Defending the president's removal is a coup

Translated from the original.

EVALDO NOVELINI AND SÉRGIO VIEIRA

A good part of Brazilians are dissatisfied with the government of President Dilma Rousseff (PT). Many of them took to the streets on Sunday, including in Greater ABC, to demand the impeachment of the head of government. In this case, however, wanting is not being able. Removing the Workers' Party leader from the Planalto Palace without proof that she committed an impeachable offense in the first days of her second term would be an institutional coup. The thesis is that of the president of the International Institute for Studies of State Law, Fábio Medina Osório, a lawyer specializing in Public Law and former public prosecutor in Rio Grande do Sul. In an interview with Diário, he rules out the possibility of opening proceedings against the head of state even if Operation Car Wash, which investigates, starting from Petrobras, the largest corruption scheme ever revealed in the country, proves any past involvement by Dilma: “What matters is what has been done in 100 days, not what lies behind.” At 47, holding a master's degree and a doctorate in his field, Medina Osório defends quite controversial theses. Such as the idea that politicians are entitled to a legally tolerable margin of error in their administrative decisions. Below, read the main excerpts of the conversation:

Is Operation Car Wash an anti-corruption watershed?

Without a doubt. It shows the power of the more modern instruments used in investigation, more precisely plea cooperation agreements and leniency agreements, and how the State ends up infiltrating organized crime to gather information and destabilize the game in its favor. Obviously, one must be concerned about the ethical paradigms in the use of these instruments, knowing that in plea cooperation, for example, the value lies not in the informant’s word, but in the documents he will bring to the investigative file.

Are you surprised by the degree of corruption already uncovered in Operation Car Wash?

The theory of corruption shows that it is not an evil of the times, but of men. A study of ancient Rome showed that corruption at the time had gigantic proportions, sometimes much greater than any kind of pathology that can be perceived in contemporary societies. What we have today in Brazil is, after all, a sign of the increasingly active and independent functioning of the oversight institutions. The Public Prosecution Service, the Federal Police, the Executive Branch, the Revenue Service. Republican institutions in Brazil have grown much stronger in recent years, as have freedom of the press and investigative journalism. The autonomy of all these bodies brings greater light to the pathologies.

Does changing the campaign finance system help combat corruption?

It is always a path. It is even under discussion in the Federal Supreme Court. It is an extremely important political agenda. Because, as it is becoming clear that there are accusations that some companies masked bribes through campaign donations, it seems to me absolutely healthy to think about a more restrictive and rigorous regulatory framework on these channels. After all, whether or not they produce distortions, one must effectively assess what the best remedy is. But it is an agenda that should predominantly be in the National Congress.

You defend the thesis that politicians are entitled to a ‘margin of error,’ which is controversial. Who defines the limits?

This legally tolerable margin of error exists for all public agents, including the Judiciary. When a judgment is reversed by the Court of Justice, the public agent who previously decided made a mistake. A mistake that is accepted. Now, what is the margin of error that the public manager has, and which may shield him, for example, from an administrative improbity action? We have to take care of this, because there are certain instruments that have grown to such magnitude that they sometimes paralyze the public manager. He is afraid. If he decides, he gets an improbity action. If he disagrees with the Public Prosecution Service, he is investigated. That is why the acts performed by public managers must be properly assessed with care, to avoid a deformation of the principle of separation of powers and the possibility that oversight institutions come to dominate the discretionary space of the Executive Branch simply because of disagreement. We have to define and delimit the legal boundaries of what may be considered improbity. Which is grave functional dishonesty or grave inefficiency.

And whose consequences are quite serious…

Suspension of political rights, a very heavy fine, loss of assets, in short, a series of legal consequences that, obviously, we must reserve for those who, in light of proportionality and reasonableness, deserve such sanctions. And not simply for the manager who, trying to do the right thing, eventually makes a mistake that is inherent to human activity. Doctors, lawyers, prosecutors, judges, everyone makes mistakes. Why does the public manager not have the right to a tolerable margin of error?

What would be tolerable?

When you have a hermeneutic controversy over some subject. For example, over the supposed requirement of a bidding process. Why would that necessarily mean improbity just because the manager made a decision that differs from the position of the Public Prosecution Service? It has to be decided case by case. Which situation are we talking about? A decision on whether or not a bidding process is required? Or on the amounts of an expropriation? What are the premises for making that decision? Corruption cases, which involve payment of bribes, obviously do not involve this discussion.

Should a mayor whose accounts were rejected not automatically be charged with improbity?

It cannot be automatic. Not least because the review of accounts first goes through an almost political discussion: the courts of accounts and the Legislative body itself, which has the competence to reject or approve the accounts. Obviously there needs to be a technical analysis of these causes. Where was the error? Was there a diversion of funds or not? Or was it inefficiency? What precautions preceded the decision-making? Increasingly, the public administrator adopts precautions. Did he consult the legal counsel? Does he have technical opinions? He does not? In fact, a great deal of attention is paid to the procedural aspect of decision-making. It has to be analyzed case by case. I see no kind of automatic relationship between a decision of the courts of accounts and classification under the improbity law or even the criminal laws.

What is your view of the arguments for the president’s impeachment that have been made by the public?

First of all, it is essential to establish that the central premise of any impeachment proceeding – and it is an element of the legality of the proceeding, which may be subject to review by the Federal Supreme Court itself – is the fact that the offense of impeachable misconduct was committed during the course of the term of office. Nothing that lies behind contaminates it.

Not even a possible problem with campaign accounts?

Not even that contaminates it. It is an elementary lesson that, it seems to me, has been forgotten in this debate. President Dilma’s term began 100 days ago. So, from the standpoint of impeachment, of liability, what should be verified is what was done in those 100 days and not what came before. This process is extremely safeguarded. There is very broad political room for discussion, but this element of legality is subject to control by the Federal Supreme Court.

Are there grounds for an impeachment request?

If there is, it is not known. What is being said is to go back to when the person held position ‘X’, ‘Y’ or ‘Z’, or even the previous term… That is unworkable; it is not possible. In terms of impeachment proceedings, there is no such continuity of wrongdoing. If there were such a retroactive perspective, it would truly be a kind of institutional coup and would probably be blocked by the Judiciary.

So, do you consider the impeachment a coup?

I do. If it takes that form, of reaching wrongdoing prior to the current term, I understand that this departs from the legal contours of impeachment. That is, it is unconstitutional. The Supreme Court would block it. It makes no sense. I have not the slightest doubt. Impeachment, like every accountability process, has a very strong political element, but it cannot be arbitrary. Otherwise, it can become a kind of coup. A coup clothed in institutionality.