Abusive Impeachment? Brazilian Political Turmoil and the Judicialization of Mega-Politics

—Juliano Zaiden Benvindo, University of Brasília

In 2007, Aníbal Pérez-Liñán, an Argentinian professor of political science at the University of Pittsburgh, wrote that “impeachments are likely when the mass media systematically investigate and expose political scandals and when the president fails to keep tight control over Congress… When a broad social coalition takes the street to demand the resignation of the president, the fall of the administration is usually in sight.”^[1] As a mechanism capable of ousting a president from office, impeachment proceedings have indeed become a trend in Latin America, and they can be normally associated with distinct and in many cases combined variables: 1) minority support in Congress; 2) scandals of corruption; 3) influential and concentrated media coverage of those scandals; 4) economic mismanagement; 5) a president’s low approval ratings; and 6) popular protests. Brazil (1992), Venezuela (1993), Colombia (1996), Ecuador (1997, 2004), Paraguay (1999, 2002, 2012), and Peru (2000) are just some examples of this new pattern. Now it is Brazil that is going through such a moment. But, perhaps more than the other examples, the Brazilian case may reveal an interesting way in which the “judicialization of mega-politics”^[2] can intersect with a new form of “abusive constitutionalism.”^[3]

Beneath the storm lies a complex array of interpretations of how to define the impeachment as it has evolved so far. After a brief lull following the Supreme Court’s decision on impeachment last December, which settled the rules of the game and calmed down the political turmoil,^[4] the landscape has changed very quickly. The likelihood of President Dilma Roussef’s impeachment has increased dramatically, leading to increased tension. On April 17, more than two-thirds of the members of the Lower House voted for her impeachment, authorizing thereby the opening of proceedings against her, now awaiting deliberation in the Senate. If the Senate accepts the impeachment bid by a simple majority, President Roussef is suspended for 180 days and Vice-President Michel Temer takes office. If, after her trial in the Senate, presided by the Chief Justice of the Supreme Court, two-thirds of the Senators approve her impeachment, Mr. Temer would become the new President.

In recent weeks, influential international media have explicitly taken a stance on this matter. For example, The Economist, on its cover of March 26, did not mince its words and wrote “Time to go,” saying, moreover, that “her departure would offer Brazil the chance of a fresh start,”^[5] especially after she had appointed the former President Luiz Inácio Lula da Silva to be her chief of staff in a controversial move. The following week, in an article titled “When a “Coup” is not a coup,” the same magazine compared the impeachment proceeding of presidential systems with what usually happens in parliamentary countries and claimed that Brazilians should take the street to push for a constitutional amendment that would lead to new elections as “a better way to defend democracy.”^[6] It also argued that the impeachment would not be a coup, as President Roussef’s Worker’s Party and its supporters call it, mentioning that “impeaching Ms Roussef would be a constitutional act with a legal basis, albeit a flimsy one.”^[7] Similarly, an editorial of the New York Times contended that “if her latest blunder pushes the impeachment effort across the finish line, Ms. Roussef will have only herself to blame.”^[8] This international coverage is similar to that in two of the most influential Brazilian newspapers, Folha de S. Paulo^[9] and Estado de S. Paulo.^[10]

Other very interesting analyses, however, have pointed out the threat posed by this particular impeachment against the electoral system. Professor James N. Green, director of the Brazil Initiative at Brown University, condensed in a few words what many^[11] have argued: “this is an attack against democracy and democratic principles.”^[12] Glenn Greenwald, the Pulitzer Prize-winning journalist behind Edward Snowden’s case and a resident of Rio de Janeiro, stated that Brazil “is now being treated as a result of this really opportunistic and exploitative attack on the part of the country’s richest media outlets and richest factions … to remove a democratically elected president… on totally fictitious grounds of pretext.”^[13] Vladimir Safatle, Professor of the University of São Paulo, has called the impeachment “nothing other than a coup” and has called for a plebiscite to ask the people whether they want President Roussef and Congress to continue or end their term in office.^[14]

Some of the complexity of the debates is related to genuine ambiguity about the scope of the impeachment mechanism under existing Brazilian law. More importantly, beneath these chaotic debates lies an attempt to dress up competing constitutional arguments in political garb. One of the most widespread arguments about the impeachment is that it cannot be regarded as a coup because it is a mechanism clearly set out in the constitutional text. However, the way this mechanism is used by political actors is what matters in the end, since, like many other constitutional tools such as plebiscites, referendums and emergency decrees, impeachment can clearly be abused for improper purposes. Drawing from David Landau’s concept of “abusive constitutionalism,” impeachment, despite its constitutional status, could be used to “undermine democracy with relative ease.”^[15]

This is why institutions matter during political crises.^[16] In particular, the Brazilian Supreme Court has been continuously called upon, both by the government and opposition, to clarify various issues related to impeachment. It is no wonder that in some circumstances it has raised questions as to whether it has interfered with political affairs and, thereby, overstepped its bounds. More broadly, the Brazilian Supreme Court is following the worldwide trend of an increasing “judicialization of mega-politics,”^[17] as Ran Hirschl calls those “core political controversies that define the boundaries of the collective or cut through the heart of entire nations.”^[18] The impeachment case would then be just the tip of iceberg of a much greater phenomenon, which has been happening in Brazil for a long time now.

Nonetheless, the current impeachment case is a signature example of the judicialization of mega-politics. For instance, last December 16 and 17, the Court interfered into the internal congressional rules governing impeachment in order to ensure that those rules were interpreted to strengthen the presidential system as set out in the constitutional text.^[19] Furthermore, Justice Gilmar Mendes (and not the whole Court) issued an interim ruling suspending former President Luiz Inácio Lula da Silva’s appointment as chief of staff, in frank contradiction with judicial precedents.^[20] Although former President Lula was not indicted for any crime and is still merely under investigation at a lower court, Justice Mendes interpreted the appointment as a form of obstruction of justice, since its effect was to transfer the investigation to the Supreme Court.^[21] More recently, another Justice, Marco Aurélio de Mello, caught some legal experts and Congress by surprise when he, also in an interim ruling, determined that the Lower Houser speaker, Eduardo Cunha, had to accept an impeachment bid against Vice-President Michel Temer,^[22] who will take over power in case President Dilma Roussef is ousted from office.

Despite that, the Supreme Court has also in other opportunities acted in a rather self-restrained way. On April 15, in an extraordinary hearing session, the eleven Justices gathered to decide many claims filed by the government and other parties which attempted to question the congressional voting procedures, the scope and validity of the impeachment bid, the Lower House speaker’s alleged lack of impartiality, and other issues.^[23] During this session, the Supreme Court studiously avoided the merits of the impeachment, emphasizing that the final decision is Congress` responsibility. Justice Edson Fachin mentioned that it is “Parliament`s sole prerogative” to judge whether President Roussef committed the crime of malversation.^[24]

Whether accused of “activism to a high degree”^[25] or, on the other hand, viewed as a necessary agent to check Congress, these episodes are a test of how far the Supreme Court can go when coping with such a sensitive subject. A new balance of powers has emerged that has gradually transformed the Supreme Court from a simple arbiter of the game into one of the central players of the game. As Diego Werneck Arguelhes and Felipe Recondo have argued, the more interventionist the Court becomes, “the harder it is to sustain and justify a restrained position.”^[26] Yet, in a scenario where politicians are playing very dangerous games with democracy,^[27] a certain degree of “judicialization of mega-politics” may be necessary to prevent political actors from continuously abusing the constitution for their own benefit.

Suggested citation: Juliano Zaiden Benvindo, Abusive Impeachment? Brazilian Political Turmoil and the Judicialization of Mega-Politics, Int’l J. Const. L. Blog, Apr. 23, 2016, at: http://www.iconnectblog.com/2016/04/abusive-impeachment-brazilian-political-turmoil-and-the-judicialization-of-mega-politics/

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^[1] Aníbal Pérez-Liñán, Presidential Impeachment and the New Political Instability in Latin America 3 (2007).

^[2] See Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 Annual Review of Political Science 93 (2008).

^[3] See David Landau, Abusive Constitutionalism, 47 U.C.D. L. Rev. 189 (2013).

^[4] See Juliano Zaiden Benvindo, Institutions Matter: The Brazilian Supreme Court’s Decision on Impeachment, Int’l J. Const. L. Blog (Dec. 31, 2015), http://www.iconnectblog.com/2015/12/institutions-matter-the-brazilian-supreme-courts-decision-on-impeachment/.

^[5] Time to Go, The Economist (Mar. 26, 2016), http://www.economist.com/news/leaders/21695391-tarnished-president-should-now-resign-time-go?zid=309&ah=80dcf288b8561b012f603b9fd9577f0e.

^[6] When a “Coup” is not a Coup, The Economist (Apr. 9, 2016), http://www.economist.com/news/americas/21696550-how-should-presidential-systems-deal-political-breakdown-when-coup-not-coup?zid=309&ah=80dcf288b8561b012f603b9fd9577f0e.

^[7] Id.

^[8] Brazil’s Political Crisis Deepens, N. Y. Times (Mar. 18, 2016), http://www.nytimes.com/2016/03/19/opinion/brazils-political-crisis-deepens.html.

^[9] Nem Dilma nem Temer, Folha de S. Paulo (Apr. 2, 2016), http://www1.folha.uol.com.br/opiniao/2016/04/1756924-nem-dilma-nem-temer.shtml.

^[10] Impeachment é o melhor caminho, Estado de S. Paulo (Apr. 7, 2016), http://opiniao.estadao.com.br/noticias/geral,impeachment-e-o-melhor-caminho,10000025268.

^[11] See also Shobhan Saxena, A Coup is in the Air: The Plot to Unsettle Roussef, Lula and Brazil, The Wire (Mar. 25, 2016), http://thewire.in/2016/03/25/a-coup-is-in-the-air-the-plot-to-unsettle-rousseff-lula-and-brazil-25893/; Benito Perez, Vers un “Soft Putsch” au Brésil?, Le Courrier (Apr. 10, 2016), http://www.lecourrier.ch/137613/vers_un_soft_putsch_au_bresil.

^[12] See João Fellet, Americano vê risco de “golpe” contra o sistema eleitoral para pôr PMDB e PSDB no poder, BBC Brasil (Mar. 23, 2016), http://noticias.uol.com.br/ultimas-noticias/bbc/2016/03/23/americano-ve-risco-de-golpe-contra-o-sistema-eleitoral-para-por-pmdb-e-psdb-no-poder.htm.

^[13] See Gleen Greenwald: Is it a Coup? What is Happening in Brazil is Much Worse than Donald Trump, Democracy Now (Mar. 24, 2016),  http://www.democracynow.org/2016/3/24/glenn_greenwald_brazils_democracy_is_under.

^[14] Vladimir Safatle, Um Golpe e nada mais, Folha de S. Paulo (Mar. 25, 2016), http://www1.folha.uol.com.br/colunas/vladimirsafatle/2016/03/1753928-um-golpe-e-nada-mais.shtml.

^[15] David Landau, supra note 3, at 189.

^[16] See Juliano Zaiden Benvindo, supra note 4.

^[17] See Ran Hirschl, The Judicialization of Mega-Politics and the Rise of Political Courts, 11 Annual Rev. Pol. Sci 93 (2008)

^[18] Id. at 98.

^[19] See Juliano Zaiden Benvindo, supra note 4.

^[20] See Emílio Peluso Neder Meyer, A Colcha de Retalhos de Gilmar Mendes, JOTA (Mar. 26, 2016), http://jota.uol.com.br/colcha-de-retalhos-de-gilmar-mendes

^[21] See Samantha Pearson, Supreme Court judge blocks Lula da Silva’s Cabinet Appointment, Financial Times (Mar. 19, 2016), http://www.ft.com/intl/cms/s/0/bb17a2f2-edea-11e5-a609-e9f2438ee05b.html – axzz45NmiStMg

^[22] See Vinod Sreeharsha, Brazi’s Congress Must Consider Impeaching Vice President, N. Y. Times (Apr. 5, 2016), http://www.nytimes.com/2016/04/06/world/americas/brazil-impeach-ruling-michel-temer-dilma-rousseff.html.

^[23] See Livia Scocuglia, Depois de resposta colegiada, Supremo evita novos recursos contra impeachment, Valor (Apr. 17, 2016), http://jota.uol.com.br/depois-de-resposta-colegiada-supremo-evita-admitir-novos-recursos-contra-impeachment.

^[24] See Felipe Recondo, Impeachment: Pedalada fiscal não é um vestido de bolinhas, Jota (Apr. 16, 2016), http://jota.uol.com.br/impeachment-pedalada-fiscal-nao-e-um-vestido-de-bolinhas.

^[25] See Pedro Venceslau, Miguel Reale Jr. acusa STF de fazer ‘ativismo de altíssimo grau’ sobre impeachment, Estado de S. Paulo (Dec. 18, 2015).

^[26] See Diego Werneck Arrulhes & Felipe Recondo, Impeachment: A Maldição de Paulo Brossard, JOTA (Apr. 7, 2016), http://jota.uol.com.br/impeachment-maldicao-de-paulo-brossard.

^[27] Leonardo Augusto de Andrade Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 (2012).