Talk on role of legal and political institutions in the impeachment process in Brazil

Professor Thomas Bustamante from Brazil is visiting Kent Law School on Friday (3 June) to speak about the role of legal and political institutions in the impeachment process that has recently removed his country’s democratically elected President Dilma Rousseff.

Professor Bustamante is an academic at the Universidade Federal de Minas Gerais in Belo Horizonte, a key partner in the Law School’s three-year Inclusionary Practices research project led by Professor Toni Williams. His talk, entitled ‘Democracy and the Rule of Law when Dialogue is no Longer Possible: The Supreme Court and the Houses of Parliament in Brazil’s 2016 Impeachment Process’  will be delivered at a seminar for staff and students in DS1 at 12pm.

The abstract for Professor Bustamante’s talk is below (all are welcome to attend the talk):

‘It is a recurrent strategy, among legal theorists and constitutional scholars, to attempt to ground the legitimacy of constitutional courts in a model of institutional dialogues between courts and legislatures.  Whatever might be the merits of this theoretical construction, it is not obvious, however, how these dialogues could be possible in legal systems with the type of “coalition presidentialism” that we see in Brazil and in other Latin American countries.

‘Coalition presidentialism is a form of presidentialism without the “imperial” powers for the President that is typical of the U.S. legal system. Since the executive is strictly bound by the legislature, he must struggle to make a coalition after the two houses of parliament are elected. On top of that, coalition presidentialism tends to be a multi-party system. In Brazil, for instance, there are around 30 parties represented in Congress, and since the promulgation of the 1988 Constitution no president has ever started a government with more than 20% of the members of the Chamber of Deputies on his own party.

‘The situation can get particularly difficult if we consider that the electoral system is very complex and has one of the most expensive elections in the world.

‘Coalition presidentialism requires, thus, not only a robust dialogue between legislatures and constitutional courts, as it might be the case in a system of parliamentarism. More important than that is a strong collaboration between the independent executive and the legislative branch. Sometimes, however, coalition presidentialism faces a deadlock.

‘The political crisis in Brazil is one of the typical instances of that deadlock.  Though Dilma Rousseff received over 54 million votes, she cannot have even a third of the members of parliament, in each house, to vote for the continuity of her government.

‘More often that should be accepted, Latin American systems face traumatic impeachment processes that can be the source of a dangerous form of instability and risks for Democracy and the Rule of Law.

‘I submit in this paper that this is precisely the case in Brazil’s 2016 impeachment process, which is a process that has some of the typical features of a legislative coup. Any impartial legal observer can understand that. In order to oust Dilma Rousseff, the proponents of the impeachment process promote very broad accusations and an ambitious analogical reasoning in order to classify some public contracts as illegal credit operations with public banks. I shall take up this argument in the paper and compare Dilma Rousseff’s allegedly illegal conduct with the conduct of Senator Antonio Anastasia while he was a governor of the state of Minas Gerais from  2010 to 2014. I argue that Anastasia’s reasoning is morally flawed and he cannot convict Dilma Rousseff without convicting himself.

‘Senator Anastasia is a law professor at UFMG, which is the same university as the author of this paper, and is considered to be a legal expert on administrative law and public finances. He is the author of the “Legal Opinion” that has been accepted by the Senate in order to accuse Dilma Rousseff of responsibility crimes (i.e. impeachable offences strictly define in statutory enactments) and to suspend her mandate while she is being trialed. An analysis of the public accounts of Anastasia’s state government shows that he practiced exactly the same acts that he now claims that constitute responsibility crimes for the purpose of impeaching the President of the Republic.

‘I will try to argue, thus, that there is a general requirement of “consistency in principle” in political judgments and a right to a morally responsible judgment in political trials. If that is correct, the lack of “moral responsibility”, in the sense of Dworkin’s conception of legality and morality, provides enough reason to conclude that Brazil’s 2016 impeachment process is a mere rationalization of a legislative coup d’état.

‘Finally, I submit that the Supreme Court has a special duty when there is a political crisis such as that of Brazil in 2016. If I am right, even if it is correct that the court must not exercise a direct judgment of its own to decide whether certain operations should characterize “responsibility crimes” (which are the only possible grounds for impeaching a president under the Brazilian constitution), the court must not only secure that the formal requirements of the rule of law are observed in the political process, but also demand from the legislative branch a minimal standard of decency and moral responsibility in the decisions about the culpability of the democratically-elected president of the republic.’