Dilma Rousseff's impeachment: a legal analysis

Brazil’s Constitution foresees that if a President commits any “responsibility crimes”, the Chamber of Deputies, which represents the people, and the Senate, composed of state representatives, should vote for or against their conviction. On April 17th and this past week on August 31st, these two legislative houses voted in favor of President Dilma Rouseff’s impeachment.   

The documents which prove the conduct imputed as a crime are robust and are not being strongly questioned. The big debate surrounds whether her conduct can indeed be constituted as a crime. For the accusation, they deduced that the unapproved additional credit decrees and the ‘pedaladas fiscais’ (a maneuver which delays the transfer of funds from the National Treasury to the banks) are serious, punishable crimes. However, for the lawyers who spoke on Dilma Rouseff's behalf, one of their main arguments was that no crime was committed because there was simply a change in the interpretation of the law. Hence, because of this change in interpretation, what was previously considered acceptable in the past started to be considered a crime.

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Although it can be difficult for some to understand how it is possible to have different conceptions about the same legal text, for a lawyer, this is not so strange. We know that there are no absolute truths when it comes to law enforcement. But, since our society needs stability, our legal system created security mechanisms in the Constitution to determine that certain institutions are entitled to judge certain matters more subjectively.

When it comes to judging a crime committed by the President of Brazil, the Chamber of Deputies and Senate are the bodies allowed to partake; this was just the procedure that was followed. It is important to emphasize that throughout the process, Rouseff guaranteed her lawyers the right to personally make her defense speeches. But despite her defense, the majority of the deputies and senators believed she committed the crime of responsibility. Of the 513 deputies, 367 voted in favor of her impeachment, and in the Senate, 61 out of the 81 senators.

However, despite this, opposition to her impeachment criticize the legitimacy of this vote because the deputies and senators who voted don't have the moral or technical knowledge to do so, and that their decisions were purely political. They are selling the idea that there was a coup despite that the process complied with due process of law, the principle of full defense, and all constitutional texts.

It is widely-known that the two legislative houses have many unethical politicians, however they were elected by the same people who elected the president, and giving them the legal basis to decide on the future of the president of the country.

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The legitimacy established by the Constitution is clear. What would happen if everyone that considered a judge immoral had the right not to respect his decision?

Because of this, it seems to be clear that there was no illegal procedure in the impeachment process; it was followed as set out in the Constitution.

However, the same cannot be said about the second moment of the impeachment process. Unprecedentedly, a second vote was initiated and it was decided that despite the impeachment, the President should not lose her political rights for the next eight years; this political maneuver is not authorized in the Constitution. The suspension of political rights is a direct and inseparable consequence in the application of the constitutional text, and its non-enforcement is a very dangerous legal precedent for the country.

Legally, the issue is very complex and does not seem to have come to an end. Today, on September 1st, Rouseff appealed to the Supreme Court to challenge the decision of the chambers.

Although she will not easily give up her recently lost chair, Brazil’s economic situation does not play in her favor. The country is facing one the biggest crises in the last twenty years; the unemployment rate is above 11% and the country’s GDP was reduced by 3% in 2015. This was caused by decisions made in her mandate, and this combined with her low popularity (only 10% of the population approved her government in February 2016), could have also played a critical role in the house’s decision.

The situation in Brazil is even more complicated because, despite the population’s dissatisfaction with the government and the political instability, it is not yet known who could lead the country to a better future. What is known is that during the impeachment process, some young opposition to Rousseff's government were key in the social mobilization to pressure the legislative houses, such as ‘Movimento Brasil Livre’’ among others). However, there is still a gap to be filled by potential young people who could put an end to the traditional political model of the country, which suffers from corruption and outdated models of administration.

Maria Clara Seixas is a Senior Lawyer at Votorantim Cimentos, the biggest construction material company in Brazil and eighth largest in the world. She is part of the organising team behind Votorantim Institute's Voluntary Challenge, making use of gamification to engage Votorantim Cimentos’s employees, as well as their friends and family, in a two month programme of social action and volunteering.