De afzetting van de Braziliaanse president in vergelijkend perspectief

Hoai-Thu Nguyen is promovendus aan de afdeling publiekrecht van de Universiteit Maastricht. 

Dilma Roussef werd op 12 mei uit haar ambt als president gezet, na een spannende stemming in het Braziliaanse Hogerhuis. Afzettingsprocedures komen niet vaak voor, maar zijn wel in heel wat landen mogelijk. De afzetting van Roussef in vergelijkend perspectief.

On Thursday, 12th May 2016, Brazilian president Dilma Rousseff was suspended from her presidential duties following a vote in the upper house of parliament, the Senate, to start an impeachment trial against her.[1] This was after also the lower house of parliament had voted in favour of an impeachment a few weeks earlier. Under article 86 of the Brazilian constitution, a two-thirds majority is needed in the lower house before the President can be tried in front of the Senate – a threshold that was easily met by the 367 (out of 513) deputies supporting the motion for impeachment.[2] Under that same article, Rousseff is now suspended until the final vote has been taken in the Senate, where again a two-thirds majority is needed to impeach the President. Similar to the US, also in Brazil it is the Senate that has exclusive power to try the President and the Vice-President for impeachable offenses (art. 52 Brazilian constitution), which are defined as “attempts against the Federal Constitution“ (art. 85 Brazilian constitution).

An impeachment procedure is not the same as a motion of censure or a vote of no-confidence as is known in parliamentary systems. In presidential systems such as Brazil or the United States, the head of the executive can only be removed for quasi-criminal offences; he or she does not rely on the support of parliament to stay in office as, for example, the chancellor in Germany or the Prime-Minister in the United Kingdom do.

The impeachment procedure in Brazil is similar to the one in the US. Thus, article 2(4) of the US constitution states that the President may be impeached on grounds of treason, bribery or “other high crimes and misdemeanors“. Like in Brazil the impeachment process starts in the lower house of Congress, the House of Representatives, but it is the Senate, which has the sole power to try all impeachments with a majority of two-thirds required for conviction (art. 1(3) US constitution). In semi-presidential systems such as France, only the Prime-Minister is accountable to parliament and can be removed through a motion of censure under article 49 of the French constitution. Like the US President and the Brazilian President, the French President can only be ousted in an impeachment procedure in case of “a breach of his duties manifestly incompatible with the exercise of his mandate“. The removal is proclaimed by both chambers of parliament sitting as the High Court (art. 68 French constitution).  In contrast, the German Federal President may also be impeached, but not by parliament alone; instead, under article 61 of the German Basic Law, it is the Federal Constitutional Court which removes the President from office for an intentional violation of the Basic Law or another federal statute, following a two-thirds majority of members in the Bundestag and a two-thirds majority of votes in the Bundesrat.

Even though impeachment procedures are quasi-criminal proceedings (quasi-criminal because Congress only has the power to remove the president, not to impose criminal penalties upon him or her), they are often not less politically motivated than a motion of no-confidence in parliamentary systems. This is also due to the fact that constitutional provisions on impeachment procedures are so vaguely drafted that any action by the President can be construed as an impeachable offense if Congress so wishes. Thus, in the case of Rousseff many are wondering whether a relatively small crime such as window-dressing the government bank accounts would actually amount to an impeachable offense, especially in a country in which government corruption is more the norm than the exception,[3] or whether it is simply an attempt by other Brazilian political actors to gain power.

[1] The Guardian, ‘Dilma Rousseff suspended as senate votes to impeach Brazilian president‘, 12.05.2016, available at: http://www.theguardian.com/world/2016/may/12/dilma-rousseff-brazil-president-impeached-senate-vote (last accessed on 24 May 2016).

[2] The Guardian, ‘Dilma Rousseff: Brazilian congress votes to impeach president’, 18.04.2016, available at: http://www.theguardian.com/world/2016/apr/18/dilma-rousseff-congress-impeach-brazilian-president (last accessed on 24 May 2016).

[3] New York Times, ‘Faced With Many Crises, Brazil Focuses on Dilma Rousseff’s Impeachment Case’, 03.12.2015, available at: http://www.nytimes.com/2015/12/04/world/americas/faced-with-many-crises-brazil-focuses-on-dilma-rousseffs-impeachment-case.html?_r=0 (last accessed on 24 May 2016).