IMPEACHMENT IS PATRIOTIC
Autor: Rony Curvelo | Publicado: 2015-12-15T14:29:00-08:00











Introduction





After 23
years, the word Impeachment is back in use in the day-to-day vocabulary of the
Brazilian people. The most interesting part however is that in 1992 I
criticized the 42 years old law from the 1950, for not been regulated, and
today 65 years after being approved and 23 years since it was used for the last
time, it continues with the same vices and defects from day one. So, once again
is at the mercy of many interpretations, where each side, conveniently,
interpreted the law as they see fit in accordance with their best interest and
cause.


This process should only be led,
debated and decided by the Congress and not
by the Judiciary, but because of the inefficacy and lack of interest of the
Brazilian Congress in passing regulations for this 65 years old law, which is
about to be used in an Impeachment procedure against President Dilma Rousseff,
the legislators in order to avoid their responsibilities, decided to ask the
judiciary to take over the proceedings. 


In my 2001 book,
"Globalization-Public Administration Essays", Chapter 8, I wrote
about the impeachment process in details and I made an analytical comparison
with Impeachment process applied in United States with the one in Brazil. At
that time the USA Congress was debating on impeaching President Bill Clinton.
In the next few days I write about this important chapter of the law, since are
many things to be said and analyzed 


Part&nbsp; 1


The concept of impeachment arose in the second half of the
19th century in Great Britain. It was initially conceived as an instrument
of parliamentary oversight of the executive and was designed to hold those
exercising political power accountable both individually and for administrative
acts of the State. In England, the house of Commons, the most solemn grand
inquest of the whole kingdom, is charged with formulating the accusation, while
the House of Lords, the highest court of criminal jurisdiction of the Kingdom,
sits in judgment.


The power of judgment exercised by the House of Lords is not
restricted to political crimes but is also extensive to criminal offenses, thus
justifying the fact that it has issued sentences normally reserved to the
criminal court system, including banishment and even capital punishment.


Though initially targeted at government ministers,
impeachment could also, at least in thesis, be used against all subjects of the
kingdom and seems to have been applied to judges and jurists. In the 1678
judgement of Lord Danby, it was determined that Ministers were accountable not
only for questions of legality, but also for honesty, fairness and the
usefulness of their acts.


The United States of America was the legitimate heir to the
English concept of impeachment.&nbsp; The
nation rapidly adapted the institution of impeachment to its own needs and incorporated
it into the system of checks and balances among the three branches of
government, an essential element of any federal system. Aside from this, the
United States transformed it into an essentially political instrument. Though
the question is not dealt with in the Articles of Confederation, the colonies
of Virginia, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina,
Georgia and New York introduced the concept of impeachment into the debates at
the Philadelphia Convention.


Aside from the President and Vice President, all civil
servants in the United States are subject to impeachment. In the American
Constitution, impeachments cited in article I, Section 3; article II, Section
4; and article III, Section 3. &nbsp;Articles
II, Section 4 states the following: “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 high Crimes and Misdemeanors”. &nbsp;


The fundamental difference between impeachment in England
and in the United States is the fact that, in the first case, the House of
Lords has full and unlimited jurisdiction to judge the accused, even for
criminal acts, and can apply sanctions of a penal nature to the accused. In the
United States, on the other hand, the only punishment that the Senate can impose
is removal from office and ineligibility for office, while the judiciary is
responsible for judging any common crimes that may have been committed. 


Another important difference is that, in the case of the
House of Lords, impeachment trials are not carried out under oath, though each
member will make what is called a declaration of honor. In contrast to this,
the members of the American Senate, when brought together in a Court of
Impeachment, are placed under oath.


In Brazil, the institution of Impeachment is very similar to
the American model, particularly in the sense that, in both countries, the only
sanctions that the Senate can impose are removal from office and ineligibility,
while the judiciary is charged with judging common crimes and imposing the
corresponding sanctions. Consequently, in Brazil, the process of impeachment is
also an essentially political proceeding.


Let’s talk about that next!