In the eighth post in our series of collaborative posts with New South Wales Young Lawyers’ International Law Committee, Louise Lau looks at the impeachment of Brazilian president Dilma Rousseff.
Dilma Rousseff marks number 18 in a line of Latin American presidents who have left office for reasons other than losing an election since 1985. Through April and May, the National Congress of Brazil voted for Ms Rousseff’s impeachment, alleging that she manipulated budget figures using public bank funds to improve perceptions about the Brazilian economy and further her 2014 re-election campaign. The calls for impeachment did not involve allegations of corruption or electoral fraud; they related to budgetary practices that are arguably commonplace across various levels of Brazilian government.
If it is any reflection of the social and legal gravity of Ms Rousseff’s actions, only a handful of congressmen even mentioned the charge during their ten-minute declarations calling for impeachment. The point of distinction where Ms Rousseff stands in contrast to many of her accusers is that she has not misappropriated government funds for herself. Even her critics admit that she is ‘one of the few politicians in Brazil not to accept bribes’.
The Brazilian pathway to impeachment operates as follows (assuming each step passes):
1. A two-thirds majority vote in the Chamber of Deputies (the lower house of Congress) passes to start impeachment proceedings.
2. A majority vote in the Senate confirms the Chamber of Deputies vote.
3. The President is suspended from office.
4. A vote in the Senate passes to indict.
5. A trial occurs in the Senate.
6. From the trial, a vote to impeach passes, , occurring in the Senate.
Each of these dominoes fell for Ms Rousseff over this year. On the 17 April 2016, the Chamber of Deputies vote passed 367 to 137 (out of 513 members), easily exceeding the threshold required. On 12 May 2016, the Senate vote passed with another comfortable majority of 55 to 22. On the same day, Ms Rousseff was suspended from office.
Later on in August, the Senate voted for her indictment by 59 to 21, finding that there was enough evidence for trial. The trial occurred through the month and finally on 31 August 2016, the Senate voted, by another clear margin of 61 to 20, to impeach Ms Rousseff. She was officially removed from office. Now Michel Temer, the previous Vice President who acted in place of Ms Rousseff during these proceedings, has assumed office as President of Brazil. He will face re-election in 2018, before Ms Rouseff’s term was set to end on 1 January 2019.
However, throughout the year Ms Rousseff and her supporters have claimed these proceedings are a ‘coup’ and ‘conspiracy’, designed to usurp her political power. After the impeachment, she maintained that Congress had ‘condemned an innocent’. These are not the unfounded rally cries of a President caught red-handed; the alleged plotting and dealing of Mr Temer is a narrative that ‘will be polari[s]ing for a long time in Brazil’. Ms Rousseff and her supporters claim that the new President saw this as an opportunity to take power in a plot that had been planned for months, especially after Mr Temer was implicated in the Petrobras scandal where billions of state oil money was routed through hidden accounts for kickbacks and bribes.
When Ms Rousseff entered office, she sought to ‘clean house’; she was explicit from the start that corruption would not be tolerated in her government – the expectation was clear: if you were a minister or aide and accused of corruption, you had to resign. Six ministers left office under these conditions in the first year.
Like a contemporary morality play, the tragi-comedy of Brazil’s recent politics offers a lens for us to question what it means to be a democracy in the 21st century. In the context of a government where no one seems to have clean hands, are checks and balances of government accountability morally neutral? The mechanism of impeachment demonstrates that even a head of state is not beyond the reproach of law. In principle, it is the rule of law at work. By all accounts, Congress complied with all legal requirements to remove Ms Rousseff.
But in practice, the moral grounding is not so clear.
The irony is fraught: over half of those in Congress are under investigation for charges including electoral fraud, corruption and even homicide; of the 21 deputies embroiled in the Petrobras scandal, 16 voted to impeach Ms Rousseff.
Brazil is a diverse nation, but Mr Temer had appointed an all-male, all-white cabinet in the interim phase. Venezuelan President Nicolás Maduro and El Salvadorian President Salvador Sánchez Cerén expressed their support for Ms Rousseff, despairing that one of the democratic strongholds of South America had been lost.
Ms Rousseff’s impeachment has been called a ‘misuse of democratic procedure’, as it is ultimately more akin to a political attack than a demonstration of executive accountability. The Brazilian Congress has no mechanism of a ‘no-confidence’ vote and some contend impeachment was the next best tool for Congress to topple its leader for her unpopular economic policies. The democratic interests of the Brazilian people are not being best served by this impeachment; the general sentiment amongst critics and citizens alike is general distrust – there is scepticism about Brazil’s political class and commentators have labelled the situation everything from ‘dysfunctional’ to ‘circuslike’.
The change in power was undemocratic in form and substance. Brazil now has a new President and leadership who were not elected by its people. On its face the new cabinet is less diverse. By implication, it is also less representative of the diverse and deeply unequal Brazilian populace and therefore less democratic. Public confidence has also significantly diminished due to the political turmoil over the past six months. Overall, this mechanism of government accountability, does not appear to actually do its job when it has effectively substituted ‘one President tainted by scandal for another.’
The institutional legitimacy of the Brazilian government, the tenets of democracy and the ordinary citizens of Brazil have not positively benefited from this. With the wrongs of Ms Rousseff’s economic administration and Mr Temer’s alleged unscrupulous dealings, the situation appears like a choice of the lesser of two evils. Yet the biggest problem is that the Brazilian people, the citizens to which the government are accountable, were deprived of their choice. No elections were held to demonstrate the people’s approval or disapproval of Ms Rousseff’s actions; they were not able to exercise their civic voice to remove or retain their democratically-elected President in light of her actions.
The Brazilian Congress’ use of impeachment procedures against Ms Rousseff reflects the rule of law in form but not substance. Democracy is more than utilising the mechanisms of executive accountability – these mechanisms must actually serve a public purpose and reflect an overall notion of democratic legitimacy.
Ms Rousseff’s impeachment serves as a reminder that checks and balances do not exist in a vacuum; they should serve a greater purpose which supports the integrity of the democratic system and underpins the tenets of the rule of law.
NSWYL International Law Committee