Judgment of the International Tribunal for Democracy in Brazil
JUDGMENT
On July 19 and 20, 2016, at the Teatro Oi Casagrande, Avenida Afrânio de Melo Franco, 290, Rio de Janeiro, was established the International Tribunal for Democracy in Brazil, with the specific aim to discuss and judge the impeachment of President of the Republic, Dilma Vana Rousseff, which procedure, approved by the House of Deputies, it is in final stage of trial in the Senate.
REPORT
The session began on July 19th, at 18:00, by the President of the Court, Prof. Dr. Juarez Tavares, with the presence of the Secretary, Prof. Dr. Leonardo Yarochewsky and assistants, lawyers Gisela Baer and Roberta Miranda, were called to compose the jury the following members: MONTENEGRO ANTILLON, Walter (Costa Rica), CÁRDENAS GRACIA, Jaime Fernando (Mexico), COHEN, Laurence (France), FARINAS DULCE, Maria Jose (Spain), FILIPPI, Alberto (Argentina), GÁLVEZ ARGOTE, Carlos Augusto (Colombia), SHAHSHAHANI, Azadeh N. (United States) , TOGNONI, Giani (Italy), VERAS Raul (Mexico).
Also, they summoned representatives of the prosecution and defense, respectively, Prof. Dr. Geraldo Prado and Prof. Dr. Margarida Lacombe, to sit in their places.
Calling the Court to order, the President informed that, according to the act of convocation, the aim of the trial is the formulation of a declaratory decision on whether the impeachment of President of theFederative Republic of Brazil is a violation of the Constitution of the Republic.
In order to sequence the trial, the President further informed the jury about the procedure adopted and previously communicated to the parties and the jurors, and claims the prosecution and the defense. The accusation was made ready to prove the occurrence of the violation of the Constitution. The defense, in turn, was oriented in the sense of presenting the reasons for the Congress to affirm the constitutionality of the impeachment process.
Including objectives and procedure, the President gave the floor to the prosecution and the defense to listen to the witnesses and nominees: Jacinto Miranda Nelson Coutinho, Ricardo Lodi, Tania Oliveira and Marcia Tiburi, by the prosecution; João Ricardo Dornelles Wanderley, Luiz Moreira, José Carlos Moreira Filho and Magda Barros Biavaschi, by the defense.
Following the hearing of witnesses, the President has given the floor, respectively, the representative of the prosecution and defense to support their reasons in time, each up to 40 minutes.
The charge developed by Prof. Dr. Geraldo Prado, based on documents, opinions, reports and witness statements, has alleged a violation of the Constitution of the Republic.
The defense, in turn, in the word of the Prof. Dr. Margarida Lacombe, also based on documents, opinions, reports and statements, she has argued that the Constitution is respected.
After the comprehensive presentation of the prosecution and the defense, duly registered by the Registrar of the Court, Prof. Dr. Leonardo Yarochewsky, the President declared the first part of the Tribunal was completed, calling on all members of the Court to return to continue on the next day, at 9:00 morning.
At 9:00 am on July 20, the proceeding were reopened by the President and informed the jury. Before the vote, they asked the President whether they were eligible to vote or if some wanted more clarification of the presidency.
The President summoned each of the jurors to deliver his/her vote in time up to 20 minutes on the following questions:
- Did the impeachment of President of the Republic, in accordance with the terms of its passage in Congress, violate the Constitution of the Republic?
- Was the procedure of impeachment, without achieving the demonstration of commission of a crime of responsibility by the President of the Republic, characterized as a congressional coup?
- Whether, the procedure of impeachment due legal process, constitutional clause with equal support in the American Convention Human Rights (Pact of San José de Costa Rica), was violated?
- If the procedure of impeachment, is characterized as a congressional coup, should it be declared null and therefore also all its effects?
In sequence, jurors pass the decision, which was handed down in the following order: ANTILLON MONTENEGRO, Walter (Costa Rica), CÁRDENAS GRACE, Jaime Fernando (Mexico), COHEN, Laurence (France), FARINAS DULCE, Maria Jose (Spain ), FILIPPI, Alberto (Argentina), GÁLVEZ ARGOTE, Carlos Augusto (Colombia), SHAHSHAHANI, Azadeh N. (United States), TOGNONI, Giani (Italy), VERAS Raul (Mexico).
DECISION
The members of the Jury, after hearing the prosecution and the defense, and examining the documents, opinions and declarations in the documents, and testimonies of the witnesses unanimously have answered yes to all four questions. That way, have decided the Jury consider coming to the claim of the prosecution to declare that the process of impeachment of the President of the Republic, under the terms of the decision of admissibility by the Chamber of Deputies and the report of the Federal Senate violates all principles of the Brazilian democratic process and constitutional order.
The common ground of all pronouncements offered on the Tribunal lies in the emptiness of the order of impeachment and the absence of crime of responsibility or any willful misconduct involving a violation of the Constitution of the Republic and to the fundamentals of the Brazilian state. There has also been a violation of the Constitution's immutable clauses enshrined in international conventions and agreements, regarding the contradictory, the broad defense and the need for substantiation of decisions. Once unobserved, constitutional and legal requirements for the final departure of the President of the Republic, the Jury has understood, according to what has sustained the accusation that the impeachment, in this case, is characterized as a real coup to Democratic state of law and must be declared null and void and all its effects.
Making a summary of the allegations, the President of the Republic is accused in the Senate by two facts: a) the issuance of six non-numbered decrees in the months of July and August, characterizing by opening unauthorizedcredits; and b) non-financial performance of the Union with Banco do Brasil SA, by late payment of financial grants in the field of rural credit.
As it concludes, however, Art. 85 of the Constitution, should not be confused between violation of the budget and violation of the rules of its financial performance. Those last are linked to the financial management rules and not the budget law. Once they are not budgetary rules, the violation cannot be the subject of crime of responsibility. In that case, the behavior is, therefore, atypical. In her turn, the decrees issued by the President, and answered in the Order of I0.mpeachment, were intended to supplement opening credits, necessary to the implementation of the budget and were all duly authorized by art. 4th Annual Budget Act of 2015. Thus, they were not configured as open credits without authorization. In addition, these credit openings have not increased the expenses of the Union, once those already had their high level at that time, more than eight billion reais should say enough to cover these supplementary loans. Independent of the authorization, there was more than 70% from the supplemental appropriations obeyed the determinative decision of the Court of Accounts of the Union. This implies that the President of the Republic, in that case, to issue them, merely fulfilling a legal duty and, therefore, acting lawfully. As for the assumed failure of the Union of debts with Banco do Brasil, relative to agricultural funding, it was shown that there was no deadline to pay, eliminating the allegation of delay, if payment occurs at a later date to balance. In addition, untreated loan or credit facility, but grant for essential to the achievement of Brazilian agricultural policy acts effected, in accordance with popular demands for which was chosen, corresponding to a constitutional duty and planned in its government program. The fact of the delay for reimbursement, however, is irrelevant, because all debits were properly removed, not having failure of the Union. Although this hypothetical delay implied exposure to risk of injury to the budget, the payment made by the Union has completely prevented the harmful result, which characterizes clear hypothesis voluntary interruption of criminal responsibility, to also elide the typicality of behavior. As Zaffaroni says, in the "dialectic of criminal path, always the later stage cancels the previous one, and when there later is a withdrawal, cancellation is not in conformity with the results in the previous and subsequent lack of "[1] Once they are not proven the allegations contained in the request for impeachment, it can be said that the complaints made to the President of the Republic, de facto, are not criminal liability. Indeed, the allegations of the order of impeachment, not to identify acts of the President a serious violation of the Constitution and thus a crime of responsibility, they indicate they were merely records or pretexts to promote a political process and remove her from office. In the specific case, even the Senate’s three experts appointed by the special commission, have concluded that could not be attributed to the President of responsibility for a crime account of these charges.
The decision of the jury to characterize the situation as a coup corresponds to modern approaches constitutional legal doctrine has given such cases, not only in Latin America but in countries in Europe and even in the United States. Coups cannot be reduced only to military attempts, although these have been its most common form. They are also characterized as coups those acts of dismissal of legitimately elected officials when taken in nonconformity with the constitutional rules and in violation of international treaties and conventions, whose violation can be either by decision of Parliament itself and the Supreme Court. In Latin America, are paradigmatic coups promoted by Parliament since 1859, when, in Peru, the government was dismissed because self-legislative constituent assembly[2] to declare itself and, more recently, Honduras and Paraguay, with the cancellation of office of the legitimately elected presidents, respectively, with the support of the Supreme Court, 28/03/2009 and 22/06/2012. In Brazil, too, in 1961, it has operated a disguised form of coup, when the National Congress has decided, in response to pressure from the military, not admit the rise of Vice President elect, João Goulart, under waiver President Janio Quadros, and it has decided to transform the system of government, presidential to congressional, with drastic reduction of powers, then, president and facing the popular will.
Making an analysis of the problems of American federalism, reports Nagel, by the time the political crisis in the Clinton administration, how his supporters in Congress would emphasize that his impeachment, not to be framed in any constitutional hypothesis, would be characterized as a true " Republican state coup." The same Nagel, who accepts the impeachment as a legitimate instrument of removal, though almost obsolete, also admits that its depreciation, outside the constitutionally established cases, can be identified as state coup.[3]
In the same way, teaches Kauppi, in Finland, to proceed to constitutional reform, shortly before the turn of the century, has also made a real coup led by congress at all similar to the above procedures, the time of the monarchy. Thus, according Kauppi, 228 years after King Gustav III of Sweden and Finland, absolute monarch through a coup, another coup in 2000, but in another sense, is made by Parliament, by a constitutional reform that deprives the President of the Republic of his powers and transfers them to the congress and the government, transforming the semi-presidential political system in a semi-congressional or congressional system. This transfer of powers, reports Kauppi, operating under the guise of caring for the purposes of the European Union, which serve as a catalyst to enable the elites leaders to promote and legitimize political reform and transformation of the system.[4]
The term "coup" is not surprising, therefore, to the nomenclature used by political science. In Brazil, the coup is seated not only in the congressional decision, but also in legitimizing that political decision obtained in the judiciary, which does not face issues important farm, as the occurrence or not of the crime of liability or violation of the constitutional principles related to the contradictory, the wide defense and substantiation of decisions, and the strengthening of aggressive deconstruction made by the media of mass of the person of the President herself, showing, for times so disguised for sometimes notorious macho preconception. Moreover, the jury a cultural dimension of authoritarian character in the construction of the narrative legitimizing the coup. The deconstruction of the image of the ruling against the Brazilians and encouragement conveyed in large media mass to authoritarian sentiments, settled in the elite of Brazilian society and the dominant ideology, they are immediately reflected in the statement parley which feeds them to motivate base their votes in the defense of tradition, family, order and their religious beliefs. Behind these purely symbolic manifestations are also economic interests linked consortia and international conglomerates, stimulated by an extensive program of privatization. The coup also incorporates other motivations, as the discomfort of the elites against the social rise of the poorest strata of the population to the resources of the consumer society, and also against the expansion of expenditures with social integration programs needed the basis of specific purposes in the Brazilian Constitution (Art. 3, III) regarding the eradication of poverty and marginalization and reduce social and regional inequalities.
Importantly, in the presidential form diversely the vote of no confidence in the parliamentary system cannot suspend a head of state for purely political reasons, because the process of impeachment is linked to strict legal grounds, consubstantiated in the commission of serious offenses against the constitutional order - the so-called crimes of responsibility - not replaceable arguments of government deficiency or popular dissatisfaction. Approval or disapproval of government policy should be settled through free and direct elections and not by act of Congress. The violation of this condition involves, further, achieving a drastic interruption of the democratic order, ruled inadmissible in a system for a republican constitution. In case under even weighting criteria, it is clear disproportionality between the election of the President and the decision to remove her from the presidency. The President of the Republic was chosen in free, direct and absolutely correct choices for most Brazilian citizens, with more than 54 million votes, and that sovereign will must be, in any case respected. So there can be a permissive doctrine of impeachment, but under strict budgets of legality laid down in the Constitution proper law. Revocation of office of the presidency can only be carried out by the popular will and not by groups led by particular interests.
Democracy, on the other hand, according to the modern conception of the State, cannot be limited solely to the representation congress, often divorced from the real basis of the population, but the ability to enable the integration of all citizens in procedures political and administrative, inherent in their performance. also part of a democratic order as forces and all social segments, although not represented in congress, and whose mind, will, lifestyles and behavior options see manifested in the various sectors of the public sphere. In a society ruled by rules, no one can be stripped of the initiative at the same time, realize himself - and no one can give up of the same initiative."[5] Once admitted to the scope of the democratic state, as persons endowed dignity, every citizen should be equally guaranteed and protected in their fundamental rights, such as to freely elect the Head of the Nation. The sense of democratic state is that the "emancipated individuals are joint authors of their own destiny. In his hands is the power to decide on the rules and how their collective life."[6]
In addition, not enough to achieve a democratic order, which obey only the division of powers, or that is granted to state bodies specific functions of legislating, manage, monitor and judge. Although the division of powers serve a better distribution of the competence of State bodies, not covered by itself, the complexity of the social life of our time, which, facing the most intense of liberty curtailment, is require a predominance of individual rights on the reasons of state. If democracy is conceptualized as the regime of all and not an elite, oligarchy or a privileged few, or even segments for life, autocratic, unaccountable officials, although that graduates and qualified, must ensure every person, as a person subject right, all conditions to squeeze his will as a legitimate manifestation of citizenship.
As Forst says, people "do not understand themselves only as people living right in a legal community, but also as members of a political-historical project to feel obliged to the extent that they extendcertain principles they consider worth defending, against themselves, their fellow citizens and to others."[7]
Therefore, the implementation of a political project by citizens is not done simply by imposing rules or standards by Congress, but when these correspond to the interests of all and recognize them as citizens, through a compressible speech and able assume and generate validity claims. Validity claims are not mere political statements, but concrete forms of manifestation of behavior linked to the veracity of the arguments and their
understanding and acceptance universal.[8]
If the political acts of congress and also of all state bodies, including in the functional division of powers, as with the procedure of impeachment of the President of the Republic, its legitimacy is necessarily subject to constitutional and legal basis authorizing those acts.
The subordination of political acts, even the laws themselves, this form of speech allows the exercise of citizenship, because it corresponds to the condition that may be subject to constant criticism by their recipients and subjects of law, which must be respected not only when they agree, but when they express their disagreement. Then, in a truly participatory democracy, the legitimacy of a political act is not limited to its approval by simple congressional majority. Conversely, its validity remains under the control of its own citizens and other state bodies such as the Supreme Court, with jurisdiction to annul them. Thus is secured through a process of comprehensive and permanent communication between power and citizens, under the care and respect of its status as moral subjects endowed with freedom of choice, the consolidation of a Democratic state of law.
Given what was exposed, the Jury unanimously declared that the impeachment of the President of the Republic violates the Brazilian Constitution, the American Convention on Human Rights and the International Covenant on Civil and Political Rights, and is a true coup.
Rio de Janeiro, July 20, 2016
Prof. Dr. JUAREZ TAVARES President of the Court
CÁRDENAS GRACE, Jaime Fernando (Mexico),
COHEN, Laurence (France),
FARINAS DULCE, Maria Jose (Spain)
FILIPPI, Alberto (Argentina)
GÁLVEZ ARGOTE, Carlos Augusto (Colombia),
SHAHSHAHANI, Azadeh N. (United States),
TOGNONI, Giani (Italy),
VERAS Raul (Mexico)
[1] ZAFFARONI, Eugenio Raul. Manual of Criminal Law, Buenos Aires: Ediar, 2005, p. 655.
[2] MICHELENA, Alberto Villacorta. The limits of constitutional reform, Lima: Villacorta, 2003, p. 9
[3] NAGEL, Robert. The Implosion of American Federalism, New York: Oxford University Press, 2002, p. 169
[4] KAUPPI, Niilo. Democracy, social resources and political power in the European Union, New York: Manchester University Press, 2005, p. 82.
[5] Habermas, Jürgen. Pensamento pós-metaphysical, tradução of Lumir Nahodil, Coimbra: Almedina, 2004, p. 227.
[6] Habermas, Jürgen. Faktizität und Geltung, Frankfurt am Main: Suhrkamp, 1994, p. 606
[7] Forst, Rainer. Contexts da Justiça, tradução of Densilson Luis Werle, São Paulo: Boitempo, 2010, p.
317.
[8]Habermas, Jürgen. Theorie des kommunikativen Handelns, Frankfurt am Main: Suhrkamp, 1981, p. 68; GEIGER, Daniel. Narration und Wissen, Berlin: Erich Schmidt, 2006, 131.