—Juliano Zaiden Benvindo, University of Brasilia, Brazil
Impeachment has become a common word these days. Recently, examples of impeachment proceedings appeared in Madagascar,[1] Thailand,[2] Indonesia,[3] Myanmar,[4] Philippines,[5] and Paraguay.[6] In Latin America, the 1990s and 2000s were clearly marked by an “unprecedented wave of impeachments” proceedings,[7] including in Brazil (1992), Venezuela (1993), Colombia (1996), Paraguay (1999 and 2003), Peru (2000), and Ecuador (2004).[8] Even the United States was faced with an impeachment proceeding in 1998 with Bill Clinton’s sexual scandal and the resulting charges of perjury and obstruction of justice.[9] Generally explained as a legitimate mechanism of constitutional democracies applicable in extreme cases,[10] some of these recent examples show that it has also been used in much less drastic circumstances and served as an instrument for political pressure and bargaining. Brazil, which in 1992 had its President Fernando Collor de Mello impeached[11] after a wave of protests and a corruption scandal, has again had its democracy challenged by people on the streets demanding the impeachment of the recently-reelected President Dilma Roussef. While the protestors have been vocal and mass protests have become routine since her reelection last October (including on March 15th, April 12th, and August 16th of this year), their claim seems unreasonable. So, what’s going in Brazil?
First of all, we have to examine this wave of protests in the context of a country whose democracy has strengthened since the promulgation of the Constitution of 1988. Brazil has changed and an increasing curve of democratic learning and constitutional living has brought about concrete social and institutional benefits. An inflection point in Brazilian history was its very process of constitution-making, when the Constituent Assembly had to deal, as never before in Brazilian history, with organized civil society directly intervening in its legislative activities.[12] Notwithstanding some interpreters arguing that the Constituent Assembly was characterized by political arrangements that “impeded the institutional development necessary for a consolidated democracy,”[13] history has proven the contrary. Without denying the perverse effects of many of those political bargains, something unprecedented also happened. Since the 1970s, many social groups from distinct social and economic strata created an environment where inclusive institutions could start to take shape,[14] and, in the 1980s and especially during the Constituent Assembly of 1987-1988, this movement directly impacted the framing of the Constitution. A culture of popular involvement gained momentum, building up the conditions for bolstering the “performative meaning”[15] of Brazilian constitutionalism in subsequent years.
But sweeping changes of this type take a long time. At the social level, there is a natural delay between this democratic endeavor and a reality historically characterized by social inequality and extractive institutions. It is thus unsurprising that at some stage, these two worlds would collide with challenging consequences. And, when it happens, the very endurance of democracy is put in a difficult spot. While the political and economic system can provide some benefits to historically excluded social groups without seriously impairing the status quo, there is a general tendency to leave things alone. Social inclusion, however, like the promise of the constitutional project of 1988, at some point will demand the creative destruction of extractive institutions,[16] and this will affect the social positions of those who have historically benefited from them. It will also place a great burden on the economy in order to keep that democratic promise, which may raise more conflicts when it implies mechanisms of distribution of wealth. Although Brazil has not substantially impaired the status quo yet – in fact, the rich have become richer and the poor have become less poor[17] – some creative destruction of the status quo is already visible (e.g., access to higher education, access to consumer goods and services, etc.). Especially in a context of economic crisis, this reality pushes democracy to its limits. This is where Brazil stands now.
At the institutional level, despite its inherent fragility, democracy tends to build up an increasing curve of predictability, stability, and protection over time. See the example of impeachment. It is a complete anachronism to compare President Fernando Collor de Mello’s impeachment in 1992 with the present claim for President Dilma Roussef’s impeachment. There is a twenty-three year gap between the two episodes. In 1992, Brazil was a four-year old democracy. Collor de Mello was the first president elected in the new regime, when Brazil was faced with challenging dilemmas in all areas. In addition, there was a corruption scandal directly incriminating him, which catalyzed social and political backlash all over the country. Collor de Mello was a typical populist politician who was elected after a moralist campaign but without consistent party structure.[18] In 2015, Brazil lives a very different scenario. Not only has Dilma Roussef never been directly accused of any crime, but her Worker’s Party, despite the corruption charges, emerged from the social movements in the 1970s. Therefore, it has been historically identified with that impetus for democracy and social inclusion. Disillusionment, however, arises when this democratic promise does not become reality and corruption, which is rooted in the Brazilian political system (especially regarding campaign funding), comes to light.
More importantly, years of democratic life have created an environment where institutions have become more vaccinated against sudden actions in detriment of the rules of the game, and people are just not willing to easily leave their comfort zones anymore. Any radical change, after all, will demand so much energy and political mobilization that it just doesn’t seem worthwhile. Even though Dilma Roussef’s current popularity is very low, and many people support her impeachment,[19] the fact is that low popularity alone is not a valid cause for such a drastic proceeding.[20] It is also true that people from distinct social and economic sectors have already publicly expressed their opinion in favor of governability and the rules of the game.[21] After all, instability is not good for business and many politicians see that, by following the rules of the game, they are better off in the long run. On the other hand, the independent institutions that the Constitution of 1988 created to protect society and democracy, fostering mechanisms of transparency and accountability,[22] have become more effective, and this is mirrored in their increasing ability to investigate corruption scandals.
This is how one can understand what is going on in Brazil. On the one hand, there is the encounter of those above mentioned two worlds, of the promise and the disillusionment of a reality still characterized by its incapacity to make necessary changes. On the other, there is the democracy making its institutions work as possibly never before in Brazilian history. Corruption scandals have motivated many of the popular protests, and this means the encounter of the promise with the disillusionment. In turn, institutions such as the Federal Police, the Prosecutors Office, and the Judiciary, albeit sometimes controversially,[23] are strengthening the mechanisms of democracy.[24] Those popular protests – especially those after President Dilma Roussef’s reelection – are also the political reaction of those who cannot withstand possible (although not yet substantial) changes to their historical social positions. It is no surprise that they were headed by the wealthier strata of society.[25] It is the natural reaction against creative destruction of the status quo, which is strong enough to seize control of those mass protests. While disillusionment grows in a scenario of economic crisis and political incapacity to keep that democratic promise, the very paradox of democracy – its inherent risks in the midst of the “performative meaning” of constitutionalism – materialize. The claim for impeachment is the radical outcome of this plot. But Brazilian democracy has learned from its past, and its capacity to endure such challenges seems real. Let’s see what the future holds, but experience suggests that Brazilian democracy is here to stay.
Suggested citation: Juliano Zaiden Benvindo, Why Impeachment? Brazilian Democracy Revisited, Int’l J. Const. L. Blog, Aug. 28, 2015, at: http://www.iconnectblog.com/2015/08/why-impeachment-brazilian-democracy-revisited/
[1] See Madagascar Constitutional Court Throws out Impeachment , BBC (June 13, 2015), http://www.bbc.co.uk/news/world-africa-33122020
[2] See Thailand Legislature Begins Impeachment Hearing of Former PM, Jurist (Jan. 9, 2015, 2:28 PM), http://jurist.org/paperchase/2015/01/thailand-legislature-begins-impeachment-hearing-of-former-pm-dnp.php.
[3] See Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, Int’l J. Const. L. Blog (Aug. 25, 2013), http://www.iconnectblog.com/2013/08/the-first-ten-years-of-the-indonesian-constitutional-court-the-unexpected-insurance-role/
[4] See Dominic J. Nardi Jr, Will Democracy and Constitutionalism Mix in Myanmar? Int’l J. Const. L. Blog (Oct. 24, 2012), http://www.iconnectblog.com/2012/10/will-democracy-and-constitutionalism-mix-in-myanmar/.
[5] See Tom Ginsburg, The Telenovela’s Next Chapter: A Crucial Juncture in the Philippines, Int’l J. Const. L. Blog (Aug. 6, 2012), http://www.iconnectblog.com/2012/08/the-telenovelas-next-chapter-a-crucial-juncture-in-the-philippines/
[6] Paraguay’s President Fernando Hugo Ousted from Office, The Guardian (June 22, 2012 11:43 PM), http://www.theguardian.com/world/2012/jun/22/paraguay-fernando-lugo-ousted.
[7] Aníbal Pérez-Liñán, Presidential Impeachment and the New Political Instability in Latin America 1 (2007).
[8] Id.
[9] See L. H. LaRue, The Story about Clinton’s Impeachment, 63 Law & Contemp. Probs 193, 193- 200.
[10] For example, Alexander Hamilton, when discussing the impeachment mechanism according to the US Constituiton, said that it would take place if there were “abuse or violation of some public trust” (The Federalist, no. LXV).
[11] President Collor de Mello resigned his mandate on December 29, 1992. Despite that, Congress voted for impeachment because his resignation letter was submitted out of time.
[12] See Leonardo Augusto de Andrade Barbosa, História Constitucional Brasileira: Mudança Constitucional, Autoritarismo e Democracia no Brasil Pós-1964 246 (2012). Marcos Nobre, Indeterminação e Estabilidade: Os 20 Anos da Constituição Federal e as Tarefas da Pesquisa em Direito 82 Novos Estudos CEBRAP 97, 98 (2008) (arguing that the Brazilian Constitution is the result of an “intense and influential participation of organized civil society”). See also Cristiano Paixão, Direito, Política, Autoritarismo e Democracia no Brasil: da Revolução de 30 à Promulgação da Constituição da República de 1988 26 Araucária 146, 165 (2011) (showing how civil society actively participated in the activities of the Constituent Assembly).
[13] Hagopian, Frances, and Scott Mainwaring, Democracy in Brazil: Problems and Prospects. 4 World Pol’y J. 486.
[14] Acemoglu, Daron, and James A Robinson. Why Nations Fail: the Origins of Power, Prosperity, and Poverty 455 (2012).
[15] See Jürgen Habermas, Constitutional Democracy: a Paradoxical Union of Contradictory Principles?, 29 Political Theory, 766, 775-776 (2001)
[16] See Acemoglu, supra note 13, at 79.
[17] See Marcelo Medeiros et al., Topo Da Distribuição De Renda No Brasil: Primeiras Estimativas Com Dados Tributários E Comparação Com Pesquisas Domiciliares, 2006-2012 [Top Incomes in Brazil: First Estimates with Tax Data and Comparison with Survey Data, 2006-2012] (2014), http://ssrn.com/abstract=2479685.
[18] See Brasilio Sallum Jr. & Guilherme Stolle Paixão e Casarões, O Impeachment do Presidente Collor: A Literatura e o Processo, 82 Lua Nova 163-200 (2011), http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0102-64452011000100008&lng=en&tlng=pt.
[19] See Recorde, Reprovação a Dilma Supera Pior Momento de Collor, Datafolha (Aug. 6, 2015), http://datafolha.folha.uol.com.br/opiniaopublica/2015/08/1665278-recorde-reprovacao-a-dilma-supera-pior-momento-de-collor.shtml.
[20] See Articles 85 and 86 of the Brazilian Constitution.
[21] See David Freidlander, Não há Motivos para Tirar Dilma do Cargo, Diz Presidente do Itaú Unibanco. Folha de S. Paulo (Aug. 23, 2015, 2:00 AM), http://www1.folha.uol.com.br/mercado/2015/08/1672332-nao-ha-motivos-para-tirar-dilma-do-cargo-diz-presidente-do-itau-unibanco.shtml;substantial)lthough not yet ural0 AM), a e a favor em 92. lity of an impeachment folhaare better off in the long run. vor of fol Globo e UNE Juntas Contra Impeachment Agora e a favor em 92. Exame (Aug. 14, 2015, 6:31 PM), http://exame.abril.com.br/brasil/noticias/globo-e-une-juntas-contra-impeachment-agora-e-a-favor-em-92.
[22] See Adrian Vermeule. Mechanisms of Democracy (2007)
[23] See, e.g., Luiz Gonzaga Belluzo, A Proposta de Moro. Carta Capital (Apr. 5, 2015, 9:20 AM), http://www.cartacapital.com.br/revista/844/a-proposta-de-moro-5336.html; Miguel do Rosário, Lava Jato: O Espetáculo Continua, Carta Maior (Apr. 15, 2015), http://cartamaior.com.br/?/Editoria/Politica/Lava-Jato-O-espetaculo-continua/4/33279.
[24] See id.
[25] Antônio David, Datafolha: Elite Branca era a Maioria Esmagadora na Paulista, Carta Maior (Aug. 20, 2015), http://cartamaior.com.br/?/Editoria/Politica/Datafolha-elite-branca-era-maioria-esmagadora-na-Paulista-/4/34267
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