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terça-feira, 15 de dezembro de 2015

IMPEACHMENT IS PATRIOTIC







Introduction


After 23 years, the word Impeachment is back in use in the day-to-day vocabulary of the Brazilian people. The most interesting part however is that in 1992 I criticized the 42 years old law from the 1950, for not been regulated, and today 65 years after being approved and 23 years since it was used for the last time, it continues with the same vices and defects from day one. So, once again is at the mercy of many interpretations, where each side, conveniently, interpreted the law as they see fit in accordance with their best interest and cause.

This process should only be led, debated and decided by the Congress and not by the Judiciary, but because of the inefficacy and lack of interest of the Brazilian Congress in passing regulations for this 65 years old law, which is about to be used in an Impeachment procedure against President Dilma Rousseff, the legislators in order to avoid their responsibilities, decided to ask the judiciary to take over the proceedings.

In my 2001 book, "Globalization-Public Administration Essays", Chapter 8, I wrote about the impeachment process in details and I made an analytical comparison with Impeachment process applied in United States with the one in Brazil. At that time the USA Congress was debating on impeaching President Bill Clinton. In the next few days I write about this important chapter of the law, since are many things to be said and analyzed

Part  1

The concept of impeachment arose in the second half of the 19th century in Great Britain. It was initially conceived as an instrument of parliamentary oversight of the executive and was designed to hold those exercising political power accountable both individually and for administrative acts of the State. In England, the house of Commons, the most solemn grand inquest of the whole kingdom, is charged with formulating the accusation, while the House of Lords, the highest court of criminal jurisdiction of the Kingdom, sits in judgment.

The power of judgment exercised by the House of Lords is not restricted to political crimes but is also extensive to criminal offenses, thus justifying the fact that it has issued sentences normally reserved to the criminal court system, including banishment and even capital punishment.

Though initially targeted at government ministers, impeachment could also, at least in thesis, be used against all subjects of the kingdom and seems to have been applied to judges and jurists. In the 1678 judgement of Lord Danby, it was determined that Ministers were accountable not only for questions of legality, but also for honesty, fairness and the usefulness of their acts.

The United States of America was the legitimate heir to the English concept of impeachment.  The nation rapidly adapted the institution of impeachment to its own needs and incorporated it into the system of checks and balances among the three branches of government, an essential element of any federal system. Aside from this, the United States transformed it into an essentially political instrument. Though the question is not dealt with in the Articles of Confederation, the colonies of Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, Georgia and New York introduced the concept of impeachment into the debates at the Philadelphia Convention.

Aside from the President and Vice President, all civil servants in the United States are subject to impeachment. In the American Constitution, impeachments cited in article I, Section 3; article II, Section 4; and article III, Section 3.  Articles II, Section 4 states the following: “The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”.  

The fundamental difference between impeachment in England and in the United States is the fact that, in the first case, the House of Lords has full and unlimited jurisdiction to judge the accused, even for criminal acts, and can apply sanctions of a penal nature to the accused. In the United States, on the other hand, the only punishment that the Senate can impose is removal from office and ineligibility for office, while the judiciary is responsible for judging any common crimes that may have been committed.

Another important difference is that, in the case of the House of Lords, impeachment trials are not carried out under oath, though each member will make what is called a declaration of honor. In contrast to this, the members of the American Senate, when brought together in a Court of Impeachment, are placed under oath.

In Brazil, the institution of Impeachment is very similar to the American model, particularly in the sense that, in both countries, the only sanctions that the Senate can impose are removal from office and ineligibility, while the judiciary is charged with judging common crimes and imposing the corresponding sanctions. Consequently, in Brazil, the process of impeachment is also an essentially political proceeding.

Let’s talk about that next!

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