Thomas C. Bruneau – The Impeachment of President Dilma Rousseff: Old Politics Meets New Standards in Brazil

This is a guest post by Thomas Bruneau, Distinguished Professor Emeritus of National Security Affairs at the Naval Postgraduate School

On May 28, 2016, the Brazilian Minister of Defense, Raul Jungmann, gave a long interview with the Estado de São Paulo newspaper. In the long interview he barely touched upon military or defense issues, merely lauding the military’s neutrality in the current chaotic political situation. However, he did highlight an important aspect of Brazilian politics. He noted that while the Constitution of 1988 strengthened accountability institutions, naming specifically the Public Ministry, the Federal Police, and the Judiciary, politics had not changed. In his terms, politics is a hostage to itself.

These observations by a seasoned politician, one who has twice served as both federal minister and federal deputy, permit us to better understand the impeachment of President Dilma Rousseff.  Despite allegations by President Rousseff that she was deposed in a golpe, a coup, the process is in accord with the Constitution of 1988. This is notwithstanding the fact that many other issues have contributed to the situation, including her narrow reelection in 2014, lackluster governance, dubious economic policies, exposes of massive graft and corruption, and miserable public opinion poll rating.  While President Rousseff cannot be blamed for all of these problems, she is being held to answer for at least one of the 37 charges levied against her, which is a “crime of fiscal responsibility”: fiddling with government accounts to facilitate her reelection in 2014.

Scholars who study the process whereby the Constitution of 1988 was formulated and the resulting document are extremely critical.  In my writing I argue that the Constitution did not represent an “elite settlement” ensuring democratic consolidation, as was the case in Spain, for example. Law professor, Keith S. Rosenn, states the following: “The process by which Brazil’s 1988 Constitution was adopted practically assured that the end product would be a hodgepodge of inconsistent and convoluted provisions.” [i] Despite the 245 articles and 70 transitional provisions, the framers were unable to resolve whether Brazil would be a monarchy or republic, and if the latter, a presidential or parliamentary system.  These fundamental decisions were left for a referendum in 1993 that favored a presidential republic.  The framers of the constitution, which were the 559 members of the Brazilian Congress, maintained intact both the institutional defects of the political system and the extensive prerogatives of the armed forces that governed Brazil between 1964 and 1985.  Whereas the institutional defects of the political system continue until the present, since the system is, as Jungmann puts it, hostage to itself, the prerogatives of the armed forces have been diminished and the accountability institutions have become robust and active.  These three processes, the diminishing of the prerogatives of the military, the vicious circle of the political system, and the emergence of strong accountability institutions are the foci of this paper.

Both Rosenn and I detail the extensive prerogatives of the armed forces that resulted from the negotiated transition from military to civilian rule and the reliance of President Sarney on the armed forces during his five year tenure (1985 – 90).  The most extensive work on this topic, however, is found in Alfred Stepan’s Rethinking Military Politics: Brazil and the Southern Cone where he demonstrates, by describing 11 prerogatives, that Brazil had little progressed between military and civilian rule.  More recently, twenty – eight years after Stepan published his book, scholars demonstrate that the prerogatives that were mainly high when Stepan wrote are today either low or moderate.  Some of the high points of the process whereby the prerogatives were diminished or eliminated include the creation of a civilian – led ministry of defense in 1999, which resulted in the decrease of military – led ministries from six to zero, and a large package of laws in 2011 which further delimited and restricted the autonomy of the armed forces. Today, the armed forces receive 1.29 % of GDP and 73% of this goes to salaries and pensions, and the political influence of the armed forces is minimal.  Illustrative of the change from the military regime to the present day is the elimination of the National Information Service, (Serviço Nacional de Informações SNI), which was the intelligence arm of the military regime, by President Collor in 1990, and the creation, only after nine years, of the Brazilian Intelligence Agency (Agência Brasileira de Inteligência ABIN).  ABIN is prohibited from conducting intercepts, has a minimal budget, and lacks a direct link to decision – makers.  In short, the politicians had incentives to diminish the influence and roles of the armed forces, thereby increasing their own.

While the Constitution of 1988 included a great many items that could lead to an improved socio – economic situation for Brazilians, it changed nothing regarding the political institutions that put those 559 politicians into the position of writing the constitution, and have made only most minimal changes in the intervening 28 years.  As Rosenn states “The constituent assembly also did nothing to reform the malfunctioning of the political party system, which is one of the world’s worst.” [ii] They did not establish a minimum number of votes for a party to be recognized, resulting in the current situation with 35 political parties at the national level with 19 having deputies in the lower house, the Câmara. They did not change the open – list system of proportional representation in which each state is a single, and at – large multi – member district.  They did not change the gross misrepresentation whereby all states, and the federal district, have three senators or the provision stipulating that all states, regardless of population, would have a minimum of eight and a maximum of seventy deputies.

There was supposed to be a wholesale revision of the Constitution in 1993 that would require only an absolute majority of the deputies.  That revision never happened.  Instead, there have been piecemeal revisions. In reviewing the various initiatives to revise the constitution between 1988 and today, they amount to very little.  This is the consensus view of the experts on the issue including David Fleischer, Alfredo Montero, Timothy Power, and Keith Rosenn.  The Constitution of 1988 was full of contradictions. The issue of parliamentary vs. presidential form of government was never resolved, neither in the constituent assembly nor after. On the one hand the constitution gave the congress a role in approving annual budgets and allowed them to overrule presidential vetoes with absolute majorities rather than a two-thirds vote. On the other hand, it gave the presidency the exclusive right to initiate and execute annual budgets and to force 45 – day limits on the congress to review bills defined as “urgent” by the president, the power to appoint a cabinet, subject to Senate approval, and the power to issue executive decrees (medidas provisórias) which had the force of law while congress had 30 days to review the measure.  Post – 1990 presidents utilized these measures, and others, to govern.

Even with these gimmicks, the need to assemble a coalition, since no president since the first directly elected, President Collor, has belonged to a party with a majority in either house of congress, all presidents would have to attract the support of other parties.  Brazil has one of, if not the most fractured, party system of any democracy. This form of government, commonly called coalitional presidentialism (presidencialismo de coalizão), could, and did, easily evolve into corruption. The most famous, but not the only, corruption scandal of President Luis Inácio Lula da Silva –Lula (2002 – 2010) was the “big monthly” (as in big monthly payments to members of congress to support his government’s policies in the congress), mensalão scandal.  Alfred Montero has this to say on this topic. “The need to engage in vote – buying emerged from the limited options the Lula administration had for composing the same kind of legislative coalition that Cardoso enjoyed.” [iii]  Several top Workers’ Party (PT) officials were implicated in this vote – buying scheme.  The scandal ultimately led to the convictions of twenty-five people, including Lula’s former chief of staff, José Dirceu de Oliveira e Silva, who has more recently been sentenced to 23 years in jail in the Lava Jato corruption scheme.

There are so many corruption scandals currently in play in the investigation and sentencing phases, that only the experts can keep straight the modalities of Mensalão, Lava Jato, Petrolão, Zelotes, and Operation Aequalis to mention only the biggest and most current. So far the wave of illegal, extralegal, and simply corrupt practices have resulted in the impeachment hearing of President Rousseff, the investigation of ex-President Lula, the conviction of 84 persons for crimes associated with Lava Jato, the majority of them politicians and businessmen. While not all of the crimes involve politicians, most of them do, and virtually all of them involve sources of funds, as in Petrobras, under the control of the Brazilian State, and thus of necessity involve politicians.

It must be acknowledged that corruption is nothing new in Brazil.  In fact, according to the late Samuel Huntington in his influential Political Order in Changing Societies corruption is seen in positive terms in the process of modernization.  Huntington calls specific attention to Brazil.  Further, there is a very influential article published in 1990 in the important Revista de Administração Pública of the Fundação Getúlio Vargas by Anna Maria Campos that argues in great detail why there is no concept or meaning to the term “accountability” in Portuguese. Most Brazilian and foreign authors refer to the Brazilian propensity to use “angles” or “gimmicks”, jeitinhos, to get around laws. Or, as was said in positive terms of a mayor of São Paulo, he robs but he accomplishes things. Rouba mas faz.

And, in line with Jungmann’s observations above, while politics has not changed, including the use of corruption to govern, what is now permissible in politics and business in general in Brazil is changing.  There is no single cause for the change, and I have identified at least five.

First, the 1988 Constitution created, or recreated, a large spectrum of oversight and investigation mechanisms, and these have been expanded in number during the intervening 28 years. Today they include the Comptroller General, the Accounting Tribunal, the Federal Police, the Public Ministry, and the courts.  There is a huge literature on these institutions in both Portuguese and English, and the approach that I find most convincing to explain their increasing influence, culminating in the current wave of imprisonments, is that of Sérgio Praça and Matthew M. Taylor who demonstrate that the capacity of these institutions increases not by a single event or factor, but through bureaucratic interaction.  The capacity increase is contingent and interactive.  In short, these oversight, investigatory, and punishment institutions can only be understood in a specific national and international context, which is why I include the following four factors.

Second, whereas in the past, the main weakness of the accountability mechanisms was the inability or unwillingness of the courts, and especially the Supreme Court, to process and convict individuals, today this is changing due to personalities and the gradual modification of processes similar to those noted in the prior paragraph.  This change is best highlighted by the actions of Judge Sérgio Moro of Curitiba who has taken the lead in the Lava Jato scandal. He is extremely active not only in pursuing corruption, but also in writing on the importance of plea – bargaining and the Italian experience in countering the mafia.

Third, much of the momentum to impeach President Rousseff is related to allegation of corruption involving the Workers’ Party, and was established by the information provided by Senator Delcídio do Amaral, who was the leader of the party in the Senate. He was arrested, and due to plea –  bargaining (delação premiada) he provided information on the spread of corruption throughout the Brazilian government.  Those familiar with criminal law in the United States are aware that plea – bargaining is probably the single most important mechanism for gathering evidence on white – collar crime. Plea- bargaining was established in Brazil only in 2013 with law 12,850/2013. I have been informed by lawyers involved in the introduction of plea – bargaining that it was one of several laws that were required for Brazil to reach OECD standards.  Since June 2015 there was a Co-Operation Agreement in place between Brazil and the OECD, which has been followed by an OECD-Brazil Programme of Work.

Fourth, Brazil’s population of over 200 million is increasingly invested in the system. An important indicator of this vesting is their paying taxes. According to one source, in 2013 over 50% of those who declared income, paid income tax, whereas a decade earlier only 36% paid income tax. [iv] Just as important, according to data analyzed by the Instituto Brasileiro de Planejamento e Tributação, of the thirty countries where taxes are the highest, Brazil is the worst in terms of return to the population in investments in the quality of life.

Fifth, Brazilians are today very much aware of the low return on investment for their high taxes. Indeed, the huge anti – government demonstrations in June 2013 were mainly caused by this awareness of high taxes, mediocre services in health, education, and transportation, while the government invested massively in stadiums and other infrastructure for the World Cup in soccer in 2014 and the Olympics in 2016.  In addition to all – pervasive radio and television stations there is today extremely high penetration by social media. According to comScore, which claims to be the global leader in digital analysis, Brazil leads the world with a 99.9% reach of social media. And, with 8.8 hours of use in the month of June 2015, Brazil is the world leader in that similar data for Europe is 6.1 hours, and the U.S. 5.2 hours. [v]

In sum, traditional politics, in which the lubricant is public funds, has now encountered a wide spectrum of accountability mechanisms, supported by processes and attitudes, which no longer tolerate the traditional lackadaisical approach to ethics in politics.  While the incentives to reform politics are not as obvious as they were to assert control over the armed forces and intelligence services, they are nevertheless present in the expectations of the Brazilian population and international organizations.

References

Bruneau, Thomas (1992) “ Brazil’s political transition,” in John Higley and Richard Gunther, eds., Elites and Democratic Consolidation in Latin America and Southern Europe (Cambridge: Cambridge University Press, 1992), pp. 257 – 281.

Bruneau, Thomas C. and Scott D. Tollefson (2014) “Civil – Military Relations in Brazil: A Reassessment,” Journal of Politics in Latin America, pp. 107 – 138.

Bruneau, Thomas C. (2015) “Intelligence Reform in Brazil: A Long, Drawn – Out Process,” International Journal of Intelligence and CounterIntelligence, pp. 502 – 519.

Campos, Anna Maria (1990) “Accountability: Quando Poderemos Traduzi-La Para O Português?” Revista de Administração Pública, pp. 30 – 50.

Couto, Cláudio G. and Rogério B. Arantes, (2008) “Constitution, Government and Democracy in Brazil,” World Political Science Review, pp. 1 – 33.

Fleischer, David (2016) “Attempts at Political Reform: (1985 – 2015): Still a ‘Never Ending Story’” Paper Presented at BRASA Conference, Brown University, March 31 – April 2, 2016.

Huntington, Samuel P. (1968) Political Order in Changing Societies (New Haven: Yale University Press, 1968)

Instituto Brasileiro de Planejamento e Tributação “Estudo sobre a Carga Tributária/PIB X IDH Maio 2015. Available at www.idpt.com.br Accessed May 30, 2016.

Montero Alfred P. (2014) Brazil: Reversal of Fortune (Cambridge, Mass.: Polity Press, 2014)

Power Timothy J. and Matthew M. Taylor, eds. (2011) Corruption and Democracy in Brazil: The Struggle for Accountability (Notre Dame, Indiana: University of Notre Dame Press, 2011).

Power, Timothy J. (2010) “Brazilian Democracy as a Late Bloomer: Reevaluating the Regime in the Cardoso – Lula Era,” Latin American Research Review, pp. 218 – 247.

Praça Sérgio and Matthew M. Taylor, (2014) “Inching Toward Accountability: The Evolution of Brazil’s Anticorruption Institutions, 1985 – 2010,” Latin American Politics and Society, pp. 28 – 48.

Rosenn, Keith S. (2010) “Conflict Resolution and Constitutionalism: The Making of the Brazilian Constitution of 1988,” in Laurel E. Miller, editor, with Louis Aucoin, Framing the State in Times of Transition: Case Studies in Constitution Making (Washington, D.C.: United States Institute of Peace, 2010).

Rosenn, Keith S. (2014) “Recent Important Decisions by the Brazilian Supreme Court, Inter-American Law Review, pp. 297 – 334.

Stepan, Alfred (1988) Rethinking Military Politics: Brazil and the Southern Cone (Princeton: Princeton University Press, 1988).

Notes

[i] Keith S. Rosenn, 2010, “Conflict Resolution and Constitutionalism: The Making of the Brazilian Constitution of 1988,” in Laurel E. Miller, editor, with Louis Aucoin Framing the State in Times of Transition: Case Studies in Constitution Making (Washington, D.C. United States Institute of Peace, 2010), p. 458.

[ii] Ibid, p. 458.

[iii] Alfred P. Montero, Brazil: Reversal of Fortune (Cambridge, Mass: Polity Press, 2014), p. 43

[iv] Pulsamérica available at http://www.pulsamerica.co.uk/2013/02/25/brazil-over-12-million-currently=pay-income-tax/ accessed June 2, 2016.

[v] ComScore & Shareablee (2015) “The State of Social in Brazil” available at https://www.comscore.com Accessed June 2, 2016.

Thomas Bruneau is Distinguished Professor Emeritus of National Security Affairs at the Naval Postgraduate School. He joined the Department in 1987 after having taught in the Department of Political Science at McGill University. Dr. Bruneau became Chairman of the Department in 1989, and continued in that position until 1995. He became Director of the Center for Civil Military Relations in November 2000, a position he held until December 2004. He left U.S. Government service in early 2013. He has six recently published books. He is co-editor, of Who Guards the Guardians and How: Democratic Civil – Military Relations (Austin: University of Texas Press, 2006). His second book, also published by University of Texas Press, with CDR Steve Boraz, is Reforming Intelligence: Obstacles to Democratic Control and Effectiveness. His third co-edited book, with Harold Trinkunas, Global Politics of Defense Reform, was published by Palgrave – Macmillan in February 2008. His single authored book, Patriots for Profit: Contractors and the Military in U.S. National Security was published by Stanford University Press in mid-2011. His co-edited book, with Lucia Dammert and Elizabeth Skinner, Maras: Gang Violence and Security in Central America was published by the University of Texas Press in late 2011. His last co-edited book, with Cris Matei, The Routledge Handbook of Civil-Military Relations was published by Routledge in London in late-2012. He writes the annual report on Portugal for the Bertelsmann Foundation Sustainable Governance Indicators publication. His two most recent scholarly publications are “Impediments to Fighting the Islamic State: Private Contractors and US Strategy,” Journal of Strategic Studies 2015 and “Intelligence Reform in Brazil: A Long, Drawn-Out Process,” International Journal of Intelligence andCounterIntelligence Fall 2015. Between 1998 and 2001 he served as rapporteur of the Defense Policy Board that provides the Secretary of Defense and his staff with independent advice on questions of national security and defense policy.

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