While I writing this article, Thursday, December 17, 2015, around 3pm, the Brazilian Supreme Court is deciding what us the roll of the Federal Senate in the process of impeachment against Dilma Rousseff. There is a big possibility that they decide that the Senate will have to open an impeachment trial right after the house approves the charges and suspend Rousseff for up to six months with Vice President Michel Temer taking over as Senators debate to remove her permanently or clear her, returning her to office.
The STF minister Fachin vote saying that "The house decides on the admissibility of impeachment, the Senate judges ... it must necessarily to begin a trial,", rejecting most of the complaints lodged against the impeachment case by the Communist Party of Brazil.
He is absolutely right! This was part of the rite of 1992 impeachment against Fernando Collor, and the one should repeat. If the rite was good from one, should be good for the other one. But I don’t think the other judges/ministers will follow his vote.
The Brazilian Constitution was promulgated on 10.05.88 by a Constituent Assembly convoked specifically for this purpose. In the paragraph or article 85, the Brazilian Constitution states that crimes of responsibility committed by the President of the Republic “will be defined in special legislation”.
Since, according to the grammar of the Portuguese language, the verb “will be” above is in the future tense, it was understood that, once the Federal Constitution had been promulgated, the National Congress would meet with the objective of approving special legislation containing a definition of crimes of responsibility, as required by the provision in article 85, paragraph, of the Federal Constitution. However, this was not done.
On September 23, 1992, the Brazilian Supreme Court issued a surprising decision in a case designated Appeal no.21,564, involving the interpretation of the paragraph of article 85 of the Federal Constitution. The Court stated that, despite the future tense of the definition of crimes of responsibility, there is no impediment to application of Law no.1,079, passed by the Congress on 04.10.50, more than 48 years prior to promulgation of the Federal Constitution.
The decision issued by the Supreme Court was all the more surprising in the sense that, once he has been considered guilty, the punishment to be imposed on the President of the Republic is defined in the Federal Constitution (article 52, paragraph), while the crime upon which the accusation is based is that specified in a lesser law promulgated more than 48 years ago or, more precisely, in article 5 to 10 of Law no.1,079, dated 04.10.50. Thus, we have the following situation: the crimes upon which the accusation is based are defined in less important legislation approved by a simple majority if the Congress, while the sanctions are specified in the nation’s constitution.
Consequently, once the Chief Federal Legal Advisor is excluded, all other public agents to be tried before the Federal Senate will be judged according to the terms of Law no. 1,079/50.
Here, one should stress that the office of the Chief Federal Legal Advisor is excluded for the simple reason that this position, which corresponds to the chief legal advisor of the President of the Republic, was introduced with the 1988 Constitution and, therefore, did not exist when Law no. 1,079/50 was passed. Though the Brazilian Constitution was promulgated more than ten years ago, no legislation has been passed in the intervening period dealing with impeachment of the Chief Federal Legal Advisory. Thus, should he be charged with the crime of responsibility, there is no way in which, according to Brazilian legislation, he could possibly be tried before the Federal Senate or any other entity for that matter.
According to Law no. 1,079/50, any Brazilian citizen entitled to full civil and political rights is qualified to denounce a public authority before the Federal Senate. However, the denunciation must be received and examined while the accused has not definitely left office. Should the office be vacant for any reason whatsoever, including resignation or dismissal from office upon request, the process of impeachment cannot be initiated no matter what the gravity of the accusations.
In the case of the Ministers of the Federal Supreme Court and the Attorney General of the Republic, the denunciation is submitted directly to the Federal Senate with no need for examination by the Federal Chamber of Deputies. In this specific case, there is no need for a Committee of Accusation, since the denouncing party would be called upon to sustain the accusation before the Senate.
In case involving accusations against the President, Vice President and Ministers of State, the denunciation must first be submitted to the Federal Chamber of Deputies. That House of Congress is charged with examining the denunciation of crimes of responsibility and determining whether it is or is not admissible. The members of the full House are called individually by name and must announce their acceptance or rejection of the denunciation. During this stage of the process, the accused is not entitled to defense, since the House is not sitting in judgment of the accused but rather deciding whether or not there are grounds for a trial.
Once the denunciation has been accepted by two thirds of the Chamber of Deputies, the entire process, including the accusation and all other documents appended by the accusing party, are remitted to the Federal Senate where the accused will be tried. At that point, the Chamber of Deputies designates a Commission of Accusation composed of three Federal Deputies who are charged with accompanying the process before the Senate. This Commission will present formal accusation before the Senate and define the limits of the denunciation. Once the case has come before the Federal Senate, article 23,& 4 of Law no. 1,079/50 excludes the accusing party (citizen) from the process and charges the aforementioned Commission with exclusive responsibility for presenting the charges.
During the entire impeachment process, the accused, the Commission of Accusation and the Senator are entitled to contest any witness brought forward by either side. This can be done by casting doubt upon the testimony of witnesses, raising suspicious as to their reliability or possible impediments to acceptance of their testimony or even raising the possibility of false witness.
How fair is an impeachment process conducted by the Congress? Let’s debate that in the next article. Part 4.