Seriousness of impeachable offenses justifies Dilma's impeachment

FÁBIO MEDINA OSÓRIO

The President of the Republic faces proceedings in the Federal Senate for impeachable offenses, on account of acts or omissions in the exercise of office, a judgment of partial admissibility of the complaint having been issued by the plenary of the Chamber of Deputies, by a large majority of votes in the Plenary.

Now, there is the possibility of Senate impeachment proceedings being opened, with the temporary removal of Dilma Rousseff from the office of President of the Republic, and the probability of a judgment on the merits of the President of the Republic for the offenses alleged.

In this context, it is worth asking whether in the impeachment proceeding under way there is a precise indication of which impeachable offenses were committed by the accused, as required by article 85 of the Constitution, without which impeachment could be used as an instrument for the rupture of the democratic order in force, since an arbitrary proceeding cannot move forward.

For this reason, it is necessary to analyze:

1) The typicality in concreto admitted by the Chamber of Deputies and Federal Senate, referring to the interface of the open-ended offenses of the Constitution of the Republic and Law 1,079/50 with the other legal instruments allegedly violated;

2) The disvalue of the acts of which Dilma Rousseff is accused and of their result, that is, what are the legal interests protected by the norms supposedly violated and the values, rights and public policies harmed by the conduct of the President of the Republic.

3) What would be the subjective element of the offense present in the conduct of the accused, that is, the intent or serious negligence indicative of the commission of impeachable offenses.

It should be recalled that Dilma Roussef is accused of committing “fiscal maneuvers” (pedaladas fiscais) in 2015, related to unlawful credit operations concerning the interest equalization of the Plano Safra with Banco do Brasil, by act or omission, with intent or gross negligence, in violation of articles 10, numbers 6, 7, 8 and 9, and 11, numbers 2 and 3, of Law 1,079/50, and of articles 84, II, and 85, VI and VII, of the Constitution of the Republic, all in accordance with Banco do Brasil’s financial statements for the 1st Quarter of 2015, which show the evolution of the amounts owed by the National Treasury to that financial institution in relation to the aforementioned Plan.

The president is also accused of issuing four “unnumbered decrees” on 27 July 2015, and two on 20 August 2015, opening supplementary credits, all of them indicating funding sources incompatible with achieving the primary surplus target, by commission, with intent, when it was known that the fiscal target was compromised, in violation of article 10, numbers 4 and 6, and 11, number 2, of Law 1,079/50, article 4 of the LOA/2015, articles 8, sole paragraph, and 9 of the Fiscal Responsibility Law, and articles 85, VI, and 167, V, of the Constitution of the Republic, all in accordance with the findings of the 3rd Bimester 2015 Assessment Report and of PLN 5/2015 and its Message (sent to the National Congress on 22 July 2015), which would reveal the recognition by the Executive Branch that the targets set in the LDO-2015 (Law 13,080/2015) were not being met and would not be met.

For the preliminary examination of the acceptance of the complaint by the Senate, where the principle of “in dubio pro societate” applies, there is no room to speak of insignificance of the accused’s conduct, given the seriousness of the acts and their results, since it is not only corruption embodied in the illicit enrichment of public agents that harms society. To state, therefore, that a political agent did not enrich himself at the expense of the public treasury, or that he would be “honest”, is not enough to qualify him as upright. It is necessary to show his moral and ethical aptitudes, and minimum efficiency, for the exercise of public functions. There are “invisible” crimes that affect diffuse interests and that, nevertheless, may carry the concept of ideological corruption.

With regard to Dilma Rousseff, as to the “fiscal pedaling,” in continuation of practices from 2014, the evolution of the amounts owed by the National Treasury to Banco do Brasil in relation to the Plano Safra, arising from the unlawful credit operations, rose from R$ 10.9 billion, in the 4th quarterly balance sheet of 2014, to R$ 12.7 billion, on 31 March 2015, and R$ 13.4 billion in June 2015, showing accounting expenses lower than those actually incurred, deceiving the financial market.

The action also concealed information from public-accounts specialists and from credit rating agencies, in violation of Law 1,079/50 and Complementary Law 101/00, besides causing harm to the economy through the inherently inflationary nature of the practice, affecting the fundamental rights of the entire population through fiscal irresponsibility, with currency devaluation, higher interest rates, a surge in the exchange rate, higher price inflation, a fall in workers' real income, and increased poverty.

As for the issuance of the six “unnumbered decrees,” which together total approximately R$ 95.9 billion, comprising R$ 93.4 billion of cancellation of budget appropriations, R$ 1.6 billion of financial surplus, and R$ 863.6 million of excess revenue, without due authorization from the National Congress and in disregard of the condition imposed by the Legislative Branch itself in article 4 of the LOA/15, these are a serious violation of values fundamental to the Democratic Rule of Law.

What stands out in this panorama is the democratic control of the Legislative Branch over the limits of the budgetary programming of government spending, the practice being of sufficient gravity to warrant investigation of the alleged wrongdoing, given the unconstitutionality, illegality and fiscal irresponsibility denoted by the conduct, which offends the principles of separation of powers, of parliamentary control of public finances and of respect for budget laws, by constraining the Legislative Branch to approve a fiscal target that comes to depend on the exclusive will of the President of the Republic, faced with a fait accompli and with the aim of avoiding the collapse of public accounts.

It is therefore untenable to maintain that a legitimate movement of the democratic institutions of control, based on due process, subject to the scrutiny of the Federal Supreme Court and of public opinion, is a “coup”. There are typical, unlawful, serious and concrete charges set out in the accusatory pleading sent to Parliament.

Fábio Medina Osório is a lawyer, holds a doctorate in Administrative Law from the Complutense University of Madrid, and is president of the International Institute of State Law Studies (IIEDE).