Impeachment process against Dilma Rousseff

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File:Dilma Rousseff lendo sua mensagem de 2016 ao Congresso Nacional (2) (cropped 2).jpg
President Dilma Rousseff speaking to the Brazilian Congress in February 2016.

Lua error in package.lua at line 80: module 'strict' not found. The impeachment process against Dilma Rousseff, the President of Brazil, began in late 2015 and continued through the first half of 2016. An impeachment request against Rousseff was accepted by Eduardo Cunha, the president of the Chamber of Deputies, on 2 December 2015. The charges against Rousseff include administrative misconduct and disregarding the federal budget, in violation of Article 85, items V and VI, of the Brazilian Constitution. According to the impeachment request,[1] Rousseff was also accused of omission concerning irregularities in Petrobras that, facing serious facts investigated by Operation Car Wash while occupying the office of president of Brazil, failed to fend off the suspects. Also according to the report, the fact is aggravated by Rousseff having been president of the board of directors in the Brazilian oil company, when the investigated facts occurred, including the controversial acquisition of Pasadena Refining System, cited on page 3 of the impeachment request.[1] According to this request, her omission would indicate criminal responsibility.[2] However, the charges of omission were not included in the process.[3]

Background

Tax evasion and wrongdoing at Petrobras

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Main article: Petrobras scandal

Alleged graft occurred while President Rousseff was still part of the board of directors of state-owned energy company Petrobras from 2003 to 2010. One million Brazilians protested in the streets calling for Rousseff's impeachment.[4] No evidence that Rousseff herself was involved in the scheme has been found and she has denied any prior knowledge of the graft.[5] Further investigation found that there were various offshore accounts and collections of art that were held by those involved in the controversy.[6]

In February 2014, an investigation by Brazilian Federal Police called "Operation Car Wash" placed Petrobras at the center of what may be the largest corruption scandal in Brazil's history.[7][8] On 14 November 2014, police raids across six Brazilian states netted prominent Brazilian politicians and businessmen—including some Petrobras directors—who were placed under investigation in regards to "suspicious" contracts worth $22 billion.[7][8]

Under Rousseff, the government of Brazil has also been accused of carrying out "fiscal pedaling" – an accounting maneuver through which the government gives the false impression that it received more money than was spent.[9][10][11] The government failed to provide funds to public and private banks that make payments for a number of public expense programs, including social assistance programs like Bolsa Família,[12] forcing the banks to finance programs without receiving government compensation.[13] The government's apparent motive was to improve its fiscal outcomes for the years 2012 to 2014.[14] The Tribunal de Contas da União (TCU), in a unanimous decision, considered this operation a violation of fiscal responsibility.[14][15][16] TCU is an auxiliary of the legislative body and has no legal power; however their decision put the National Congress under pressure to begin the process of impeachment of President Rousseff.[17][18]

Political context

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See also: 2015–16 protests in Brazil
File:Solenidades. Homenagens (16148943366).jpg
Dilma Rousseff speaking at her presidential inauguration in a joint session of the National Congress, January 1, 2015. Behind her are the president of the Senate, Renan Calheiros, and the Vice President, Michel Temer.

Rousseff was reelected in the 2014 general election, winning 51.64% of the votes. The election was one of the most contentious presidential elections in the country's history.[19] After being sworn in on the 1st of January 2015,[20] she started her second term weakened, mainly due to the economic and political crisis, which led to a 9% approval rating in a survey by Ibope held in July of that year—the lowest approval rating ever for the president.[21][22] On 15 March 2015, several protests began, gathering hundreds of thousands of Brazilians across the country to demand the impeachment or the resignation of Rousseff, among other issues.[23]

Beyond the violations of the budget law, Rousseff and her government were increasingly tainted by corruption allegations. The President of the Chamber of Deputies, Eduardo Cunha, was investigated in Operation Car Wash, under allegations of receiving bribes and keeping secret Swiss bank accounts. Consequently, Cunha was in danger of losing his mandate as the Ethics Council of the Chamber moved a lawsuit against him. Rumors emerged about attempts to agreement between the Brazilian Democratic Movement Party (PMDB) and the Workers' Party (PT), in order to end this process, which he strongly denied. When the Workers' Party announced its support for the wedge term loss on the Board of Ethics, he would have accepted the request for impeachment as an instrument of blackmail.[24]

In his defense, Cunha said "The receipt of the complaint has clearly defined reasons, when it talks about direct participation in the conduct described in what were then budget decrees. I haven't issued and I will not issue any judgment on the accusation against the President of the Republic, even more if it's a personal matter. I'm just sticking to facts typified (in the law)". He also stressed that Rousseff signed six decrees with additional credits, which increased the 2015 federal spending in non-compliance with the annual budget law and without approval of the Congress.[24]

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Inconsistent and unfounded are the reasons for this request. There is no illegal act committed by me [...] I would never accept any kind of bargain, much less those that threaten the free functioning of democratic institutions in this country.

— Dilma Rousseff, News conference and pronouncement on national television – 2 December 2015.[25][26][27]

In turn, Rousseff denied any attempt to forge a deal to save Cunha and get rid of impeachment, as well as agreements to interfere with the Ethics Board in exchange for the approval of a pt (CPMF) (Provisional Contribution on the Movement or Transmission of Values and Credits and Financial Nature Rights), which was another great need of the government. At a news conference on 2 December, she said that never would accept or agree with any kind of bargain.[25]

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She lied on national television network and this is very serious. If she had not participated directly I would not speak.

— Eduardo Cunha, News conference – 3 December 2015.[24]

After the pronouncement of the president, Cunha said Rousseff lied to the nation when she said she would not participate in any bargain and that the government had much to explain to the country. Cunha claimed he was not aware of negotiations and that he had not met Jaques Wagner (the supposed intermediary in negotiations with Rousseff). Declaring himself against the Workers' Party, he said he would rather not have the three votes from the party in the Council of Ethics.[28]

Comments by agencies and public opinion

Experts consulted by Agência Brasil commented on the political crisis. They stated that the poor skills with which Rousseff negotiated with Congress and the number of political parties present caused a great loss of governability. Moreover, according to them, the opposition was fighting against Rousseff from the previous year's elections, trying in every way to destabilize the government, without regarding the political and economic situation of the country, which was seriously committed to the application of impeachment. However, the outbreak of the process could be beneficial for Rousseff, who would be free from blackmail and could potentially reorganize her government. Political scientists believed Cunha could lose his mandate and that the opposition would try to push the process in Congress for 2016 in order to mitigate the "electoral ecstasy" and "act of revenge" that was the host of the application.[29]

In CNT/MDA polls performed in March 2015, only 10.8% of Brazilians approved of Rouseff's government and 59.7% wanted her impeached. In July 2015, this number had risen to 62.8%.[30] By April 2016, in polls performed by Datafolha Institute, 61% of Brazilians believed that Rousseff should have been impeached.[31]

Request for impeachment

Lua error in package.lua at line 80: module 'strict' not found. Since 2012, a total of 37 requests for impeachment of president Dilma Rousseff have been presented to the Chamber of Deputies. However, only one request was accepted by then president of the Chamber Eduardo Cunha.[32] The accepted request for impeachment was submitted by former congressman and attorney pt (Hélio Bicudo) and attorneys pt (Miguel Reale Júnior) and pt (Janaina Paschoal). The request was based on allegations of omission concerning irregularities in Petrobras, fiscal responsibility crimes, and budgetary mismanagement.

Omission

In the course of Operation Car Wash, many illegal operations were investigated, including the purchase of the Pasadena Refinery by Petrobras, a business that has proved extremely disruptive to Brazil. The financial losses were higher than R$ 700 million (US$ 320 million). Roussef was president of the Board of Directors of Petrobras and gave as excuse, a mistake concerning a contractual clause. The President insisted in thesis that the allegations would be a kind of coup, mere attempt to weaken Petrobras, always emphasizing its expertise in economy and energy sector, namely, the President insisted on the company's financial health. She stepped down in Petrobras only in February 2015, when the situation was already untenable.[33]

The report also denounces a corrupt scheme involving shady deals of former President Lula, who intermediated business of the Brazilian construction company Norberto Odebrecht in Cuba and Angola, which Rousseff had knowledge that were for the purpose of money laundering of corruption at Petrobras. Some international companies were chosen to be encouraged and, thereafter, participating in unrealistic bids, drain the state-owned company, giving back much of the values through seemingly licit donations. In statements taken from accused in Operation Car Wash, was found that Lula and Dilma knew of the bribery scheme in Petrobras.[34]

Fiscal responsibility crimes

Rousseff has edit in the years 2014 and 2015, six unnumbered decrees that resulted in the provision of additional credits to social programs with electoral purposes, without authorization from Congress. These values were in the amount of R$ 18.5 billion (US$ 6,9 billion) and were contracted in official financial institutions without the necessary legislative authorization, even with the targets set not being complied in the pt (Lei de Responsabilidade Fiscal) (Fiscal Responsibility Law) and the pt (Lei orçamentária anual) (Annual Budgetary Law). To obtain these additional credits, the target of 2014 was "reduced" by the end of 2014 by R$ 67 billion (US$ 25 billion), at the request of the president. The same conduct of the accused was committed in 2015. Rousseff, by means of decrees, authorized in the years 2014 and 2015, the opening credit, disregarding the Annual Budgetary Law and the Federal Constitution, precisely to allow the provision of additional resources when it was known that the primary superavit target in the Budget forecast was not being fulfilled, and would not be fulfilled.[35]

Illegal practices of accounting disinformation and the called “fiscal pedaling”

In 2011 and 2014, the Union has held illegal credit operations from no transfer of funds to the national financial system entities controlled by the State. That practice was taken from financial advances made by official financial institutions, such as Caixa Econômica Federal and Banco do Brasil for finance social programs of responsibility of the Federal Government. These transactions were reported in 2015 by Tribunal de Contas da União and, according to the report, aimed at election results.[36]

The Union contracted Caixa Economica Federal and Banco do Brasil as operators by Federal Government social programs. For this purpose, the Union should pass along directly from the pt (Secretaria do Tesouro Nacional) (National Treasury Secretary) account, the necessary resources for the realization of programs each month, more precisely, would be obliged to transfer to the financial institutions the equivalent values for the equalization of interest rates, expenditures and legal transfers. But the government has not done these refunds and the contracted financial system entities made payments to programs beneficiaries with own resources and hence promoted the credit constitution in his favor against the Union. This procedure is a form of mutual credit, or similar operation and in accordance with the Fiscal Responsibility Law, art. 36, is prohibited to carry out credit operations between a state financial institution and the member of the Federation that controls it, as the borrower. The total balance of these liabilities by the end of August 2014 was R$ 1.74 billion (US$ 740 million). Of an amount of R$ 7.8 billion (US$ 2.9 billion) spent on subsidies in the programs between 2009 and 2014, only R$ 1.6 billion (US$ 590 million) was transferred by the Union.[37]

By the end of 2014, Rousseff sent to the National Congress the PLN Nr. 362014, to change the pt (Lei de diretrizes orçamentárias) (Budgetary Directives Law) aimed at modifying the rules of the primary superavit. Thus, has demonstrated knowledge of the results of the public accounts and which has taken the necessary steps to regularize them. However, he did just to meet your interest, as sought avoid being accused of a crime committed for not meet the fiscal targets set out in law.[38]

Legal infringments

Both the Federal Constitution and Article 4 of Law 1079/50, establish that give rise the impediment of the President the fact that attempt against probity in administration and against the budget law. Are crimes of responsibility against the budget law, order or authorize the opening of credit in disagreement with the limits set by the Senate, not well-founded in budget law or in additional credit law or inobservance of legal prescription;(Law Nr. 10028, 2000) and fail to promote or to order the full settlement of credit operations in anticipation of budget revenue, including related interest and other charges, until the end of the fiscal period; (Law Nr. 10028, 2000).[39]

Therefore, there is a political violation, which may lead to the impeachment, by Legislative trial, and there is a civil offense, which entails indemnities and mandate cassation by the Judiciary. When the author of conduct is the President, also commit crime of responsibility, pursuant to art. 10 of Law n. 1079/50, amended by Law Nr. 10028/2000.[40]

Process in Congress

Acceptance of the request for impeachment

File:Entrevistas Diversas (23181337800).jpg
Eduardo Cunha states that the Chamber of Deputies agreed to open the proceedings, on December 2, 2015.

There were 37 requests for impeachment filed with the Chamber of Deputies by September 2015, against Dilma Rousseff, but the president's home only received the written request of pt (Hélio Bicudo) and the lawyers pt (Miguel Reale Júnior) and pt (Janaina Paschoal).[1][41][42] The social movement pro-impeachment (such as the Free Brazil Movement and pt (Come to the Street Movement)) decided to join Bicudo's request.[43] It also had the support of parliamentarians and civil society, which organized a petition in support of the impeachment of the President of the Republic.[44]

Lawyers, in the document presented to the House, tried to associate Dilma Rousseff with Operation Car Wash, cited failure in case of corruption, investigated influence peddling against former President Luis Inacio Lula da Silva and "fiscal pedaling".[45][46] In addition, it contributed to support the request of six decrees signed by the president in the fiscal year of 2015 in disagreement with the law guidelining the budget, which were published without permission of the Congress.[47]

Voting the request admissibility in Chamber of Deputies

After the acceptance of the request, a special committee was formed in the Chamber of Deputies to decide on its admissibility. It began with the testimony of the authors of the request, followed by a presentation of Rousseff's defense. Meanwhile, street protests for and against the impeachment occurred periodically throughout the country.[48][49] The committee's report was favorable to impeaching the President: 38 deputies approved the report while 27 did not.[50]

On 17 April 2016, the Chamber of Deputies (the lower house of the Brazilian Parliament) concluded a general vote for the admission of the impeachment process. 367 members voted for impeachment, while 137 voted against, 7 abstained and 2 were absent from the session.[51] The internal rules of the house stated that the process would be admitted only if it received at least 342 votes for, between the 513 sitting members. On the following day, the president of the Chamber, Eduardo Cunha, delivered the process to the Senate, upper legislative house, which follow the procedure and judged the case. On 5 May 2016, Teori Zavascki, judge of Supreme Federal Court decided that Eduardo Cunha must to step down from the presidency of the Chamber of Deputies and suspend his mandate, because he is facing a corruption trial. The decision was later endorsed by all eleven judges of Court and has not affected the process of impeachment against Dilma Rousseff.[52]

Voting the opening of impeachment process in the Chamber of Deputies on 17 April 2016[53]
Party Abbr. For Against Abstain Absent Total
Brazilian Democratic Movement Party PMDB 59 7 1 67
Brazilian Labour Party PTB 14 6 20
Brazilian Republican Party PRB 22 22
Brazilian Social Democracy Party PSDB 52 52
Brazilian Socialist Party PSB 29 3 32
Communist Party of Brazil PCdoB 10 10
Democratic Labour Party PDT 6 12 1 19
Democrats DEM 28 28
Green Party PV 6 6
Humanist Party of Solidarity PHS 6 1 7
Labour Party of Brazil PTdoB 2 1 3
National Ecologic Party PEN 1 1 2
National Labour Party PTN 8 4 12
Party of the Brazilian Woman PMB 1 1
Party of the Republic PR 26 10 3 1 40
Popular Socialist Party PPS 8 8
Progressive Party PP 38 4 3 45
Republican Party of the Social Order PROS 4 2 6
Social Christian Party PSC 10 10
Social Democratic Party PSD 29 8 37
Social Liberal Party PSL 2 2
Socialism and Liberty Party PSOL 6 6
Solidarity SD 14 14
Sustainability Network REDE 2 2 4
Workers' Party PT 60 60
Total 367 137 7 2 513

Voting the process opening in Senate

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After the vote held in the Chamber on 17 April to allow the charges against the President to be presented to the Senate, the process was delivered by Cunha to the Senate and confirmed with a 55–22 vote on 12 May, in a section that lasted more than 20 hours, resulting in the suspension of Rousseff's presidential powers and duties up to 180 days. During this period, while the judgment of the process occurs (which decides whether the president should be convicted and removed from office, or acquitted with powers and duties restored), Rousseff's vice-president Michel Temer will serve as acting president.[54]

Voting the process opening in the Senate on 12 May 2016[55]
Party Abbr. For Against Abstain Absent Vacant Total
Brazilian Democratic Movement Party PMDB 13 2 1 2 18
Brazilian Labour Party PTB 1 2 3
Brazilian Republican Party PRB 1 1
Brazilian Social Democracy Party PSDB 11 11
Brazilian Socialist Party PSB 5 2 7
Christian Labour Party PTC 1 1
Communist Party of Brazil PCdoB 1 1
Democratic Labour Party PDT 2 1 3
Democrats DEM 4 4
Green Party PV 1 1
Independent Ind 1 1 2
Party of the Republic PR 4 4
Popular Socialist Party PPS 1 1
Progressive Party PP 6 6
Social Christian Party PSC 1 1 2
Social Democratic Party PSD 3 1 4
Sustainability Network REDE 1 1
Workers' Party PT 11 11
Total 55 22 1 2 1 81

Acting president

Michel Temer in his first ministerial meeting on 13 May 2016

In the Brazilian political system, the President and Vice President form a single electoral coalition. However, their terms are constitutionally separate. Michel Temer was President of the Chamber of Deputies during the Fernando Henrique Cardoso presidential mandate, from 1995 to 2002.[56] Mr. Temer is a member of PMDB, which declared moving to opposition to Dilma Rousseff government on March 2016.[57] According to some newspapers such as The Guardian, "for those desperate for change, Temer represents salvation. Others, more concerned about the country’s fragile democracy, believe he is the perpetrator of a coup."[58]

Impeachment trial

Completed the phases of appreciation and admissibility of the impeachment process, the subsequent procedure requires new citations, instruction with gathering of evidences and witness testimonies to support the decision. The Senate, in a plenary session, pronounce by a simple majority if the charges are well-founded or not to the decisive judgment. The first task is Rousseff notification to allow a new defence. This whole second phase of the process will be chaired by the president of Supreme Federal Court, Ricardo Lewandowski. The last phase of the trial, that decided by the conviction or acquittal of the withdrawn President, also will be headed by Lewandowski, on the condition of Supreme Court president. On this decisive voting, two-thirds of the votes (54 of the total of 81 senators) are needed to permanently remove the President.[59][60]

On 25 May 2016, the senator Antonio Anastasia, rapporteur of the Special Committee of Impeachment 2016 (CEI 2016),[61] presented the work plan for the trial.[59]

References

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  32. ↑ http://www.gazetadopovo.com.br/blogs/certas-palavras/conheca-os-autores-dos-37-pedidos-de-impeachment-contra-dilma/
  33. ↑ Request for impeachment, pg 4 and 5
  34. ↑ Request for impeachment, pg 7 and 8
  35. ↑ Request for impeachment, pg 13–21
  36. ↑ Request for impeachment, pg 22–38
  37. ↑ Request for impeachment, pg 25–27
  38. ↑ Request for impeachment, pg 45
  39. ↑ Request for impeachment, pg 32–34
  40. ↑ Request for impeachment, pg 34
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  58. ↑ The kingmaker tipped to seize the throne – but will a Temer 'coup' divide or unite Brazil? by Jonathan Watts, published on 3 April 2016 in The Guardian
  59. ↑ 59.0 59.1 Lua error in package.lua at line 80: module 'strict' not found. Trial of Brazil President Rousseff may end in August (in English)
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