wednesday, 20 april of 2016

Brazil Impeachment Debate Hinges on a Thorny Legal Question

As she fights for her political life, President Dilma Rousseff has been tirelessly describing the drive to remove her from office as nothing less than a coup.

In a country with bitter memories of military dictatorship — the most recent one having given way to civilian rule in 1985 — the word is especially fraught, and it has become a rallying cry that has energized supporters who are battling to stave off an impeachment trial in the Senate that could begin as early as next month.

“I am the victim of a process that is rooted in injustice, and legal and political fraud,” she said during a news conference on Tuesday, two days after the lower house of Congress voted by a wide margin to approve an impeachment measure.

The debate about removing her from office, which is convulsing a polarized nation, centers on a crucial question: Did she commit an impeachable offense?

There is broad agreement that Ms. Rousseff’s administration employed budgetary tricks to conceal a looming deficit and enhance her prospects during a bitterly fought re-election campaign in 2014.

Experts say Ms. Rousseff’s administration effectively borrowed some $11 billion from state banks, an amount equal to almost 1 percent of the economy, to fund popular social programs that have been a hallmark of the Workers Party’s 13 years in power. These programs included payments to Brazil’s poorest residents, credits to small farmers and the financing of homeownership for low-income families.

But legal experts and constitutional scholars are divided over whether that action rises to the level of an offense that merits removal from office.

“The government lied about the messy state of their house by putting up a pretty window,” said Carlos Pereira, a political scientist at Fundação Getúlio Vargas, an elite Brazilian university. “The government betrayed the people, and for this they must be punished.”

But the president’s defenders say such fiscal irregularities do not qualify as a crime, the constitutional requirement that would allow the Senate to remove her from office if she is convicted after trial by a two-thirds majority.

Pedro Serrano, a constitutional law scholar at Pontifícia Universidade Católica de São Paulo, said Ms. Rousseff’s enemies were using an overly broad interpretation of the law, a move that will harm the nation’s young democracy.

“In any civilized country in the world that has legal democratic institutions, such a punishment must be very narrowly interpreted,” he said, referring to removal from office.

Oscar Vilhena Vieira, a professor of constitutional law at Fundação Getúlio Vargas, said the law required that Congress approve changes to the annual budget, and prohibited the president from borrowing money from state-owned banks.

“The nature of these crimes are administrative crimes,” he said. “They are not penal crimes, so you cannot be put in prison because of them, but you can lose your mandate.”

He added: “Is it politically desirable for her to be impeached for that? It is up to Congress to decide. It is a political decision.”

The practice used by Ms. Rousseff’s administration, known as “pedaladas fiscais,” or pedaling fiscal obligations into the future, is illegal under a 16-year-old law that was designed to end the budgetary practices that had led to devastating bouts of hyperinflation in the 1980s.

In the years since, the tactic of using money from state-owned banks to temporarily fund the government has been used by numerous elected officials, including governors and mayors, though no president has faced punishment for it until now.

André Rehbein Sathler, an economist who works for the lower house, said Ms. Rousseff’s administration broke the law by failing to reimburse the banks for these expenditures, a move he likened to printing money with abandon. The government did reimburse the banks after the election.

“Dilma claims that other presidents did the same thing, but just because other people commit a crime doesn’t justify your own crimes,” he said.

Ms. Rousseff’s defenders say her opponents in Congress are cynically using the law to depose an unpopular president. Brazil is suffering through the worst recession since the 1930s, and an unfolding corruption scandal involving the national oil company, Petrobras, has infuriated the public with revelations that billions of dollars in kickbacks were funneled into the campaign coffers of powerful political parties.

The scandal has implicated numerous political figures, including leading members of her own party, but so far Ms. Rousseff has not been accused of any wrongdoing in the case, although she was the chairwoman of Petrobras at the time the kickbacks were said to have taken place.

On Tuesday, Ms. Rousseff sought to plead her case to an international audience, summoning members of the foreign news media to the Palácio do Planalto, the building that houses her offices. For more than an hour, she defended her fiscal policies and denied that she had broken the law. “I’m not a person who gets desperate, and will fight for my convictions,” she said. “I have fought for them my whole life.”

José Murilo de Carvalho, a prominent historian, expressed sympathy for Ms. Rousseff’s predicament, but said it was inaccurate to refer to the impeachment initiative as a coup. Until now, he said, the process has followed the law and has been subject to oversight by the nation’s highest court.

“Impeachment is a very poor instrument for getting rid of a president because it’s political,” the professor said. “If you don’t have control of Congress, you can be impeached, even if the arguments are not so strong.”

(Published by The New York Times - April 19, 2016)

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