The re-examination of the legitimacy of the impeachment process

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By FÁBIO KONDER COMPARATIVE*

Why should the body with the legitimate capacity to remove the President of the Republic be anyone other than the people themselves?

 

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In England, where it was invented, the process of impeachment has always had the nature of a non-judicial sanction. In fact, he prepared, centuries before the establishment of the parliamentary system of government, the institution of the motion of censure, with the dismissal of the government cabinet or one of its members. For this very reason, it has become anachronistic in England since the 1848th century. The last process of this nature to occur in the United Kingdom took place in XNUMX, when David Urquhart asked for the removal of Lord Palmerston, Prime Minister, arguing that he had concluded a secret agreement with imperial Russia, having received a certain amount of money from this. The charge was rejected by the House of Commons.

 

O impeachment in the United States of America

The revival of impeachment took place in the United States, exactly in the historical period in which, after the Declaration of Independence of 1776, the representatives of the confederate states decided to unite them more closely, increasing the powers of the central government and writing a Federal Constitution, replacing the Articles of Confederation.

It was essential, however, to rid the institution of any aristocratic traits and make it essentially republican, in the sense in which the idea of ​​a republic was then understood; that is, the political regime in which the supreme power belongs to the people. It was not, therefore, by mere chance that the Federal Constitution, enacted in 1788, after ratification by all the Confederate States, begins with the famous expression We the people (We the people).

As can be seen, the conception of the Republic of Founding Fathers it was confused with the modern concept of democracy, as established in the course of the 10th century; that is, the regime in which the rulers are chosen by the people. At the time of the birth of the United States of America, democracy was seen as a political regime controlled by factions, which tended to slide into the violent and abusive exercise of power. That's exactly what Madison said in essay #XNUMX of the The Federalist. In this republican sense of political regime, in which the sovereign people do not directly exercise the government, but elect representatives for that purpose and can, also through representatives, dismiss them, the North American Constitution – just as, before it, those of several of the States that came to compose the federation – predicted the impeachment, in its article two, fourth section, verbs"Forfeiture of Offices for Crimes: The President, Vice-President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other crimes and misdemeanors".

The institution, however, was immediately seen as an offense to the principle of separation of powers, as the Founding Fathers they were regular readers of Montesquieu. How to admit that Legislative bodies can remove members of the Executive, not just the lower level ones, but even the head of state? The great controversy, which consumed weeks of discussion at the Philadelphia Convention, was therefore the question of the competent body or authority to apply the impeachment. Thomas Jefferson maintained that the adjudicating body should be composed of both judges and legislators; to which Madison forcefully retorted that the trial process was unambiguously judicial in nature. Hamilton, in turn, argued that the competent body for judgment should be none other than the Senate.[I] Edmund Randolph, in contrast, proposed the creation of a special judicial body.[ii]

Finally, a conclusion was reached, the Constitution providing that the House of Representatives would have the exclusive power to declare the impeachment, and the Senate the exclusive competence to judge him.[iii]

This was not, however, the only dispute raised in the Convention. The nature of the fact that caused the dismissal process was also fiercely discussed, opting for the broad formula high crimes and misdemeanors, lacking all precision. Perhaps because of this, this dismissal process, since the Constitution was enacted more than two centuries ago, has only been applied at the federal level against nineteen official agents, including only two Presidents of the Republic, Andrew Johnson in 1868 and Bill Clinton in 1998, both finally acquitted.[iv]

 

The adoption of the impeachment in Latin America

As Latin American countries became independent, they all followed the US political model; that is to say, the federative republican regime, endowed with a Constitution.

Based on this model, the process of dismissing the President of the Republic through the impeachment It so happens that political power, practically in all Latin American countries, was never effectively democratic, but followed the oligarchic line without discontinuing it. Now, for the Latin American oligarchs, the removal of a President of the Republic was done much more quickly through a military coup than through a decision-making process, whether judicial or not.

And indeed, with explicit or implicit support from North American imperialism, until the end of the XNUMXth century the institute of impeachment to remove heads of the Executive had a merely figurative function in the Constitutions of Latin American countries. The oligarchic factions resolved their conflicts of interest by military means, with or without popular support, but always counting on the background Yankee.

This situation remained unchanged until the last decade of the twentieth century when, suddenly, apparently due to a change in the direction of the US government, the use of impeachment for the removal of Presidents of the Republic in Latin America has become the usual solution, in cases of political conflict within the oligarchic framework. Between 1992 and 2016, no less than fifteen heads of the Executive were dismissed through processes of impeachment across Latin America.

 

The essential revision of the Institute of impeachment

As seen, the reconstitution of the impeachment in the United States in the XNUMXth century, concomitantly with its progressive abandonment in England, it was based on the conception then in force that the republic had as its supreme principle the exclusivity of the designation by the people of the political agents in charge of taking the great political decisions; that is, the regime that in the course of the XNUMXth century came to be designated as representative democracy.

It happened, however, that if in the United States the system of political representation generally operated without distortions, throughout Latin America it was never able to supplant the validity of oligarchic power, falsely presented as democratic. This is why in Latin American countries the institute of impeachment it never worked properly. In a long first phase, it was simply put on the sidelines, being replaced by the application of coups d'état, usually militarily commanded. In a second phase, from the last decade of the last century, cases of impeachment multiplied, but without any participation of the people. In other words, the institute began to be formally applied, as provided for in the Constitutions, as a simple means of resolving conflicts between oligarchic factions.

How to get out of this impasse? The solution, in my view, consists in reviving the institute within the framework of a legitimate democratic regime, in which, as is known, sovereignty or supreme power belongs exclusively to the people, that is, to the group of citizens, in obedience to the principles maximum freedom and equality.

Under these conditions, the impeachment should consist of two phases. In the first of these, the traditional rules would continue to be applied, concerning the competent bodies for decision-making, as provided for in the Constitutions. However, once the removal of the political agent considered as the author of acts considered offensive to the constitutional order had been decided, a second phase would be passed, in which the final word would be up to the people, through a referendum.

It is, strictly speaking, a question of pure legitimacy. Indeed, if, according to the democratic principle, sovereignty belongs to the people and it is they who elect the head of the Executive Power, why should the body with the legitimate capacity to remove them be anyone other than the people themselves?

It should be noted, by the way, that in Brazil this update of the impeachment does not require any constitutional amendment, as the 1988 Magna Carta already provides in its art. 14, item II, that the referendum is one of the instruments by which popular sovereignty is exercised.

* Fabio Konder Comparato He is Professor Emeritus at the Faculty of Law of the University of São Paulo (USP) and Doctor Honoris Causa of the University of Coimbra. Author, among other books, of the capitalist civilization (Hail).

 

Notes


[I] The Federalist, No. 65.

[ii] See Cass R. Sunstein, Impeachment – ​​A Citizen's Guide, Harvard University Press, 2017, p. 42.

[iii] Constitution of the United States of America, article one, section two, paragraph 5; and article one, section three, paragraph 6.

[iv] Against President Richard Nixon, because of the scandal of the Watergate, an investigation was opened in the House of Representatives in 1974, with Nixon resigning before the procedure was completed.

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