Improbity, impeachment and the Supreme Court
Article on improbity, impeachment and the role of the STF in its procedure, Folha de S. Paulo, 2015.
Translated from the original.
Folha de S. Paulo, in its digital edition, presents this Wednesday (16 December) the article “Improbity, impeachment and the Supreme Court,” in which Fábio Medina Osório analyzes the problem of impeachment and of the STF’s role in its procedure. Read the full text below:
Improbity, impeachment and the Supreme Court
Fábio Medina Osório
Impeachment arose in England, in the Middle Ages, as a criminal proceeding before Parliament. When transplanted to the US, in the 18th century, it ceased to be used as an instrument of punishment of the person, to express the protection of the State against abuses of authority, whether by acts or omissions, willful or negligent, as proclaimed in the American Constitution, in Art. 2, Section 4, which abandoned the English model.
In Brazil, the North American model was adopted: impeachment for an impeachable offense is not of a criminal procedural nature, but political, or criminal/political, even if endowed with characteristics proper to due process. Because it has mixed characteristics (political and legal), it requires the formalities provided for in the Constitution and in Law 1079/50.
It is for the Chamber of Deputies to receive, initiate the proceeding and approve the charge, and for the Federal Senate to render the final judgment. And the Judiciary cannot control or contest the political merits of the judgment rendered by the Legislature, except where there are formal defects in the proceeding.
A broad ground for impeachment is administrative improbity, a form of impeachable offense (Law 1,079/50), which exposes its perpetrator, when President of the Republic, to proceedings for removal from office.
Improbity can be asserted as a form of public mismanagement, characterized by dishonesty or administrative incompetence. The origin of the expression – improbitas – indicates a lack of honor and this does not mean merely dishonesty, since it reaches intolerable administrative or managerial incompetence in dealing with public affairs.
All republican Constitutions treated improbity as a form of impeachable offense of those in government. And the earlier legislation, since the Empire, provided for the liability of the King’s high ministers for notorious unfitness or habitual neglect, among other negligent wrongdoing. Thus, one who does not show competence may also lack probity.
According to Law 1,079/50, crimes of impeachable conduct are essentially political in nature and, by their gravity, offend probity in administration and the duties of honesty or efficiency required of the ruler.
It is an impeachable offense to omit or delay the publication of laws and resolutions of the Legislature or acts of the Executive. In this case, intentional conduct must be present. However, more openly, in other cases the legislator was silent as to the requirement of intentional conduct by the president, so much so that the law defined as an offense the conduct of one who acts in a manner incompatible with the dignity, honor and decorum of the office, with no mention of intent or negligence. Thus, improbity may be characterized by intentional or unintentional attitudes. Well-intentioned people can destroy other people’s lives and entire nations.
It is the legislators who judge the president, based on the impeachment process, in which the accusations and descriptions of the crimes committed must appear, which involves unlawful acts and causal links between actions, omissions, and results harmful to the interests of the Nation. Parliament, however, is sovereign in its assessment of facts, evidence, and judgment, not even being bound to the narrative of the complaint, so much so that the vote is not reasoned (whether or not it is secret).
There are impeachable offenses that violate the budget laws or the safekeeping and lawful use of public money, linked to the Fiscal Responsibility Law (Law 10,028/2000), since the offenses of fiscal irresponsibility were absorbed by the Impeachment Law. These offenses are tied to the principle of good public governance and administrative efficiency. It is a matter of demanding from rulers something more than honesty: minimum standards of efficiency and correctness in their conduct must be demanded, with their political support grounded in Parliament and in the democratic principle.
Fábio Medina Osório is president of the International Institute of State Law Studies (IIEDE)