A Constitutional Law Analysis of the State of Affairs in Brazil

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THE VICE PRESIDENT CANNOT APPOINT A NEW MINISTRY IN CASE OF THE PRESIDENTS WITHDRAWAL FROM THE GOVERNMENT, WHILE DEFENDING IMPEACHMENT TRIAL IN THE FEDERAL SENATE

By Jorge Rubem Folena de Oliveira (Constitutional lawyer and political scientist)

 

Should the Senate in Brazil accept the request of starting an impeachment process in respect of President Dilma Roussef, it will be necessary to clarify to the public the following issues arising:

1) Dilma Roussef will continue as the President of the Federative Republic of Brazil. The issue is whether or not the Senate will accept the request for hersuspension from office under the chairmanship of the President of the Supreme Court (Article 52, I – and its sole paragraph of the Constitution). In the event of a suspension, this must be carried out will full respect for due process and the presumption of innocence (Article 5 LIV and LV and LVII of the Constitution).

2) Once an impeachment request has been accepted, a trial begins, during which the President of the Republic will be suspended from her duties (Article 86, paragraph 1, II, of the Constitution). In other words, the Constitution does not say that her government will be dismissed. Under the constitution, the elected government remains in place with its ministers appointed by the President, until the impeachment judgment has been handed down. The President of the Republic would continue to occupy the Palace of Planalto and Alvorada, from where she should only leave, if the Senate were to impeach her. In addition, it is understood, that the President will resume her duties if the Senate does not deliver its judgment within 180 days (art. 86, paragraph 2, of the Constitution).

3) The functions and duties of the President are provided in Article 84 of the Federal Constitution which include: Appointing and dismissing ministers of state; initiation of the legislative process; sanctioning laws; issuing decrees, appointing Court ministers etc. It is important to note that the Republic Vice President only replaces the President in case of absence, or, as appointed, in vacancy of the presidential office. In addition, the Vice President shall assist the President when called upon, for this special mission. This is set out in article 79 of the Federal Constitution. A suspension from presidential assignments does not imply incapacity or vacancy by succession.

There are three different scenarios that may arise.

The presidential impediment (incapacity) can only occur if there is a conviction by 2/3 of the Senators of the Republic, which is in accordance with all due process. It is only at that point that the possibility of releasing the President from office can occur, along with disqualification from the exercise of public functions for 8 years (Article 52, sole paragraph).

The replacement of the President of the Republic can only occur in the case of a final impeachment conviction (after exhausting all avenues of appeal) and in the case of vacancy by death or resignation.

It is noteworthy that an impediment is not the same thing as a suspension of functions, and does not have the power to remove the President of the Republic.

The Vice President can only succeed the President, and can only then form a new government, in the event of a final impeachment conviction or when there is a vacancy by death or resignation.

There is no other provision or possibility within the Constitution which would empower the Vice President to constitute a new government and appoint new ministers, as Brazil, according to the Constitution, still has a President elected by the majority of the Brazilian people, who will only be suspended from presidential duties while defending impeachment accusations in the Senate.

What the traditional media is broadcasting is yet another attempt to deploy an institutional coup in Brazil, with the establishment of an illegitimate parallel government.

Thus, it is clear that the Vice President has no legal constitutional right to claim to be able to establish a new government or appoint or remove ministers of state and should therefore be limited to waiting in silence in his official residence, with all possible decorum, until the final decision as to whether or not there will be an impeachment trial, and ultimately its outcome.

 

Image supplied by Jorge Rubem Folena de Oliveira

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