On March 15th 2020, the Brazilian President Jair Bolsonaro engaged in a public demonstration organized by some of his most committed supporters and endorsed by himself in several pronouncements on social networks. He greeted and hugged people, held their cellphones for ‘selfies’ and defied the recommendations of his Minister of Health to avoid crowds and physical contact. The rallies were a manifestation against the National Congress and the Brazilian courts (especially the Federal Supreme Court); they claimed that those institutions are hindering the president. The demonstrations were called in response to a budgetary dispute between the executive and the legislative branches, involving approximately 6.2 billion dollars. Some of the demonstrators pleaded for an unconstitutional ‘military intervention’. They intended to oust the Speakers of the House of Representatives, Rodrigo Maia, and the Senate, David Alcolumbre. They urged Bolsonaro to ‘close down everything’, referring to the legislative and judiciary institutions. COVID-19 was depicted as a farce, while the ‘true viruses’ were in the political institutions, with the exception of the executive branch.
Disputes over some bills in National Congress imposed a series of defeats on Bolsonaro’s government. His political coordination is precarious, and he tends to rely directly on the people—a clear populist recipe—instead of playing by the rules of the presidential system. While the legislative branch grows increasingly strong, the president shares videos on WhatsApp convening people for manifestations against the National Congress, and one of the military members of his cabinet complains that the government has been blackmailed by the representatives. Bolsonaro used the last weeks also to diffuse false suspicions against the Brazilian courts when he declared that the 2018 elections were frauded, because he would actually have been elected in the first round. Of course, no evidence was presented to support this claim, despite the seriousness of Bolsonaro’s attack on the electoral courts.
Brazil’s longstanding political crisis already looked like the worst-case scenario, but it was surmounted by a further explosive element: the COVID-19 health crisis. Populist executive leaders seem to have responded too late to the dangers of this pandemic, but all of them appear be at least aware of the political effects of their policies. Donald Trump would risk his reelection if no serious measures were adopted promptly. Boris Johnson first adopted a risky herd immunity approach to fight the epidemic of COVID-19 before making a spectacular U-turn after the death toll of this strategy emerged. Yet Bolsonaro seems to be taking an even higher risk, adopting a position that indicates that his institutional support might be vanishing and pushing him towards direct support by his popular sympathizers. However, one question remains: Why can’t the absence of congressional support prevent him from worrying about committing impeachable offenses?
Impeachment and Institutional Criticism
The Brazilian Constitution of 1988 provides for impeachable offenses and leaves the regulation of the procedure and further details to statutory law (Impeachable Offenses Act, Law 1.079/1950). Jair Bolsonaro, right from the start of his term, has continually committed offenses that violate the necessary “dignity, honor and decorum” of the presidential office (article 9, number 7, of Law 1.079/1950). He has (i) repeatedly attacked the press using the dirtiest methods, (ii) humiliated the victims of the military dictatorship—including the president of the Brazilian Bar Association, (iii) blatantly criticized the scientific and academic community, including public federal universities, and (iv) favored media outlets that sympathized with him. In effect, these are but examples of a long list of incursions against the rule of law. Nonetheless, the recent aggressions to the National Congress and the Federal Supreme Court are, in our view, a different animal.
The gravity of a president’s conduct is an important factor when one considers impeachable offenses. It is not by chance that the American Constitution (Article II, Section 4) provides for impeachable offenses referring to “high crimes and misdemeanors”. The Founding Fathers’ aim was not to delegate wide political evaluation powers to legislators, but to avoid that any accusation could undermine the projected stability of presidential system. When Jair Bolsonaro raises the level of his speeches and attitudes aiming at the members or the institutions that form other branches, he also expands the possibilities for further accusations and eventual procedures. The Brazilian Constitution of 1988, in its article 85, number II, provides that it is an impeachable presidential offense to curb the free exercise of power by the other branches.
Law 1.079/1950 is even more specific. It states that the president cannot attempt to dissolve the National Congress (something that Bolsonaro’s supporters were expressly demanding), threaten any representative in one of the Houses of National Congress, in order to prevent her from exercising her mandate, and oppose the free exercise of the jurisdiction of the courts (article 6, numbers 1, 2 and 5). Article 7, number 6, of the same Law 1.079/1950, criminalizes the presidential subversion or attempt to subvert the social and political order—a fact to consider when facing the presidential position with regards to a serious pandemic. Bolsonaro’s military support also plays a salient role to characterize impeachable offenses as it is also a crime to incite the military to disobey the law and discipline or to provoke animosity amongst the armed forces and between them and civilian authorities (article 7, numbers 7 and 8). Consider, as to these last provisions, that Bolsonaro supported the unconstitutional and unlawful military strike that took place in the state of Ceará a few weeks ago— military personnel is prohibited by the Brazilian Constitution of 1988 to participate in strikes (article 142, § 3º, number IV).
In our view, there is are solid legal grounds for an impeachment process, considering the regime of the Brazilian Constitution of 1988.
Furthermore, one must bear in mind that Bolsonaro could also have committed a common crime or offense. The Brazilian Constitution of 1988, in its article 86, not only subjects the president to impeachable offenses related to the office, but also to common or ordinary offenses that can be committed by any citizen. In this sense, as a left-wing political party tried to indict him, Bolsonaro might also be liable for violating the Brazilian Criminal Code, articles 132 and 268. The statute criminalizes the violation of public authorities’ orders that aim at avoiding the introduction or the spread of a contagious disease, as well as the exposure of life or health of any person to clear and present danger.
Nevertheless, this form of strictly criminal liability faces a serious obstacle. Contrary to previous Brazilian governments, Bolsonaro effectively captured the Brazilian General Public Prosecutors’ Office, nominating a sympathizer that will under no circumstance cross him. With this politization of the prosecutor’s office, there is little legal chance that a claim against Bolsonaro reaches the Brazilian Federal Supreme Court, which is the only judicial body with jurisdiction to trial the president for common offenses. Yet there is at least one more reason why this attempt to press criminal charges against Bolsonaro has a relevance: it convincingly shows that Bolsonaro does not have any attachment to the Brazilian constitutional and legal order.
Even if there is sufficient basis for defining Bolsonaro’s attitudes as impeachable offenses or ordinary crimes, one must still consider the political landscape that surrounds the procedure. Back in 2016, when President Dilma Rousseff was removed from office, the fragile legal basis for the supposed impeachable offenses allowed to define the impeachment process as a ‘parliamentary coup’, as we publicly recognized. The accusations demanded an analogical extension of controversial budgetary rules and a retrospective application of an interpretation that was constructed ad hoc and ad hominem, in dissonance with the rules settled by Federal Account Tribunal decisions. These were technical details that, in the end, failed to satisfy the requirement of seriousness that must define an impeachable offense. The only reason for Dilma Rousseff’s impeachment is that she became an unpopular president and was not able to secure parliamentary political support since the start of her second term.
The same does not apply for Bolsonaro. Political institutions have been tolerant with his odious pronouncements, in what seems to be trade-off accepted in favor of neoliberal and austerity measures that please a vast group of legislative representatives. This was the case until very recently. But this delicate balance between branches can be shaken by his blatant attack on the same institutions that have been supporting Bolsonaro’s economic agenda. If we add the COVID-19 virus element, the political crisis pushes both the executive and the legislative branches to a dead-end. Bolsonaro not only fails to abide by the legal framework, but also refrains from taking a responsible position concerning the health issue—on the 17 March 2020, he declared that there is a hysteria about the virus and expressed more concern about his 65th birthday party. Such behaviors are not only the product of inconsequence: Bolsonaro clearly qualifies among the populists who have a legal resentment against public law institutions. Moreover, he knows who his far right-wing supporters are and what he must do to please them.
The fragility of Dilma Rousseff’s impeachment, its relative recency and Bolsonaro’s relative popular support seem to make his impeachment too heavy a burden for Brazilian institutions, at least for now. Such a political assessment, however, must be set aside in favor of a juridical approach that strengthens the normative force of institutions. The Brazilian Constitution of 1988 lost much of its force due to Dilma Rousseff’s controversial impeachment, as well as the political crisis that accompanied it. It may well be the case that another impeachment could help to normatively reinforce the Constitution of 1988: as of this writing, two impeachment requests were filed in the House of Representatives after the public demonstrations supported by Bolsonaro.
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All the best, Max Steinbeis