Brazil’s leading jurists are against impeachment proceedings

A group of well known Brazilian jurists that represent juridical intellectual elite met on monday (12/7) with President Dilma Rousseff and ministers, including José Eduardo Cardozo, Minister of Justice, to discuss the legal basis for the case of her impeachment.

Allan Ferreira & Ana Trevisan, contributions by Maria Carolina Trevisan. Translation by César Locatelli reviewed by Renato Babos — special for Jornalistas Livres

The Lawyers for Democracy group is against the impeachment proceedings opened by Eduardo Cunha, the Lower House speaker. Among the participants in this group are names like Celso Bandeira de Melo, Fabio Konder Comparato, Dalmo Dallari and Pedro Serrano.

Dilma answered journalists’ questions and indicated that she had not received any signal that Michel Temer the Vice President who belongs to the same party as Eduardo Cunha, is articulating against the government (on tuesday he sent a letter explainning his disagreements with Dilma).

Minister Cardozo announced that some of the lawyers who attended the meeting with the president would present their views on the subject. This manifestation of lawyers sums up to those already carried out since last week, among them, the governors who oppose to impeachment and the release of the page Golpe Nunca Mais (Coups Never Again) in Facebook.

The first to speak was the jurist and professor Juarez Tavares, of Rio de Janeiro State University (UERJ), who stated that one cannot claim that any economic crime can be the basis for impeachment; this is not what the Constitution provides:

“… minor infractions and administrative irregularities during a presidential mandate are not among the crimes which can give rise to impeachment proceedings.”

According to Tavares impeachment offenses must “constitute grave breaches that fundamentally threaten the Constitution, which according to him and other lawyers do not occur in the case of so-called “budget law breakings” imputed to Rousseff.

Jurist and professor Francisco de Queiroz, of the Federal University of Pernambuco (UFPE), next to speak, pointed that Brazil, like the rest of the world, has been going through an economic crisis of global scale and such fact cannot can be disregarded:

“… any assessment of legal matter […] has to be done in the light of the actual existing circumstances. We have today an absolute unfavorable economic picture in terms of foreign trade and commodities prices, the largest drought in many years, the industry in need of support, the crisis that began in 2008 … the Government has increased the funding of subsidies to BNDES — Brazilian Development Bank, has strengthened the Minha Casa Minha Vida (housing program) to ensure the housing sector, finally development measures had to be taken, and revenue fell … and the president was blamed for short delays with respect to banks financing such as BNDES, Caixa Econômica Federal — a state owned savings bank — exclusively public -. and Banco do Brazil.”

“… If you observe, what we have much more than this is an intention to transform the motion of distrust of a parliamentary regime into impeachment. Impeachment is too serious, it has very rarely occurred in the US history … What we are trying is to allocate responsibility for facts that she had no knowledge or facts whose knowledge is absolutely necessary.”

For Queiroz, if the government had done the opposite of what it did, then it would so deserve to be subject to impeachment:

“… Imagine what a short delay would have caused. In 2014, the federal government, the sole shareholder of Caixa Econômica Federal, funded more than R$ 400 billion cash. If payment were suspended a social disaster would have occurred with millions of people without receiving the Bolsa Familia (social program provided by the Federal Government), a monthly allowance for more than 12 million poor families, there would be the basis for impeachment.”

Still on the government’s actions:

“… if you were watching the actions taken [by the government], anyone in good faith would say ‘there is not one of those actions that I would not do’”

In addition, Queiroz reminded that other governments acted the same way and the effort now is to use a legal formalism so that it meets other political interests:

“… all that is being done is a trick to make a third round of voting happen. The presidential system gives the president four years in office.”

The lawyer and professor Rosa Cardoso da Cunha, of the Federal Fluminense University (UFF), gave her opinion of the criminal law point of view and indicated that the impeachment proceedings besides being political and administrative must also involve a crime that needs to be provided by law as interpreted by the Supreme Court:

“… if it is a crime, there are the guarantees of criminal law, namely, the fact can only be framed, can only be attributed to someone if it is typified and culpable, if there is criminal materiality and criminal authorship.”

The teacher detailed that criminal materiality: “is not having done anything”, but do something that will constitute crime. Another point addressed by the lawyer is that the government relied on precedents of other governments to carry out so-called “budget law breakings” which would indicate that there is no deceit in the action of the president:

“… the government relied on precedents in the Tribunal de Contas da União — equivalent to the US Government Accountability Office — that come from 2002 with Fernando Henrique Cardoso accepting these supplemental expenses that are now being charged as “budget law breakings” that are common practices. So there was no guile.”

Moreover, according to Cardoso da Cunha, there was a state of necessity to make use of what is being called “budget law breakings” to prevent further damage, a procedure that was submitted to the Lower House for appreciation.

Dr. Luiz Moreira Gomes Junior, Federal Public Prosecutor, considered that what seems to be going on is a “parliamentary coup”. In the lawyer’s view the proceedings started last week have no constitutional basis:

“… it is quite clear to the Brazilian legal community that the proceedings that began last week has no legal basis. It has no constitutional basis. What are we watching? A speaker of the House of Representatives [Eduardo Cunha — PMDB] who has no credibility, who has no competence to introduce himself as the protagonist of impeachment proceedings. Brazilian society must understand and citizens will understand that the mandate of a president of the republic as Dilma Rousseff cannot be challenged by someone who is being charged with several lawsuits in the Supreme Court (STF).”

To Luiz Moreira, in order to guarantee the future of the Brazilian people, one cannot allow arbitrary acts threatened by the whims of upset politicians who use the institutions in their favor — referring to Eduardo Cunha.

One cannot fail to differentiate illegalities and unconstitutionalities with the attack on the Constitution — argued Professor André Ramos Tavares from the University of São Paulo (USP):

“… I wanted to focus here on a point that seems essential that is the importance of not confusing any illegalities, possible unconstitutionalities with the attack to the Constitution. To characterize a situation of such gravity that can lead to a prevention of a President of the Republic, it must be accurately characterized in an irrefutable manner, in a very clear and evident way that the President has committed an act against the Constitution, and not merely one that can be classified as illegal or unconstitutional being a part of the process of governing … this is what is assumed by the Constitution itself.”

The Supreme Court itself states that certain laws may be illegal in certain moments, including laws passed in Congress and sanctioned by the President. The lawyer also said that the impeachment proceedings cannot be used as an attempt to gain power illegitimately.

“… the impeachment institute does not serve to ratify the result obtained at the polls or reject the results obtained previously.”

For the jurist Marcelo Labanca Correa de Araujo, of the Catholic University of Pernambuco (UNICAP), there is no direct personal act of the President of the Republic to incur liability crime:

“… there is no direct personal act of the President of the Republic capable of generating a crime of responsibility … the crime of responsibility requires the fraud, the intention of dishonesty — it is not any illegality — there must be the will to defraud therefore, it was not identified in the survey that we did, in our opinion, any act that could lead to President of the Republic to lose her mandate.”

He said that Brazil is facing a situation in which one tries, based on political aspects, to legally affect the President of the Republic:

“… we are in a situation where the law is being handled with more political motives than essentially legal. From the essentially legal point of view, there was no crime of responsibility …, there can be no manipulation and subversion of the law for political purposes, it generates injustice.”

He concludes:

“If you take a piece of bread from a poor, or a car of a wealthy, or the term of a President of the Republic improperly you will be destroying the democratic state, and therefore, what gives us protection [as a society].”

The jurist Heleno Torres University of São Paulo (USP) indicated that the Congress omitted the judgment of the government accounts and the TCU (Government Accountability Office) does not have the last word on Dilma bills, but the Congress. Thus there would be no legal basis to justify the impeachment proceedings.

“… unfortunately the Brazilian society was led to think that the judgment of TCU was something definitive, it was the last word as if it were the Supreme Court. And many are working on this mistake. This is where there is lack of constitutionality … Congress is the only holder of the public budget.”

He continued:

“… There is no charge if there was no judgment on those accounts by the National Congress. […], provisos can be made for the coming financial year, but not to the past [about the fact that only the TCU has disapproved the accounts and not the Congress].”

For Torres, the other actions the Congress has taken, including the explosive issues, led to the need to carry out fiscal adjustments. For him, the Lower House is also responsible for bringing the country to the current crisis.

“… internationally there is a very serious crisis […], France has had 3% of GDP deficits for four years. Developing countries are suffering a huge international crisis and this had repercussions in Brazil. Reflected here also because tax adjustments were not made, because of the explosive agenda, there was recounting of electoral votes, there were a number of situations that prevented the Congress to function throughout the year.”

Marcelo Neves, of the University of Brasilia (UNB), also drew attention to the need for legal certainty for the proper functioning of the country and addressed the issue of the “fiscal law breaking” and decrees that would be violating the Constitution, comparing the end of the Fernando Henrique Cardoso‘s government with the current context:

“… I observed that in 2001 and 2002 there were plentiful [of tax Law breakings] that they now condemn. Then there is a breach of legal consistency and coherence which is fundamental to the rule of law.”

For Neves, it is not any illegality that serves to motivate impeachment. According to the lawyer, it is a forged pact to bring the country to crisis, to make the country ungovernable so that they can gain from this crisis. For Neves, the impeachment advocates are trying to create devices for reaching a coup as they cannot count on the military establishment to carry it out.

“The impeachment legal limits are a guarantee of respect for the people, because the President has an election as her base. So whatever is being done with all this irresponsible rhetoric points to a political orientation, which in the parliamentary system would make sense, if I would not call it a coup, it is a functional equivalent to a coup. It is as if you have no more military support to lead the coup — because there are no longer international and hemispheric conditions. You now create other forms that serve to bring down irresponsibly and through “legal form” a popular government.”

The Union Attorney General Luis Inacio Adams, said that there was no loss to the public treasury, not even for the banks involved. He said the funds were used to ensure that social projects should be maintained and this would have been one of the factors that led to discontent in the opposition asking for impeachment. Adams also stressed the need to respect the law.

The opinions generated by jurists and lawyers who participated in the meeting will be sent to the various institutions involved, such as the Lower House. Asked about the absence of the lawyer Michel Temer (Brazilian vice-president and president of the PMDB) at the meeting, Cardoso said that participant lawyers are not government officials, as Temer is member of the government it would not be appropriate to attend this meeting and present his opinion. (this Wednesday (12/9) Temer (vice president) stated that it will continue to have fertile institutional relations with President Dilma Rousseff).

Throughout the week the major Brazilian broadcast networks focused on the resignation of Civil Aviation Minister Eliseu Padilha, Michel Temer’s ally, and did not mention the opinions of lawyers who oppose impeachment.