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Was Brazil’s impeachment of Dilma Rousseff in fact a coup?

The Brazilian Senate set a dangerous precedent
last week when it impeached its president, argues Stephan Mothe. Was the
evidence for the decision just pretext for a political move?

By: /
8 September, 2016
Brazil's President and Workers' Party (PT) presidential candidate Dilma Rousseff reacts during a news conference in Brasilia October 13, 2014. REUTERS/Ueslei Marcelino
By: Stephan Mothe

Market Analyst and International Relations Researcher

Last week, on Aug. 31, the Brazilian Senate voted to impeach President Dilma Rousseff, replacing her with Vice President Michel Temer, who had served as acting president since May. The move not only brought 13 years of Brazil’s Worker’s Party rule to an end; it has also restored power to a political oligarchy besieged by anti-corruption investigations. 

To be clear: I am not defending Rousseff, and I am not defending the Worker’s Party. I respect their trajectories, but have no love for either. What I am denouncing is the use of a constitutional mechanism to override the results of the country’s last presidential elections. Given the context, I fear that it sets an extremely dangerous precedent.

That constitutional mechanism was the president’s impeachment. It is a complex process that ultimately requires the support of two-thirds of the Senate. The process was followed diligently. However, it also requires the existence of a crime of responsibility, an unconstitutional act directly attributable to the president. The three jurists who presented the motion for impeachment – Janaína Paschoal, Miguel Reale Júnior and Hélio Bicudo – believe that they identified two such crimes.

The first was a delay in repaying R$3.5 billion (roughly US$1 billion) to the Bank of Brazil for the financing of an agricultural program, constituting an illegal loan, or credit operation; the second was the signing, without congressional approval, of three supplementary credit decrees foreseeing R$2.33 billion (US$720 million) in new spending on education, culture, employment, social security, various executive organs and the judiciary, in violation of budgetary laws.

It is possible to disagree with these charges on a number of technical bases.

The charge regarding the delayed repayments to the Bank of Brazil is null for two reasons. First and foremost, it is a stretch to assert that a delay of repayment constitutes a loan; indeed, there is no contract between the Treasury and the Bank of Brazil that would support this interpretation. Second, it is the Ministry of Finance and not the Presidency, that is responsible for credit operations. I’m not the only one saying this: the Senate’s own technical commission published this finding in June.

The second count, which contends that the expenses resulting from the three decrees would exceed that allowed by the 2015 yearly budget, is similarly invalid. To be fair, the aforementioned technical commission’s finding upheld this accusation, because the president’s signature on the decrees confirms that they were indeed her acts. Yet presidents, in Brazil at least, don’t simply conjure up decrees at will. The president can only sign a decree once it has gone through an extensive process, which includes technical and legal analyses within the Ministry of Planning and other organs. At the time in which the three decrees reached Rousseff’s desk, there was no explicit understanding that they contravened any legal norms, but rather an implicit endorsement of their compatibility with the law, dispelling any possibility of malice or willful misconduct on the part of the president. This much is admitted in the commission’s finding. Moreover, once signed, those decrees did not engender additional spending, but rather stipulated the reallocation of funds through a legally prescribed mechanism known as a contingency, keeping total spending for the year within the target. It was only through a posterior decision, reached under questionable circumstances, that the Audit Court found the decrees irregular, and applied this understanding retroactively.

These legal technicalities were widely ignored by the senators who pushed for impeachment, many of whom insisted on turning a legal procedure into a political trial. This was done despite the fact that during impeachment proceedings, the legislative body acts as a judiciary organ — a fact stated by Chief Justice Ricardo Lewandowski, who presided over the session. Throughout the impeachment hearings, discussions revolved around the economic crisis and bad policy, none of which constitute crimes of responsibility. This made of the proceedings a sorry spectacle in which credit operations and supplementary credit decrees were merely a pretext.

And that’s the dangerous precedent: that a pretext will be found any time an unpopular president threatens the interests of the powerful.

A new Brazil? Not likely

Some of those senators may truly believe that what they did was what was best for the country. Senator Aécio Neves, who was defeated by Rousseff in the last presidential election, sees impeachment as a way “to build a new Brazil.” But this new Brazil looks awfully similar to the one its creators are hoping to bury. In fact, 20 of the 61 senators who voted in favour of impeachment have open cases against them at the Supreme Court, for crimes such as corruption, embezzlement, money laundering and electoral fraud, among others. To make matters worse, Michel Temer, who took formal control over the presidency last Wednesday, was convicted in May of illegal campaign financing by São Paulo’s Regional Electoral Court and declared ineligible for political office for eight years. It must not be forgotten that Temer’s party, The Brazilian Democratic Movement Party (PMDB), played an integral role in the past decade’s ruling coalition and is guilty of each and every one of the same sins as the Worker’s Party. In fact, PMDB has more members under investigation in the Petrobras scandal than any other party except for the Progressive Party. 

The new leadership does not embody a new Brazil, and its record so far proves as much. As soon as he became interim president upon Rousseff’s temporary suspension in May, Temer nominated a cabinet almost unrealistically unrepresentative of this country’s population: there was not a woman or person of colour on it. He almost immediately went on to lose three ministers because they were caught speaking openly about how to stop the anticorruption investigations. Oddly, or not, for Brazil, those ministers still act as senators.

To his credit, Temer also put some respected names in charge of economic policy, like Henrique Meirelles and Ilan Goldfajn, in order to give credibility to the government vis-à-vis foreign investors. Yet, they have already been dispensing bitter medicine to the Brazilian people: reduced social spending, and, possibly, a tax hike. The cuts so far have affected the poorest sectors of Brazilian society: funds for federal universities are down around 40 percent, and scholarship programs for low-income students to attend university have been gutted; the technical education program and the program to combat illiteracy have been frozen; public housing contracts have been suspended; public health budgets have been slashed; even pensions and worker’s rights have been threatened. And that’s just in the 111 days in which Temer served as Brazil’s acting president while Rousseff was suspended.

Mismanagement does not, however, constitute a legal basis for impeachment.

Some may argue that these cuts were made necessary by Rousseff’s mismanagement of the economy and that a need to reverse these budgetary woes is reason enough for her removal. Mismanagement does not, however, constitute a legal basis for impeachment. And it is important to note that Rousseff’s own government, through the also respectable minister of finance, Joaquim Levy, presented a fiscal adjustment plan in 2015. At the time, PMDB’s support was nowhere to be found, although some of its congressmen were busy presenting “time bomb bills” designed specifically to blow up the budget.

This all brings me to one final point, which ties all of this together: In the face of endemic corruption, an economic crisis and spending cuts, what’s the next big debate in Congress? A 16 percent salary readjustment for the justices of the Supreme Court, who will go from earning R$33,700 monthly to R$39,200 (roughly US$10,400 and US$12,100, respectively). Yes, that is the same Supreme Court that will be judging those very congressmen if the investigations ever do proceed to that point. But of course it doesn’t end there: readjustments to the Supreme Court salary “trickle down” throughout the judiciary, to states and municipalities, and, of course, to those same congressmen. Pointing out that this is a conflict of interests might feel redundant.

By many accounts, this was a coup. Sixty-one congressmen, 20 of whom are under investigation, used the constitution to shatter Brazilian democracy. They removed a popularly elected president who did not commit the crimes of which she was accused, and replaced her with a president who has already been declared ineligible for office.

They did this, in their own words, to “stanch the bleeding,” not of the economy, but of their impunity. They may ultimately succeed in helping to revive Brazil’s economy — I hope they do. But I certainly hope they fail miserably in their attempt to evade justice. I won’t be holding my breath, though.

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