—Juliano Zaiden Benvindo, University of Brasilia
Judicial review of the legislative process is certainly one of the most sensitive areas of the relationship between the Judiciary and Parliament. In comparative law, there is no clear trend. In the United States, the enrolled bill doctrine, which claims that courts are required to accept that “a bill that has passed Congress should be deemed complete and unimpeachable,” has long prevailed. In other countries, such as Spain and Colombia, judicial review of Parliament’s deliberative proceedings is much more aggressive. In Brazil, the so-called interna corporis doctrine has historically engendered an attitude of self-restraint, but there is a possibility of judicial review when there is an alleged violation of a constitutional right and, particularly, a petrified or unamendable constitutional clause. In recent years, the Brazilian Supreme Court has delivered decisions which either weakened the interna corporis doctrine or expanded the scope of a constitutional right. This movement received a boost last December 16 and 17, when the Brazilian Supreme Court was faced with one of the most relevant cases ever in Brazilian constitutional history. In the midst of political upheaval, the Court had to decide how far it could go when determining the rules of impeachment proceedings against a sitting President.
On December 2, the Lower House Speaker, Eduardo Cunha, allowed an impeachment bid against President Dilma Roussef to move forward. The impeachment was based on the grounds that she committed fiscal improprieties to cover budget shortfalls in 2014, thereby supposedly perpetrating crimes of malversation. After a year of continuous conflicts especially with the Lower House and in the middle of an economic crisis, the argument in favor of impeachment became stronger. The opposition and some members of the allied coalition along with Mr. Cunha saw in this instrument a way to gain power. While this movement gained momentum, however, civil society reacted in different ways. Some interpreted the impeachment as a political mechanism to remove a President whose approval rating has plunged dramatically; others, on the other hand, could see nothing directly incriminating President Roussef.
Beneath the impeachment may lie a strategy of political self-preservation, given that criminal investigations against corruption scandals are in full steam, and politicians, businessmen and bankers are being arrested. Eduardo Cunha himself is accused of illegally keeping millions of dollars in foreign accounts, and of using his position as Lower House Speaker to obstruct justice. After having accepted the impeachment bid, he has made some controversial moves based, according to him, on the chamber’s internal rules. Those internal rules give the Speaker significant control over parliamentary procedure. As a powerful opponent of President Dilma Roussef, Mr. Cunha used the impeachment bid as an instrument for political pressure, bargaining and blackmail. On the verge of possibly being removed from office and arrested because of those criminal investigations, he launched the impeachment proceeding as soon as he realized that the President’s Worker’s Party would vote against him in the Lower House’s Ethics Committee. From that moment on, he began to use parliamentary procedure to weaken the government and its allies in Congress.
During this current impeachment proceeding, the conflict decided by the Court was set up on account of those controversial interpretations of the chamber’s internal rules, such as the selection of the members of the special impeachment committee through secret ballot, instead of a proportional selection made by party leaders. The allied coalition complained that this committee was stacked with the sole purpose of acting against President Roussef, and in direct violation of constitutional rights.
As often occurs in such landmark cases, Brazil stopped that Wednesday and Thursday afternoons to watch the Supreme Court Justices discussing their opinions live on television. The case originated from a Claim of Non-Compliance with a Fundamental Precept (ADPF), an abstract exercise of judicial review, filed by the Communist Party of Brazil (PCdoB) in order to discuss how the impeachment proceedings should take place in Congress. There were many doubts about this proceeding, because the Constitution of 1988 regulates it only very briefly and Law 1079, which specifically defines the alleged crimes of malversation and the procedural rules for impeachment, was enacted in 1950. Moreover, although there was already a Supreme Court precedent regarding the impeachment of President Fernando Collor de Mello in 1992, some relevant issues remained unanswered (President Fernando Collor de Mello resigned before completion of the impeachment proceedings) and the political and legal context has changed a lot since then.
Law 1079 dates from a moment of intensive debates on whether Brazil should adopt a parliamentary regime. At the end of the 1940s, Brazil almost became a parliamentary country through a proposal for constitutional amendment. It did not pass, but this conflict reflected on that law, which transformed impeachment into a mechanism of “quality and ability control of the government by Congress” and thus into an instrument similar to the motion of censure normally present in parliamentary countries. The Brazilian Supreme Court had to decide how to adapt that ordinary law, which set up a sort of “proto-parliamentarianism,” to the Constitution of 1988. As the tensions and disagreements from all sides were rapidly escalating, the Supreme Court became the arbitrator of how the rules of the game ought to be played.
The interna corporis doctrine was one of Lower House’s main arguments, and most of the Justices argued that the Supreme Court should act with a considerable degree of self-restraint in this matter. However, the issue relates to a constitutional mechanism which directly affects an elected President in a presidential country. The rapporteur, Justice Luiz Edson Fachin, adopted a restrained position that left the Lower House’s proceedings as they had taken place so far virtually untouched. The majority, the following day, reversed this understanding. Guided by Justice Luís Roberto Barroso’s opinion, the majority reaffirmed precedent set during the impeachment of President Collor de Mello, resolving some remaining doubts and keeping alive a coherent narrative adjusted to the current democratic background. The decision focused on the following rules of the democratic game: 1) every deliberation should be based on openly-cast votes; 2) the special impeachment committee should be proportionally composed in accordance with the party leadership; and 3) the admissibility of the impeachment bid should happen both in the Lower House and the Senate, which has the final say in this matter.
This decision radically changed the political landscape and threw a bucket of cold water over the opposition. The victories they had obtained were invalidated, and the Senate, which is more favorable to the government, became more relevant in this new impeachment design. Naturally, reactions appeared from all sides. The jurist Miguel Reale Jr., one of the impeachment bid’s authors, accused the Supreme Court of “activism to a high degree.” But the reality is that the Supreme Court discussed the matter by bringing, both in the majority and minority opinions, very careful, coherent and reasonable arguments that will stand as one of the most relevant precedents in its history. This decision brought about greater transparency in deliberative proceedings, stressed the role of parties through their leaderships, and, by strengthening the Senate, provided a further institutional filter to inhibit congressmen from transforming the impeachment into a simple motion of censure in a “proto-parliamentary” country. In the end, it preserved the rules of the democratic game and the presidential regime as set out in the Constitution.
The impeachment is still underway, but now that the rules of the democratic game have been settled, it has become less likely. An event of this magnitude is certainly a test for Brazilian democracy. Brazil, although facing a period of political turmoil and economic crisis, has seen its institutions and mechanisms of democracy gaining strength and gradually learning to act within a mature democratic order. No one can really foresee what the future holds, but we can now say with more confidence than before that Brazilian institutions do matter.
Suggested citation: Juliano Zaiden Benvindo, Institutions Matter: The Brazilian Supreme Court’s Decision on Impeachment, Int’l J. Const. L. Blog, Dec. 31, 2015, at: http://www.iconnectblog.com/2015/12/institutions-matter-the-brazilian-supreme-courts-decision-on-impeachment/
 For an excellent comparative analysis of the judicial review of legislative process, see Rafaela Lima Santos de Barros, Fundamentos do Controle Judicial do Processo Legislativo com base em Normas Regimentais no Direito Comparado (2015).
 Brazilian Federal Constitution, art. 60, § 4. See Barros, supra note 4.; see also Eneida Desiree Salgado, Eduardo Borges Araújo, Controle Judicial do Processo Legislativo: Do Minimalismo à Garantia do Devido Procedimento Legislativo. Working Paper (on file with the Author).
 See ADPF 378/2015.
 See Adrian Vermeule, Mechanisms of Democracy (2007).
 See Douglass C. North, Institutions, 5 J. Econ. Perspectives 97–112 (1991).