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\u2019s democratically elected President Dilma Rousseff.<\/p>\n
Professor Bustamante is an academic at the Universidade Federal de Minas Gerais in Belo Horizonte, a key partner in the Law School\u2019s three-year Inclusionary Practices<\/a> research project led by Professor Toni Williams. His talk, entitled \u2018Democracy 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\u2019 \u00a0will be delivered at a seminar for staff and students in DS1<\/a> at 12pm.<\/p>\n The abstract for Professor Bustamante\u2019s talk is below (all are welcome to attend the talk):<\/p>\n \u2018It is a recurrent strategy, among legal theorists and\u00a0constitutional scholars, to attempt to ground the legitimacy of constitutional\u00a0courts in a model of institutional dialogues between courts and legislatures.\u00a0\u00a0Whatever might be the merits of this\u00a0theoretical construction, it is not obvious, however, how these dialogues could\u00a0be possible in legal systems with the type of \u201ccoalition presidentialism\u201d that we\u00a0see in Brazil\u00a0and in other Latin American countries.<\/p>\n \u2018Coalition presidentialism is a form of presidentialism\u00a0without the \u201cimperial\u201d powers for the President that is typical of the U.S.\u00a0legal system. Since the executive is strictly bound by the legislature, he must\u00a0struggle to make a coalition after the two houses of parliament are elected. On\u00a0top of that, coalition presidentialism tends to be a multi-party system. In\u00a0Brazil, for instance, there are around 30 parties\u00a0represented in Congress, and\u00a0since the promulgation of the 1988 Constitution no president has ever started a\u00a0government with more than 20% of the members of the Chamber of Deputies on his\u00a0own party.<\/p>\n \u2018The situation can get particularly difficult if we\u00a0consider that the electoral system is very complex and has one of the most\u00a0expensive elections in the world.<\/p>\n \u2018Coalition presidentialism requires, thus, not only a\u00a0robust dialogue between legislatures and constitutional courts, as it might be\u00a0the case in a system of parliamentarism. More important than that is a strong\u00a0collaboration between the independent executive and the legislative branch.\u00a0Sometimes, however, coalition presidentialism faces a deadlock.<\/p>\n \u2018The political crisis in Brazil is one of the typical\u00a0instances of that deadlock.\u00a0\u00a0Though Dilma\u00a0Rousseff received over 54 million votes, she cannot have even a third of the\u00a0members of parliament, in each house,\u00a0to vote for the continuity of her\u00a0government.<\/p>\n \u2018More often that should be accepted, Latin American systems\u00a0face traumatic impeachment processes that can be the source of a dangerous form\u00a0of instability and risks for Democracy and the Rule of Law.<\/p>\n \u2018I submit in this paper that this is precisely the case\u00a0in Brazil\u2019s 2016 impeachment process, which is a process that has some of the\u00a0typical features of a legislative coup. Any impartial legal observer can\u00a0understand that. In order to oust Dilma Rousseff, the proponents of the\u00a0impeachment process promote very broad accusations and an ambitious analogical\u00a0reasoning in order to classify some public\u00a0contracts as illegal credit\u00a0operations with public banks. I shall take up this argument in the paper and\u00a0compare Dilma Rousseff\u2019s allegedly illegal conduct with the conduct of Senator\u00a0Antonio Anastasia while\u00a0he was a governor of the state of Minas Gerais\u00a0from\u00a0\u00a02010 to 2014. I argue that\u00a0Anastasia\u2019s reasoning is morally flawed and he cannot convict Dilma Rousseff\u00a0without convicting himself.<\/p>\n \u2018Senator Anastasia is a law professor at UFMG, which is\u00a0the same university as the author of this paper, and is considered to be a\u00a0legal expert on administrative law and public finances. He is the author of\u00a0the\u00a0\u201cLegal Opinion\u201d that has been accepted by the Senate in order to accuse Dilma\u00a0Rousseff of responsibility crimes (i.e. impeachable offences strictly define in\u00a0statutory enactments) and to suspend her\u00a0mandate while she is being trialed. An\u00a0analysis of the public accounts of Anastasia\u2019s state government shows that he\u00a0practiced exactly the same acts that he now claims that constitute responsibility\u00a0crimes\u00a0for the purpose of impeaching the President of the Republic.<\/p>\n \u2018I will try to argue, thus, that there is a general\u00a0requirement of \u201cconsistency in principle\u201d in political judgments and a right to\u00a0a morally responsible judgment in political trials. If that is correct, the\u00a0lack of \u201cmoral\u00a0responsibility\u201d, in the sense of Dworkin\u2019s conception of\u00a0legality and morality, provides enough reason to conclude that Brazil\u2019s 2016\u00a0impeachment process is a mere rationalization of a legislative coup d\u2019\u00e9tat.<\/p>\n \u2018Finally, I submit that the Supreme Court has a special\u00a0duty when there is a political crisis such as that of Brazil in 2016. If I am\u00a0right, even if it is correct that the court must not exercise a direct judgment\u00a0of its\u00a0own to decide whether certain operations should characterize\u00a0\u201cresponsibility crimes\u201d (which are the only possible grounds for impeaching a\u00a0president under the Brazilian constitution), the court must not only\u00a0secure\u00a0that the formal requirements of the rule of law are observed in the political\u00a0process, but also demand from the legislative branch a minimal standard of\u00a0decency and moral responsibility in the\u00a0decisions about the culpability of the\u00a0democratically-elected president of the republic.\u2019<\/p>\n