Jorge Rubem Folena de Oliveira
(Constitutional lawyer and political scientist)
On 5th May, the Supreme Court suspended the Speaker of the Lower House, Eduardo Cunha. According to the Attorney General’s office, Mr. Cunha is accused of crimes of corruption and money laundering, while performing his duties, and interfering with investigations and the conduct of the case against him. Mr. Cunha is a member of the Brazilian Democratic Movement Party (PMDB).
Justice Teori Zavascki’s decision to remove Mr. Cunha under Article 319, VI of the Brazilian Criminal Procedural Code, which deals with the suspension of civil servants from office, was unanimously ratified by the judges of the 11-member Supreme Court.
Mr. Cunha had played an active part in co-ordinating the initiative of the impeachment proceedings against President Dilma Rouseff in the Chamber of Deputies. This action was in direct retaliation against the Workers’ Party (PT), whose members had refused to stand against the process to remove Mr. Cunha from office.
Indeed, Eduardo Cunha has been using his position to put pressure on President Rousseff and her party, and seeking to obtain protection for himself in the Commission of Ethics and for fellow deputies in the PMDB and opposition members of the Brazilian Social Democracy Party (PSDB). Meanwhile, Vice-President Michel Temer, PMDB, has recently been ordered to pay a fine for violating campaign-financing limits by the Electoral Court of São Paulo.
On 6th May, before the Senate has even voted on whether or not President Rousseff will face trial for allegedly violating federal budget laws, G1 News (Globo Midia Group), reported that the Speaker of the Senate, Renan Calheiros, PMDB (from the same party as Eduardo Cunha and Vice President Michel Temer) has determined that the Senate’s legal advisory team will prepare a draft resolution to regulate the rights of President Rousseff, in the event it is determined that she will stand trial, a decision which the Senate is due to make on 11th May. In reality, the Speaker of the Senate is seeking to determine by mere resolution alone, which constitutional rights may be exercised by the President of the Republic during any suspension from office, in circumstances where she is to be presumed innocent in accordance with the rule of law.
For the PMDB party (whose members include Eduardo Cunha (Lower House), Renan Calheiros (Senate) and Michel Temer, the Vice-President), the aim therefore is to try to establish legal rules to dictate what the President of the Republic can or cannot do in the event of any suspension, before a decision as to whether or not she will face trial has even been made. The PMDB is attempting to impose a new government by force, to be led by the Vice President, who has already appointed several new ministers of state, news of which has persistently appeared in the media, and been heralded as the new government after the 11th May vote in the Senate. It is noteworthy that PMDB is directly associated with the opposition’s parliamentarians, many of whom are facing criminal charges.
However, the Constitution does not contain any provision for the establishment of a new government or the appointing of new ministers, in the case of suspension of the functions of the President, (Article 86, paragraph 2 of the Constitution). The President’s withdrawal from office is solely to enable her to exercise her legal rights as a defendant in accordance with the rule of law, to ensure she has adequate time to prepare her defence. Otherwise, she may be liable for failing to perform her Presidential duties.
In the present circumstances, neither does the Federal Constitution (Article 79) contain any provision that would allow Vice-President Temer to bring in a new government plan that has not been submitted to popular vote or to dismiss ministers appointed in President Rousseff’s government. He lacks the constitutional authority to carry out these fundamental changes. In the event President Rousseff is suspended from office while facing trial, Vice President Temer would be acting only as a substitute in a temporary situation. The democratically elected government and its organizational structure would remain in place until the final outcome of such a trial and the exhaustion of any appeal process. The Vice President’s role and duty in such circumstances would be akin to his role when the President is absent abroad, in which case, he must still consult with the President, for example in cases such as the urgent appointment of judges.
It is neither proportionate nor reasonable, for there to be any interpretation of the Constitution that would permit the Vice-President to install a new government, even a temporary one, and thereby dismiss the legitimately appointed government under President Rousseff in the present circumstances. The Vice President would only assume such powers in the event President Rousseff was removed from office following conviction. Article 76 of the Constitution provides that the “executive power is exercised by the President of the Republic, assisted by Ministers of State.” The Vice President is not the President in circumstances of any suspension while pending the outcome of a trial.
In short, the Vice President and members of the PMDB have revealed an irrepressible craving for power, evidenced by their actions by violating all democratic rules, and trying to consolidate a coup, in the event the Senate decides that President Dilma Rousseff must face trial. The Speaker of the Senate, Renan Calheiros is also contributing to these illegitimate efforts by seeking to obscure and change the rights of the President who has been elected by the Brazilian people.
In the coming few days, it is hoped that the Supreme Court will uphold the principles of democracy, which Brazil must adhere to, pursuant to its full membership of the Venice Commission. Furthermore, the recent decision, removing Mr. Cunha from office on the basis of his illegal tactics to date, imposes a duty on the Supreme Court to annul the entire impeachment process.
As Justice Teori Zavascki wisely stated in his decision to remove Eduardo Cunha:
“We guarantee a Republic for the common people, not a community of untouchables.” Or as expressed by Alexis de Tocqueville, in the classic ‘Democracy in America’, “The first feature of a judiciary for all people, is that it will serve with independence.”
This is what is expected of the Supreme Court at this grave moment in Brazil’s history: To act independently in defence of the Brazilian people, our constitutional and democratic rights in order to bring about moderation and balance, and thus restore democracy and peace in Brazil.
Image supplied by Jorge Rubem Folena de Oliveira