where it is expected to pass.

What is at stake?

In the strictly political arena, the 79-strong “Evangelical Parliamentary Front” put all its chips on a PMDB-led government to advance its very conservative agenda.After declaring that it would vote to impeach the president, the Front had some meetings with Vice-Presidente Temer. Right-wing Reps and different segments of businesses interests which are deeply connected to the opposition parties also came out against Ms. Rousseff and opened their wallets to fund the media campaign. A conservative government program seems to be getting ready to take off while hectic negotiations go on behind the scenes as a possible “agenda of “national salvation” centered on economic recovery and the curbing of widespread corruption is publicly advertised, as the Vice-President is about to take office.

Internationally, both the money and the foreign exchange markets react positively to Ms. Rousseff´s political defeat, while many International Organizations, such as the Mercosur, the Unasur, the OAS, ECLAC, the other BRICS and Brazil´s neighbors, all voiced their worries with the whole deal[1]. Impeaching a sitting president is a very traumatic thing, which involves the whole institutional framework of a country. In such an extreme situation as Brazil is currently going through, the whole idea of importing alien parliamentary procedures to impeach a president on what seems to be shaky legal grounds can end blowing up in their faces.

At the end of the day, what is at stake is much more than the mere defense of a government, but the actual harmonic work of the country´s judicial and political institutions so as to ensure that last year´s electoral results are not violated lightly and whimsically and that the country's legal and judicial foundations are solid and reliable enough as to guide the myriad political and economic decisions made by actors who should not be solely oriented by their self-interests.

As one can see, the point here is neither fiscal fraud, nor poor economic performance, or the clumsy and incompetent public management team of Ms. Rousseff, or even the President’s low popularity ratings, much less the corruption scandals involving the crumbling coalition. All these facts contribute, however, to the major thing that makes the President vulnerable: her current minority in Congress. Once the impeachment process became an almost exclusive political game, the government’s minority represents the biggest risk for the President. Let´s be clear: the impeachment legislative procedure is not a coup, per se. But given that the game has become almost exclusively political, and given its fragile legal foundations, the process itself tends to hollow out the very concept of the Rule of Law.

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