Opinion: Brazil’s Supreme Court Legislates – Badly

Opinion, by Michael Royster

RIO DE JANEIRO, BRAZIL – Last week Brazil’s Supreme Court spent two days debating the impeachment proceedings initiated in Congress. By Thursday, several different questions had been decided, by differing majorities. Most of the decisions were right; but one is horrendously wrong, as it has virtually emasculated the Chamber of Deputies.

Under Law 1059, the Chamber’s impeachment committee makes a recommendation to the full Chamber. If at least 2/3 of the Federal Deputies (342 out of 513) vote for impeachment, the case proceeds to the Senate where it will be tried.

Under the statute, the Senate must accept the case and conduct the trial, after which it decides, by a 2/3 vote of its members, whether impeachment is or is not justified.

The STF, however, decided to ignore the statute and legislate. It invented a preliminary vote by the Senate as to whether it will accept or not the Chamber’s vote and begin the trial. Worse yet, it decreed that vote should be by simple majority, if more than half the Senators were present.

There are 81 Senators: a quorum is 41, and a simple majority is 21. Thus, in theory, 21 Senators can thumb their noses at no fewer than 342 Federal Deputies who voted to impeach.

There is no constitutional or statutory basis for this preliminary vote, nor is there an internal Senate regulation requiring it. The only support the STF majority offered was that in 1992, during the impeachment of President Collor, they did the same thing.

The decision is wrong in three ways. It is constitutionally wrong for a court to legislate when there is satisfactory legislation in place. It is politically wrong for 21 Senators to be able to trump 342 Deputies.

Finally, it is ethically wrong because the decision was clearly ad hominem, i.e. specifically designed to thwart Chamber President Eduardo Cunha. Some (including the Curmudgeon) suspect the decision was also ad feminam, i.e. specifically designed to protect Dilma from being impeached.

The Curmudgeon is bitterly disappointed at the STF, notwithstanding its diligence in prosecuting the Lava Jato scandal.