Rousseff’s impeachment is a penalty searching for a crime
I stopped writing about Brazilian politics for two months because of two different reasons. The first was the excess of work, which is likely to become a permanent feature of mine. The second was the complete unpredictability of how much the political and economic crisis could be aggravated. After speaker Eduardo Cunha started impeachment proceedings against President Dilma Rousseff, it is now safe to discuss with an end in sight — at least to the stalemate in Brasilia. It all could end in February or be dragged till the Olympics in August. Despite the intention of making the affair look like a natural development of President Dilma Rousseff’s unpopularity, the first issue of the agenda is proceedings themselves — although it is tempting to describe why Cunha used his so-called atomic bomb as revenge against government allies that wanted him investigated by Congress.
Brazil’s constitution says impeachment proceedings may be triggered by the speaker of the lower house if the president committed a “crime of responsibility” in the current mandate. There is no evidence that Rousseff did such thing, no matter how poor her performance at the Palacio do Planalto has been. What was used against her is an accusation that she intentionally infringed fiscal laws in 2015, even though there are no rulings in that direction for this year. The decision to include this year’s books in such a serious accusation is an improvisation, since Brazil’s constitution demands that impeachment proceedings can only be kicked off if the alleged crime of responsibility was committed in the current mandate. Rousseff’s second term began in January, when she was already facing impeachment calls. The alleged offense committed this year may have already been corrected.
Cunha’s decision is, at the very least, a stretch. Since Brazil’s audit court recommended that Congress rejects Rousseff’s books in the previous mandate (2011-2014), the speaker used that report as an initial excuse, attached a few notes from some technocrats saying that the malpractice continued this year and… voilà. That audit court (TCU) is not a part of the Judiciary — it is like the GAO in the United States. TCU only makes recommendations for Congress to judge, but Cunha and the opposition sell it to the public as if a judicial decision had been made condemning Rousseff. Congress has not even voted on the matter. No books of previous presidents have been voted in the last 20 years.
To make the impeachment grounds even shakier, Congress passed a bill readjusting Brazil’s fiscal targets for 2015 on the same day that Cunha approved the proceedings. With new fiscal targets approved by Congress for this year, how can the proceedings be kicked off based on an alleged back pedaling that was corrected before the year ended? That case hasn’t been made to the Supreme Court, but it might soon.
That would be enough to dismiss the impeachment calls in many mature democracies, but Brazil seems to need more. And there is more. Every federal, state and municipal administration has used state banks to pay for government programs and initiatives — that is the core of the accusation. Such practice was never defined as a crime. It is a hazardous fiscal irregularity that does deserve punishment to those that are responsible, no doubt. What impeachment sympathizers believe is that a widespread administrative practice should be considered a crime committed by the president alone.
They don’t even consider that such decisions can be made by the treasurer that also signed all those acts. The radicals also believe that the punishment to be applied should not be a fine or ineligibility in a future election: it has to be the removal of the president from her office. Is Brazil ready to apply similar rules to all former presidents, governors and mayors that committed those irregularities months before a mayoral election? Of course not. That is what makes the whole case look more of illegitimate way for the opposition to come back to power than to a respectable impeachment proceeding.
But let’s get radical for a second.
Let’s assume that Rousseff deserves to be impeached for her fiscal infringements. After all, there is real risk that she loses her position because of those accusations — they are not huge, but consultancy firms rate it at about 40%. If she goes, so should vice-president and now more openly impeachment plotter Michel Temer, who as interim president during her travels also signed similar acts.
Isn’t that extraordinary?
I am not even discussing all the other elements that make the current proceedings so illegitimate, such corruption investigations on speaker Cunha that might send him to jail, the opposition questioning Rousseff’s narrow victory right after the result was announced or her deep and deserved unpopularity in the middle of the current economic crisis. There is no need to if we stick to what the Constitution says.
That is why the impeachment proceedings started last week are a clear example that removing Rousseff is a punishment searching for a crime. Since she is not a crook, as far as Brazilians know, the difficulties to put it all in a box to send her away have been immense. Those that say that impeachment is a political process often fail to mention that the political process is only valid once the judicial requirements are fulfilled. That was clearly the case when President Fernando Collor was impeached in 1992.
That is far from being the case with Rousseff. Don’t take my word for it. That is also the opinion of respected publications like the New York Times. That is the perception of serious entities such as Brazil’s bar association OAB, the confederation of Catholic bishops (CNBB) and many other non-partisan organizations that favored Collor’s impeachment 23 years ago.
Unless new facts come out, the best for Brazil is to file these proceedings, carry on with the corruption investigations at state-run oil giant Petrobras, reform its political system and focus again on dragging itself out of the mud.