University of Brasília professor denounces: Supreme Court is part of the coup.

By Marco Weissheimer

On the 21 – In December 2015, Marcelo da Costa Pinto Neves, full professor of Public Law at the Faculty of Law of the University of Brasília and visiting scholarA legal scholar from Yale Law School (USA) released an opinion classifying the impeachment request against President Dilma Rousseff, accepted by the Speaker of the Chamber of Deputies, Eduardo Cunha (PMDB), as "inconsistent and weak, based on subjective impressions and vague allegations." "The accusers and the recipient of the accusation," the constitutional scholar further stated, "are guided not by sound and sustainable legal arguments, but rather by biased assessments of a partisan nature or factional spirit." "Accusers and recipient stray not only from the ethics of responsibility, but also from any ethics of judgment, acting on impulses of partiality, partisanship, and ideology, to the detriment of the Brazilian people," he added.

About six months later, the impeachment process was approved in the Chamber of Deputies and is currently underway in the Senate, with President Dilma being removed from office for a period of up to six months. Meanwhile, Vice President Michel Temer assumed the presidency, replacing not only the entire cabinet and intermediate levels of government, but also the program of the government elected in 2014. Impeachment or coup? In an interview with... South21Marcelo Neves has no doubt in pointing to the second option. “It’s a coup founded on ideology, on the illusory creation that one is acting in accordance with the Constitution, when, in fact, one is acting to erode the Constitution, harming the normal functioning of the constitutional order,” states the professor from UnB. For him, the coup process involves parliamentarians, the TCU (Federal Court of Accounts), the mainstream media, and the Judiciary, including the Supreme Federal Court itself, which, in theory, should be ensuring compliance with the Constitution.

"I think the Supreme Court is involved in this process because it is very biased. It has taken measures that are sometimes very harsh on sectors of the government and very lenient, favorable to groups belonging to traditional Brazilian politics. Furthermore, the Supreme Court has expressed its opinion and prejudged cases that it will still evaluate."

You are the author of an opinion, published in December 2015, that classified the impeachment request against President Dilma Rousseff as weak and inconsistent. Almost six months after the publication of that opinion, and with the impeachment process already underway in the Senate, how would you define the political situation we are experiencing in the country today?

The impeachment process was a fabrication to remove the president, a process without any basis. The entire structure of this process constitutes what has been called a coup, a parliamentary coup aided by the Judiciary and the mainstream media, which has nothing to do with the president committing any crime of responsibility. Several elements point in the opposite direction. The president's removal is mainly related to an attempt to stifle investigations so that they wouldn't affect certain hegemonic politicians in the Brazilian political tradition. Recent recordings show that the president had been allowing investigations without interference, leaving the Public Prosecutor's Office and the Federal Police with autonomy to act. The problem is that this bothered many groups. This was a fundamental point.

Another factor, evidently, is that social policies bothered traditional groups within the Brazilian elites. These were the fundamental elements. We've already experienced more serious economic crises during the Sarney and Fernando Henrique Cardoso governments. This didn't justify the impeachment of those presidents because, in a presidential system, a weak and poorly managed economic policy at a certain point isn't sufficient to remove the head of government. This occurs in a parliamentary system.

The so-called fiscal maneuvers do not constitute a case of impeachable offense. There are already many studies on this. Furthermore, these maneuvers were practiced abundantly before by President Fernando Henrique Cardoso himself, who abused decrees to open supplementary credits. At the time, the Federal Court of Accounts only forwarded recommendations for the accounts to be rectified. There was never even a rejection of the accounts, much less an impeachment, which implies an impeachable offense. Therefore, the Federal Court of Accounts is also involved in this scheme, in the construction of this casuistry to weaken the president and allow this impeachment which, in fact, violates the Constitution because the definition of an impeachable offense does not exist.

In a presidential system, the removal of a president requires proving either an impeachable offense or a common crime, which would then go to the Supreme Court. But there is no proof of either a common crime or an impeachable offense. Therefore, what has been said about the coup is largely justified.

So, do you agree that we are experiencing a coup in progress or one that has already been carried out?

Yes, it is a coup that is underway and could be consummated. It is not a classic coup, in the strict sense of the term, involving the use of violence. It is a coup founded on an ideology, on an illusory creation that one is acting in accordance with the Constitution, when, in fact, one is acting to erode the Constitution, harming the normal functioning of the constitutional order.

What are the possible consequences of this breakdown of constitutional order for the life of the country in the medium and long term?

What could happen if such an abuse were to occur is that any government opposed to the interests of the ruling elites would always be in danger. This government would be unable to remain in power, as this precedent could always be invoked. The great danger is that this practice would become routine in our political life, targeting presidents with a transformative stance linked to popular movements. This would create even more unconstitutional instability in the country.

You mentioned the Judiciary's participation in this process of orchestrating the coup, along with parliamentarians and the mainstream media. The Supreme Federal Court (STF), which is our last constitutional bastion, has also been dragged into this crisis or is actively involved in it. What is your assessment of the STF's conduct in this coup process?

I think the Supreme Federal Court (STF) is involved in this process because it's very biased. It has taken measures that are sometimes very harsh on sectors of the government and very lenient, favorable to groups belonging to traditional Brazilian politics. Furthermore, the STF has been expressing opinions and prejudging cases that it will still evaluate. This has happened with several ministers, such as Gilmar Mendes, Celso de Mello, and Cármen Lúcia, who have stated that what is happening is not a coup. They are expressing opinions on something they may have to judge later. This violates all norms of impartiality. They shouldn't be expressing opinions on the matter precisely because they may have to judge whether there are flaws in the impeachment process. They are prejudging by speaking prematurely. This could, in certain more serious cases, even lead to the impeachment of a Supreme Court minister if we were truly acting in accordance with the rules of the rule of law.

Considering that the Supreme Federal Court (STF) is the guardian of the Constitution, to whom can society turn when there is a breach of constitutional order, and the very body that should be the main defender of the rule of law behaves in this way?

I think that's where we'll need popular movements. This has to come from the grassroots. Popular mobilization can put pressure on and provoke a change in the current situation and reorient some positions. As things are becoming so blatant with the recent recordings, this is also increasing the embarrassment of public authorities. It's possible that even the Supreme Court will be forced to change its positions and be more rigorous with these traditional elite groups, against whom they take no action in cases that last five to ten years. Politicians like Sarney and Renan have a great deal of power in the Judiciary because they usually define who gets in there. You can't go to the Supreme Court without kissing Sarney's hand. This makes it very difficult for these ministers to do anything against these politicians who control the appointments to high positions in the Judiciary.

The entire structure is corrupt. The judiciary is also corrupt in this sense. Now, the nature of the recordings that are emerging may increase the embarrassment of these powers and, at a certain point, reverse the situation, as it may become more difficult to justify certain decisions.

A few days ago, you warned of the risk of a police state emerging in Brazil due to the profile of Alexandre de Moraes, Michel Temer's new Minister of Justice. In your opinion, what is the extent of this threat?

The current Minister of Justice has a profile that is much more repressive. His connection to public office has always been linked to the repressive dimension and never to the dimension of rights. So, evidently, there will be a weakening of this dimension of rights and an emphasis on repression. This has already been explicitly stated and is recorded. In one of them, the former Minister of Planning, Romero Jucá, said that he had already spoken with the military to repress the MST (Landless Workers' Movement). In other words, there is a whole organization of a more efficient repressive apparatus against social movements. There is no person with a profile more suited to this orientation than the current minister.

In your opinion, did the 1988 Constitution leave behind any institutional weaknesses that are contributing to destabilizing the relationship between the branches of government and Brazilian democracy itself?

I think the fundamental problem isn't the Constitution as a written text. The Constitution always leaves room for constitutional practices. The problem is how it was constructed. Of course, it's possible to think of new mechanisms for participation, such as for the selection of Supreme Court justices. But that, it seems to me, isn't the most important thing. What's more important is related to the practical functioning of the institutions. In a country where there are some very privileged people, whom I call super-citizens, who are above the law, and a mass of people, whom I call sub-integrated or sub-citizens, who don't have access to basic rights, it's very easy for the former to manipulate the Constitution. So, I think it's more the moment of implementation, of practice, that ends up distorting the Constitution.

The American model for selection is very similar to ours, but the Senate plays a very serious role. When a minister is nominated by the president to assume a seat on the American Supreme Court, professors and experts are invited to evaluate that name. There is a broad public debate, and it works relatively well. In Brazil, this nomination has become merely a particularistic game of political schemes to place a person who will correspond not to a specific worldview, but rather to the particular interests of certain groups. That's where the distortion and perversion of the Constitution truly become the most serious problem in our case.

"Legal activism" has become a frequently repeated expression in Brazilian political and legal debate today. What is your assessment of the meaning of this expression?

This judicial activism, which is seen as a trend towards the judicialization of politics, has been understood as if the law were expanding into the political field. This is a somewhat unfortunate interpretation because, in reality, what largely exists is a politicization of the judiciary. It's not that the judiciary, with legal criteria, expands and becomes strong enough to control political power. In the Brazilian case, there is a more serious dimension to this phenomenon: the judiciary is politicized and ends up being linked to the interests of political groups. This is much more serious and represents a threat to the very functioning of democracy. These are people with lifelong power, acquired without elections or periodicity, hindering and harming the functioning of the democratic process.

Do you support the possibility of elections within the Judiciary?

No. I think that would be problematic. What I advocate is that the Judiciary recognize its functions and its limits, remaining bound by the Constitution and constitutional criteria. In some countries, such as Switzerland at the municipal level, and the United States, judges are elected by the community. I think that in Brazil this would be somewhat catastrophic due to the way our electoral system is conducted.