Impeachment and Separation of Powers: The Presence of the Supreme Federal Court in the Brazilian Political Landscape
The Federative Republic of Brazil, as its name suggests, structures its form of state on a federalist model, with the federative entities being: the Union, the States, the Federal District, and the Municipalities. At the same time, throughout the constitutional text, there is a clear division of state powers, with Article 2 establishing the obligation for these powers to act independently and harmoniously with each other, being divided into Legislative, Executive, and Judicial branches.
In short, state power, in addition to being divided among the entities of the federation in due proportion, is also divided into three specific areas of competence. Beyond the technical aspect, the Constitution of the Republic provides for certain tools of a political nature, among them the impeachment process.
To a large extent, this tool, despite requiring a commitment to technical and essentially legal issues, is used for purely political reasons, especially when dealing with the impeachment process due to the ungovernability of the President of the Republic.
Since the 1988 Constitution, Brazil has experienced two impeachment processes that resulted in the removal of the Head of the Executive Branch. In 1992, Fernando Collor de Mello, the 32nd President of Brazil, resigned after the impeachment process initiated by the National Congress gained momentum and was barred from holding office for eight years.
More recently, former President Dilma Rousseff was the target of a new impeachment process due to non-compliance with the Fiscal Responsibility Law, having issued decrees releasing extraordinary credit in 2015. Furthermore, she was accused of committing the so-called "fiscal maneuvers" practiced by the government in 2015. This "fiscal maneuver" was disapproved by the Federal Court of Accounts (TCU).
During the impeachment process , Brazilians experienced an unusual scenario that generated significant questions: Why did Supreme Court Justice Ricardo Lewandowski preside over the impeachment process in the Federal Senate, and what is the role of a Supreme Court in a process that is essentially political in nature?
This article does not aim to analyze whether the impeachment processes were duly necessary or whether they were based on relevant facts that led to the removal of a political agent from office. The core of the discussion here stems from an analysis of the role of the president of the Supreme Federal Court in said procedure, as well as the reasons that inspired the Brazilian constituent assembly to adopt such a procedure.
North American Contribution to the Adoption of These Judgment Techniques
The Brazilian legal landscape has been built throughout history like a patchwork quilt, incorporating into national law a series of instruments and techniques created by other nations. From the federalist structure to the formation of the original and extraordinary jurisdiction of the Supreme Court, Brazil has formed its internal organizational structure and the functioning of its powers inspired by models imported from other countries.
Among the nations that inspired the Brazilian model, the United States stands out the most. Similarly, in the impeachment process , it served as inspiration for the Brazilian constituent assembly during the drafting of the 1988 Constitution.
During the discussions at the Philadelphia Convention for the ratification of the U.S. Constitution, the so-called Federalist Papers were produced by Alexander Hamilton, John Jay, and James Madison. Among the topics debated at that time, the establishment of the U.S. Senate's jurisdiction and its power to judge impeachment proceedings stand out.
At one point, Hamilton argues for the political nature of the aforementioned procedure:
"For this reason, his trial will rarely fail to stir the passions of the entire community and to fragment it into parts more or less favorable or hostile to the accused."
Furthermore, although Brazil was inspired by the American model, the United States did not innovate by assigning such power to a body of a political and representative nature. In Great Britain, the House of Commons has the power to propose impeachment proceedings , and the House of Lords is responsible for judging the request.
Although the responsibility for judging impeachment proceedings has been delegated to the Federal Senate, the main question that arises from this phenomenon is why the Chief Justice of the Supreme Court should preside over this politically motivated trial.
Beyond the legal aspect, in the American model the figure of the Chief Justice exists for a reason intrinsic to that country: the President of the Senate corresponds to the Vice President of the nation.
Frank Bowman, author of the article “ The role of the chief justice in an impeachment trial ,” published on the SCOTUS Blog, lists the reasons why the Chief Justice should preside over impeachment trials against Presidents:
“ It is crucial to observe why the Chief Justice of the Supreme Court appears only in presidential impeachment proceedings. The simple answer has to do with the often-forgotten constitutional power of the Vice President to act as President—in the sense of President of the Senate. In all other impeachment cases, the Vice President can preside, as Thomas Jefferson did in the first impeachment case, that of Senator William Blount in 1799, and as Aaron Burr later did in 1805 in the trial of Judge Samuel Chase. Nevertheless, the authors of the Constitution recognized that it would be entirely inappropriate for the person to assume the presidency in the event of a Senate conviction of the President of the Republic. To prevent such an obvious conflict of interest, they specified the Chief Justice of the Supreme Court as a permanent president in impeachment proceedings against Presidents of the Republic. ”
According to Bowman's account, the figure of the Chief Justice only emerges in the context of the impeachment process when the target of that procedure is the President, whose main objective is to avoid conflict of interest, although there are cases in history where the Vice President was responsible for presiding over the trial.
The Powers of the President of the Supreme Federal Court in the Impeachment Process
Moving on to an analysis of the Brazilian scenario, despite the effective North American influence, it is important to review the historical context of our country's legal and political landscape. In 2024, the 200th anniversary of the Constitution of the Empire was celebrated. The first Brazilian Constitution, granted by Dom Pedro I, introduced the controversial figure of the Moderating Power.
Conceived by Benjamin Constant, this unprecedented tool for controlling power, never before seen and never again instituted in any other constitutional text, had as its main function to guarantee harmony among the other branches of government, being responsible for incessantly watching over "the maintenance of the independence, balance, and harmony of the other political powers," as established in Article 98 of that constitutional text.
Among his powers, the Emperor, holder of the Moderating Power, could freely dismiss and appoint ministers, dissolve the Chamber of Deputies, appoint senators, and veto bills or resolutions.
Although this practice, from a 21st-century political perspective, blatantly violates the principle of separation of powers, the concept of the need for an entity to moderate relations between the entities of the federation, as well as between the state powers, has been established.
From 1988 onwards, due to the history experienced during the military dictatorship and the institutional design outlined by the 1988 Federal Constitution, the role of moderator was, to some extent, transferred to the Supreme Federal Court, assigning it the responsibility of guardian of the Constitution and control of actions by agents of the other branches of government.
Given that we have a comprehensive Constitution that addresses matters of various kinds, especially the organization and powers of the branches of government and the entities of the federation, the responsibility for moderating the relationship between the branches of government has fallen to the Supreme Court.
Although it is a pre-constitutional law, most of the provisions in Law No. 1.079/50 were incorporated into the 1988 Constitution. It contains the rules for processing cases of crimes of responsibility against the President of the Republic or Ministers of State, against the Ministers of the Supreme Federal Court, or against the Attorney General of the Republic, before the Federal Senate.
Among the duties set forth therein, it is the responsibility of the President of the Supreme Federal Court to open the session, analyze the preparatory proceedings and the articles of defense, question the witnesses, and, once the discussion is concluded, "the President of the Supreme Federal Court shall prepare a summary report of the indictment and the evidence of the prosecution and the defense and submit the judgment to a roll-call vote of the senators," as determined by articles 27 and 31 of Law No. 1.079/50.
Given that the impeachment trial is political in nature, the practice of bringing the highest representative of the Judiciary to preside over the trial session occurs for three main reasons: (i) the inevitable influence of the United States on Brazilian legal and constitutional formation, (ii) increased legal technicality in the impeachment process , and (iii) institutional dialogue between the branches of government.
As we saw in the previous chapter, the United States plays a highly influential role in Brazilian law. Although in Brazil the Vice-President is not a member of the Federal Senate, as is the case in the United States, this institution has been incorporated into our Constitution.
From a technical standpoint, as stipulated in Article 102 of the Constitution, "the Supreme Federal Court is primarily responsible for safeguarding the Constitution." The representativeness of the President of the Brazilian Supreme Court becomes a way to confer legal legitimacy to the procedure initiated in the Federal Senate.
When called upon to arbitrate a process that is eminently political but has legal content, the Supreme Federal Court begins to utilize its moderating function as provided for in the constitutional system. After 1988, there was a gradual institutional strengthening of the Judiciary and the Public Prosecutor's Office, aiming to change the image that these institutions maintained during the authoritarian period.
Whether acting as custos legis or as guardian of the Constitution, the new constitutional landscape outlines a strengthening of the Judiciary, as well as reinforcing the necessary commitment to dialogue between the branches of government. The presence of a representative of the Supreme Federal Court in proceedings of great political and legal significance establishes the necessary intersection between the branches of government.
CONCLUSION
It is observed that, far beyond the primary judicial function of a Supreme Court President, the intervention of the Judiciary represents much more than the application of legal technicality in a purely political trial.
In the United States, inspired by the English model, in addition to ensuring that the trial observes aspects of due process, it also removes the impartiality of the Vice President, who holds the position of President of the US Senate.
Although this phenomenon does not occur in Brazil, the trial process is very similar to the American one, fulfilling the constitutional order of harmony and dialogue between the branches of government.
Based on this contribution, the system of checks and balances is introduced into the impeachment process , in which parliament deliberates on the opening and trial of said procedure, and the highest authority of the Judiciary contributes to the conduct of the proceedings in the role of President of the trial session.
Although the impeachment process is purely political in nature, it is necessary to understand the role of the agents involved in this process. The outcome of a trial based on public outcry creates a scenario that enables erroneous decisions by the judges.
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BIBLIOGRAPHIC REFERENCES
BOWMAN, Franklin. The role of the chief justice in an impeachment trial. SCOTUS . Available at: https://www.scotusblog.com/2020/01/the-role-of-the-chief-justice-in-an-impeachment-trial/ . Accessed on September 01st. 2024.
BRAZIL. Political Constitution of the Empire of Brazil. Planalto . Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao24.htm. Accessed on September 01, 2024.
BRAZIL. Constitution of the Federative Republic of Brazil: promulgated on October 5, 1988. Planalto . Available at http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm . Accessed on September 22, 2021.
OAK, Alexandre. Images of impartialityBetween constitutional discourse and judicial practice. São Paulo: Almedina, 2017.
MADISON, James; HAMILTON, Alexander; JOHN, Jay. The Federalist Papers . Translated by Maria Luiza X. de A. Borges. Rio de Janeiro: Nova Fronteira. 1993, p. 417.
