Constitutional Coups.

datePosted on 16:28, September 4th, 2016 by Pablo

When people think about coups d’etat, they tend to think about armed interruptions of the constitutional order, usually perpetrated by the military against an elected government. Such was the case with the abortive coup staged by elements of the Turkish military against the government of Recep Erdogan last July. Note that I do not say “democratically” elected governments, as usurpations of the constitutional order can also happen in electoral authoritarian regimes such as that of Hosni Mubarak in Egypt in 2011 (only to be followed by a “full” coup against the subsequently elected Muslim Brotherhood government of Mohamed Morsi in 2013).

The traditional origins of such forms of regime change, known as golpes de estado in Spanish, do in fact hark back to military interventions against civilian governments, and that remains its most common form. But another form of coup has emerged, minus the bloodshed and state of emergency so often associated with military-led coups (I say military-led because it is very seldom the case that the armed forces act alone when moving against the government of the day). Rather than an interruption and suspension of the institutional process by military means, it is a usurpation from within the institutional order by constitutional means. Rather than bullets fired by soldiers it is ballots cast by politicians that overturn the will of the people prior to scheduled elections. The insurrectionists belong to and work within the political system. This is what is now known as a constitutional coup. In order to understand this new form of “golpismo” we need to consider two background factors.

First, liberal democracy comes in two forms: presidential and parliamentary systems. Although they are a possibility in parliamentary systems (such as having the government dissolved by the Governor General, as occurred in Pakistan in 1953 and Australia in 1975), constitutional coups most often happen in presidential systems. By their very nature parliamentary systems have built-in insurance against constitutional coups because there are established means to remove a government, specifically via votes of no-confidence followed by snap elections. The rules governing both the vote and the election may vary from country to country, and there may be a ruckus surrounding such events, but they are an integral part of parliamentary democracy and, some might argue, a much finer tuned aspect of democratic governance than that allowed by its alternative.

Presidential systems provide no such mechanism for the removal of governments prior to their end of term. By definition, any such move constitutes an institutional crisis as the system is based on a separation of executive power from legislative authority. In parliamentary systems the executive (in the form of cabinet) continues to act as a parliamentary faction, to include ministers discharging responsibilities as members of parliament. In presidential systems that is not the case and executive authority can often be confronted by or exercised against legislative majorities (as is currently the case in the US). No matter what the majority in the legislature may wish, it cannot simply call for a vote of no-confidence in the government of the day. In fact, it has no legal basis to do so.

When the legislative and executive branches in presidential systems are locked in impasses or stalemates over any number of potential issues, the resolution mechanism boils down to supermajorities in the former and veto powers in the latter. Ideally, in bicameral legislatures the resolution sequence is usually this: the president introduces or supports a bill submitted for approval by the legislature. The opposition obtains a supermajority against the bill in the lower house, which is vetoed by the president, which is then upheld or overturned by a supermajority in the upper house. In unicameral legislatures the sequence is either one and done or a second legislative supermajority vote is taken after a veto in order to ratify or overturn the veto. Neither of these resolution paths provide a mechanism for the removal of the executive.

This process is cumbersome but offers the benefit of providing space for compromise between the executive and legislature as a bill winds its way through the ratification process. But what about removal of an elected government before its term is up? That is where the second key backdrop factor comes into play: disloyal opposition.

Long term KP readers will recall my earlier writing on this subject.  But for those who are not, here is a nutshell refresher on what constitutes loyal and disloyal opposition in a democracy (there is no point in using those terms in authoritarian regimes).

Loyal oppositions are those that, having been defeated in elections or confronted by an opposing party in executive office (remember, the problem is unique to presidential systems), abide by the rules of the political game and wait for the next electoral opportunity to gain executive power. During the meantime they work as much as possible to find areas of compromise so that the machinery of governance can continue to serve the public good (or at least be seen as doing so). Even if token, concessions are exchanged so that consensus on issues of policy can be achieved. Only in the most egregious case of executive misconduct, usually involving criminality or gross negligence, does a loyal opposition begin to contemplate the unthinkable, which comes in the form of impeachment (that is, forcing the resignation of the executive under pressure from the legislature backed by the authority of law enforced by state security agents).

Disloyal oppositions are those that refuse to accept the outcome of elections and/or the legitimacy of a particular government and use their political influence and power to bring down that government by any means short of force. This includes being deliberately obstructionist when it comes to passing legislation, flaunting rules governing acceptable political discourse, manipulating or colluding with media to plant false accusations against incumbents, refusing to authorise budgets and confirm executive appointments, and generally acting in every possible way to stymie government policy initiatives, make it impossible for the executive branch to function effectively within the tripartite, separation of powers framework of constitutional government, and to promote discontent with and distrust of the government and its political supporters.

The classic modern instance of a disloyal opposition was the Christian Democratic led opposition to Salvador Allende’s Unidad Popular government in Chile from 1970-73. The result of that disloyalty is well known. But not all disloyal opposition need result in full fledged military coups. Instead, they can veer down the path of the constitutional coup. Consider the case of Bill Clinton’s impeachment in 1998-99. In late 1998 the Republican controlled House of Representatives voted to impeach Clinton on two counts of perjury and two counts of obstruction of justice. The charges related to his accounts of the affair he had with White House intern Monica Lewisky, the salacious details of which were vividly spelt out by Independent Counsel Ken Starr (Starr has recently been forced to resign from his position as president and chancellor of Baylor University for his role in covering up sexual assaults on females by football players). Mr. Starr was appointed by the Speaker of the House at the time, Newt Gingrich, he of the three marriages and many affairs (including with subordinates).

In 1999 the Republican controlled Senate held a trial and voted on the charges. Needing a two thirds (67 seat) majority for the impeachment to succeed and with 55 Senators on the Republican side, the impeachment vote failed when 50 voted in favour on the obstruction charge and 45 voted in favour on the perjury charge. Clinton remained in office, albeit significantly hamstrung by his near-miss.

The issue here is that the impeachment was over a private sexual affair, not an act of public malfeasance . It was led by people who themselves had similar skeletons in their closets and who did so in part just to weaken the president even if their efforts to impeach him failed (given media coverage of the story). More specifically, it was not about gross incompetence, criminal behaviour, military mismanagement, or even lying to Congress about any matter of policy. Instead, it was about the president receiving fellatio from and using a cigar as a sex toy on Ms. Lewinsky during trysts in the Oval Office, then trying to cover it up. It is doubtful that the founding fathers, in Article Two (Section Four) of the Constitution, had this in mind when they wrote that impeachment was to be used only in exceptional circumstances involving “treason, bribery or other high crimes and misdemeanours.”

That is a slippery slope. And nowhere is the bottom of that slope more evident than in the recent impeachment of leftist President Dilma Rousseff of Brazil.

Brazil has history with impeachment. In 1992 then president Fernando Collor de Mello resigned after Congress voted in favour of his impeachment on charges of bribery and misappropriation of funds. Similar charges of “budgetary mismanagement” were brought against Ms. Rousseff in 2016 by a Congress dominated by the center-right PMDB, Brazil’s largest party, which has the most seats in Congress (66) and is the one to which her vice president Michel Temer belongs (the coalitional aspects of Brazilian politics are too complex to get into here but suffice it to say that Rousseff was trying to keep her friends and allies close and her enemies closer. That did not work out as planned). By the time the first reports of fiscal irregularities surfaced in 2015, the PMDB-led majority in Congress had gone full-blown disloyal in a context of economic stagnation and assorted crises (Zika, lack of Olympic preparations) and were itching to find a reason to remove Rousseff (who was not anywhere as popular as her Workers Party predecessor Luis Ignacio “Lula” da Silva). The investigation into financial wrongdoing gave them their window of opportunity.

The charges against Rousseff stemmed from “Operation Car Wash” (Operacao Lava Jato) into bribery and corruption involving the state oil monopoly Petrobras, assorted construction firms, politicians, bureaucrats and financial entities. Without going into the details, let’s just say three things: First, corruption is a way of life in Brazil, not just an aspect of how the economic and political elite behave (hence the phrase fazer jeito, or ” a way of doing things” on the sly). Of those legislators demanding her impeachment and who voted against her at the Senate trial, over a dozen are being investigated or have been charged with corruption themselves, including now-president Temer. Included among the luminaries who voted to oust her is a former Army officer who was involved in her torture when she was imprisoned by the military dictatorship in the early 1970s, and who said during the proceedings that it would have been best that she were killed while in custody.

Secondly, creative accounting by Brazilian governments is a time-honoured tradition that crosses party lines. Most reputable political and financial analysts agree that not only was Ms. Rousseff not personally involved or benefitted by dodgy Treasury figures, but that in the scheme of things the book fiddling done by her government was not criminal but in fact par for the course in Brazil. Unfortunately for her, Article 85 of the Brazilian constitution and the Fiscal Responsibility Law specifically prohibit mismanagement and disregard for the federal budget. This was the seldom used rope that Congress hung her with.

Thirdly, no impeachment in Brazil can occur without the tacit assent of the armed forces. Of all the sordid aspects of Rousseff’s impeachment, this is the most sobering one. 30 odd years after they returned to the barracks, Brazil’s military still sees forced removal of elected presidents as a viable option–so long as it does not involve them directly.

This is why what happened in Brazil a week or so ago was a constitutional coup. Impeachment is the weapon of choice for the constitutional coup plotters, but their intentions are disloyal and their objectives sinister at heart. Their motivations have nothing to do with honesty and transparency in government or defending democracy. Instead, they are about playing the system for tactically opportunistic partisan gain.

Brazil is not the only Latin American country to have suffered a constitutional coup. In 2012 Paraguayan President Fernando Lugo was impeached and removed from office, ostensibly because of his mishandling of a land occupation that ended in violence. He was given two hours to prepare his defense, and was replaced by his Vice President, who sided with the legislative opposition against him. Subsequent publication of US embassy cables by Wikileaks revealed that as early as 2009 opposition leaders had begun to discuss using impeachment as a way of ousting Lugo from office (Lugo was elected in 2008). They eventually succeeded.

There is a problem with this strategy: more than one side can play that game, and learning curves may teach that rather than the exception, the use of impeachment in pursuit of a constitutional coup can become the new norm. That in turn can spur a contagion effect, whereby politicians in other democracies with presidential systems see merit in pursuing similar courses of action. Worse yet, repeated recourse to constitutional coups as partisan weapons can lead to outright military intervention, at which point the return to the traditional form of coup trumps any constitutional niceties.

One should take this into account when pondering the activities of political actors in presidential-system liberal democracies, be they big and small. Because in a world where military-led coups are considered particularly thuggish and therefore distasteful, the constitutional coup is the genteel authoritarian’s game.

10 Responses to “Constitutional Coups.”

  1. Dennis Frank on September 4th, 2016 at 17:47

    According to the BBC “Ms Rousseff’s approval ratings have plummeted from their all-time high of 79% in March 2013 to about 10% in March 2016.”

    There were large majorities in both houses of the Brazil parliament to bring about her impeachment. In the senate the ration in favour was 3:1 so it looks like politicians acting in accord with the public will.

    Being found in breach of Article 85 of the constitution was the lever applied to achieve the result. You can interpret this as a constitutional coup, Pablo, and I won’t dispute your rationale, but there’s also a reasonable basis for interpreting it as a recall mechanism. When I was an activist with the Greens in the early Alliance era there was still a mood in favour of that resulting from public disgust with the deceit of the Rogernomes. I still agree with the principle.

  2. Pablo on September 4th, 2016 at 17:57

    Please Dennis.

    Spare me your speculation. Being unpopular is no grounds for impeachment and for you to even suggest that it is, or to say that the sleazy majority in parliament was justified in its actions, shows that you do not know much about Brazil and you did not read the post with any degree of care.

    Plus, what does your days with the Greens have to do with the subject? I already stated at some length that a constitutional coup cannot happen in a parliamentary system, so your anecdote has no relevance whatsoever to the subject of this post.

    Please, do not feel obliged to comment about everything that is posted here, especially on subjects that you are not fully conversant with. Otherwise, it gives the appearance of trolling.

  3. James Green on September 5th, 2016 at 12:23

    Thanks Pablo, for explaining the technicals of exactly why it has been a coup in Brazil.

    I must ask though, I’ve recently discovered that Norway’s Storting has fixed terms and their cabinet can’t have legislators in it. Does anyone know this actually works *in practice*, or can point me to a resource explaining it? Like, how do they deal with no confidence votes, etc.

  4. Pablo on September 5th, 2016 at 12:57

    James:

    I cannot say that I am very knowledgeable about Norwegian parliamentary politics. What I do know is that it has a system of parliament vice presidents distributed amongst major parties who act as coalition builders and liaisons to the executive branch, and that until 2009 it had a de facto division within the single chamber (called qualified unicameralism) between senior and junior membexactly ers. That was abandoned when fixed terms came in but I am not sure how parliament holds the executive to account.

    Also, impeachment procedures in Norway are conducted by an 11 person panel made up of five Supreme Court judges and six lay people chosen by parliament (to avoid conflicts of interest on the part of MPs). The range of impeachable offences is broad when compared to the US but the last time it was used was in 1927.

  5. Mateo on September 7th, 2016 at 13:46

    Pablo – I have some personal interest in Chile due to personal connections and past work connections. What I’ve read and heard from Chileans, I wouldn’t describe the DC opposition to Allende as “disloyal”. If there was any disloyalty, it flowed the other way. Allende opened flaunted his agreement of constitutional guarantees with the DC that brought him into power and there were senior members of his UP government that also openly talked about using their time in power to establish a communist dictatorship. Not that I want to condone what followed the military coup, but the DC’s actions were largely motivated by protecting what remained of the law and order in what had become a deeply polarised society.

    My understanding is influenced by Robert Alexander’s contemporary account in the “Tragedy of Chile” and discussions I have had with various Chileans. Happy to hear a different view.

  6. Pablo on September 7th, 2016 at 14:34

    Sorry Mateo, but I have to disagree.

    You appear to have fallen for the revisionist false narrative put out by the Chilean Right that Allende and the UP wanted to make Chile “communist,” and the DC was fighting a valiant fight. An old variant of that was that during Allende’s cabinet meetings the Cuban sat while the Chileans stood.

    To be sure, their were communists and other leftwing militants associated with his government, but they did not have the degree of influence that the Right attributes to them. Moreover, from the very beginning the DC did not recognise Allende’s election because he only won a plurality in a multi-candidate race (one in which the DC split into rival factions). From the onset they worked to obstruct, deny and delegitimise his government. In response, the hard core Leftists in his government wanted Allende to suspend Congress and rule by decree but he refused even in the face of naked disloyalty and clear signs of coup plotting on the DC’s part. That got him killed.

    I would be cautious with using Alexander because his conservative views and penchant for opinionating are well known in academia.

    What is most glaringly missing from your read of the situation is the role of the US government, specifically the CIA, operating to undermine Allende on Kissinger and Nixon’s orders. The conspiring of US military attaches with senior Chilean military officials, the funding of the infamous truckers strike, the electronic monitoring of Allende’s cabinet, the use of ITT as a CIA front, the channeling of money to opposition figures, Kissinger’s famous line that “He would not allow Chile to go communist due to the stupidity of its people (refrying to Allende’s election)–the extent of the US interference in Chile and its support for the coup are very well known and were, among other things, exposed in the so-called Church Committee hearings (named after Senator Frank Church) on the role of the US in the events leading up to and after the coup. In truth, Allende was doomed from the beginning due to a combination of external and internal factors that had little to do wit what he actually did while in office.

    I find the Chilean expat community in NZ to be an interesting group. Some are refugees from the dictatorship. But others, to put it mildly, have “association” with the military regime and tend to adhere to the view that you just outlined. Trust me, their version is false.

  7. Edward Main on September 9th, 2016 at 22:33

    Hello Pablo

    Nice to see you writing about South America again.

    I was in Brazil in 2014. Metaphorically, I think Brazil
    is like a big old sailing ship weathering a perpetual storm.

    That is it lurches from side to side – depending on the various influences and ideologies, yet its size due to natural resources allows it to ( somehow??) keep going!

    Two things are of concern.
    1) This new lot of politicians ( Temer ) are no better than the old lot ( Rouseff )
    2) What effect this could have within the BRICS group of countries

  8. Pablo on September 10th, 2016 at 08:49

    Hi Edward.

    Welcome back. The answers to your questions are these:

    1) the current to are as bad if not worse than the Rousseff crowd. At least the PT had an obligation to its working class base. The PMDB/PDS crowd have no such obligation and instead, cater to the elite politics of usual (and usual means institutionalised corruption).

    2) For the near future Brazil is no longer part of the BRICs. It is a serious recession and confronting a number of overlapped crises–social, political, health, education, environmental, to name a few. It has to look inward to get its house in order and that will take time. Plus, with gas and oil prices still low it cannot pad the public account (what is not stolen by fraudsters in and out of government), which means that it has less resources with which to deal with the crises. So for the time being Brazil is its traditional self (in an old Brazilian adage): a country of the future that always will be.

  9. Richard on September 16th, 2016 at 08:20

    Hi Pablo

    Thank you for a very interesting account. It seems like the failure to identify constitutional coups as coups boils down to a refusal to make a distinction between a government and the regime itself on the part of the disloyal opposition and outsiders who do not understand the distinction. It seems to me that such action, even though executed via technically “legal” means (though undertaken on dubious grounds), is not simply ousting a president or a particular government but in some sense a form of “regime change”, even if the new order does not seek to fundamentally change the constitutional structure of the state as in traditional coups or regime transitions. However, it does change the constitutional structure in terms of establishing a kind of precedent for how a legal but exceptional measure like impeachment may be used in the future.

    I’m interested in whether you think disloyal opposition and consitutional coups can ever be justified on ideological or ethical grounds, rather than purely constitutional grounds (as in the impeachment of Nixon etc). I’m not sure this could be justified if regular elections and political procedures still operate although I could potentially see good reasons to do so if the consitutional protections available around areas like key human rights were inadequate and a government was clearly acting in a heinously unethical fashion.

  10. Pablo on September 16th, 2016 at 11:03

    Richard:

    You make excellent points and I tend to agree with you even though I think that the extent of regime change is more limited from the onset, whereas with military-led coups you have an institutional break or fracture followed by a partial or revised restoration of the political system as well as other socio-economic agencies and processes. Here the break is muted and limited to the political sphere, although you and I both know that the consequences extend much beyond it.

    The thrust of what I wrote concedes with the last sentence in your first paragraph. These are coups “by other means” and the resort to impeachment for less than high crimes and misdemeanours is a precedent that I fear will be used to justify future such acts by disloyal oppositions world-wide. The learning curve may not necessarily be very steep but it will most certainly be negative.

    I also agree with your second paragraph. The bar has to be set very high for impeachment. I also think that the Legislature can not serve as prosecutor, judge and jury in an impeachment of the Executive. It can serve as the prosecutor, but I believe that a High or Supreme Court should be the ultimate arbiter of an Executive’s fate, assuming that there is a real degree of judicial independence.

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