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Brazil’s flawed impeachment of Dilma Rousseff

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After a largely successful—especially in light of almost insultingly low expectations—Olympics, Brazil is now abruptly pulled back to reality. The end of Olympics revelry coincided with the tempestuous final stretch of former President Dilma Rousseff’s impeachment trial, and the general atmosphere in Brazil has taken an unenviable 180-degree turn.

Brazil’s fourth democratically elected president since the end of the military dictatorship was officially removed from office on Wednesday afternoon. Her impeachment has been lauded and derided both within Brazil and abroad, with her supporters denouncing the proceedings as a “judicial coup d’état” and her opponents hailing the process as a victory for Brazilian democracy.

{mosads}Both theses, however, are deeply flawed.

On the one hand, likening an impeachment trial that has—at least nominally—followed codified legal procedures to a coup is tactless, particularly given Brazil’s sensitive history and the loaded significance that word carries in the country. On the other hand, to extol Rousseff’s ouster as evidence of Brazil’s robust rule of law entails glossing over a host of glaring irregularities and the greater context of the impeachment proceedings.

Dilma’s administration was marked by a few key wins and quite a few more shows of ineptitude. Lacking the charisma and political wherewithal of her predecessor, Dilma was perhaps the worst imaginable choice to tackle the myriad problems that would soon arise after years of countercyclical economic policy. By the time President Lula’s unbridled spending during Brazil commodities bonanza began to show its limitations, he was already out of office, and left to preside over the country’s hangover was a timid Rousseff. Instead of swiftly implementing austerity measures to stem Brazil’s ballooning fiscal deficit, Dilma displayed a degree of inertia that exacerbated the country’s problems and alienated her from opponents and even allies in Congress. By the time she belatedly announced an austerity plan after her re-election, a fiercely antagonistic legislature had rendered her effectively impotent.

It is exceedingly clear that Dilma was not a “good” president, and she had the single-digit approval ratings to prove it. Though the opposition was poised for a smooth victory in the next elections, waiting until 2018 seemed an unappealing prospect when a vote of no confidence could quickly free Brazil from an unpopular administration.

The problem is that Brazil does not have a parliamentary system, meaning removal of a head of state must be done on the basis of criminal misconduct. One of the few major politicians in the country not being investigated for illicit self-enrichment, Dilma was instead tried for budgetary manipulation, an omnipresent practice referred to in Brazil as “pedalada fiscal.” Still, the fact that presidents before her committed the same act does not excuse the act itself, so the debate then centered around whether this manipulation constituted an impeachable crime.

For this, according to Brazilian budgetary law, Dilma’s pedaladas would have to have qualified as a credit transaction and have been carried out without congressional approval. In July, Brazil’s Public Prosecutor’s Office released the findings (in Portuguese) of its investigation into these manipulations. The prosecutors concluded that the maneuvers did not constitute a credit transaction and thus did not legally require approval from Congress. Rousseff had committed no crime.

The verdict should have been enough to prevent the president’s impeachment, as scholars of Brazilian constitutional law and Rousseff’s defense have repeatedly clamored. But, as professor of legal theory Margarida Lacombe explains, the role that the pedaladas fiscais played in the impeachment proceedings was largely ceremonial, providing nothing more than a pretext for an extra-constitutional vote of no confidence.

This became evident early on in the process, as the vote to initiate proceedings in the lower house of Congress showed. One by one, legislators took the podium to announce their votes for or against the impeachment. Those voting for Rousseff’s ouster did so “to end welfare dependency,” “for the love of this country,” against “communism” and the “Bolivarian dictatorship,” and “for the foundations of Christianity” (The Economist lists a few of the stated reasons for the “yes” votes here). All but absent was any mention of the pedaladas fiscais, the supposed legal basis for her removal.

Even without going into the more sordid details of the impeachment process (like the fact that 60 percent of Brazil’s congressmen are facing actual criminal charges, or the leaked audios of politicians discussing using Rousseff’s ouster to stop a sweeping corruption investigation, or the wiretapped conversation in which now-President Temer’s anti-corruption minister advises the Senate president on how to evade prosecutors in said investigation), it is clear that these proceedings were not a victory, but an affront to Brazilian rule of law.

With Rousseff’s removal finalized today, only three elected presidents in Brazil have served out their full terms since 1950. In her testimony before the Senate on Monday, Dilma likened her situation to that of João Goulart, ousted in the 1964 coup that ushered in two decades of military rule. Heated rhetoric like this has overshadowed the real problems within this whole process. While Dilma’s impeachment may not have been a “coup,” its legitimacy from a legal standpoint was tenuous at the very best.

Rousseff was justifiably unpopular and oversaw Brazil’s descent into recession while alienating legislators on both sides of the aisle, but she committed no crime. Had this same process taken place in Italy or the UK, it would have indeed served as an example of rule of law in action. But in Brazil’s presidential system, what we witnessed over the past three months has been a gradual blurring of the lines between law and politics that ultimately leaves both worse off. Dilma Rousseff’s impeachment is not, as she claims, a harbinger of “the death of democracy” in Brazil, though it surely won’t leave the country any stronger.

Robert Amsterdam is an international lawyer who has spent years working with clients in Brazil. In addition to his Latin America work, Amsterdam is also well known for his representation of Mikhail Khodorkovsky, Thaksin Shinawatra, and currently, the Republic of Turkey.

The views expressed by authors are their own and not the views of The Hill.

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