A Blow to Brazilian Democracy: The Illegitimate Removal of Dilma Rousseff from Power

January 17, 2017

November 2016, Alexander Main

Remarks by Alexander Main, Senior Associate, International Policy

For the event “Brazilian Political Crisis: What Happened? What Now?

Hosted by the University of Arizona Center for Latin American Studies

November 17, 2016

In the following presentation, I will first discuss the objective conditions that made former President Dilma Rousseff’s impeachment possible and then explain how her removal from office was unconstitutional and the result of an illegitimate power grab. In conclusion, I’ll briefly describe what I see as the potential consequences of Rousseff’s removal, both within Brazil and regionally.

The Context

Much of the world has experienced political turbulence that can be linked in part to the economic and social aftershocks of the 2008 financial crisis and subsequent global recession.

In South America, the economic impact of the crisis was first felt relatively late, starting in 2011-12, but has contributed to growing instability, and in a number of cases, to major political change. The most dramatic effects so far have been in Argentina and Brazil. In both countries, severe economic challenges contributed to the end of 12 years of left-leaning government. In Argentina, hit hard by high inflation and low and negative economic growth, a democratic transition occurred at the end of 2015, when right-wing presidential candidate Mauricio Macri defeated the candidate supported by left-leaning president Cristina Kirchner in the country’s general elections. In Brazil, which has been in deep recession since 2014, an undemocratic transition took place, beginning in May of this year when the impeachment trial of Dilma Rousseff was launched by the country’s legislature.

It’s worth noting that Rousseff, former president Lula da Silva’s chosen successor, was generally very popular during her first term (2011–2014). Her polling numbers remained high until 2014. Early that year, the country’s economy went into recession due in part to the impact of the global fall in commodities prices, but much more due to the government’s procyclical fiscal policies.[1] In October of 2014, Rousseff won reelection by a relatively small margin.

Over the following months, several factors converged to create a ripe terrain for Rousseff’s impeachment. First, the economic situation worsened considerably: the recession deepened and unemployment rose substantially.

Second, a major corruption scandal exploded as the result of a judicial investigation ? known as “Lava Jato” (car wash) ? into a vast kickback scheme involving state oil company Petrobras, Petrobras service providers, and a network of senior politicians from various political parties. The scheme allegedly involves senior leaders of most of Brazil’s major parties, though the country’s private media has focused mostly on the involvement of members of Rousseff’s Workers’ Party (PT).

Rousseff was never directly implicated in this corruption scandal, though major private media ? e.g., Rede Globo, Veja ? often gave the impression that she was. In fact, Rousseff played an important role in enabling corruption investigations to move forward; for instance, through her appointment of an independent attorney general and her decision to keep in place the top federal police investigator who first launched the probe into the corruption allegations linked to Petrobras. The investigator, Márcio Anselmo, violated a statute prohibiting police authorities from talking to the media about ongoing investigations, but Rousseff, despite entreaties from members of her own party, didn’t have him removed.

Nevertheless, the combined effect of the corruption scandal and Brazil’s sinking economy, together with Rousseff’s notoriously insular governing style, contributed to her favorability ratings falling to the single digits by the end of 2015.[2]

A third crucial factor also came into play. From mid- to late 2015, the PT’s former political allies from the Brazilian Democratic Movement Party (PMDB) turned against Rousseff and her party, which led to the PT losing a working majority in the legislature. From this point on the PMDB ? which then vice president Michel Temer belonged to ? had the ability to remove her from power if they were prepared to game the system. And they were.

An Unconstitutional Removal

On the surface, the impeachment may have appeared to roughly comply with legal norms. Though there were legitimate concerns about the violation of Rousseff’s due process rights at various junctures, the basic impeachment procedures were generally respected: the Chamber of Deputies and then the Senate voted to proceed with the impeachment, Rousseff was then temporarily suspended from office and a several-month Senate trial took place with hearings that included testimony from witnesses presented by the defense and the plaintiffs.

However, Rousseff’s impeachment violated basic constitutional principles. Brazil’s 1988 constitution is clear: for a president to be impeached, she or he must be found guilty of a “crime of responsibility” ? a concept often translated as “malversation” in English and implying a clear intent to engage in corrupt or malicious acts.[3] But Rousseff’s accusers were unable to prove that Rousseff was responsible for any such wrongdoing.

The charges filed against Rousseff were arcane ? it appears that few Brazilians even knew what they were ? and were soon revealed to be groundless:

  • Pedalada. This charge focused on the fact that the government had engaged in an accounting practice dubbed pedalada (or “pedaling”) in which the National Treasury delayed repayment of funds spent by state banks in order to finance government programs. This would result in a temporary deficit that didn’t show up in the government’s accounts during a several-month period. Rousseff’s accusers suggested that this was an illegal loan carried out in order to deliberately deceive the public and temporarily conceal the true state of the national budget. The charge doesn’t hold water, however, since: 1) there’s no precedent for identifying this sort of transfer of funds as a loan, and no contract exists suggesting the existence of a loan; 2) there’s no evidence that there was ever any intent to mask the reality of public accounts; 3) pedalada was a common practice that occurred under other Brazilian administrations (including those of former presidents Fernando Henrique Cardoso and Lula da Silva) without provoking any serious controversy; 4) there’s no evidence that Rousseff herself was directly responsible for the pedalada occurring. According to an independent technical report commissioned by Brazil’s Senate: “There was not any identified act by the president that would have contributed directly or indirectly to the delays.”[4]

  • Fiscal decrees. Rousseff was also accused of issuing fiscal decrees that could have resulted in state spending that surpassed the annual budget of 2015, which would have violated Brazil’s Fiscal Responsibility Law. However, Rousseff’s decree never led to a budget deficit since the congress approved supplementary funding for the government. The charge was simply based on the fact that this deficit might have occurred.

It’s worth noting that the federal prosecutor assigned to investigate Rousseff’s alleged offenses found that she wasn’t guilty of breaking any laws.[5] Indeed, the charges against Rousseff were so flimsy that they were only minimally discussed during the impeachment hearings. At the end of Rousseff’s Senate trial, the plaintiffs resorted to arguing that the impeachment was valid because the president was doing a bad job and making the country ungovernable.

The problem with this argument is that, whether or not it’s true, Brazil is not a parliamentary democracy. The Constitution establishes a presidential system with a strong executive elected directly by Brazil’s citizens. There is no motion of censure mechanism that would make the head of state politically accountable to the legislature. Though Brazil’s parliament went through the procedural motions of an impeachment, the trial effectively resulted in a motion of censure in which Dilma was removed for purely political reasons, and not the purest of political reasons.

An Illegitimate Power Grab

The impeachment campaign against Rousseff finds its origin, first of all, in a political bargaining maneuver; second, in an act of political retribution against Rousseff and her Workers’ Party.

The initial leader of Rousseff’s impeachment campaign was Eduardo Cunha, a PMDB leader and, from February 2015 to early July 2016, the powerful president of the Chamber of Deputies. In late 2015, Cunha underwent an investigation by the Chamber’s ethics committee following revelations of the existence of Swiss bank accounts under his name with tens of millions of dollars in unaccounted funds.

Cunha accepted impeachment petitions targeting Rousseff filed by lawyers close to the Social Democratic Party of Brazil, or PSDB (whose presidential candidate contested Rousseff’s electoral victory in 2014). Cunha made clear that he hoped to use the petitions as a bargaining chip to put an end to the investigation targeting him.[6] However, Rousseff refused to enter into negotiation with Cunha, and the PT went ahead and backed the committee’s investigation, allowing it to move forward. As a result, Cunha pursued the impeachment campaign much more aggressively.

These developments coincided with the departure of the PMDB from its parliamentary alliance with the PT. As a result, the PT no longer could count on the support of a majority of the Congress.

There were other reasons that motivated the impeachment, all of which highlight its illegitimate nature.

One clear motivation was legal self-preservation. As leaked recordings revealed, key politicians driving the impeachment campaign wanted to “stop the bleeding”; they hoped to remove Rousseff to be able to intervene and prevent corruption investigations from targeting them and their political allies.[7]

Many of those driving the impeachment campaign were embroiled in corruption scandals. Cunha was removed from the Chamber of Deputies and is now in jail awaiting trial. Sixty percent of the members of Brazil’s parliament face a variety of criminal charges.[8] Temer himself has been charged with violating electoral finance legislation and is suspected of involvement in other acts of corruption.

A second major motivation for Rousseff’s removal was to enable right-wing sectors to take over the government and carry out a veritable neoliberal revolution that doesn’t have the support of the Brazilian people.

Temer essentially recognized this in remarks made at the business-oriented Council of the Americas in New York City in September 2016.[9] He explained that he and his party colleagues began to seek Rousseff’s removal because she stood in the way of a radical austerity plan ? known as “Bridge to the Future” ? backed by right-wing parties and financial elites.

Rousseff won re-election on a strident anti-neoliberal platform (which she largely failed to follow through with). The Temer team has no mandate for the radical neoliberal reforms that they’re pushing, the most egregious of which is a constitutional amendment (PEC 55) that human rights advocates have signaled will set back social gains for at least two decades, increasing inequality levels and hurting Brazil’s poorest.[10] Among other things, this reform establishes tight caps on social spending for the next twenty years and lead to drastic cuts in the national budgets for health and education. Needless to say, Brazil’s people haven’t been consulted about this amendment, but it has received high marks from national and international financial sectors.

In addition, Temer’s government has promoted a profoundly reactionary agenda from a social perspective, reminiscent in some ways of what many expect to see with the next US presidential administration. As soon as Dilma was temporarily suspended in May 2016, Temer appointed an all-white, all-male conservative cabinet. Before the impeachment trial even started, Temer did away with socially oriented ministries including the Ministries of Culture, Human Rights, Racial Equality, Women, and Agricultural Development (two of which were later reestablished following public protests and denunciations).

Though they have no elected mandate, Temer and his team have begun carrying out an aggressive rollback of 12 years of Workers’ Party policies.

The consequences

It is difficult to measure the potential long-term impact of Rousseff’s removal at such an early stage, but it is clear that we are presently witnessing a deepening crisis of legitimacy in Brazil, with increasing levels of popular discontent and increasing repression and criminalization of protesters and social movements, such as Brazil’s largest social movement group, the Landless Workers Movement (MST by its Portuguese initials). Brazil’s political future is highly uncertain, with major parties mostly discredited and the PT’s most popular political figure ? and leading potential candidate in the 2018 elections ? Lula, under constant attack by the media and facing a corruption investigation led by a very biased investigating judge. An alarming number of middle and upper-middle class Brazilian citizens are even voicing nostalgia for the country’s military dictatorship.[11] In the short-term, we can expect inequality and poverty to soar ? a combined effect of the economic situation and of the social and economic policies of the Temer government ? and political instability to grow more acute.

At the regional level, Rousseff’s impeachment and the other political changes in Brazil can also be expected to have a profound impact. Brazil had been a pillar of a relatively recent regional economic integration movement ? starting with the Cardoso administration and to a greater degree under the Lula administration; the Temer administration has made clear its intention of abandoning this project and, instead, favoring bilateral trade agreements, including within the Mercosur trade bloc. Furthermore, in its diplomacy, Brazil had played an important mediating role vis-a-vis regional disputes, and had effectively positioned itself as a diplomatic counterweight to the US political agenda in the region. The positions adopted by Temer and his foreign minister, José Serra, have suggested that Brazil will no longer exercise this function of counterweight on the regional stage. Serra in particular has made a point of allying himself with US objectives in the region.

Of even greater concern should be the precedent set by the unconstitutional and illegitimate removal of Rousseff, seen as a “soft” coup by many Brazilians and others in the region. The region’s democratic stability had already been rocked by the military coup d’etat in Honduras (2009) and another “soft” coup in Paraguay (2012), both of which targeted left-leaning heads of state, and both instigated by right-wing legislatures. Many other countries in the region only recently emerged from dictatorship and exhibit institutional vulnerabilities that can easily be exploited by national elites seeking a return to the status quo ante and emboldened by the Honduran, Paraguayan, and Brazilian examples.

In sum, Rousseff’s removal is a perilous source of instability, within Brazil and regionally, and could help pave the way to a return to the darker, stormier days prior to the democratization wave of the late 1980s and early 1990s.

1 See: Serrano, Franklin and Ricardo Summa. 2015. “Aggregate Demand and the Slowdown of Brazilian Economic Growth from 2011–2014.” Washington, DC: Center for Economic and Policy Research. https://cepr.net/publications/reports/aggregate-demand-and-the-slowdown-of-brazilian-economic-growth-from-2011-2014.

2 O Globo. 2015. “8% aprovam e 71% reprovam governo Dilma, diz Datafolha.” O Globo, August 6. http://g1.globo.com/politica/noticia/2015/08/71-reprovam-governo-dilma-diz-datafolha.html.

3 Constitution of the Federative Republic of Brazil, Title IV, Chapter II, Section III, Arts. 87 and 88, http://english.tse.jus.br/arquivos/federal-constitution.

4 Pederiva, João Henrique, Diego Prandino Alves, and Fernando Álvaro Leão Rincon. 2016. “Denúncia por Crime de Responsabilidade N 1, de 2016.” Senado Federal Como Órgão Judiciário, Junta Pericial Designada no Âmbito da Comissão Especial do Impeachment 2016. http://www.senado.leg.br/atividade/rotinas/materia/getPDF.asp?t=196168&tp=1.

5 Marx, Ivan Cláudio. 2016. “Procedimento Investigatório Criminal Nº” Ministério Público Federal, Procuradoria da República no Distrito Federal, 3º ofício de combate à corrupção. http://estaticog1.globo.com/2016/07/14/Arquivamento_Pedalada_Final.pdf.

6 Mídia Livre Folha Centro Sul Brasil. 2015. “Depois de invertidas no STF, Cunha quer usar Impeachment como moeda de troca com Dilma.” Mídia Livre Folha Centro Sul Brasil, October 14. http://folhacentrosul.com.br/post-politica/9128/depois-de-invertidas-no-stf-cunha-quer-usar-impeachment-como-moeda-de-troca-com-dilma.

7 Sreeharsha, Vinod. 2016. “Transcript Suggests a Plot Behind Effort to Oust Brazilian President.” The New York Times, May 23. http://www.nytimes.com/2016/05/24/world/americas/brazil-dilma-rousseff-impeachment-petrobras.html?_r=0.

8 Romero, Simon and Vinod Sreeharsha. 2016. “Dilma Rousseff Targeted in Brazil by Lawmakers Facing Scandals of Their Own.” The New York Times, April 14. http://www.nytimes.com/2016/04/15/world/americas/dilma-rousseff-targeted-in-brazil-by-lawmakers-facing-graft-cases-of-their-own.html?_r=0.

9 Vieira, Inacio. 2016. “Brazil’s President Michel Temer Says Rousseff Was Impeached For Refusing His Economic Agenda.” The Intercept, September 23. https://theintercept.com/2016/09/23/brazils-president-michel-temer-says-rousseff-was-impeached-for-refusing-his-economic-agenda/.

10 United Nations Human Rights Office of the High Commissioner. 2016. “Brazil 20-Year Public Expenditure Cap Will Breach Human Rights, UN Expert Warns.” http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21006&LangID=E.

11 Barbara, Vanessa. 2016. “In Brazil, a New Nostalgia for Military Dictatorship.” The New York Times, May 1. http://www.nytimes.com/2016/05/03/opinion/in-brazil-a-new-nostalgia-for-military-dictatorship.html?_r=1.

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