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UNIVERSITY OF CALIFORNIA. SAN DIEGO

Politics o f Impeachment in Latin America

A dissertation submitted in partial satisfaction of the

requirements for the degree Doctor of Philosophy in

International Affairs

by

Naoko Kada

Committee in charge:

Professor Stephan Haggard. co-Chair


Professor Matthew S. Shugart, co-Chair
Professor Paul W. Drake
Professor Peter H. Smith
Professor Chris Woodruff

2002

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Copyright 2002 by
Kada, Naoko

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A— — -n

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Co-chair

Co-chair

University o f California, San Diego

2002

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TABLE OF CONTENTS

Signature Page.................................................................................................. iii

Table o f Contents................................................................................................. iv

List o f Charts and Tables.................................................................................... vii

List o f Figures..................................................................................................... viii

Preface................................................................................................................... ix

Acknowledgements............................................................................................. xiii

Vita and Fields of Study....................................................................................... xv

Abstract.................................................................................................................. xvi

I. Introduction: Why Study Impeachment?...................................................... I

A. Impeachment as An Accountability Mechanism................................. 1


B. Possible Abuses o f Removal Process................................................. 4
C. Impeachment in Presidential Systems................................................. 7
D. Typology of Impeachment Processes: Legislature-Dominant
vs. Judiciary-Dominant....................................................................... 10
E. Which Process Works Best? Limitations of Rule-Based
Explanations and the Importance of Information............................... 16

II. Informational Theory of Investigative Committees...................................... 26

A. Four Factors That Affect Legislators’ Incentives to Vote for


Impeachment.......................................................................................... 26
B. Information and Decision-Making by Legislators................................. 32
C. The Sources of Information and How Information Is Filtered................. 36
D. An Informational Theory o f Impeachment............................................... 39
1. Party system and the probability of impeachment (and removal).... 46
2. Presidential power....................................................................................46
3. Information control..................................................................................47
4. Outcome of impeachment process........................................................... 48
E. Applying Informational Theory to Brazil. Colombia, and Venezuela 48
F. The Limitations and Possibilities o f the Informational Theory.................. 52

III. Brazil: the Fall o f President C o llo r.................................................................. 62

A. Argument in B rie f.......................................................................................62


B. Political Institutions in Brazil.................................................................... 65
1. Investigative Process against the President........................................ 65
2. Party System and Electoral Rules...................................................... 67

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3. Presidential Power over Legislators....................................................... 69
4. The Judiciary in the Legislature-DominantImpeachment Process 70
5. Summary.................................................................................................72
C. The Investigative Committee in Brazil.................................................... 72
D. The Story......................................................................................................78
1. Background: the Collor Administration and Corruption Scandals 78
2. The CPI in A ctio n ................................................................................ 80
3. Impeachment Process in the House o f Deputies.......................................86
4. The Impeachment Trial in the Senate.................................................... 88
5. The Common Crime Process................................................................ 90
E. Why Was President Collor Impeached and Removed from O ffice? 92
1. The Conventional Answer to the Question and Its Limitations 93
2. The CPI's Informational Role and Its Structure.................................... 96
a. The Composition o f CPIs................................................................ 97
b. Powers o f the Committee Chair and the PrincipalInvestigator 104
c. Regular Members' Participation in the Investigation..................... 105
3. The Informational Role o f the CPI o f PC Farias................................. 109
a. The Change in Public Opinion.................................................... I ll
b. Changes in Legislators' Position...................................................... 114
4. The Judiciary and the Impeachment Process......................................... 117
F. Conclusion................................................................................................... 122

IV. Colombia: The Survivalof PresidentSamper................................................... 126

A. Argument in Brief....................................................................................... 126


B. Political Institutions inColombia................................................................ 129
1. Investigative Process against the President............................................. 129
2. Party System......................................................................................... 132
3. Electoral System................................................................................... 135
4. Presidential Powers over Legislators.................................................... 137
5. Judicial System and the Influence o f the President.............................. 139
6. Summary............................................................................................. 141
C. The Committee o f Investigation and Accusation.................................... 142
1. The Committee Structure..................................................................... 142
2. The Investigative Committee and Impeachment Process.......................146
D. The Narco-Scandal of President Samper..................................................... 147
1. Political and Economic Background...................................................... 147
2. The Scandal........................................................................................... 149
3. The First Veto Gate: the Committee o f Investigation and Accusation... 152
4. The Second Veto Gate: the House o f Representatives.......................... 158
E. Analysis: Why Was Samper Not Impeached?............................................. 159
1. CoIA's Characteristics That Contributed to Absolving thePresident.. 160
a. Rules on Selection......................................................................... 160
b. Committee Chair and Principal Investigator.................................. 162
c. Participation by Regular Members o f the Committee................... 164
2. Information Control by the Investigative Committee.............................165
3. Decisions by the Members of the House o f Representatives..................168
4. The Limited Participation of the Judiciary............................................. 171

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5. Summary............................................................................................... 172
F. Conclusion.................................................................................................... 174

V. Venezuela: Impeachment under judiciary-dominant system................................. 178

A. Judiciary-Dominant Pattern of Impeachment Process in Venezuela.............. 179


1. Overview of Impeachment Process under 1961 Constitution..................179
2. The Organization and Independence of the Judiciary............................ 181
a. Prosecutor General and the Public Ministry..................................... 181
b. The Supreme Court Magistrates........................................................183
3. The Legislature in the Judiciary-Dominant Impeachment Process 186
4. Presidential Power................................................................................... 189
5. The Judiciary Dominant versus Legislature Dominant
Impeachment Procedures...................................................................... 190
B. The Story: The Ouster of President Perez amid Political Instability............... 195
1. CAP's Second Term and the Economic Crisis......................................... 197
2. Political Instability Heightened by Attempts of Coups............................ 200
3. The Charges and the Evidence.................................................................203
4. Impeachment and Removalof the President............................................. 206
5. The Trial....................................................................................................208
C. Why Was CAP Impeached?............................................................................211
1. The Venezuelan Impeachment Process and Type II Errors.......................213
a. Majoritarian Decision-Making Rule................................................214
b. Information Control by the Judiciary...............................................215
c. The Credibility o f Information.........................................................218
2. The Formation of the Anti-Perez Majority............................................... 220
a. The Prosecutor General................................................................... 220
b. Supreme Court Magistrates............................................................ 222
c. Legislative Majority........................................................................ 227
3. Majoritarian Impeachment Processes and InformationControl................231
D. Conclusion: the Case of CAP and Corruption in Venezuela........................... 233

VI. Conclusion: Information Control and Impeachment..............................................236

A. Assessment of the Informational Theory o f Impeachment............................. 236


B. The Applicability of the Informational Theory to Other Cases..................... 243
C. Institutional Engineering for Reducing Informational Monopoly...................248
D. Impeachment Processes and the Fight against Corruption..............................252

Appendices...............................................................................................................257

Bibliography............................................................................................................. 271

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List o f Charts and Tables

Chart 1.1. Legislature-Dominant vs. Judiciary-Dominant Impeachment Process............... 23

Chart 1.2. Legislature-Dominant Pattern (Colombia. B razil)............................................... 24

Chart 1.3. Judiciary-Dominant Pattern (Venezuela)........................................................... 25

Chart 2.1. Informational Model of Impeachment.................................................................. 59

Table l. l. Impeachment Procedure: Impeachment and T ria l.............................................. 21

Table 1.2. Impeachment Procedure: Accusation and Investigation........................................22

Table 2.1. Differences in Committee Structure and


Information Control. Brazil and Colombia........................................................................... 60

Table 2.2. Impeachment and Information: judiciary-dominant process


and legislature-dominant process.........................................................................................61

Table 6.1. Impeachment Process and Outcomes from Selected Cases................................ 256

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List o f Figures

Figure 2.1. Information and Impeachment: a perfectly disciplined,


two-party system (with the president’ s party in m ajority)............................................ 56

Figure 2.2. Information and Impeachment: a perfectly disciplined,


two-party system (with the president's party in m inority)...............................................56

Figure 2.3. Information and impeachment: two-party system, with some


undisciplined members................................................................................................. 57

Figure 2.4. Information and Impeachment: multiparty systems.................................... 57

Figure 2.5. Information and Impeachment: stead-fast friends and opponents,


with the rest of legislators evenly distributed................................................................... 58

Figure 2.6. Information and Impeachment: effects of the pressure from


the president and constituents...........................................................................................58

Figure 6.1. House of Deputies in Brazil. 1992 ................................................................ 255

Figure 6.2. House of Representatives in Colombia. 1996 ............................................... 255

Figure 6.3. The Senate in Venezuela. 1993 ..................................................................... 255

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PREFACE

This dissertation started as a study of corruption control. In the 1990s, corruption

became a salient issue all over the world. In developing countries as well as in industrialized

countries, political leaders and political parties fell from power due at least partly to

allegations o f corruption. Governments express their concern for the consequence of rampant

corruption, and their commitment to fight corruption can be seen in international accords such

as the OAS Convention against Corruption and the OECD Convention against bribery of

foreign public officials. International financial institutions such as World Bank and

International Monetary Fund have revised their loan conditionality to prevent and sanction

corrupt use of their funds, and at the same time are providing funds for improving the

transparency of government transactions. For the first time in history, there seems to be a

worldwide consensus that corruption should not be overlooked and that it should be addressed

internationally, making the full use o f international cooperation.

These events in general signal a positive change o f attitude against corruption. In

welcoming this anti-corruption drive, however, we might be overlooking an important

question: how do we know that corruption charges are being managed justly, without political

manipulation? Allegation of corruption has long been used by politicians to bring down their

opponents. On the other hand, corruption at the highest levels of government has too often

escaped punishment. Under what conditions is corruption punished? Is the accusation o f

corruption managed fairly and justly? This work attempts to answer these questions.

When I began my study of three presidents in Latin America accused of corruption,

these questions were not on my mind at all. I believed that politicians in high places were all

corrupt and therefore any punishment was a welcome sign that the country was trying to

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control corruption. My thinking was partly influenced by a book widely read by people

concerned about corruption, Robert Klittgaard's Controlling Corruption. Klittgaard

advocates “ catching a big fish" as one o f many strategies he suggests in his book to fight

corruption. The logic is that punishing an official in a high level position functions as a signal

that policymakers are seriously fighting corruption instead of merely talking about it. Based

on this logic, then, punishing a president for corruption seemed the best signal of willingness

to fight corruption in Latin America. My dissertation was going to demonstrate that the

countries where a president had been impeached and removed for corruption were controlling

corruption better than in other countries.

As I began my field research, however. I realized that this simple logic ignored all the

politics behind the accusations and the “ punishment" o f politicians accused o f corruption. In

one of the cases (Venezuela), the crime o f which the president was convicted was far less

serious than what he was originally accused of. and it was unclear whether the crime had

actually taken place, and whether the president should be responsible for it. In another

(Brazil), a president was impeached and removed from office for corruption, but many others

have escaped investigation, let alone prosecution, of corrupt activities they allegedly engaged

in. At the first glance it might look as if a big fish was caught, but in reality it might have

been an inflated fake fish. Catching one big fish does not necessarily prevent or stop other,

perhaps bigger, fish from swimming freely.

As these facts surfaced. I decided to refocus my dissertation on the politics of

impeachment. In particular, I focused on how information about the alleged wrong-doing is

produced and transmitted to the public and to the legislators during the impeachment process,

and how the information provided affected the decisions made by the legislators and justices

who participated in the impeachment processes against the presidents.

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My emphasis on the role of information has theoretical as well as moral motivations.

Theoretically, the impact of information on legislative decision-making is still a relatively

unexplored field. The dominant approach to legislative decision-making is to look at it as

partisan politics. While there are no doubt partisan interests and influences that play into

legislative decision-making, I believe information also plays an important role, especially

when the decisions have to do with issues on which no partisan consensus (or majority

opinion) exists. The lack o f partisan consensus may have to do with lack of information on

which to form the consensus, or it may have to do with lack of disciplinary measures with

which to restrain party members. Impeachment processes are likely to fit in the first category,

i.e.. lack o f information. Unless the request for impeachment is made on the basis of a

publicly known act, such as firing a high-ranking official (as was the case in the impeachment

of President Johnson in the US), accusations against presidents require clarification and

verification o f facts. Even the most partisan of the legislators would not dare to tell his

constituents that he is going to vote for impeachment because the president is from a rival

party. He would justify his decision based on the information available to him.

On the moral side, the motivation is that the availability and the quality of information

is one of the few factors in the politics o f impeachment that can be changed, by institutional

engineering, to improve the impeachment process. By improvement I mean that the

impeachment process is more credible, less manipulated by either the political opponents of

the president or by the president's supporters. Other kinds o f institutional engineering, such

as reducing the power o f the president over legislators, or increasing the influence of public

opinion on legislators, have negative consequences: a weak president may be impeached even

when he is innocent, and a popular president may not be impeached even when he is guilty.

Institutional engineering to make the information production and transmission more credible.

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in contrast, has no negative consequence. The improved provision of information w ill

contribute to the impeachment o f the guilty and the absolution of the innocent.

With this moral motivation, I return to the starting point of my dissertation, that is. the

question of controlling corruption. If the threat of impeachment and removal is credible,

public officials who are subject to impeachment are less likely to be involved in corruption

than if the threat is not credible. I hope my argument that information matters, and that the

quality and credibility of information depends on the institutional settings that determine who

provides information by what means, can be useful in the debate on controlling corruption.

When I began this study, there were only three cases where a president faced an

impeachment process, except for the two cases in the United States (Andrew Johnson and

Richard Nixon). Since then I have been looking at the growing number of cases of

presidential impeachment and/or removal with mixed feelings. On one hand, having more

cases was a good thing, to test my argument's generalizability. On the other hand, the surge

of cases of presidential impeachment and removal signalled that executive-legislative conflicts

were not being solved by the regular channels of bargaining. In some instances, this was a

welcome trend: if a president was committing a serious crime, he should be punished. In

other cases, however, the legislature seemed too eager to use the recently re-discovered tool

available to them to remove the president, overlooking the lack of evidence of wrong-doing.

It is true that this is a constitutional method of removal, much preferrable to a military coup.

However, its misuse, such as removing a president on a dubious charge, or. conversely, not

impeaching a president when evidence o f wrong-doing abounds, can negatively affect

people's trust in democratic institutions. It is this concern that drove me through the lengthy

process of writing this dissertation. I hope the readers share my concern and find my answers

sound and useful in their search for a better democracy in their countries.

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ACKNOW LEDGMENTS

My graduate studies at the University o f California were made possible thanks to the

Fulbright Scholarship and research and teaching assistantships at the Graduate School of

International Relations and Pacific Studies. Conducting field research in three Latin American

countries was challenging not only intellectually but also financially. I have been forunate to

receive the Field Research Grant from the Tinker Foundation, the International Pre-

Dissertation Fellowship from the Social Science Research Council and its matching funds, the

Field Research Grant from the Matsushita International Foundation, and the Field Dissertation

Research Grant from the Center for Iberian and Latin American Studies.

I had the most wonderful dissertation committee. My committee co-chairs. Stephan

Haggard and Matthew Shugart. have patiently read draft after draft of my dissertation and

provided many invaluable comments throughout the long process of my writing. Their

intellectual influence on my approach to Latin American politics began with my arrival to the

University o f California, San Diego, and continues to this day. They pulled me out of the sea

of details o f the case studies in which I almost drawned and lost myself, and reminded me what

I was looking for. and how to present it. Paul Drake’ s encouraging words kept me from losing

my mind, while his insightful comments prompted me to work even harder on my dissertation.

My visits to Peter Smith’s office were the moments I dreaded most and at the same time I

cherished most. I regret that I do not have answers to some o f his penetrating questions, but

these are questions I w ill always be aware of. and hope to answer them in my future works. I

am truly indebted to Chris Woodruff. The figures in Chapter Two originated in the drawings

he made on his whiteboard during my many visits to his office. The only economist on my

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committee, Chris kindly bore the very heavy burden o f guiding me through the economic way

o f thinking and visualizing the thoughts.

I have also been fortunate to have friends and family who have been extremely

supportive. I first met Kathy Masey as my school’ s student services coordinator, i.e., the

person to whom you bring all the problems. She has guided me through the maze of

bureaucratic regulations o f the university to the completion of my doctoral program. I have

been fortunate to meet Yuko Kasuya. with whom I have had many lively and stimulating

discussions o f both academic and non-academic nature. My friend and colleague Kitirat

Panupong has shared with me many years of tears and laughters in San Diego. My parents,

Makoto and Michiko Kada. have been a constant source of support, both psychologically and

financially. They have never objected to the choice I made, to continue my graduate studies in

the United States, far away from them. I might have given up. had it not been for the pledge I

made to myself not to disappoint my parents, of whom I am very proud and whom I love

dearly.

The last person to be acknowledged is often the most important, and so is my husband.

Anthony Westerling. He has gone through with me all the moments, if not hours, of panic and

dispair. and somehow, always, has calmed me down, given me energy to keep working on my

dissertation. As I struggled with my writing. I would often ask for his help, with organzing

my thoughts, with expressing them in words, or with expressing them in figures. Although he

is not acknowledged in the body o f this dissertation, my conversations with him have been

crucial in formulating and organizing the key concepts o f the dissertation. He has also read

the entire dissertation and corrected my imperfect English, while constantly trying to keep me

from (and teasing me about) getting frustrated and embarrased about my imperfection. In

acknowledgment o f all that he means to me, I dedicate this dissertation to him.

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Vita

May 23,1968 Bom, Shibuya, Tokyo, Japan.

1993 B A ., University of Tokyo

1994-1999 Fulbright Scholar, Graduate School of International Relations and


Pacific Studies, University of California, San Diego

1997 M.A., University of Tokyo

1996-2001 Research Assistant, University of California, San Diego

2002 Ph.D., University of California, San Diego

HELDS OF STUDY

Major Field: Comparative Pblicy Analysis

Minor Held: International Relations

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ABSTRACT OF THE DISSERTATION

Politics of Impeachment in Latin America

by

Naoko Kada

Doctor of Philosophy in International Affairs

University of California, San Diego, 2002

Professor Stephan Haggard, Co-Chair


Professor Matthew S. Shugart, Co-Chair

Impeachment processes have the potential to be an effective mechanism of

accountability check, to keep public officials from abusing power. They are prone to

abuse themselves, however, especially in presidential systems. This is because conflict

between the executive and the legislature cannot be resolved by vote of no-confidence,

which is available to parliamentary democracies. The opponents of the president are

likely to resort to impeachment even when evidence of wrong-doing is weak or non­

existent. Conversely, many wrong-doings are overlooked and never reach the

impeachment process. What conditions determine the occurrence and the outcome of

impeachment processes?

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I argue that the outcome of an impeachment process depends on the degree and

nature of information control during the investigation. When information about the

alleged wrong-doing is tightly controlled by the president’s supporters, impeachment and

removal are unlikely even if there is incriminating evidence. When information control is

in the hands of the president’ s opponents, on the other hand, impeachment and removal

are likely even if evidence of crime is weak. When information is gathered and

disseminated by both the president’ s supporters and his enemies, or by individuals

without a political agenda (such as an independent and professional judiciary), the

impeachment process is likely to work at its best, punishing wrong-doers and absolving

the innocent. The degree and nature o f information control depends on party system, on

one hand, and formal and informal organizational rules, on the other.

I find strong support for this theoretical framework, which I call informational

theory of impeachment process, in three cases of presidential impeachment processes: the

impeachment and removal of President Collor in Brazil (1992) and President Perez in

Venezuela (1993). and the survival of President Samper in Colombia (1996).

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I. INTR O D UCTIO N: W H Y STUDY IM PEACHM ENT?

This is a study of impeachment processes in three countries in Latin America, namely,

Brazil. Colombia, and Venezuela. While accusations against ex-presidents are commonplace, in

these three countries sitting presidents were accused, opening up the possibility of impeachment.

The word "impeachment” is often used to refer to the entire process beginning from

investigation and ending in trials, or to refer to removal of public officials from office by other

means than impeachment (such as declaration o f incapacity to serve in office). By contrast, in

this study the word impeachment only means the legislative act of voting to approve the

accusation presented to the legislature and to request a trial of the accused individual. When I

refer to the entire process of impeachment that begins with accusation and investigation and ends

with trials. I w ill use the expression "impeachment process.”

My central argument is that the outcome of an impeachment process depends on the

degree and nature o f information control during the investigation. When information about the

alleged wrong-doing is tightly controlled by the president's supporters, impeachment and

removal are unlikely even if incriminating evidence abounds. When information control is in the

hands o f the president's opponents, impeachment and removal are likely even if evidence of

crime is weak. When information is gathered and disseminated by both the president's

supporters and his enemies, or by individuals without a political agenda (such as an independent

and professional judiciary), the impeachment process is likely to work at its best, punishing

wrong-doers and absolving the innocent. The degree and nature o f information control depends

on party system, on one hand, and formal and informal organizational rules, on the other. This

argument w ill be elaborated and applied to the three case studies in the subsequent chapters. In

this chapter. I w ill explain why removal from office, and impeachment in particular, is an

important research topic, and offer a typology o f impeachment processes.

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A. Impeachment As An Accountability Mechanism

One of the most important debates on institutional engineering today is how to design

institutions to assure accountability o f public officials. Although accountability of public

officials is an ever-present issue in governance, since the 1990s there has been a renewed

interest in this subject.1 One of the most frequently discussed problems associated with lack of

accountability is corruption, or abuse of public office for private gains, and suggestions for

institutional change have been offered from a wide range of scholars, in particular from

economists and political scientists.2 Governments and international financial institutions are

also showing an increased interest in fighting corruption.3 Curiously, however, much o f the

debate has focused on the problem o f corruption in government agencies, i.e.. administrative or

bureaucratic corruption. Until recently, corruption of elected officials such as presidents and

legislators has been conspicuously absent from most o f these discussions.4 Only in the last few

years has the question o f holding corrupt politicians accountable begun to be addressed.

The emerging scholarly debate on accountability focuses almost exclusively on how

elections (or electoral platforms) do or do not work as an accountability mechanism.5 This is

because the primary concern with accountability in this literature is that the elected officials act

1 My explanation for this renewed interest is that the "third wave" of democratization motivated studies of
the quality of democracies in general, and of the accountability of public officials in particular.

2 See Appendix I for review of corruption literature.

3 Governments in the Americas were the first to celebrate a regional convention (OAS Convention against
Corruption); the OECD also has established the Convention against Bribery of Foreign Public Officials.
Both the World Bank and the IM F now considers the previous evidence o f corrupt use of their funds as
part of their loan conditionality.

4 Ferejohn (1986) and, to some extent. Rose-Ackerman (1978) are exceptions.

5 See, for example. Przeworski. Stokes, and Manin, eds. (1999). Persson, Tabellini. and Trebbi (2000)
argue that proportional representation increases the level o f corruption. Their argument, however, has
many problems (see Appendix 1). Shugart et.al. (2000) takes the debate on accountability in a new
direction by bringing in non-elected branches that oversee the public administration.

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3

in the best interest o f the voters who elected them, and because elections are the best

mechanisms for collective judgment of their performance. When our concern is that elected

officials might engage in acts o f corruption, however, the effectiveness of electoral

accountability is in doubt. Elections happen only every so many years, and in some countries

reelection is prohibited.6 Even when reelection is not prohibited, a legislator may not seek

reelection, opting for a private sector job. a job in the party organization, or becoming a

candidate in a different electoral arena, such as for mayor, governor, or senator. In the absence

o f electoral accountability, a legislator or a president may be tempted to maximize his or her

personal gains while in office, not caring about whether he or she would be reelected, or

knowing that reelection is prohibited. Even if reelection is permitted, voters must wait until the

next election to remove the corrupt official by voting for another, less corrupt candidate.

Furthermore, voters in an electoral district may not necessarily punish a corrupt official if

the electoral district receives more benefits from the corrupt act than it bears costs. For

example, suppose the central government finances construction o f a hospital in district A as a

result o f pork-barrel legislative politics, and suppose that the elected official from district A

receives a kickback from the local construction company that builds the hospital. District A gets

the hospital, the elected official receives kickback, and the cost o f the kickback is bom by the

central government that pays a higher price for the project because of the kickback. Since the

revenue of the central government is collected from all the electoral districts, the cost of the

kickback is diffused (and perhaps unknown to most o f tax-payers). In this context, voters in

district A, even if they knew that their representative is corrupt, find it more beneficial to keep

the corrupt representative than to punish him by voting him down. Ironically, it is possible that

6 In Mexico presidents cannot be reelected. Immediate reelection was prohibited in Venezuela until 1999.
Immediate reelection o f legislators is prohibited in Mexico and Costa Rica.

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4

a corrupt legislator is more likely to win elections than a non-corrupt one, if the corruption

brings more benefits than costs to the geographically defined electorate, who may not be

concerned about the national impacts o f the corrupt official.

When electoral accountability is not effective, as in the above examples, removal from

office is the only legitimate method of punishing presidents or legislators for abuse o f power

while they are in office, since in most countries they enjoy immunity from prosecution during

their term. Only after the accused official is removed from office is he subjected to criminal

justice. Without the provision and threat of removal, the official protected by immunity from

prosecution may abuse power freely. With the possibility of removal, the official is less likely

to be so abusive, and if he is. he w ill be punished provided that the removal process is carried

out the way it should be. without interference of personal or political interests.

B. Possible Abuses of Removal Process

Unfortunately, removal processes are not always carried out the way they should be.' No

matter how much pretense is made that the process is judicial, it is inevitably political as long as

politicians are involved in the process, as the founders o f the United States recognized over two

hundred years ago. Removal processes are prone to two types of political abuse. One is that the

process is not fully carried out, even though corruption has taken place. The other is the danger

that the process is used as a political tool to bring down political opponents. The first type of

abuse may be called Type I danger, as type I errors are associated with errors o f omission, and

the second type Type II danger, as type II errors stem from over-inclusion.

When type I danger becomes reality, the credibility o f a removal process as a mechanism

7 There are of course some, if very rare, positive examples: a Senator in Brazil lost his seat for his
involvement in corruption, and some Colombian legislators were removed from office for accepting drug-
related money.

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for accountability check is greatly reduced in both the public's eye and the public officials*

eyes. When a removal process is functioning properly as an accountability check, an official

who is suspected o f engaging in illicit activities is subjected to rigorous investigation. If the

investigation reaches the conclusion that the official should be removed and if supporting

evidence abounds, he would be removed unless he resigns. However, when the accused

individual is a powerful member of the majority party, his allies may successfully block the

process o f removal. They may have enough votes to prevent the request for trial in Congress, or

they may manage to stop the investigation short of conclusive evidence. The failure to act on

well-founded accusations and on the request o f removal sends a signal that politicians in power

are not concerned with the integrity of the public officials, thus degrading the political

institutions as a whole. Not only the reputation of the political institutions is hurt but also it is

possible that other public officials, seeing the lack of monitoring and sanctions against abuse of

office, may also engage in illicit activities abusing their power as public officials.

Many countries in Latin America, at least until quite recently, were committing type 1

errors. For example, in Venezuela, between 1958 and the early 1980s two major parties

developed such an extensive control over virtually every social organization and public sector,

including the judiciary, that corrupt practices went unpunished. In what one scholar calls “ a

climate of impunity,” while arrest warrants were issued against public officials, very few were

actually arrested, let alone served sentence.9 Although corruption was recognized in opinion

surveys as a problem. Venezuelans overwhelmingly chose Carlos Andres Perez for president a

second time, despite the fact that his first administration was widely believed to be very corrupt.

Similarly, in Brazil's 1946-64 democratic period, one of the prominent politicians used “ he

8Rey (1998). p. 127. The quote is from Coppedge (1995). p.47.

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6

steals but he gets things done" as his campaign slogan and won three elections in Sao Paulo.9

According to Cavalcanti (1991), in less than four months’ period in 1989, there were 63 cases of

corruption scandals in the country but no investigative process was concluded and no one was

punished.10 In 1992. as a corruption scandal involving the president unfolded, a large majority

thought he was involved in corruption but at the same time did not think the president should

resign.

An example o f type II danger, i.e.. impeachment and/or removal to damage political

opponents, is as follows. Suppose a minority president faces a hostile legislature: the legislature

may be hostile to the president for partisan reasons that have nothing to do with the actual

conduct o f the president. Even if the president has not committed any crime, the legislature may

still declare him guilty of some obscure crime and impeach and remove him. This is possible if

the majority party members have enough votes in the legislature required by the constitution to

impeach and remove the president. Another example would be a congressional member o f a

small party, who attempts to uncover illegal activities practiced by the members of a majority

party. Instead of her efforts leading to the removal of corrupt legislators, she herself may run

the risk of removal, if the majority party succeeds in gathering enough votes for it.

The credibility o f removal process as an accountability check suffers from this type II

danger as much as it does from the type I danger. If removal process is repeatedly abused to

damage political opponents, it would be difficult for the public to distinguish a legitimate case

against a corrupt politician from all the other abusive cases, and the corrupt politician is most

likely to try to convince the public that it is just yet another political case o f investigation and

persecution. Furthermore, if an elected official believes that honesty has nothing to do with

9 For details, see Cavalcanti (1991). pp.73-86.

10 Cavalcanti (1991), p. 117.

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whether he is removed, he may be tempted to become corrupt. Thus, although removal process

is a potentially useful accountability check mechanism, its possible abuse, of both type I and II.

may actually reduce the accountability o f elected officials.

C. Impeachment in Presidential Systems

The problem of political abuse of removal process discussed above is especially acute in

presidential systems. The type I danger is serious because the president is the highest executive

office, and the negative signal sent by not punishing a corrupt president is likely to inflict more

serious damage to public services than neglecting corruption at lower levels. The negative

signal damages the trust that citizens might have for public officials, while lower level officials

may become corrupt, seeing that corruption goes unpunished at the highest level o f government.

Those who might have been willing whistle-blowers within the government would also be

discouraged from reporting colleagues' corrupt acts. Type II danger is prominent because,

unlike in parliamentary systems, in presidential systems the executive is not dependent on the

legislature for his survival. In parliamentary systems the vote of no-confidence in the

parliament leads to a change in the executive leadership. Either the cabinet resigns and a new

cabinet is formed, or a new election is held. In contrast, as Shugart and Carey (1992: 29) state,

“ [w|ithout the option o f a no-confidence vote, presidential systems have no institutionalized

means o f removing an unpopular - and possibly feckless - chief executive." Presidents are

elected for a fixed term, and there is no provision for votes o f no-confidence. In other words, in

presidential systems impeachment is often the only way to bring change in the executive

leadership between elections, aside from the resignation or death of the president." It follows,

thus, that the legislative majority might be tempted to use the impeachment process to bring

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down a president that it opposes, even when there is no clear evidence of crime. In

parliamentary systems there is no need to abuse the impeachment process, since a vote of no-

confidence, supported by the legislative majority, suffices to force a change in the cabinet.12

The absence of the no-confidence vote in presidential systems, however, should not be

viewed as a flaw in the system, for a popularly elected president represents the nation as much

as legislators do. and is responsible not to the legislature but to the voters who elected him.

Paradoxically, this separation of origin of the president from that of the legislature is an

additional factor that often plays into the motivation of the legislators to impeach and remove

the president. While in parliamentary systems cabinets cannot be formed without the consent of

the legislative majority, a president can come into office, theoretically speaking, without a single

vote in his support in the legislature.13 In fact, presidential candidates often take pride in

declaring being an “ outsider” to the world of politics. In practice, however, a president who

lacks support in the legislature faces a great difficulty having his policy proposals approved and

implemented. This difficulty is most acute when the president’ s policy proposals collide with

the existing interests o f the legislators or their powerful constituents. Presidential systems are

more likely to witness such collision than parliamentary systems precisely because of the

possibility for an “ outsider" to become the chief executive.

11 In some countries, the legislature can declare insanity or permanent absence of the president.

12 This does not mean that parliamentary regimes are immune to the type-II error: prime ministers have
been dismissed for alleged but unproven corruption. The difference from presidential system is that since a
legislative majority has the right to dismiss the prime minister even if no crime was committed, a false
charge is unnecessary, unless the majority's intent is to hurt the prime minister's reputation.

13 Although this is an extreme scenario, minority president is always a possibility, and quite common in
some countries. In Brazil, six out of seven elected presidents between 1945 and 1998 came from a
minority party. According to Mainwaring (1995: 395). four out o f five democratically elected presidents
o f Brazil had “antiparty proclivities.”

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Conflict between the president and the legislature is a common feature of almost all

democratic presidential systems, and can be resolved without worsening the relations between

the two branches. Presidents, as Neustadt (1960) has observed, use their power of persuasion

with legislators, and it is not uncommon for presidents to make concessions in order to get the

crucial bills passed. Some presidents, however, choose a more confrontational approach toward

the legislature, especially when they are equipped with extensive powers. They could confront

the legislature by vetoing bills supported by the legislative majority. Presidents may also

confront the legislature using what Shugart and Mainwaring (1997) call proactive power. Some

of these proactive powers include legislative powers that enable the president to bypass the

legislature, namely, presidential decree authority.

In parliamentary systems the executive needs to maintain support from the legislature in

order to stay in office and carry out their policies, and thus is attentive to the reaction of

legislators to the policies the executive proposes and implements, at least to the extent that the

executive feels the need in order to stay in office. In presidential systems, the president does not

have the same necessity, and thus can be less attentive to the legislators, i f he so chooses.

Presidents with decree powers are capable of doing so. although in most cases a decree’ s

effectiveness is confined to a short period of time.14 By a frequent use o f decree power,

however, the president may alienate the legislature, which, in turn, may welcome an accusation

against the president as a road to open the impeachment process, by which he can be removed.

An additional factor that may work against a minority president is that impeachment

processes do not prompt an early election for the legislature in the way that a vote o f no-

confidence can in many parliamentary democracies. There are a few countries whose

constitution specifies a kind of penalty on legislators who take an impeachment initiative: in

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Kazakhstan, for example, the deputies who initiate the accusation against the president are

removed if no final decision on impeachment is reached within two months. In Guyana, the

president can dissolve the National Assembly within three days of its resolution to remove the

president.15 Apart from these rare examples, however, impeachment usually does not put

legislators at risk of an early election or loss o f seat in the legislature. This is in sharp contrast

with parliamentary systems, in many of which the cabinet is given the option to hold an early

election when faced with a vote of no-confidence by the parliament.16

In sum. the separation o f the origin o f the executive and the legislature, on one hand, and

the separation of the survival o f the two branches, on the other, which are the defining

characteristics o f the presidential system.17 increase the risk of use of impeachment process by

the legislature to rid itself of the chief executive with whom its majority does not agree.

Conversely, a president who has an iron grip on his party may survive even if he is submitted to

investigation for abuse of power. This is especially likely when the president's party is large

enough to stop the impeachment process.

D. Typology of Impeachment Processes: Legislature-Dominant vs. Judiciary-Dominant

Because o f the type II danger o f abuse of impeachment by the legislative majority, in all of

the presidential democracies I have surveyed except for Panama (where no rules are specified

14 As Carey and Shugart (1998) point out. there is a great variety o f decree powers across countries and
across constitutions. See in particular their discussion in pages 9-14 and 293-296.
15 Unlike vote of no-contidence. the Assembly's decision requires that a tribunal validate the accusation
that the president committed a crime. See Constitution of Guyana's Article 180.

16 As Lijphart (1999: 125-6) points out, the power of dissolution is not. however, an inherent feature of
parliamentary system. In Norway the executive has no power of dissolution, and in some others such
power is restricted.

17 Although not using these terms, the Federalist Papers' definition of presidentialism is based on them.
See Shugart and Carey (1992), p. 19.

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11

about impeachment) and Guatemala (where no rules are specified about conviction),

impeachment cannot be confirmed without a supermajority in the upper house (or the single

house) o f the legislature, or has to be confirmed by the judiciary (see Table l.l) .18 The

judiciary has a less direct role the lower the part o f the table a country is situated. The first

group, where the judiciary confirms the guilt of the president, is called judiciary-participant.

Venezuela is called judiciary-dominant, for the impeachment vote cannot take place unless the

judiciary (the Supreme Court) requests it. In several countries the judiciary conducts the

impeachment trial, and in others congressional decisions are subject to the judicial review. I call

the former “judiciary-confirmed.” for the judiciary tries and confirms, or rejects, impeachment.

Those countries where the judiciary must validate congressional decision to convict the

president are named “judiciary-validated.”

The second group, where the legislature makes both decisions on impeachment and

conviction, is called legislature-dominant. Within this group, distinction is made between those

countries where only a simple or an absolute majority is required for these decisions, and those

countries where a super-majority, at least two-thirds o f those present, is required. Impeachment

is less likely in the second group, other things being equal.

As for the accusation and investigation, countries vary greatly in terms o f which offices

handle them (see Table 1.2). In a few countries, the judiciary handles the investigation, but in

the vast majority o f countries the investigative authority is in the hands of the legislature.

Accusation, on the other hand, can be made by any individual in the majority o f the countries

reviewed, and even where the accusatory right is limited to the Congress, the number of

legislators required to file a formal accusation is usually quite small, often requiring only one

legislator. Guyana is perhaps the only exception, where half the members o f the Congress must

18 An exceptional case, not included here, is Taiwan, where impeachment must be confirmed by a

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agree to accuse the president. Perhaps the most striking fact found in the table is the ambiguity

o f most constitutions regarding who investigates the president under what decision-making

rules. Nevertheless, like in Table 1.1, we can divide the countries into two groups, one in which

the judiciary participates and the other in which it does not.

From these two tables, then, we can discern two types of impeachment processes: a

legislature-dominant pattern and a judiciary-dominant pattern. As a pure type, the legislature-

dominant pattern is one in which the legislature holds the power to accuse and investigate the

president and decide to remove him from office. There is no participation o f the judiciary. In

other words, the Congress holds the exclusive veto power against impeachment. In contrast, the

pure type of the judiciary-dominant pattern is one in which the judiciary assumes the accusatory

and/or investigative role and the final judgment on whether the president is guilty. The

legislature's only role is to decide whether to consent to holding a trial of the president. The

legislature does still hold some of the veto power against impeachment, but the request for

impeachment must first pass through the check points, or veto gates, set up by the judiciary, and

must also pass through another judicial veto gate before the president can be convicted. The

difference between the two patterns is illustrated in Chart 1.1.

Needless to say, there are many countries whose impeachment procedure does not fit neatly

into one of these two patterns. In fact, only Venezuela fits perfectly to the judiciary-dominant

pattern. Many countries do not have specific rules in their constitutions regarding investigation

o f the president, and among the 26 countries reviewed here, only three countries grant any role

to the judiciary in making the decision to put the president on trial. The distinction between the

two patterns is, nevertheless, useful for the analytical purpose o f this work. It depicts the

different dynamics among actors involved in impeachment processes in Brazil and Colombia, on

referendum before the president can be removed.

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one hand, and in Venezuela, on the other. Chart 1.2. and Chart 1J . show who makes decisions

at every stage o f the impeachment process, illustrating the difference between the two patterns.

As Chart 1.2 demonstrates, in countries following the legislature-dominant pattern, such as

Brazil and Colombia, the constitution and congressional procedural rules set up multiple veto

gates to ensure that the impeachment procedure is not abused for political purposes. First, the

accusation against the president must be officially accepted by the House o f Representatives.19

Whether to accept an accusation or not is up to the Speaker o f the House If this individual is

a supporter o f the president, he may not accept the accusation, or accept it but not put it on the

legislative agenda, and the door to the impeachment process is shut. Thus, the House Speaker

constitutes the first veto gate.

The investigative phase constitutes the next veto gate, or gates, depending on specific rules

on how the investigation is conducted. In some countries, a congressional committee is formed

to investigate the president, and its formation requires a certain number o f signatures o f the

legislators. Without enough members of the congress interested in conducting an investigation,

no investigation w ill take place, and without investigation impeachment is highly unlikely,

although not impossible. The composition o f the investigative committee constitutes another

check point. For a president with a supporting majority in the committee, the chances o f getting

an unfavorable committee report is much smaller than otherwise.

19 In the impeachment process of President Collor in Brazil, the order was reversed: that is, the Congress
formed an investigative committee first. The formal accusation was made only after the committee
endorsed its chief investigator's report suggesting the president's involvement in the extortion scheme.

10 In many Latin American countries the Speaker of the House is called presidente de la camara. In order
to avoid confusion with the president, however. I will use the term Speaker of the House throughout this
dissertation. The term “Chamber” is often used as translation of “Camara” but in this dissertation I use the
term "House” when referring to the lower house of legislature.

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Even if the investigative committee submits a report suggesting the president’ s wrong­

doing, it may still be turned down on the floor. In fact, the floor vote is usually the hardest veto

gate to get through, since in most countries a super-majority, most commonly two-thirds o f the

members of the Congress, is required in order to impeach and/or remove the president.'1 To be

more precise, in most countries with bicameral systems, the House votes on whether to submit

the request for an impeachment trial to the Senate." I f the specified majority votes for the

submission o f the request, the president is impeached and the process moves to the Senate. The

Senate votes first whether to proceed with the impeachment trial, by a super-majority that goes

from two -thirds of its members present in the session, at the least, to three-quarters of all the

members, at the most.13 Once the decision is made to proceed with the trial, the Senate

functions as a court, usually presided by the Chief Justice of the Supreme Court. The judgment

that the president is indeed guilty has to be supported by another super-majority vote in order to

take effect. Only then is the president convicted and removed.34

In the judiciary-dominant process, illustrated in Chart 1.3. the picture is completely

different. It is up to the judicial authority, the Supreme Court, whether to take up an accusation

against the president. Just as the House Speaker can in a legislature-dominant process, the

Court could indefinitely postpone the decision by simply not acknowledging the accusation, or

not making the decision on whether to take up the accusation, and thus block the impeachment

31 Once again, there are some exceptions, such as Ecuador and Panama, where the constitution does not
specify any special majority for the impeachment and removal o f the president. In these countries. I
assume that only a simple majority is required to impeach or remove the president.

33 In some countries, however, these decisions are taken in a joint session. Among unicameral systems,
some congresses vote only once to decide on impeachment and removal at the same time, while others
have two separate votes, usually with the removal vote requiring a larger majority than impeachment. See
the table 1-2 for more detail.

33 Panama and Peru are exceptional, for their constitutions do not stipulate any super-majority for the vote
on removal o f the president.

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process from going any further. The veto power of the Supreme Court is somewhat constrained

in that certain individuals can open the veto gate. For example, if the accusation is made by the

Prosecutor General, the Supreme Court is virtually obligated to acknowledge the accusation, for

the Prosecutor General is also responsible for overseeing that the country's legal system

functions properly, and he would certainly make use of this responsibility if the Court failed to

acknowledge his accusation.

Just as a legislator is chosen as the principal investigator in the legislature-dominant

process, a magistrate is designated as the chief reporter on whether the accusation has sufficient

grounds, and the Court as a whole decides, by a simple majority, whether the accusation merits a

trial. Once the decision is made that the accusation merits a trial, this decision is communicated

to the Congress, and all the evidence and documents containing the magistrates' arguments are

sent to the Congress as well. Thus, unlike the legislature-dominant system where the judiciary

has no role in the impeachment process, in judiciary-dominant processes the legislature still

holds one veto gate. However, this veto gate gains significance only i f the judiciary opens its

gate first, which is one o f the two reasons why I call this pattern judiciary-dominant.15

The Congress does not function as an investigative body. It only decides whether to take

away presidential immunity based on the information provided by the Court. The Congress may

form investigative committees, as did the Venezuelan Congress in 1993, but these committees

do not constitute an official part of the impeachment process. An additional feature o f the

judiciary-dominant impeachment process is that it is surprisingly easy to meet the voting quota:

in four out of eight countries where the judiciary tries the president, only an absolute majority

vote in Congress is required to impeach the president. Even where a larger majority is required

for impeachment, the decisions in the judiciary are made by a simple majority rule, except in

24 In most countries, the Senate does not have the power to apply punishment beyond removal from office.

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South Korea, where a two-thirds majority is required. When the Court rules that the president is

guilty, he is permanently removed from office.

Compared to the legislature-dominant pattern o f impeachment process, the judiciary-

dominant pattern has fewer congressional veto gates: in fact, there is only one gate, that of the

decision to remove presidential immunity from trial. In legislature-dominant systems, numerous

veto gates are set up within the legislature. In Brazil, both the Senate and the House of

Representatives function as veto gates, and in each decision on the floor the consent of two-

thirds of the members is required to open the veto gates. In Colombia, impeachment requires

only a simple majority in the House, but for conviction and removal two-thirds of Senators

present in the session must consent. In Venezuela, in contrast, only the Senate votes, and.

merely by an absolute majority vote, sends the president to a trial. In addition, all the decisions

in the judicial branch are made by a simple majority vote. This low level of barrier may be

justified by the assumption that the judiciary w ill judge impartially whether the president is

indeed guilty or not, without the intervention o f political interests.

E. Which Process Works Best? Limitations of Rule-Based Explanations and the

Importance of Information

A question naturally rises from the above account o f differences between legislature-

dominant and judiciary-dominant types o f impeachment processes: which is a better process?

There is, unfortunately, no simple answer to this question. This is because each of these two

types is a better defense against only one of the two “ dangers" or “errors" of impeachment

processes discussed above. Legislature-dominant processes are good at reducing the possibility

of type Q error, or the danger o f impeaching an innocent individual, but are less effective at

25 The other reason being the judiciary’s exclusive authority to conduct the impeachment trial.

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punishing a corrupt individual, because o f the requirement o f super-majority vote.26 Judiciary-

dominant processes may at first sight appear to reduce both type I and type n problems, as long

as the judiciary is completely immune to political pressure. The moment this assumption no

longer holds, however, judiciary-dominant processes aggravate type Q problems, while it is

likely to reduce type I problems given the simple majority decision-making rule. Furthermore,

the difference between the two patterns in terms of voting quota may not be as important as it

may seem, for whether the required majority for impeachment (and conviction) is formed is not

determined solely by the decision-making rule. I w ill elaborate on these points below.

In every country surveyed in Table 1.1, the legislature makes at least one decision in order

for impeachment or conviction to take place. Thus, we can say that the probability of

impeachment (and/or conviction) depends on whether a legislative majority is formed in favor

o f it. When we look at impeachment processes in different countries, it becomes clear that the

conditions under which a "legislative majority" is formed are different for different countries: in

some, this majority is a simple majority of legislators present in the session, while in others this

majority means two-thirds o f members of the chamber where the decision is made. In the

Philippines, it does not even require a majority to impeach a president! In only two out of 19

countries where the legislature decides on conviction, however, does the decision to remove the

president require less than a two-third majority. By contrast, in a judiciary-dominant process,

i.e.. that of Venezuela, the legislature cannot make any decision on impeachment without first

having the Supreme Court decide that there are grounds for (impeachment and) trial. Once the

Supreme Court makes its judgment that the president should be tried, the legislative majority

required to open the trial (and thus impeach the president) is an absolute majority o f Senators:

no super-majority vote is required of the legislature.

26 Without the super-majority requirement, the type II problem becomes more problematic, especially in

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Needless to say, various factors affect the probability that a majority is formed to support

impeachment, and many of them are country- or event-specific. The voting quota, however, is a

factor that affects all systems in common. Let us formalize the relationship between the

probability of impeachment and voting quota as:

p(impeachment)=f { ( l-V), x } where V=share o f votes required for a decision, and

x=all other factors that affect the probability of impeachment

Other things being equal, the more votes are required, the more difficult it is to impeach a

president. For example, in a system that requires two-thirds of the legislators’ vote for

impeachment, a mere one-third o f legislators can stop impeachment. The more votes are

required, the more effectively a small minority can resist impeachment. One may thus conclude

that impeachment processes that require smaller V are better at punishing corrupt presidents.

When the accused individual is innocent, however, a problem rises with a small V. For

when V is smaller, the probability of impeaching an honest president is also higher. A larger

majority, on the other hand, would mean that a corrupt president is less likely to be impeached,

although an honest president would also be less likely to be impeached. In short, no value of V

can be regarded as “ best." for none can simultaneously solve the two problems of impeachment

discussed above. Empirically, most countries surveyed in Table l. l. have opted for a large V.

that is. for safeguarding against the tyranny o f majority. In so doing, however, they may be

aggravating the problem of impunity o f corrupt presidents.

In all the countries where the judiciary participates in the impeachment process, except for

South Korea, decisions by the judiciary are made by a simple majority vote. It may seem natural

that there is no requirement for a super-majority in the judiciary, for magistrates are thought to

be independent o f politicians and are thus expected to make fair judgments. Such expectations.

divided governments where the legislative majority does not support the president.

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however, often turn out to be too naive: magistrates often do face political pressure, and in some

cases they may have political interests. Once the premise of an “ independent judiciary” breaks

down, the simple majority rule can become a tool for bringing down politicians not favored by

the majority o f the magistrates, or politicians whose opponents exercise powerful pressure on

the magistrates. In short, a judiciary-dominant process with a simple majority rule, contrary to

the legislature-dominant process with a super-majority rule, safeguards against a small

minority’s blocking a deserved impeachment or removal, but also increases the danger of

impeaching or “ punishing” an honest individual.

Those interested in assuring the accountability of high-level public officials through

impeachment process may recognize the shortcomings o f the institutions that currently govern

the process in a given country, and may try to reform them. A country with a judiciary-

dominant process may want to switch to the legislature-dominant pattern, or vice-versa. It

would not be easy, for such a switch would require a constitutional change, which often has to

be approved by a super-majority in the legislature and by entities outside the legislature. In

addition, the change may not necessarily improve the effectiveness of the impeachment process

as an accountability mechanism. The above discussion demonstrates that there is no single

impeachment process that works best for all situations. We cannot say whether legislature-

dominant processes are better than judiciary-dominant processes, or whether requiring a super­

majority is better than requiring a simple majority.

Aside from the normative issue, furthermore, the empirical puzzle requires us to look

beyond the rules that define the impeachment processes: in both Brazil and Venezuela, attempts

to impeach a president occurred more than once under the same rules governing the

impeachment process, but only one president in each country has been impeached and removed.

Besides, these two countries’ impeachment processes are as far apart as they can be: Venezuela

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had the only truly judiciary-dominant process, while Brazil is one of the most legislature-

dominant system, which requires two-thirds of chamber members vote for both impeachment

and removal.27 What, then, accounts for the similarities and differences in the outcome of

impeachment processes?

In the next chapter. I offer an informational theory that explains possible differences in the

outcomes of impeachment processes. In a nutshell, the theory is that whether the president’s

allies control the information flow from and into the investigative body has a crucial impact on

the outcome o f the impeachment process. The theory w ill then be used in the case studies of

impeachment processes in Brazil, Colombia, and Venezuela in chapters three through five.

These three countries have been chosen because in each a president ran the risk of (and in

two out of the three ended up) being impeached in the 1990s. In Brazil the president was

impeached and removed for allegedly benefiting from an extortion scheme run by a close friend

of his. In Venezuela, the president was impeached for alleged embezzlement, and subsequently

removed by Congressional declaration of his “ absolute absence." He was not convicted of

embezzlement, however. In Colombia, the president was accused of accepting drug cartel

money in his presidential campaign. Instead of impeaching him. the Congress voted to prohibit

any future investigation. I demonstrate that the informational theory can explain why the

outcome of the three cases o f impeachment process differed so greatly.

In chapter six I evaluate the explanatory power o f the informational theory of impeachment

in other cases o f impeachment. Having established that an informational monopoly is

detrimental to the credibility o f impeachment process as an accountability check mechanism, the

chapter also addresses the question o f how to avoid informational monopoly, either by the

president’s allies or by his enemies.

27 Only Dominican Republic’s 1994 Constitution surpasses it in terms of voting thresholds.

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21

Table 1.1. Im peachm ent Procedure: Impeachment and T ria l

Country Impeachment Voting Rule Trial by Voting Rule


JUDICLVRY-PART1CIPANT
Judiciary-Dominant
Venezuela (1961-99) Senate*1 not specified
1/2+ members Supreme Court
Judiciary-Confirmed (n/s)
Nicaragua (1986) Congress (U) 1/2+ members Supreme Court n/s
El Salvador(1983) Congress (U) 1/2+ members Supreme Court*2 n/s
Honduras (1982) Congress (U) n/s Supreme Court n/s
Bolivia (1967) Congress (JS) 2/3 members Supreme Court n/s
Madagascar (1992) both houses 2/3 members Supreme Court n/s
Costa Rica (*49) Congress (U) 2/3 members Supreme Court n/s
S. Korea (’ 87) Congress(U) 2/3 members Const. Court 2/3 judges
Judiciary-Validated (legislative decisions that need validation by the judiciary are marked
Russia (1993) * LH# 2/3 members Senate# 2/3 members
Kazakhstan (1995) *4 LH 1/2+ members both houses# 3/4 members
Guvana (1980) * 5 Congress (U) 2/3 members Congress# 3/4 members
Ecuador(1998)*6 Congress (U) 2/3 members Congress# 2/3 members

L e g is l a t u r e - d o m in a n t (where a separate trial is held for penal charges is marked


Impeachment without Super-Majority
Panama (1972) Congress (U) n/s Congress n/s
Peru (1993) Cong.Com n/s Congress (U)* n/s
Mexico (1917) LH 1/2+ present Senate 2/3 present
USA LH 1/2+ present Senate 2/3 present
Colombia (1991) LH 1/2+ present Senate* 2/3 present
Philippines (1986) LH 1/3 members Senate 2/3 members
Chile (1980) LH 1/2+ members Senate* 2/3 members
Uruguay(1966) LH n/s Senate 2/3 members
Super-Majority Required fo r Impeachment
Argentina (1994) LH 2/3 present Senate* 2/3 present
Paraguay (1992) LH 2/3 present Senate* 2/3 members
Brazil (1988) LH 2/3 members Senate* 2/3 members
Haiti (1987) LH 2/3 members Senate 2/3 members
Guatemala (1985) Congress (U) 2/3 members n/s n/s
Dominican Rep.(1994) LH 3/4 members Senate* 3/4 members

JS=Joint Session U=unicameral LH=Lower House Cong. Com =Congressional Committee


Const. Court = Constitutional Court
Underline = constitution allows removing presidents for mental or physical incapacity.

* 1 Decision is made only after the Supreme Court concludes that the president committed a crime.
*2 The Supreme Court handles the second and the third stages of the trial.
*3 Validation by both the Constitutional Court and the Supreme Court is required.
*4 The Constitutional Council must validate the accusation prior to trial.
*5 Allegation of president's crime must be validated by a Chancellor-appointed tribunal.
*6 Criminal (as opposed to political) charges must be validated by judicial investigation.

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Table 1.2. Impeachment procedure: Accusation and Investigation

Country Accusation by Decision Rule Investigation by Decision


Rule
Venezuela either L or PG Supreme Court 1/2+ present
(1961)
Ecuador(U) 1/4 members o f 2/3 members judicial branch for
(1998) Congress (—^impeachment) penal charges
Dominica 1/3+ members of 2/3 members Supreme Court*
(U )(1978) Congress (—^impeachment) (three justices)
Guyana (U) 1/2 members of 2/3 members Chancellor-
(1980) Congress appointed tribunal
Nicaragua any citizen or
(U )(1986) judicial authority
Colombia PG. or any Congressional 1/2+
(1991) individual Committee (LH) members
Philippines Any L or citizen Congressional 1/2+
(1986) endorsed by L Committee members
Uruguay a party or an L in
(1966) the LH
Chile 10-20 members Congress (LH)
(1980) of LH
Brazil members of 1/3+ members Congress (ad hoc 1/2+ present
(1988) Congress committee)
Russia members of LH 1/3 members Congress (Special
(1993) Commission)
Kazakhstan 1/3 members of 1/2+ members Senate 1/2+
(1995) LH members
Peru (U) Congress! PC) Congress (PC)**
(1993)
South Korea Congress 1/2+ members
(1987)
others Congress Not specified Congress Not specified

L=legislator(s); PG=Prosecutor General (see text for explanation); LH=Lower House o f Congress;
U=unicameral; JS=joint session of the Congress: PC=Permanent Commission

♦investigation is conducted only after impeachment vote


♦♦investigation is conducted before formal accusation

others=Argentina. Bolivia. Costa Rica (U). Honduras! LT). Guatemala (U). Madagascar. Panama! IT),
Paraguay, and Uruguay (LH for accusation).
Constitutions o f El Salvador (U) and Panama (U) recognize the congressional authority to form
investigative committees without specifying their function in impeachment.

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23

Chart 1.1. Legislature-Dominant vs. Judiciary-Dominant Impeachment Processes

Action required for the next step to take place


Action NOT required for the next step to take place

Legislature-Dominant Judiciary-Dominant

Any individual/ Prosecutor General Any individual/ Prosecutor General

Accuse Accuse

i
Congressional Investigative Committee Judicial investigative body

Investigate and recommend trial Investigate and recommend trial

i
Lower House of Congress The Senate

Impeach Impeach

The Senate The Supreme Court

t
Conduct trial Conduct trial
(Permanent Removal) (Both political and
penal charges)

Request penal trial


A'

The Supreme Court

Conduct trial
(Penal charges)

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24

Chart 1.2. Legislature-Dominant Pattern (Colombia, Brazil)


an individual
accuse the president
accuse the president
unofficially
officially

president of the members of the


Congress not enough
Congress/Lower House
votes
reject the V /
vote to form committee
accusation.
S closed
Investigative Committee
closed
report "guilty”
report innocent

Chamber Floor Chamber Floor

reject the report


accept the report
d
process
process approve the report;
reject the report uest a trial closed
closed

Senate
Z <im peachm ent>

decide to hold the


impeachment trial: reject the request for
president may be impeachment trial
suspendend

Senate process
closed

rules
’innocent" jrules "guilty"
president President is permanently
survives C O N V IC T IO N removed from office

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Chart 13. Judiciary-Dominant Pattern (Venezuela)

An individual/political party

accuse
/ denounce-^...

Supreme Court Prosecutor General

reject the accusation accept accuse the not "^accuse


X » president **
process
closed Supreme Court process
investigator-magistrate closed

report "innocent report "guilty

Supreme Court Supreme Court

approve /
the report/ approve the report;
reject the report communicate its w ill
process reject the report to put the president
closed on trial

the Senate

approve the trial:


president may be suspended eject trial
<dmpeachment>

process closed:
the Supreme Court president survives

rules "innocent’ rules “ guilty”

the president is absolved: CO N VIC TIO N President is permanently


returns to office removed from office

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II. IN FO R M A TIO N A L THEO RY OF IN V E S TIG A TIV E CO M M ITTEES

A. Four Factors That Affect Legislators’ Incentives to Vote for Impeachment

In discussing why some presidents are impeached and removed while others are not. the

most frequently used explanation is that a minority president is more likely to be impeached

and removed than a president with firm backing in the Congress.1 Thus. Weyland (1993)

attributes the impeachment of president Collor to his party's extremely small size in the

legislature and the tenuous nature of the coalition in government. Similarly. Perez-Linan

(2000) argues that in Latin America in the 1990s presidents who were ousted from office all

suffered from weak support from Congress. While these observations correctly describe the

political climate under which presidents were removed, they do not explain how such climate

was created: that is. what incentives the legislators had to favor removal of a popularly elected

president, and why the president failed to gain or regain congressional support.

That minority presidents are more likely to be impeached is self-evident: ceteris paribus.

the larger the president’ s allies' share of votes, the less likely he would be impeached and

removed. For example, if impeachment requires two -thirds o f the votes of members of the

lower house, a president is far less likely to be impeached if he commands the support o f one

half of the members, than if he commands only the support o f barely one-third of members.

This explanation, however, assumes that congressional support for the president is stable.

This is not at all likely when grave accusations against the president are brought up and

information supporting such accusations is revealed. Some supporters o f the president may

desert him out of personal moral indignation, and others w ill leave the president's camp if

constituent pressure grows strong. In other words, whether a president enjoys firm support in

1 Another explanation, based on the success or failure o f economic policy, is found in Tanaka (1997).
Weyland (1993) and Perez-Linan (1998) also include economic performance in their explanation.

26

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27

congress or not is not an exogenous factor in explaining impeachment. Legislative majorities

can shift from one in favor of the president to one in favor of impeachment as the

impeachment process unfolds.

What. then, explains whether a president enjoys legislative support that is sufficient to

stave o ff impeachment (and removal)? Needless to say. the difference in voting quota for

impeachment (and removal) is a possible factor, but. as I argued in Chapter 1. not a definitive

one. Legislative support also (and perhaps more importantly) depends on how individual

legislators decide to vote. Many factors affect whether a legislator might vote for or against

impeachment at any particular instance, but four factors always play into the legislators'

calculation of costs and benefits from voting for (or against) impeachment.

The first factor is the evaluation of the accusation against the president. A legislator

evaluates the charge against the president, and makes her initial judgment on whether the

president should be punished. This evaluation would certainly depend on the legislator's

moral values, but it also depends on how the legislator interprets the available evidence.

Needless to say. there is no universal standard for evaluation of evidence. In some countries,

confession from a president's brother may be considered a highly credible piece of

information, while in others it may not. Even within a country, some legislators may consider

a piece of evidence highly incriminating while others may think it trivial.

In regards to charges o f corruption, however, there are certain pieces of evidence whose

relevance is hard to deny. The clearest proof o f guilt is the physical evidence o f personal

enrichment, such as luxury cars and houses, that have been acquired after the accused

individual took an official position. Evidence that corroborates the suspicion that this personal

enrichment took place via corruption, such as written notes and witnesses* testimony, further

lends credibility to the accusatory information. Records of bank transactions are another

valuable source of information whose authenticity is relatively easy to verify. O f course, in

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28

corruption cases as well as in other cases, inconsistencies or lies found in the accused

individual's public statements also provide foundations for doubt, if not proof, that the

accused person has committed some wrong-doing. Since legislators' initial, personal

judgment of the president's guilt depends heavily on the availability and credibility of

incriminating information, it is important to know how such information is provided to them.

I w ill return to this point in section C.

A legislator’ s personal judgment about the guilt of the president must be weighed,

however, against other forces that influence her political career. These include constituent

pressure, party discipline, and the president’ s influence.

For a legislator who seeks reelection, or who seeks other electoral office such as mayor or

governor, responding to constituents who hold the key to a successful reelection (or election)

in the near future is an imperative. If what Fenno (1978) calls core supporters demand that the

legislator vote for impeachment, and/or if constituents can credibly threaten the legislator with

punishment if their demand is not met. the legislator is under considerable pressure to vote for

impeachment. Whether constituents demand impeachment of the president or not depends on

whether they are satisfied with the president's performance, and here again the availability and

credibility of incriminating information is a crucial factor, for it influences constituents' view

of the president's performance. Whether constituents' threat of punishment is credible or not

may depend on many idiosyncratic factors, such as when the next election is. and how likely

the legislator w ill be elected given other candidates.

A less idiosyncratic variable that can affect the credibility of constituents' threat is the

voting procedures for the impeachment vote. In order to punish a legislator for not voting in

accordance with their preferences, constituents need to know how the legislator voted. If

secret voting is the rule, the constituents cannot know if their legislator voted as they wanted

her to. Another institutional factor affecting the effectiveness of constituent pressure is the

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29

electoral rules. If the electoral rules do not allow voters to cast their votes for individual

candidates, constituent pressure is weakened.

Party discipline is the second factor to be weighed against the legislator's personal

judgment on the president. A disciplined party is a party that has credible means to punish

members who vote against the party line. The punishment may take the form of expulsion

from the party, removal from important party posts, or refusal by the party to support electoral

campaigns in the future. Needless to say. such punishment is effective only if the party plays

an important role in the career advancement of party members. For example, if party

switching does not affect the prospect for reelection, the threat o f expulsion is ineffective.

Under strong discipline, legislators are more likely to vote along the party line than under

weak discipline. For example, once the president's party decides to try to save the president

from impeachment, its members are likely to vote against impeachment even if they

personally believed that the president was guilty. Conversely, once an opposition party

decides to support impeachment, its members are likely to vote for impeachment even if they

believed the president was innocent. Because dissent is costly, legislators are unlikely to

negotiate their vote with the president.

Under weak discipline, legislators are more likely to vote according to their individual

preferences even if doing so contradicts the party line. Even legislators from the president's

party might vote for impeachment, while legislators from opposition parties might vote

against impeachment. Since the costs o f dissent are low. other factors than party discipline

gain importance in their calculation o f costs and benefits o f voting for or against

impeachment. In other words, under weak discipline, the president can. and most likely must,

bargain with individual legislators in order to avoid impeachment.

That there is room for bargaining with individual legislators does not mean that the

president can successfully bargain with them. Presidential influence depends on whether the

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30

president can credibly offer attractive rewards to legislators. Such rewards may take the form

o f cabinet appointments, distribution of resources to the legislator's district, or offers of

administrative positions to important constituents of the legislator. Legal constraints on the

president's appointment and distributive powers determine the credibility and attractiveness of

the rewards.2 With a credible offer of attractive rewards, a legislator from a weakly

disciplined party may vote against impeachment even if she believed that the president was

guilty.

A legislator decides whether or not to vote for impeachment taking these four factors into

account. The third and fourth factors, i.e.. party discipline and presidential influence, can be

considered as having a fixed maximum impact on the legislator: party discipline is defined in

party rules and constitutional rules, and a president's power is limited by constitutional and

budgetary constraints. To be sure, the effect o f these two factors is not predetermined solely

by the rules in place. Whether the party leaders try to wield the maximum pressure is

contingent upon the party leaders' relationship with the president, as well as how the party's

key constituents respond to the accusations. Whether the president might try to use all his

power to buy support depends on how many legislators' support he must "buy" in order to

avoid impeachment. How much power he can actually exercise also depends on how much

time remains for his term, especially when the rewards the president promises are

appointments to high offices. Despite these uncertainties, however, the range of influence that

party leaders and the president can exercise is predictable given the institutional setting.

By contrast, the first and the second factors, i.e.. legislators' evaluation of the president's

alleged wrong-doing and constituent pressure, have a much larger element of uncertainty, for

2 For example, a president who can promise public funds and works for a legislator's district is in a
much better bargaining position than a president who can only promise cabinet positions. The
credibility of the offer depends on whether the president can unilaterally make and execute the offers, or
whether he must submit the offers as a legislative proposal, which might be rejected by the Congress.

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31

the strength o f moral indignation and of constituent pressure depend on what the legislator and

the constituents come to know ( or believe they know) about the president’ s wrong-doing/

Legislators make their decisions based not only on the predictable influence from the president

and the party, but also on the less predictable influence of constituents and of their own moral

judgment. While the former no doubt affects impeachment processes, this study focuses on

the latter. I argue that legislative support for impeachment is conditional on how much

credible information is revealed through investigation, for it is the revealed information on

which citizens and legislators alike make their judgment on the president and act accordingly.

Focusing on the role o f information in impeachment processes, we can address the

problems of type I and type H errors in a different light from that shed in Chapter I. Type I

error, that is. a wrong-doing goes unpunished, is less likely to happen when legislators are

provided with credible evidence that proves guilt. I w ill call this the "complete information"

scenario. With complete information, especially when the constituents are also informed and

demand impeachment, even party leaders with strong disciplinary tools might find it difficult

to pressure party members to vote against impeachment. Even the president's friends might

turn away from him if they are convinced by credible evidence that the president has

committed a grave crime. Type II error can also be avoided with complete information. If an

accusation is based on false evidence or no evidence, further investigation into the accusation

w ill not yield any convincing evidence. Short of evidence, the accusation loses credibility,

and the accused gains credibility, making it difficult for the accusers to justify impeachment.

Needless to say. reality often ( if not always) falls far short o f the complete information

scenario. Information may not be available or credible due to technical incompetence, or to

the witnesses’ refusal to testify, or to the political agenda of those who are in charge of the

3 It is. unfortunately, possible that some politicians, as well as constituents, might be predisposed to
want impeachment, regardless of the evidence of crime. I will discuss these cases in the following.

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32

investigation. The actual cases of impeachment processes where investigations take place fall

somewhere between zero information and complete information. What accounts for the

position of individual cases on the informational scale, and how impeachment processes in

general can be moved toward complete information, are the two major questions this study

intends to answer. The following section offers an analytical framework based on the four

factors discussed above.

B. Information and Decision-Making by Legislators

The relationship between the availability and reliability o f information about the possible

crime, on one hand, and the support legislators give to the accused individual, on the other,

can be described using the following figures (see Figure 2.1 to Figure 2.6).4 In these figures,

the vertical axis measures the amount of incriminating information that a particular legislator

would require in order to vote in favor of impeachment. When a legislator is eager to vote for

impeachment even in the absence of evidence of a crime, her position on the vertical scale is

close to zero. When a legislator is a loyal supporter of the president, she w ill not vote for

impeachment short of incriminating evidence that cannot be refuted, such as confession or

physical, authenticated evidence (e.g. bank accounts and luxury goods). Such a legislator's

position on the vertical axis would be close to or at the top end. The higher score means that

there are numerous pieces o f information that reveal grave wrong-doing and that corroborate

other pieces of information (and thus the level of credibility of the overall information is

higher).

The legislators are positioned on the horizontal axis according to their preference for

impeachment. (These legislators may be members of the single legislative body, or of the

4 Discussion with Chris Woodruff led to the development of these figures, and I am grateful for his
insight.

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33

legislative chamber where vote on impeachment takes place.)5 The further left a legislator is

positioned, the more eager she is to impeach the president relative to the legislators placed to

her right.6 I expect that legislators from the president’s party w ill be lined up toward the right

hand side, while legislators from the opposition parties w ill fill the space toward the left end of

the figures. Legislators do not move from one point on the horizontal axis to another: their

position is predetermined by their party affiliation, party discipline, and personal affinity with

the president prior to accusations against the president. The only changes that legislators may

experience are in how much information they would demand in order to decide to vote for

impeachment given pressure from the president, party leaders, and constituents, which is

depicted in the vertical axis.

In Figure 2.1. all legislators belong to one of the two parties with perfect discipline. The

perfect discipline is depicted by the flatness of the lines: everyone in the same party requires

exactly the same amount of information to vote for or against impeachment. In this figure, the

president's party is the majority party: the line B. with a higher value on the vertical axis,

extends over half the horizontal axis. None of the legislators on line B would vote for

impeachment unless an extremely high volume of credible evidence of wrong-doing was

presented. On the other hand, opposition legislators are all on line A. meaning that none of

the legislators on this line requires more than i unit of information, which is quite low. before

they are ready to vote for impeachment. It is even possible that legislators on line A may

bring false charges against the president in order to initiate the impeachment process.

5 The same figures can be used to explain the vote on convicting the president.

6 That is. the legislator positioned on the midpoint on the horizontal axis is there not because she is
indifferent (neutral) about impeachment, but simply because half the legislators, placed to her left, have
stronger preference for impeachment than she does.

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34

In Figure 2.2. the position of the president's party and the opposition is reversed, that is.

the president's opponents hold majority in the Congress (or the chamber that votes on

impeachment). However, as is most common with two-party systems, the minority party

still holds more than one-third of the votes. Therefore, if impeachment requires two-thirds

majority instead of a simple majority, the president w ill survive the impeachment vote, unless

there is enough information (to point j ) to turn even his supporters into advocates of

impeachment.

In Figure 2.3. the assumption of perfect discipline is relaxed: while there are still some

party loyalists, many opposition legislators now vote only when the amount of incriminating

evidence that they consider sufficient has been provided. Conversely, some legislators from

the president's party will vote for impeachment if the amount of evidence provided is enough

to convince them that the president has committed a crime, even if the party demands that they

do not vote for impeachment. In this scenario, unlike in the first two. a marginal change in the

amount o f information provided to the legislators becomes important. If the investigative

body (such as congressional committees or the prosecutor's office) can manage to provide

information to point k . and the impeachment requires only a simple majority, the president

w ill be impeached. If. on the other hand, impeachment requires two-thirds majority, the

committee must provide more information, to point / . in order for impeachment to happen.

In Figure 2.4. some variations of multiparty systems are presented. SI shows a weakly

disciplined party system, with the president enjoying a tenuous majority's support. 52

describes a system with some disciplined parties. S3 is a system with weakly disciplined

parties, but with a majority that opposes the president. Even in S3, if information is too little

(as shown at i ). impeachment does not happen, in contrast to in Figure 2.2. where party A can

force impeachment ( if it only requires 1/2 majority). The level of information at j is enough

for the S3 legislature to impeach the president, but not for the 52 legislature. If. however, the

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35

information level can be increased to j \ party C, with its discipline, can force through

impeachment, together with parties A and B (if it only requires 1/2 majority). The SI

legislature requires a much higher level of information to approve impeachment, but. unlike in

Figure 2.1.. a small increase in information, say from k to /. can produce impeachment.

In the extreme case, depicted in Figure 2.5. the most fervent supporter of the president

might vote against impeachment even if the president confessed to some wrong-doing. That

is. for the most fervent supporters of the president, the availability of credible information

about impeachable offenses may have no effect at all on their decision on impeachment.

Conversely, for the most zealous opponents of the president, it may not matter that there is no

proof of wrong-doing before they start crying for impeachment. These extreme legislators are

located on either end o f the curve.

While the availability of credible information depends on the performance of the

investigative body, and the legislators' responsiveness to the information depends on party

discipline, other forces also influence the legislators' decision on impeachment. I have

mentioned presidential power and constituent pressure. Figure 2.6 shows how a legislator's

decision may be affected by such pressure. Legislator M occupies the midpoint in the

horizontal axis. Without any pressure, legislator M would be voting for impeachment when

information at level k becomes available. However, if the president can credibly promise

rewards for not voting for impeachment, legislator M may decide to vote against impeachment

even if the actual information is at L that is. the available information is enough to convince

her that the president is guilty. Conversely, if M 's constituents demand impeachment, she

might vote for impeachment even if the actual information level is at />. that is. the available

information does not convince her that the president is guilty.

It should be noted that constituent pressure may work the opposite way from what I

described above: constituents might pressure their representative NOT to vote for

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36

impeachment. This is likely when the accused individual enjoys high popularity, and when

constituents do not consider that there is sufficient proof o f serious wrong-doing (or simply

they do not care that the president is guilty). Such perception on the constituents' part can

stem from either the lack of proof itself, or from how they evaluate the seriousness of the

wrong-doing that has been proved. Just as constituent pressure in favor o f impeachment can

pose a dilemma to a legislator belonging to the president's party (especially when the party

has strong discipline), the constituent pressure against impeachment poses a dilemma to a

legislator belonging to a disciplined opposition party that strongly favors impeachment.

The above figures capture how the four factors discussed above affect legislators'

decision-making, with a particular emphasis on the role of information. While we now can

describe how a given political system influences the distribution of legislators in a two-

dimensional figure depicting party discipline, partisan composition of the congress, and

constituent pressure, we still do not know how the actual values on the vertical axis (i.e.. the

volume o f credible information) are determined. How does information become available to

citizens and legislators?

C. The Sources of Information and How Information Is Filtered

The mass media is definitely one of the most important sources of information. In fact,

most investigations against presidents and other politicians begin only after some media

reports generate strong reaction from readers, viewers and listeners. Competition between

rival media groups often results in further journalistic investigation and escalation of the

reporting into a political scandal.' In a way. then, the media pushes the official investigative

7 Toobin (1999). in his book Vast Conspiracy, provides fascinating account of how the media competed
to reveal information that eventually led to the impeachment of president Clinton.

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37

body, such as congressional committees and prosecutor’ s offices, to take action.8 However,

media revelations do not automatically lead to an official investigation. The official

investigative bodies can and often do choose to ignore the whistles blown by the mass media.

Furthermore, the mass media cannot access every source of information with freedom: some

sources, such as banks and members of Congress, may choose not to reveal private

information to the media. Congressional investigative committees are privileged in this

respect, for their request for information obliges any public agency or its employees to provide

information, and their request is far less likely to be declined by financial institutions. In

addition, if the banks are state-owned, they simply cannot refuse congressional requests. Thus

congressional investigative committees are potentially very important sources of information.

The investigative committee may. however, choose not to seek information, or choose to

seek only information that serves the committee’ s (or committee majority’ s) political

purposes. No matter how much and how shocking the information the media provides, the

committee may choose to ignore it. or choose to incorporate only the pieces of information

that it sees fit to its political purposes. The pieces o f information provided by the media that

the investigative committee does choose to incorporate become authenticated, as they become

part o f the official investigative report. The investigative committee thus functions as a filter

of information: the pieces of information that go through the filter o f the committee become

available to legislators as official information. The filter of the investigative committee also

functions in its relation to the public: the committee may choose not to disseminate

information to the public, or choose to publicize selective parts of its “ findings." again for

political reasons.

8 Toobin (1999) and Bakers (2000) describes how the Independent Council’s office, initially without
much enthusiasm, came to incorporate (and eventually center around) the charges of sexual misconduct
of the president into its investigation.

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38

The idea that congressional committees function as providers of information is nothing

new to students of American politics, who. as Krehbiel (1991) summarizes, have analyzed

legislative organization from either the distributive or the informational perspective. While

the distributive perspective focuses on who gets what, and at whose expense, the informational

perspective directs attention to the importance of information in legislative decision-making.

Legislators, in the informational framework, seek to reduce the uncertainty about the outcome

of their decisions (policies). Legislative committees are the main tool for reducing

uncertainty, as members of committees develop expertise in a specific policy area and provide

information that other legislators can use to make decisions. By dividing up the labor of

information-gathering among committees, legislators can efficiently collect information at low

costs.

as Austen-Smith and Riker (1987) pointed out. however, because committee members

specialize in a particular policy area and can gather private information, there will always be

incentives to use the private information strategically, to further individual objectives that may

conflict with the majority's. Krehbiel argues that legislators are aware that committees are not

necessarily providing the "full, precise, and truthful aggregation of private information"

(1991: 65) and try to "take the noise out of the committee's signal" (69). In other words,

individual legislators outside the committees make individual assessment of how credible and

complete the information the committee has provided to them. In addition. Krehbiel argues

that procedural rules, set by the legislative majority, solve the problem o f strategic use of

private information by committee members, as the rules are designed to keep committee

members from deviating from the legislative majority's interests.

Krehbiel’ s study did not include investigative committees, but his general argument is

easily applicable to them. While Krehbiel focused on the committee's function to reduce

uncertainty about the consequences of policy choices, investigative committees affect the

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39

perceived uncertainty about the guilt o f the accused president. They do not necessarily reduce

the uncertainty: in some instances, committees may do precisely the opposite to keep

incriminating information from getting out of hand. In investigative committees, just as in

other committees, there w ill be opportunities for strategic use of information by specialized

committee members, and how such use may or may not further the legislative majority’ s

causes is relevant to the study of investigative committees as well as other committees.

Procedural rules in investigative committees are important to control the strategic use of

private information. In the next section. I elaborate on how such rules, or what I call

committee structure, shapes the investigative committee to provide (or not provide) credible

information.

D. An Informational Theory of Impeachment

How an investigative committee handles the flow of information into and out of the

committee depends on how it is structured. By structure. I mean the composition (who the

committee members are and how they are selected), the powers of committee chair and the

principal investigator, and the decision-making process within the committee. When an

accusation is presented to an investigative committee, its structure determines the availability

o f credible information to the public and to the legislators, and that availability in turn affects

the legislators’ decision on whether to impeach the president or not (see Chart 2.1). As I

argued in section A. public opinion, presidential power, and party discipline w ill also

influence legislators' decisions. These latter factors have been extensively studied, but how

information for legislative decision-making is produced and transmitted has not.

The committee structure, defined in the last paragraph, is shaped by the party system and

the procedural rules. Krehbiel (1991) discusses the effect of procedural rules on committees,

but parties are excluded from his analysis. This exclusion results from his assumption that

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40

legislative committees are designed to efficiently provide a common good to all the

legislators, that is. the reduction of uncertainty about policy outcomes, rather than to provide

partisan goods. Based on this premise, it follows that the legislature will select committee

members whose preferences are not extreme, and who collectively represent heterogeneous

preferences.9 This is because the legislature would not give credibility to information

provided by preference outliers and by committees controlled by one extreme of the

ideological spectrum. In other words, information produced by such committees does not

reduce uncertainty about policy outcomes, so the legislature would not create such

committees.

Krehbiel’ s prediction is at odds with the widespread view on legislative committees that

they serve the majority party’ s interests. The absence of parties is due to his aim of

introducing an informational perspective into the study of US legislative politics, which he

contrasts with the predominant distributive perspective. He rightly argues that the absence of

parties in his assumptions should not by itself render the theory useless, that an empirical test

should determine the theory's validity.

While Krehbiel’ s study is an important contribution to understanding the informational

role of legislative committees, his assumption that committees' main function is to produce

collective goods, instead of partisan goods, may not always hold, especially in committees

such as investigative committees whose decisions directly affect a politician’ s career. As

much as the legislature would benefit from the reduction of uncertainty about the accused

politician’ s guilt (or innocence), political interests in ousting or retaining the accused

politician w ill inevitably affect the committee and the information it transmits to the

legislature. It is highly unlikely that a committee whose majority consists of the accused

9 Krehbiel adds that legislators with extreme preferences, or preference outliers, may still be chosen for
committees if they can provide information at lower costs than other legislators can.

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politician’s supporters would come to the same conclusion as a committee controlled by his

opponents.10 True, as Krehbiel points out. such a committee lacks credibility compared to a

committee with heterogeneous members, but what if the lack of credibility did not matter? If

the majority of legislators cares only to save the accused politician from being ousted from his

position, the committee’s judgment that the politician is innocent would be immediately

accepted by the full chamber. Conversely, if all the legislative majority cares for is to oust the

politician, then the committee's judgment that the politician is guilty w ill be immediately

accepted by the full chamber. Even if legislators did care about the credibility of the

information, they might be forced to accept what the committee presents, if party discipline is

strong, as I demonstrated in Section B. In other words, the legislative majority may not be

interested in obtaining the collective good of reduction of uncertainty, but instead seek a

partisan good. Given this possibility, it is necessary to pay attention to the party system.

An additional reason for bringing the party system into the analysis of the informational

role of committees is that different party systems are likely to have different procedural rules.

Krehbiel discusses procedural rules without reference to party system, based on his

assumption that the legislature as a collectivity has an interest in committees that represent

heterogeneous preferences, without any one extreme dominating the membership. Since, as

argued above, this assumption is unlikely to hold in investigative committees, it is likely that

the procedural rules are affected by inter-party politics. The nature of inter-party politics, in

turn, depends on the party system. In two-party systems, majoritarian tendencies are strong,

while in multi-party systems power-sharing is a common feature. In a two-party system, the

majority party always holds the chairmanship within committees and. in the case of

10 Unless, of course, the accused politician’s undeniable guilt is a public knowledge. In such a case,
however, the investigative committee is not providing information o f its own but is merely fulfilling its
procedural role of recommending punishment, based on the already known facts.

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42

investigative committees, the principal investigator as well. In a multi-party system, on the

other hand, the second largest party is often entitled to important positions (for example, the

chair or the principal investigator, in a investigative committee’ s case). Subcommittees are

often headed by members from smaller parties, while in a two-party system the majority party

chairs subcommittees as well as the full committee. In addition, while in a two-party system

the majority party always holds a majority of seats in committees, in a multi-party system no

single party is likely to hold a majority o f seats, making bargaining between parties necessary

to form a majority. In sum. party system interacts with procedural rules to produce a certain

type o f investigative committee.

Cox and McCubbins (1993) examined how the party system affected procedural rules in

the U.S. House of Representatives. While Krehbiel's informational theory focuses on the

median legislator of the entire legislature. Cox and McCubbins focus on the median legislator

of the majority party. O f particular interest for this study is their argument that party leaders,

as agents of the party members, handle the nomination to committees to further party goals,

and that procedural rules in the House are set according to the majority party's interests. Seen

in this light, an investigative committee w ill be structured to produce information that would

serve the majority party's interest, instead of information that would serve the legislature as a

whole. Information transmitted from this committee w ill not be as credible fo r the whole

legislature as information from a committee Krehbiel's legislature would design, but it will

be more credible fo r the majority party than information produced by Krehbiel's committee,

since, based on Cox and McCubbins*s assumptions, committee members are selected to

further the majority party's interests. If the majority party does not care about the other

party's or parties' reaction to the lack of credibility o f the investigative committee, it will

simply push through its agenda, which the committee, if Cox and McCubbins’ s argument

holds, would faithfully reflect in its performance. Ignoring the lack of credibility of the

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committee becomes problematic for the party, however, if it produces such a strong negative

reaction from the public that the majority party's electoral future is damaged.

Because Cox and McCubbins analyzed the U.S. Congress only, their argument is not

readily applicable to other countries. In particular, how committees would perform their tasks

in a multi-party system where power is shared among parties is beyond the scope of their

study. One can. nevertheless, draw a more general argument from their analysis, i.e.. party

system affects how rules are set in the legislature. In the particular case of the U.S. House,

this meant that the majoritarian party system led to a committee structure that was designed to

further the majority party's goals and interests. In a multi-party setting, where power-sharing

arrangements are common, one can expect much less predominance by one party. Thus,

unlike in majoritarian party systems, some important posts in committees may go to

opposition parties, and committees may not always function to further the governing

coalition's interests.

In studying committees in multi-party systems. Strom (1990) introduces the concept of

“ structural opportunities for oppositional influence."11 Strom emphasizes that these structural

opportunities are distinct from the actual power enjoyed by the opposition. Any power of

opposition parties, however, must be exercised within the institutional constraints, and some

structural features are more favorable to the creation of opportunities for oppositional

influence than others. Strom constructs an index of the potential for oppositional influence

based on five institutional properties of committees that measure the level of decentralization

o f decision-making.12 While not directly applying his index to the analysis of investigative

11 Strom (1990). p.72.

12 These are: the number of standing committees, the specialization, correspondence between
committees and ministerial departments, limits on the number of committee assignments per legislator,
and proportionality of the distribution of committee chairmanship. See Strom (1990). p.7 L, for
explanation of each.

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committees, my informational theory is largely based upon the concept of structural

opportunities for oppositional influence in investigative committees. That is. the

informational performance of the investigative committee is determined by whether the

committee members from opposition parties can actively and effectively participate in

investigation, which, in turn, is determined by the committee structure.

Strom's concept of the strategic opportunities for oppositional influence brings us close

to the problem o f strategic use of private information by legislators, an important point raised

by Krehbiel and others who have studied the informational role of committees. Because Cox

and McCubbins assume that party leaders are capable of keeping out the legislators whose

interests do not conform to the party's, there is no problem of the strategic use of private

information by committee members. What if. however, a committee member skillfully uses

his private information to convince his party that what he proposes serves the party's interest?

In the context of an investigative committee, a strategic use of private information could

convince enough legislators to decide to punish the accused politician, or. conversely, by

hiding information from legislators, such strategic (non)use of private information can help the

accused politician stay in office. The use of private information can be especially effective in

investigative committees. This is because these committees tend to produce and selectively

transmit information to which other legislators are unlikely to have access, due to the high

costs for any individual legislator to acquire the same information. Some information may be

made available only to the committee, excluding non-member legislators, for only the

committee has the mandate of official investigation. In short, strategic use of private

information is an integral and important part of the informational function of an investigative

committee, and therefore w ill be incorporated into my informational theory o f impeachment

process below.

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How information about the investigation is controlled matters because without

information that can be used to mobilize the public, impeachment of the president remains a

remote possibility (unless, of course, the people are already angry with the president for some

other reason).13 The assumption behind my informational theory is that, while an

investigative committee produces or authenticates pieces of information that form the basis of

legislators’ decisions, partisan interests as well as personal interests interfere with the

provision o f the collective good of reducing uncertainty about the guilt o f the president.

The hypothesis to be tested is that the committee structure determines the performance of

an investigative committee, that is. whether it produces the collective good of reduction of

uncertainty, or whether its product is purely partisan, or whether the informational “ product”

falls somewhere between. Committee structure, in turn, reflects the party system as well as

procedural rules. An addendum to this hypothesis is that the impact of the informational

product on legislators' decisions depends not only on the credibility and quality of information

itself but also on party discipline, presidential power, and constituent pressure.

The general hypothesis and the addendum can be disaggregated into the following

predictions:u

1. Party System and the Probability of Impeachment (and Removal).

Party system and party discipline, in conjunction with the impeachment (or removal)

threshold, affect the probability of impeachment (or removal). The impeachment (removal)

threshold is the vote share in the legislative chamber required for impeachment (removal) to

take place.

13 The removal of Venezuelan president Carlos Andres Perez illustrates this unfortunate possibility.

14 The usual ceteris paribus condition applies.

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• A high threshold, combined with a two-party system, is the least likely to lead to

impeachment, while a low threshold under a two-party system with the president's party in

minority is the most likely to lead to impeachment.

• The probability of impeachment in a multi-party system is more likely to be affected by

information provided by the investigative committee than in a two-party system.

• An increase in incriminating information is more likely to lead to impeachment in a party

system characterized by weakly disciplined parties than in a party system with disciplined

parties.

2. Presidential Power

The influence of information provided by the investigative committee is contingent upon

the president's power to persuade legislators. The power of persuasion is likely to be used in

two ways: one directed toward investigative committee members not to produce incriminating

information, and the other toward legislators on the fence to vote against impeachment.

The degree of presidential influence depends on constitutional powers given to him. as

well as the usefulness of the president's rewards for the legislators' career. If the president

can credibly promise rewards for not producing incriminating information, some committee

members may choose not to produce information. If the president can credibly promise

rewards for not voting for impeachment (and removal), a legislator might vote against

impeachment even if she believes, based on the available information, that the president is

guilty.

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• The more powers the president has. the less likely the committee is to provide

incriminating information, and the less effect the incriminating information provided by the

committee would have on the legislators.

3. Information Control

Investigative committees' performance, i.e.. production, authentication, and transmission

of information, depends on committee structure. Committee structure consists of the

composition o f the committee, the powers of committee chair and the principal investigator,

and the decision-making process within the committee. In a majoritarian committee structure,

power is concentrated into a few individuals within the party and decisions are made by

simple majority. The most majoritarian committee would have the committee chair and the

principal investigator from the same party, and would allow little or no participation of regular

members in the committee's investigation.

• A majoritarian committee structure will lead to a greater degree of information control than

a non-majoritarian committee structure.

• A single-party majority w ill lead to a greater degree o f information control than a multi­

party majority.

• The direction of control, i.e.. whether the committee strives to produce and transmit

incriminating information or whether it strives to ignore or reject incriminating

information, depends on whether the president's party is in the majority or not.

• Legislators and voters who do not belong to the majority party are unlikely to give

credibility to information produced by a majoritarian committee.

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4. Outcome of the Impeachment Process

• The more credible a committee is. the more pressure there w ill be to punish the president if

the committee's findings suggest that the president is guilty.

When the investigative committee lacks credibility, i.e.. it is clearly controlled by one

extreme o f a political party or parties, public opinion is unlikely to be affected by the

committee’ s findings. When, on the other hand, the committee has credibility and it reports

that the president is guilty, its report is likely to generate public support for punishing the

president.

How effective this pressure is depends on presidential power and party discipline, as well

as the immediate electoral costs and benefits from responding (or not responding) to the

pressure. If the pressure to punish is indeed effective, the president is likely to be impeached

(and removed). If. on the other hand, the committee's information is not credible and public

opinion opposes impeachment, going ahead with impeaching the president carries the risk of

voter punishment in the next election.

E. Applying Informational Theory to Brazil, Colombia, and Venezuela

Because congressional investigative committees can be (and in some cases definitely

have been) a key source and filter o f information. I focus on these committees in my analysis

o f impeachment processes in Brazil and Colombia, two countries that share the legislature-

dominant pattern of impeachment procedure. For analysis of the case of Venezuela, with the

prototype o f judiciary-dominant impeachment procedure, the argument developed here for

congressional investigative committee w ill be applied to the Supreme Court, with necessary

modifications.

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The difference between informational control in Brazil and Colombia, and how the

difference is likely to affect the impeachment process, is depicted in Table 2.1. The table lists

all the factors that affect the committee structure. They are grouped into the rules on the

installation o f the committee, the selection rules, and rules on the allocation of investigative

authority. The next row is the prediction of the nature and degree o f informational control that

results from the specified committee structure. The last row offers a prediction about the

impeachment process based on the nature and degree of informational control.

• The installation rules. These affect how strategically committee members can be chosen,

and in which chamber or chambers the committee operates. If it is an ad hoc committee

that is formed when the president is accused, both the president's supporters and opponents

would strive to select members who are believed to serve the party's interests most

faithfully. If the committee is a permanent committee, and if its members are selected

prior to the scandal involving the president, the selection of the members is less likely to be

strategic. Perhaps more importantly, any attempt to change the committee's composition

after the scandal erupts is likely to face stiff opposition from either the president's

supporters or his opponents and thus is unlikely to succeed.

• The selection rule. Committee members are selected using proportional representation in

both countries, but given the different party systems, in Brazil no one party controls the

majority, while in Colombia a one-party majority is the norm. The written rule for the

selection of the committee chair and the principal investigator is the same in both

countries: the rule says the chair is selected by the committee members and the investigator

is named by the committee chair. In practice, however, in Brazil the two largest parties are

given one o f the two posts, and the party leaders of these two parties name the chair and

the investigator.

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• Rules on investigative authority. These rules define who participates in investigations,

and depicts the concentration (or decentralization) of investigative authority within the

committee. In Brazil, all members o f the committee participate in investigations, often

creating sub-committees headed by members coming from smaller parties. In Colombia,

on the other hand, the investigative authority is exclusively given to the principal

investigator. The regular members’ participation is required only when voting to approve

the report prepared by the principal investigator. The principal investigator can have

regular members serve as sub-investigators, but. as with the nomination of the principal

investigator, the committee chair holds the nominating power.

The power-sharing arrangement observed in Brazil, which allows the two largest parties

to hold the two most important posts instead of one party holding both as happens in

Colombia, is a common feature of what Lijphart (1999) calls consensual democracies.15

Lijphart contrasts consensual democracies with majoritarian democracies, and the differences

between the two are grouped in two dimensions (executive-parties and federal-unitary). Brazil

is not included in Lijphart's study, but is a highly consensual democracy when measured by

Lijphart's criteria.16 Thus, it is not surprising that power-sharing is practiced in the committee

nomination process. Power-sharing is also observed in the decentralization of investigative

activities in Brazil, where regular members are assigned to perform important investigative

tasks. Colombia, on the other hand, is categorized as a weakly majoritarian democracy in

Lijphart’ s study. The majoritarian tendencies are more striking when one looks exclusively at

the more recent period after the National Front ended and the informal power-sharing rules

15 Lijphartl 1999) examines power-sharing in the executive branch.

15 The distinguishing criteria are: concentration of executive power, executive-legislative relationship,


electoral systems, interest group, federalism, unicameral vs. bicameral legislature, voting rules on
constitutional amendment, judicial review o f constitutionality, and central bank independence. Using
these variables. I have identified Brazil as a highly consensual democracy ( Kada. 2000).

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lost their effect. In light of the majoritarian tendencies of Colombia, the dominance o f one

party in the investigative committee is a logical consequence.

The specification of the committee structure leads to the next item in the table, the

prediction about the committee's information control.

• In Brazil, a fragmented party system and formal and informal rules of power-sharing would

lead to a more decentralized committee structure, and therefore information flow to and

from the committee is unlikely to be controlled by a single party.

• In Colombia, with its two-party system and majoritarian rules, the committee chair, who

comes from the majority party, would be able to monopolize the information pertaining to

the investigative committee.

These difference in informational control in the two countries allow predictions about

how information control affects the impeachment process.

• In Brazil, if a large enough majority o f parties coordinate in the committee to produce

information, the committee is highly likely to produce information that is both credible and

substantial. If. on the other hand, there is lack o f coordination, information is likely to be

scarce or unreliable.

• In Colombia, the president would be shielded from damaging publicity if he comes from

the majority party. If. on the other hand, the president comes from the minority party, the

committee may not try to shield the president from impeachment and instead might even

try to impeach the president.

Table 2.2 compares the judiciary-dominant impeachment process, employed in

Venezuela in 1993. with legislature-dominant process in terms o f information control. The

first striking difference between the two processes is that in a judiciary-dominant process the

judiciary handles the investigation, instead o f the legislature. The initial investigation is

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52

handled by the Prosecutor’ s Office (called Public Ministry), which accuses the president in the

Supreme Court. The Prosecutor General heads the investigation, and may be assisted by other

prosecutors in his office. The Supreme Court then decides whether there is enough evidence

of guilt to recommend a trial. One of the magistrates is assigned by the Chief Justice to write

a report. Informational control is solidly in the hands of the Prosecutor General in the first

stage o f investigation, and in the hands of the Magistrate-Instructor in the second stage. In

addition, as I w ill detail in Chapter 5. the Chief Justice in Venezuela, at least until 1999. held

vast administrative powers within the Court, and could credibly threaten, even without overtly

stating the threat, to punish the magistrates who opposed him. Thus, under the pre-2000

constitution in Venezuela, when the Magistrate-Investigator transmits information that

suggests that the president is guilty, the Supreme Court is likely to recommend a trial of the

president. Even those who do not believe that the president is guilty w ill be under strong

pressure to go along.

F. The Limitations and Possibilities of the Informational Theory

I do not claim that the informational theory is the only theory that can explain the

outcome of impeachment processes, nor do I claim that it w ill be applicable to all possible

cases o f impeachment. In some cases, impeachment and removal may take place without any

investigation, for in some countries the president can be impeached and removed for reasons

other than committing crimes. If there is no allegation o f crime that needs to be investigated

in order for impeachment or removal to take place, there w ill be no investigation, and no role

for information derived from investigation. In other cases, svhat the informational theory can

explain may not be considered the most important aspect of the impeachment process. The

threat o f military uprising or large scale riot may well have been the drive to impeach and

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remove a politician from office, regardless of the validity of allegations for which the

politician was impeached and removed.

Informational theory does not explain why an impeachment process was initiated in one

case and not in another, and by itself it cannot explain why one was impeached and the other

was not. I do believe, however, that informational theory can best explain the difference in the

outcome of the process between two of the cases I analyze (Brazil and Colombia), and that it

offers a logically consistent and credible argument for the final outcome of the third case

(Venezuela).

Informational theory does not explain why in one country the judiciary plays a more

important role than in others, or why legislators have exclusive authorities at certain stages of

the impeachment process. It does not explain how a particular institutional setting comes to

exist in a particular country. Informational theory takes the institutional setting as given, and

focuses instead on how political actors—parties. legislators, presidents—made choices and took

actions within the given institutional constraints (and opportunities, as Strom points out). This

does not. however, mean that informational theory assumes the institutions are permanently

fixed. In fact, by clarifying how institutions affected decisions and actions, the informational

approach provides a guide for institutional engineering that can improve the credibility and

effectiveness of the impeachment processes. In Chapter Four. I refer to a legislative proposal

to reform the impeachment process in Colombia, how the proposal came into being, and why

it did not prosper. In Chapter Six. I discuss what kinds of institutional changes might improve

the effectiveness and credibility of impeachment processes, based on the findings from this

research.

A problem in applying the informational theory to the three cases of impeachment

process is that variation in the degree and nature o f informational control is not the sole

variable that matters in comparing them, and that the other variables are not held constant

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54

across the cases. To this criticism I have three answers. First, this study is largely an attempt

at theory-building, rather than at theory-testing. I w ill not ignore factors that affected the

impeachment processes that are outside o f informational theory in my case studies, as I

recognize their contribution. Nevertheless, the bulk o f analysis focuses on the factors that

affect informational control, and the impact o f information on relevant actors.

Second, informational control is an intermediate variable: the degree and nature of

informational control depends on party system in place (informational control as a dependent

variable), and the outcome of impeachment process is affected by informational control (as an

independent variable). That is. party system, one of the three remaining explanatory factors

that are common to all cases, is incorporated into the informational theory as an independent

variable. The effectiveness of the other two factors, i.e.. constituent pressure and presidential

power, depends on how credible and substantial the evidence is that has been transmitted by

the investigative committee (or the Supreme Court) to the legislators and the voters. In other

words, the assessment of the effectiveness of these two variables is incomplete without prior

analysis o f informational control. In sum. while the informational theory focuses on the role

of information and how it is produced and transmitted as official reports to the legislature, it

also speaks to the other three explanatory factors.

Third. I also believe that the informational theory w ill shed light on other cases of

removal processes initiated against presidents and prime ministers in Latin America. Africa

and Asia in the last decade. In some of these cases, the chief executive was constitutionally

removed, while in others he was removed by other means. In many cases allegations of

corruption were used as reason for removal. In some cases the head o f government managed

to remain in office despite alleged corruption. In Chapter 6 I w ill briefly survey these cases

and assess the explanatory power o f the information theory of impeachment. With the

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55

increased number o f cases to compare, the problem of lack of control on other variables is

ameliorated.

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Incriminating
Information

i
pro­ anti­
impeachment 1/2 2/3 impeachment

legislators according to their preference for impeachment

Figure 2.1. Information and Impeachment: a perfectly disciplined, two-party system


(with the president’s party in majority)

Incriminating
Information j

i
pro­
impeachment 1/2 2/3 anti-impeachment
legislators according to their preference for impeachment

Figure 2.2. Information and Impeachment: a perfectly disciplined, two-party system


(with the president’s party in minority)

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Incriminating
informaDon

pro- ano-
im peacnm ent mpeacnment
1/2

legislators according :o ttieir preference for mpeacnment

Figure 2.3: Inform ation and Impeachment: two party system, with

some undisciplined members

incriminating
mrornaoon

pro- am -
im peachm ent impeachment
M2 213

legislators accorcmg to tneir preference for impeacnment

Figure 2.4: Inform ation and Impeachment: m ultiparty systems

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Incriminating
InformaDon

pro- ann-
impeacnment im peachment
1/2

legislator; accorcmg to meir preference tor impeacnment

Figure 2.5: Inform ation and Impeachment: stead-fast friends and


opponents, w ith the rest o f legislators evenly distributed

in c rim in a tin g
in ro rm a tio n

• M'
P r e s id e n t

C o n s titu e n t

p ro - an ti-
im p e a c n m e n t im p e a c n m e n t
1/2 2/3

le g is la to rs a c c o rd in g to tn e ir p r e fe r e n c e fo r im p e a c n m e n t

Figure 2.6: Inform ation and Impeachment: effects o f the pressure

from president and constituents

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59

C h art 2.1. Inform ational M odel of Impeachment

Electoral
System > Party System”

Procedural I
Rules
Investigative Availability of Legislators’ Decisior
—> —>
Committee Information on Impeachment

t t
Presidential Public Opinion Presidential
Powers Powers

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60

Table 2.1. Differences in Comm ittee Structure and


Inform ation Control, B razil and Colom bia

BRAZIL CO LO M BIA

COM M ITTEE
STRUCTURE

rules on committee ad hoc committee in the Senate, permanent committee (four


installation the House, or both (joint) years) in the House

selection rules
committee members PR (under multi-party system -> PR (under quasi-two-party
no one party controls majority) system -> one party majority)

committee chair selection by party leaders of the selection by committee members


(second) largest party, with prior (given the majoritarianism. the
negotiation with other parties in chair w ill come from majority
Congress. party)

principal Selected by party leaders of the Selected by the committee chair


investigator (second) largest party, with prior (or the chair decides the method
negotiation with other parties in o f selection)
Congress.

rules on all committee members Investigation by the principal


participate, often using sub­ investigator only sometimes with
participation
committees assistance from sub-investigators

INFORMATION decentralized, no single party centralized in the hands of the


controls information flow to or investigator, who is likely to be
CONTROL
from committee from the majority party

PREDICTED IMPACT when lacking coordination, when the accused is from the
information is likely to be scarce majority party highly unlikely to
ON IMPEACHMENT or unreliable, especially with provide information leading to
president's attempt to buy impeachment, especially with the
PROCESS support. president's attempt to buy
support.
when coordinated, high
likelihood o f providing credible it may be effective in leading to
and rich information that may impeachment if the accused is
lead to prove criminal activities. from opposition.

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61

Table 2.2. Impeachment and Inform ation: judiciary-dom inant process


and legislature-dom inant process

JUDICLVRY-DOMINANT LEGISLATURE-DOMINANT

STRUCTURE OF THE

INVESTIGATIVE BODY

nature of the judicial (Prosecutor General legislative; ad hoc (B) or


investigative body and the Supreme Court)
permanent committee (C)

selection o f Prosecutor General and committee members selected


investigators Chief Justice by PR from legislature

principal investigator the Congress (by appointing committee chair (C) or


selected by Prosecutor General at the party leaders (B)
start o f the legislature);
Magistrate-Investigator is
selected by the Chief Justice

investigation carried Prosecutor General and committee as a whole (B)


out by Magistrate-Investigator the principal investigator (C)

INFORMATION solid control by the solid control by the investigator


CONTROL investigator (C) or diffused information
control (B)

PREDICTED IMPACT incriminating report puts


see Table 2.1.
ON pressure on the full
IMPEACHMENT Supreme Court to
PROCESS begin a trial

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III. BRAZIL: TH E FA LL OF PRESIDENT COLLOR

The first case I analyze is the impeachment and removal of president Collor in 1992. He

was the first popularly elected president after 25 years o f military regime. Although Collor

was certainly not the first president to be accused of corruption in Brazil, he was the first to be

impeached and removed from office based on corruption charges.1 Why did charges against

him lead to his impeachment and removal? This chapter attempts to answer this question,

based on the framework laid out in the previous chapter.

A. Argument in Brief

Brazil’ s impeachment process fits the legislature-dominant pattern explained in chapter I.

where the legislature handles investigation, impeachment, and trial of the president. The

investigative committee in Brazil is an ad hoc committee, created whenever at least one-third

o f the members of one or both of the chambers request its creation. It can be a committee

composed in only one of the chambers, but it can also be a joint committee. The lower

chamber, the House of Deputies, has the sole power of impeachment, and impeachment

requires two-thirds of the members’ vote in favor. If the House impeaches the president, the

Senate handles the impeachment trial. The decision to convict the president requires another

super-majority (2/3) vote. If the president is also accused o f common crimes, the criminal trial

is handled by the Supreme Court.

The commonly held view about Brazilian legislators is that their loyalty to the regional

bosses is stronger than to their party, and that patronage plays an important part in advancing

their political careers. Brazil's open-list PR electoral system encourages cultivation of the

1 See Dos Santos (1993) for a brief history of corruption accusations against presidents in Brazil.

62

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63

personal vote. The president is equipped with a wide range o f distributional powers, and, given

the personal-vote seeking behavior of legislators, would be in a strong position to bargain with

the legislators when he finds himself in an impeachment crisis. Brazil’ s fragmented party

system is both a blessing and a curse for the president: while the fragmentation opens up many

opportunities to bargain with legislators, the president can rarely count on a single-party

support base large enough to weather impeachment crises.

Whether a legislator might bargain with the president is also dependent upon her

assessment o f the guilt of the president, as well as her constituents' pressure for or against

impeachment. The constituent pressure, as well as personal assessment of the president's guilt,

is contingent upon the available information about the president's alleged wrong-doing. The

availability and credibility of the incriminating information depends on the committee

structure, as defined in Chapter 2. The Brazilian committee structure is highly decentralized,

as will be discussed in more detail below. Both the president's supporters and his opponents

are likely to be active in the committee, and no single party is likely to dominate the

committee.

Based on this brief description, the following predictions can be made about the

impeachment process in Brazil:

• Party System and Impeachment Process

Brazilian party system is known for its fragmentation and lack of discipline. The

impeachment threshold is two-thirds of the Deputies, and the removal threshold is two-thirds of

the Senators. Since it only requires one-third of the members o f one o f the chambers to stop

the impeachment process, and since coordinating to form a two-thirds majority in a fragmented

party system is a difficult task, impeachment and removal is highly unlikely, unless the

available information provides overwhelming proof that the president has committed serious

wrong-doing.

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64

• Presidential Power

The Brazilian president enjoys a wide range o f distributional powers, and legislators rely

heavily on patronage to cultivate and maintain constituent support. Therefore, the president is

likely to successfully bargain with the legislators to prevent his ouster.

• Information Control

Given the decentralization of power inside the investigative committee, however, a guilty

president may not be easily let go. The power-sharing arrangements within the investigative

committee are likely to give the president’s opponents one of the two important positions

within the committee, i.e.. the chair or the principal investigator. Regular committee members

can also actively participate in investigation, both in producing and authenticating information

and transmitting it outside the committee. The decentralization of powers, under the

fragmented party system, also means that the committee requires coordination among many

parties for its successful performance in providing high-quality, high-volume information.

Because the committee is unlikely to be dominated by either the president's supporters or his

opponents, the committee's informational product w ill enjoy high credibility both among

legislators and the populace.

• Predicted Outcome

The outcome w ill depend on whether the investigative committee is able to produce and

transmit incriminating information about the president. If the committee fails to do so. the

president is likely to survive, given his vast distributional power and the legislators' need for

patronage for electoral purposes. In the absence o f authenticated information that suggests the

president’s wrong-doing, public opinion is unlikely to shift radically to demand impeachment.

If, on the other hand, the investigative committee produces a report that suggests that the

president is guilty o f a serious crime, the president's bargaining power is weakened, especially

if the information transmitted by the committee prompts public outrage.

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65

B. Political Institutions in Brazil

In this section. I w ill explain in more detail the institutional characteristics referred to in

the previous section, namely, the institutional design for processing an accusation against the

president; the party system; the electoral system; and the presidential powers over the

legislators. Because in the case studied here the accused president sought to influence the

impeachment process by appealing to the Supreme Court. I w ill also briefly talk about the

judiciary.

1. Investigative Process against the President

Brazil’ s Constitution of 1988 designates the House of Deputies as the organ that decides

on impeachment, and the Senate as the organ that decides whether to convict the impeached

individual. The Constitution does not. however, specify any organ that must investigate the

president prior to impeachment. Thus, in theory, a president can be impeached without any

investigation, if enough legislators vote for impeachment. In practice, however, when a grave

allegation o f corruption in the government surfaces, the Congress responds by conducting an

investigation through its investigative committee called CPI (Comissao Parlamentar de

Inquerito). The Constitution requires that at least one-third o f members o f one or both

chambers must sign the petition in order for a CPI to be installed. When at least one-third of

the members o f both chambers sign the petition, the CPI becomes a joint committee. Thus, in

practice accusation and investigation, as well as impeachment and conviction, are handled by

the legislature.

The first veto gate against impeachment is therefore the decision to form an investigative

committee. The gate is not very difficult to pass through, however, for it only requires one-

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66

third of members of one o f the chambers to initiate investigation.2 The investigative

committee, the CPI, constitutes the second veto gate. As I w ill explain in more detail in section

C, the CPI is not likely to be a strong veto gate for two reasons. One is that it is highly unlikely

that the president’ s loyal supporters can manage to control the committee. The second reason

is that its decision only requires a simple majority vote, unlike the two votes on the chamber

floors.

There are three possible veto gates within the House o f Deputies, and two in the Senate.3

The Speaker of the House receives the request and decides whether the request satisfies the

conditions specified in the House’s internal regulations.4 The CPI’ s approved report plays an

important role here, for it would be difficult for the Speaker of the House to dismiss a request

founded on the work of a body within the Congress itself. Once the Speaker of the House

decides to accept the request, the special committee on impeachment deliberates on whether to

recommend a trial or not. Lastly, if the committee, by a simple majority vote, recommends

trial, the House votes on whether to approve the recommendation or not. The decision is made

by the vote o f 2/3 o f its members. If the House decides to recommend the trial, the president is

impeached and suspended from office when the House communicates to the Senate that it has

impeached the president.

After impeachment the process moves to the upper house of Congress, the Senate. As in

the House, a special committee is appointed to report to the floor to draw up the charges. The

committee is not given the authority, however, to dismiss the request from the House. Thus.

2 It is still possible to block an attempt to install a CPI. if the Speaker of the chamber does not recognize
the petition, or delays decision on it. as it has happened frequently under President Cardoso’s second
term.

3 Information drawn from the House’s internal regulation. Art. 218. and Senate's regulation. Art. 377-82.

4 The Speaker is elected for a fixed two-year term, and immediate reelection is prohibited. Constitution
Article 57. IV (4). If the Speaker ignores the request, the accuser can take the matter to the chamber
floor.

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the only way the committee can stop impeachment process from going further is by not

sending a report in time, for a president suspended by impeachment can return to office if the

Senate does not reach its judgment within 180 days. In other words, the special committee of

the Senate can work as a veto gate, but only passively, by not completing its work in time. If

the committee's majority approves the report that contains the charges against the president,

the floor w ill initiate the trial, which is the last veto gate.

The trial is opened and presided over by the Chief Justice o f the Supreme Court. The trial

includes testimony and arguments by the defense and the plaintiff. At the end of the trial the

Senate decides whether the president is guilty of a “ crime of responsibility," i.e., violation of

the constitution. The president is convicted if the two-thirds o f the Senators vote for

conviction, and his right to run for electoral office is suspended for eight years. When the

president is accused o f common crimes, the trial takes place in the Supreme Court, instead of

the Senate.

The voting threshold for impeachment and conviction is Brazil is one o f the highest even

among countries that employ legislature-dominant impeachment processes (See Table 1.1).

Impeachment requires two-thirds o f the Deputies' vote, and conviction requires two-thirds of

the Senators' vote. This is good news for the accused president, for he could stop the

impeachment process as long as he has support from just one-third o f the Deputies or the

Senators. However, the president might not be able to obtain even this much support. The

fragmented party system, along with the nonconcurrent election of presidents and legislators

before 1994, made it difficult for a president to obtain a solid support base in Congress, as I

discuss below.

2. Party System and Electoral Rules

It has been shown both theoretically and empirically that electoral systems like Brazil's

that combine proportional representation and large district magnitudes tend to increase the

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68

number o f parties represented in the legislature.5 In Brazil, the federal legislators are elected in

state-wide districts. Each state has three senators, while the number o f deputies is determined

according to the population size, although the smaller states are over-represented and the larger

states are under-represented.5 The smallest district (i.e., state) elects 8 legislators, and the

largest, Sao Paulo. 70. The average district magnitude is about 19, one o f the highest

excluding countries that have a nation-wide district. Since a party can win a seat with a small

portion of votes (in the average case, for example, only 1/19 of the state’ s votes), small parties

have a good chance of winning a seat, which is one of the reasons why there are so many

parties in Brazil.7 The party lists are open, that is, party leaders have no influence on which

candidates get the seats allocated to the party. Although, as Nicolau (1996:60) points out.

open-list PR does not lead to weak parties in every country, it encourages intra-party

competition, and legislators seek personal, instead o f party, support bases. Many politicians

use patronage, or delivery of state resources, to cultivate and maintain the support base, and

some switch parties to gain better access to the state resources.8

Another feature o f Brazil's electoral system until 1993 is that the presidential election was

held in a different year from congressional elections. Shugart and Carey (1992), analyzing data

from 17 different regimes, showed that non-concurrent elections tend to produce a higher

number of parties than concurrent elections do. Additionally, they found that presidential

elections with majority runoff are associated with a higher number of parties in the legislature

5 See Duverger ( L954); Taagepera and Shugart (1989); Lijphart (1999); on Brazil in particular, see
Nicolau (1996).

5 All states are guaranteed the minimum o f 8 seats, while the ceiling on the number of deputies lead to
under-representation o f larger states, especially Sao Paulo.

7 Mainwaring (1995:375) lists additional reasons, such as the lack o f national threshold and the
acceptance of alliances and coalitions.

8 Mainwaring (1995), p.378.

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69

than presidential elections without it. Brazil's electoral rules for presidential elections include

runoff provisions. A ll of these features o f Brazil’ s electoral rules promise to produce a multi­

party system. In fact, the effective number o f parties in Brazilian Congress since 1990 has

never been lower than 5.

The Brazilian party system is characterized not only by the large effective number of

parties in Congress, but also by a lack of cohesion within parties.9 The leftist parties such as

PT (Workers' Party) and PCdoB (Communist Party) are exceptions, demonstrating a high level

o f cohesion, but they are unlikely to be on the center stage, both for their small size and for

their ideological positions. The larger, what Mainwaring (1995) calls “ catchall” parties are all

characterized by lack of cohesion.10 In addition, because of a strong tradition and practice of

federalism, regional leaders are often said to have more influence on legislators than party

leaders do." The lack of disciplinary measures in most parties against individual members

also make it less costly for individual legislators to defy the party line. As many legislators

reply on patronage to maintain their constituent support base, and in the absence o f strong party

discipline, the legislators are likely to be interested in negotiating their vote with the president,

who enjoys vast distributive powers, as explained below.

3. Presidential Power over Legislators

Brazilian president is equipped with a wide range o f powers to distribute positions and

resources and thus is well-positioned to make attractive bargains with committee members. In

Shugart and Carey's measurement of presidential powers( 1992:155). the Brazilian president

9 Figueiredo and Limongi (1995) argues, using roll-call votes data in the lower chamber in which at least
10% of members opposed the bill, that parties vote more cohesively than had been assumed, but
Mainwaring! 1997:80) points out that the level of cohesion is still low compared to most other
democracies.

10 Mainwaring (1995). pp.376-82.

"Hagopian (1996), Mainwaring (1997), 83-84.

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70

ranks among the strongest in terms o f budgetary and cabinet nominating powers.12 The

president can nominate or dismiss any cabinet member, and create and abolish positions in the

federal government without approval by the Congress. The Executive prepares the multi-year

economic plan and annual budget. The Congress cannot pass amendments to the budget if the

change is “ incompatible’* with the multi-year plan presented by the Executive, but the president

can propose changes to the budget or the multi-year plan until the moment when the budget

committee in Congress initiates its vote. The president in Brazil is indeed in a strong

bargaining position vis-a-vis legislators who rely on delivery of state resources and positions in

federal government for electoral survival.

The president’ s bargaining power can vary, however, according to the timing and the

counterpart for the bargain. As for timing, the later in his term the less bargaining power the

president has, for the obvious reason o f shorter time for the bargaining counterpart to enjoy the

president's rewards. As for the characteristics of the counterpart, the toughest to bargain with

are legislators from leftist parties such as PT and PCdoB, who are under very strong party

discipline and whose reliance on the personal vote for reelection is much smaller than that of

legislators from the catchall parties.

4. The Judiciary in the Legislature-Dominant Impeachment Process

The judiciary has no formal part in the impeachment process itself unless the president is

accused o f common crimes, but it can be drawn into the conflict between the legislature and

the president over the process, for it is the branch that handles inter-branch disputes. Not in all

countries at all times is the judiciary independent o f the other two branches. In Brazil at the

time o f president Collor's impeachment, however, the judiciary, at least at the highest level,

enjoyed a high degree o f independence from political pressures.

12 Chile. Korea and Uruguay are in the same category. See also Mainwaring (1999:298-302).

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71

The Brazilian judiciary is guaranteed its financial and administrative autonomy from the

other branches in the 1988 Constitution. On the other hand, a judge’ s involvement in political

activities is prohibited. The retirement age for judges is 70, and a judge can be fired only by

the judicial body to which the judge belongs, with 2/3 of its members’ votes. A judge is

therefore unlikely to be threatened into making a political decision under threat of removal for

political reasons. A judicial career is highly professional, for becoming a judge requires

passing the qualifying exams. However, any citizen between the age of 35 and 65, “ with

notable legal knowledge and good reputation" can become a magistrate o f the Federal Supreme

Court (STF) if nominated. The STF is comprised of eleven magistrates. The nomination is in

the hands of the president, but the nomination is subject to the Senate’s approval by an absolute

majority. In addition, the STF magistrates' terms are not synchronized with that of the

president: the president is given a chance to nominate a magistrate only if a vacancy occurs,

either by retirement or by death. Thus, it is highly unlikely that the Supreme Court would have

a majority nominated by a single president, and even if such a majority existed, the

administrative and financial autonomy and the lack of political removal allow the magistrates

to be politically independent from the president who nominated them to the Court.

While the Supreme Court (STF) handles trials of presidents, cabinet ministers, and

legislators of the Congress for common crimes, the Superior Tribunal o f Justice (STJ) handles

trials of state governors. Like the STF magistrates, the STJ justices are nominated by the

president, with previous approval by the Senate. One-third of the justices are selected from

judges o f federal regional courts, another one-third from the courts of justices, and the last one-

third from the Prosecutor’s Offices at the federal and state (including federal district and

territories) levels. The STJ comes into play in disputes between the executive and the

legislature when the STF vote is tied.

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72

5. Summary

The institutional design by which a corruption charge against the president is processed in

Brazil makes it highly unlikely that the president would be impeached and removed, unless

there is overwhelmingly strong evidence of wrong-doing. The institutional design gives the

legislature the exclusive power to initiate and stop the impeachment process, and it requires a

super-majority for both decisions to impeach and to remove. The president has vast powers to

distribute patronage to legislators, the majority of whom, in turn, heavily rely on patronage to

cultivate an individual electoral support base. If a legislator has spent efforts in cultivating

strong ties to the president to gain access to state resources, she w ill find it very costly to vote

for impeachment or removal of the president, for the access gained to state resources w ill no

longer be valid if the president is suspended or removed. Conversely, however, if a legislator

has no access to state resources, either by design or by the president's neglect, she has little to

lose from removing the president. Voting for impeachment can be an electoral asset for her,

especially if her constituents demand impeachment. Criticizing an unpopular president can

also help her gain higher visibility among voters. Whether voters would demand impeachment

depends on whether they find the charges against the president convincing. As I argued in

Chapter 2. the congressional investigative committee plays an important role in shaping public

opinion as well as legislators' opinions. Let us examine it in more detail.

C. The Investigative Committee in Brazil

The congressional investigative committee, the CPI. is given the task o f investigating

matters relevant to the public life and the country's constitutional, legal, economic, and social

order.13 Thus, although the Constitution does not mention the committee in the impeachment

13 Internal Code of House of Deputies, article 35 ( I).

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process, the committee’ s investigation is the official venue through which information about

possible misdeeds o f presidents and legislators can be obtained.

CPIs are not permanent committees: i.e., they are formed whenever more than one-third of

legislators o f one of the two (or both) chambers demands it. There can thus be more than one

CPI during one congressional term, even at the same time, and the members can be different in

each CPI. within the same congressional term.14 CPIs can be formed individually in each

chamber, or can be formed jointly, with representatives from both chambers. The Constitution

o f 1988 dictates that the composition o f the congressional committees reflect, “ as much as

possible.” the proportional representation o f each political party or coalition in the chamber in

which the committee is created (Article 58).13 Party leaders o f each chamber collectively

decide which party is entitled to how many seats in the committee. Each party that is entitled

to a seat in the committee indicates its candidate to the president o f the respective chamber,

who then duly announces the names of the members o f the committee.

The internal code o f the Congress stipulates that, when forming a joint CPI. the two

chambers have equal representation in the committee. When forming a joint committee, the

committee chair and the relator, or the principal investigator, are chosen from different

chambers. Furthermore, it has been a custom that the largest party in each house, or the two

largest parties in the Congress, would receive the two important posts. This custom is not

completely without regulatory basis in the internal codes, but somewhat contradicts them. The

internal code o f the House as well as that of the Senate stipulate that the committee members

14 The Senate and the Chamber of Representatives have different rules that restrict legislators’
participation in the CPIs. A Senator can be a member of only one CPI and a suplente (i.e.. the substitute
member) of one CPI at any time. In the Chamber, no restriction on individual participation exists, but
there can be only up to five CPIs at any time, unless a resolution is passed to admit an additional CPI.

13 The internal code of Congress dictates that at least one representative of the minority in Congress be
included if the proportional representation fails to give representation to the minority. See Article 10 of
the Common Code o f Congress.

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74

elect the committee's chair and vice-chairs. Such an election is likely to produce a committee

chair from the largest party, just as the custom does. However, the custom gives the party

leaders more power than if committee chairs are elected by committee members. As for the

principal investigator, both codes say that the investigator be nominated by the chair of the

committee. The customary selection that gives the post to the second-largest (or the largest in

some cases) party diverges from the rule. However, one may argue that the custom takes into

account the Senate's requirement that the nomination take into account the composition of the

committee. This requirement is met by giving the two largest parties the posts of the chair and

the principal investigator. As mentioned in Chapter 2, such power-sharing is a common feature

o f what Lijphart (1999) calls consensual democracies, of which Brazil is one.

This power-sharing arrangement for nomination is an important informal rule to keep in

mind because the chair and the principal investigators are the key members o f the committee.

The investigative committee can hear testimony only if both the chair and the principal

investigator are present.16 The congressional rules give committee chairs an ample range of

powers in general, and CPIs are no exception. The committee chair holds the power of agenda-

setting, and he can decide who to summon for testimony. The Chair is also authorized to

silence a congressman, or to interrupt a testimony, under conditions specified in the internal

code o f the congress. In addition, the chair can control the flow o f information into the

committee. Since every correspondence from the committee requires the chair's signature, a

request by a CPI member to obtain important information may be slowed or blocked if the

chair does not sign the letter o f request. The chair is also the recipient o f all the information

directed to the CPI. and if other members of the CPI are not attentive, critical information may

be lost or destroyed while under the chair's care.

16 This and the subsequent description o f committee chair and principal investigators' powers are derived
from the internal code of the Senate, which lists more rules on book than the House's.

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75

While the committee chair thus controls the pace and content of the investigation in the

CPIs, the post of principal investigator is equally, if not more, important in investigative

committees. It is the principal investigator who draws up the report to the committee, and no

one. not even the committee chair, can change the content o f the report.17 While the committee

chair exercises control over who are summoned to testify, the principal investigator is free to

ask whatever question she wants, and w ill write her report based on her interpretation o f the

testimonies and evidence.

The internal code of Congress stipulates that the resolution introduced to form the

investigative committee state all the rules regarding the formation and function o f the

committee. When the party leaders meet, however, their discussion is on the scope of the

investigation and the number of seats given to each party: they do not discuss who w ill be

nominated to the important positions of the chair and the principal investigator. Nomination is

up to the party leader in the corresponding chamber: for example, if a senator from party A is

to be selected for the post o f the chair, party A's leader in the Senate nominates the committee

chair. If a deputy from party B is to be selected for principal investigator, party B's leader in

the House of Deputies nominates the principal investigator.

This selection rule applies to other members of the CPIs as well: each party that is

allocated any seat selects its candidates unilaterally, and within each party the leader o f the

party in the corresponding chamber nominates the candidates. Because the constitutional

requirement for proportional representation is not rigid (given its wording, “ as much as

possible"), a small party in Congress may be allocated more than its share o f seats in CPIs,

although underrepresentation is also a possibility. The party leaders' exclusive nominating

power means that they may make the selection without consulting party members, and can

17 Committee chairs are given the authority to nominate a new r e la to r , but it would be politically quite
risky to do so in a highly publicized CPI.

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76

even decide to give away the seats to other parties. Such arbitrary use of nominating power

would not benefit the party leader in the long run, but is a possibility especially if the

investigative committee is not considered important and considered not to affect the party's

vital interests.

In sum. the selection of committee members for CPIs is. first, highly decentralized,

because there are many parties that w ill have seats in the committee, and the nominating

decisions are made by individual parties rather than by inter-party negotiations. Second, the

selection is unpredictable in parties where party leaders make nomination decisions without

consulting party members. In other words, while there is decentralization of nominating power

among parties, the nominating power within each parties is highly concentrated into the hands

of party leaders. There is little room for the president to influence the selection of committee

members, and. consequently, to influence the performance of the committee selected in such a

manner.

Brazil's fragmented party system, combined with the presidential election being

nonconcurrent with congressional elections until 1990. as I discussed in section B. made it

highly likely that a president would face a tough, or even hostile, investigative committee. The

high fragmentation is likely to affect the selection of committee chair and principal

investigator. Specifically, if a large opposition party exists, that party is likely to obtain one of

these two important posts. A president from a small party would have an additional

disadvantage: the key posts in the committee are highly unlikely to be given to his party. Even

if a large party is in his coalition, support from a coalition party tends to be more tenuous than

that from his own party.

The fragmentation w ill also affect the composition of the committee as a whole. Given

the proportional representation rule, the committee w ill not be dominated by one-party

majority: many small parties are likely to be represented. Coordination among the committee

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77

members (either in favor o f or in opposition to the president) would thus be difficult. It is also

possible that the investigative committee is stacked against the president, if he does not enjoy

the support of the majority in Congress. Even if the committee has a majority supporting the

president at the onset, the margin is unlikely to be large, and the balance may be tipped by

defection of one party, or one member of the committee. As I discussed in section B, the lack

o f party discipline increases the probability of such defection, especially in the face o f strong

constituent demand that runs counter to party line. However, while party leaders may not be

able to discipline party members in voting, they firmly control the nomination process internal

to the parties.18 Party leaders could, therefore, try to minimize the probability of defection by

carefully selecting the committee members.

Additionally, the fragmentation of the party system by itself may not necessarily produce

a rigorous investigative committee keen on pressuring the president. If. for example, the

committee members can be easily "’bought” by the president who can credibly offer attractive

rewards, the president need not fear the committee. Such would be the case with legislators

whose parties do not actively support impeachment, and/or with legislators whose party leaders

do not possess credible and effective means of disciplining party members when they act

pursuing personalistic interests at the party's costs. The Brazilian president is indeed equipped

with a wide range o f powers to distribute positions and resources and thus is well-positioned

for attractive bargains with committee members. As I discussed in section B. however, the

president's bargaining power depends on with whom he tries to negotiate. Some parties, such

as the leftist parties in Brazil, have strong ( if not extreme) policy preferences and are highly

18 See Mainwaring (1995:380-381) for a revealing comment by a federal deputy. The establishment of
College of Leaders in Congress also increased party leaders' power of committee nomination and agenda
control (Mainwaring (1999): 140).

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cohesive. I f a president’ s policy runs counter to those parties which can play an important role

in the investigative committees (CPIs), the president may be in serious trouble.

D. The Story

1. Background: the Collor Administration and Corruption Scandals

Fernando Affonso Collor de Mello (hereafter Collor) was elected president in the first

direct presidential election after the end of the military regime in 1985. in December 1989.

Voters were attracted to Collor. who promised to modernize the economy and the bureaucracy

and denounced corrupt politicians, as a real possibility o f change. On the second day. Collor's

economic plan was revealed. It included a complete freeze on the withdrawal from any bank

account surpassing C$50 thousand (approximately US$1000 at the time) for one and a half

years. The measure did not provoke any violent reaction, however, since only a small segment

of the population had a savings of more than C$50,000.19 Additionally, the major media was

largely supportive of the government’ s policy. The hope for the new government to fight

inflation was still very high, and drastic measures were accepted as necessary. Inflation indeed

slowed down to below 10% a month during April and May, compared to the 80% per month in

the last months of the Samey administration. However. Collor's approval rate also dropped

from around 70%. at the beginning o f his term, to less than 40% in June, and continued to slide

down throughout his term.20

In June already the first accusation o f corruption in his administration was made: the

Secretary o f Transportation of the Ministry o f Infrastructure was accused of signing an unfair

19 According to the president, only about 10% of the savings accounts contained more than C$50,000.
N ew York Times, March 20, 1990. According to Dos Santos (1993: 19). however, the freeze affected
SI 15 billion of the $150 billion in the country’s bank accounts.

20 O D ia September 30, 1992. The approval rating is based on opinion polls taken by Gallup.

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79

contract. In October, the president o f Petrobras (the state-owned oil company) resigned. He

alleged that Paulo Cesar Farias (PC), Collor’ s campaign treasurer and a close friend, and

Marcos Coimbra, Collor’s brother-in-law, pressured him to make a S40 million loan without

interest to VASP, a recently-privatized airline.21 This was the first time PC Farias’s name was

mentioned in an accusation of corruption, and the accusation was soon forgotten by many.

Collor, while promising to investigate the case, defended Coimbra in a speech and did not

mention PC Farias. The investigation never happened, but neither the media nor the public

seemed to give much importance to the matter.

Accusations of corruption in the federal government were abundant during the first two

years o f the Collor administration: according to Dos Santos (1993), "at least thirteen different

cases o f alleged corruption arose.”” None directly involved President Collor. however, and

Collor reshuffled the cabinet, trying, quite successfully, to make it appear that his government

was now cleared of corrupt elements.23 Nevertheless, allegations of corruption continued to

taunt the government, until finally the core of the government was affected by them. In May of

1992. the president faced the most serious challenge against his government and his person.

Pedro Collor, the president’ s younger brother, let the Veja. one o f the most widely circulated

magazines in Brazil, publish an interview in which he accused PC Farias of extortion and told

that his brother, the president, was benefiting from PC's shady deals.24

21 VASP already had a S6 million debt overdue to Petrobras. The two were close friends of the president
o f VASP. according to Veja June 17, 1992: 7-Ll.

” Dos Santos (1993): 19.

23 Collor did not take initiative in investigating allegations of corruption in government, despite his
credential as the "hunter o f fat-cat bureaucrats.” reputation gained while he was the governor of Alagoas.

24 Pedro and PC had conflicting business interests. According to Pedro’s memoir (1993), he took the
matter into his own hands when it became clear that his brother was not going to stop PC’s ambitions.

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2. The CPI in Action

In response to Pedro’ s revelations, the Federal Police opened an inquiry into PC’ s dealings

on May 25th. In Congress, on the other hand, the first move to request the formation o f an

investigative committee (CPI) was made by Jose Dirceu, a congressman from the Workers’

Party (PT), about two weeks before Pedro Collor’ s interview was made public. At that time,

however, not even the PT was united in favor o f a CPI.25 Only since the publication o f the

interview did the opposition parties begin to coordinate their strategies to install a CPI. The PT

began to draft the request for a CPI to investigate both PC’ s deals and Collor’ s involvement. At

first, only two other small opposition parties, PST and PC do B. supported the initiative to

install a CPI. As more information became available that revealed PC’ s suddenly acquired

wealth, the two largest opposition parties, the PMDB and the PSDB. turned in favor of a CPI.26

The opposition parties announced their plan to request the installation o f a joint CPI (i.e.,

composed of members of the House and the Senate) on May 26.m The opposition together held

enough seats in Congress to guarantee the passage o f the request (1/3 o f each house). Knowing

this, and, according to Veja. unwilling to face the shame of accepting a CPI proposed

exclusively by the opposition, the governing coalition conceded to install a CPI in separate

meetings of the all the party leaders of the two houses of the Congress, held on the same day.

the 26th.27

On the 27th. a “ grand accord” was reached among all the parties in the Congress regarding

the purpose and the composition of the CPI. First, it was made clear that the CPI would only

investigate matters related to PC. shielding the president from investigation. Second, the

23 Veja June 3. 1992. pp.22-23.

26 The PSDB's decision was largely influenced by the party's leader in the Senate, Hernando Henrique
Cardoso.

27 Veja June 3, L992. pp.22-23.

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largest party in opposition, the PMDB, would have the position of chief investigator and the

largest party o f the governing coalition, the PFL, would have the post of chair o f the

committee. The CPI was to be composed o f 22 legislators (11 from each house o f Congress),

and the accord stated that the governing coalition and the opposition each hold 11 seats.

The CPI of PC was different from CPIs in the past in some important aspects. One was

that the committee chair usually went to the largest party in the congress but in this CPI it went

to the second-largest, the PFL. Instead of the chairmanship, the largest party in congress, the

PMDB, had the post o f principal investigator. Giving the chairmanship to the PFL was

considered a major concession since, as we saw above, the chair’ s power in a CPI is quite

extensive. Why such a concession? The most plausible explanation is that the governing

coalition was worried that the chair appointed from the opposition might try to expand the

scope o f the investigation to include the president. By having the chair from the governing

coalition, it may have hoped to prevent the investigation from going too far for its liking.28

Since the president’ s party was very small, however, the committee chair was not appointed

from his party but from the largest coalition partner. This fact later turned out to work against

the president, as we w ill see. The post of the chair was given to Benito Gama, a PIT- senator

and a loyal ally of Antonio Carlos Magalhaes (ACM), one of the most influential politicians in

contemporary Brazil.

The second difference was that the PT was given a disproportionately large share o f seats

for its size in Congress. PT had only one senator (a mere 1.2%) and 35 deputies (7%) at the

time. Yet the party obtained a seat in the CPI as well as one seat for a suplente. a substitute for

the regular member in case the regular member falls ill or does not attend the committee for

authorized reasons. The leader of the PMDB in the Senate decided to give the PT a post of

28 This interpretation is also employed by the local media. See Krieger. et.al., p. 152.

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suplente that the PMDB was entitled to name, ostensibly in recognition of the PT’ s role in

installing the CPI.29 The CPI members from the PT. as it turned out, were dedicated

investigators, and their rigorous work led, if not forced, the CPI to investigate the activities of

PC Farias in great detail.

Third, the CPI of PC did not have a majority controlled by the governing coalition. The

composition o f the CPI was inadvertently shifted in favor of the opposition by the decision of

the leader of the PDS in the Senate. Esperidiao Amin. Amin and the then-chief minister of the

government. Jorge Bomhausen, both had their political base in the same state of Santa

Catarina, and were known to have had an “ old past o f love and hate."30 Although it was in

Amin’ s capacity to choose the CPI member from PDS. Bomhausen acted as if he was entitled

to choose. In a move that surprised everyone, Amin gave the seat to Jose Paulo Bisol. a PSB

senator and the running-mate of Lula, the PT presidential candidate that lost to Collor. Amin

explained that he chose Bisol because of Bisol’ s knowledge of legal matters from thirty years

o f legal practice.31 The governing coalition protested and petitioned to the president of the

Congress to nullify the nomination. The president o f the Congress. Mauro Benevides (of

PMDB). rejected the petition, however, and the nomination was maintained.32 Meanwhile, the

PMDB was internally divided over who would be the principal investigator, and the choice was

made only in the last moment before the CPI was formally convened. The post went to Amir

29 Personal interview with Senator Eduardo Splicy. June7.2000.

30 Veja. June 10. 1992. p. 19.

31 In fact. Bisol came to be highly respected by the fellow members of the CPI for his knowledge and
efforts in the investigation.

32 The governing coalition took the matter further to the Committee of Constitution and Justice of the
Senate, but the committee rejected to hear the case.

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Lando, taking the media by surprise because of his relative anonymity in the Senate until that

moment.33

Despite all the politics and attention given to the CPI. the majority of politicians and major

newspapers at the time did not consider the CPI significant: impeachment was thought a

remote, if any, possibility. Major newspapers, other than the Folha de Sao Paulo, were also

skeptical of the CPI's merit, arguing that it might rather bring a crisis than a solution to the

country. At the same time, however, two major magazines, Veja and IstoE, competed to bring

new revelations about the scandal on their own. often providing information to the CPI that the

committee had not obtained.3-1 By the end of July the CPI had gathered sufficient evidence that

linked the president's secretary with PC. The existence of an extortion scheme organized by

PC was acknowledged in testimonies heard at the CPI. and the CPI obtained checks issued by

allegedly ghost companies associated with PC. The CPI acquired evidence that the president’s

secretary was receiving those checks. At this point, impeachment still seemed unlikely, as the

Chief Minister o f Government Bomhausen declared on July 31: 'The impeachment w ill not be

approved, just like the diretas-ja did not."35 Nonetheless, major newspapers devoted

substantial and increasing space to the coverage of the investigation by the CPI.

As the investigation progressed, leaders of parties in the governing coalition became

increasingly concerned about its impact on the president. Responding to this concern, some

committee members from the governing coalition attempted to slow down the investigation.

33 Initial opposition to his candidacy subsumed after his speech to the PMDB party members, in which
he revealed his enthusiasm and integrity, as well as his past as a militant leftist in the 1960s.

34 The most prominent example of this was the interview given by Eliberto Franqa, the driver for the
president's private secretary. His statements were crucial in establishing financial links between the
president and PC Farias.

35 Dias Cameiro (1994). p. 96. D iretas-ja is the slogan used in the movement for introducing direct
election of the president in 1984. The Congress at the time, controlled by the party supportive of the
military regime, narrowly defeated the legislation to restore direct election of the president.

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The committee chair made a public remark that the investigation should not affect the

president.36 The opposition members repeatedly complained that the committee chair was

delaying the investigation by not processing the request for information on certain bank

accounts. In another instance, the committee chair slipped out o f the meeting to receive

packages containing important bank account information. Fearing that the committee chair

might hide the information from other committee members, the chair of the CPI*s

subcommittee on banking, Jose Bisol. went to the media to prevent the chair from opening the

packages. The packages were opened the next day. in front of all the committee members and

other legislators who were interested in the information.37

By August, public opinion had begun to shift in support o f impeachment o f the president,

but the president seemed not to notice the decline in his popularity.33 On August 13. he gave a

speech convoking the populace to wear yellow and green, the national colors, in his support.

On the following Sunday. August 16th. huge crowds wearing black appeared in many large

cities including Brasilia. Sao Paulo, and Rio de Janeiro, where more than 10.000 people

marched on the coast line. With such a clear message from the public against Collor, it was

difficult now to dismiss the possibility of impeachment. The business sector followed suit, as

the president o f the National Confederation of Industry declared his support for impeachment.39

To make matters worse for the president, three days before the CPI’ s final report was due.

a shocking finding was made public: that the president's secretary and PC were not affected by

the freezing o f bank accounts in 1990. Knowingly or not. Brazil's widest-circulating

36 F o lh a July 8.1992, p. 1-5.

37 Krieger et.al. (1992), pp. 177-78.

38 This is understantable to some extent when we consider that in a poll conducted by IBOPE, a well-
respected polling agency, taken in late June, 67% o f those polled said they were against impeachment.

39 F o lh a de Sao Pulo August 27, 1992.

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85

newspaper had published, just days before the revelation, an article that showed that those

savings that were frozen lost possibly up to Fifty percent of their value.40 The CPI members

obtained bank records that showed that the president’ s secretary, who regularly received checks

from PC Farias for the president’ s personal expenses, had withdrawn most of the money from

her bank account the day before the freeze took effect. It was not clear whether the president

had known about (or ordered) the transaction, but the news angered many Brazilians, including

legislators.41

The CPI’ s Final report was read in the House of Deputies, the lower house o f Congress, on

August 24th. It described in detail the well-organized extortion scheme of PC Farias, and

indicated Collor’ s involvement. The reaction to its content, especially to the argument that

Collor’ s secretary and PC did not suffer from the bank account freeze, was strong. Opposition

parties started to form an alliance to acquire enough votes in the Chamber to initiate the

impeachment process, and dissidence within pro-government parties grew. An increasing

number of former allies o f the president announced that they were voting for impeachment, and

attributed their decision to the pressure from their constituents and family members who were

angered by the fact that the president’s secretary and PC Farias were not affected by the bank

account freeze.42 The report was approved by the CPI on the 26*. by a 16 to 5 victory for the

opposition.43 The huge vote margin was suggestive of the outcome of the vote on

impeachment on the floor.

40 See O G lobo August 12, 1992.

41 Many legislators referred to this new finding when local newspapers asked why they were voting for
impeachment.
42 See. for example. O G lobo August 25, 1992; Folha de Sao Paulo August 25. 1992; and 0 Globo
August 30. 1992.

43 Two parties in governing coalition, the PDS and PDC, decided to vote for approval of the CPI report.

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3. Impeachment Process in the House of Deputies

The formal request for impeachment was presented to the House on September 1st by the

heads o f the Brazilian Press Association and of the Order of Brazilian Lawyers.44 The Speaker

of the House accepted the request and the date for the voting to approve the request was set for

September 29*. Even as the request o f impeachment was presented to the Congress, president

Collor had no intention of resignation. Instead he formed a task force composed o f his close

allies to block the impeachment. The task force's strategy was, first, to try to make the voting

secret instead of roll-call, so that voting w ill not be affected by concerns for the municipal

election on October 3rd. Many deputies were under pressure by their respective parties’

candidates to vote in favor of impeachment, given the public opinion against Collor. Roll-call

vote would make it public who and which parties voted against impeachment in the House, and

candidates for local offices from these parties would be put at a great disadvantage. Therefore,

the chances for President Collor to escape a vote in favor of impeachment in the House would

be greatly reduced if roll-call was taken. Collor's task force thus tried to influence the decision

on the voting method to avoid roll-call. The second strategy was to buy votes in the House,

offering preferential treatment in the distribution of federal spending destined for local public

works, or offering high level government posts. According to the magazine Veja. the Bank of

Brazil Foundation (which Mainwaring (1997) calls “ one important dispenser of patronage")

approved 7S0 clientelistic requests in three months between June and September, compared to

700 during Collor’s first 27 months in office.45

The pro-impeachment forces formed a counterpart, a task force to collect enough votes.

As the head of the task force, they chose the daughter of Jose Samey, president o f Brazil

44 The two were asked by the opposition parties to head the request and accepted the task.

45 Veja 1253 (September 23, 1992), p.23. Cited in Mainwaring (1997). p.42.

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between 1985 and 1990. whose administration Collor had harshly criticized for corruption.

Major newspapers began publishing, on a daily basis, the number of deputies in favor of

impeachment, and listed their names according to whether they were in favor, against, or

undecided, making it easier to put pressure on individual deputies. Candidates for municipal

offices started to make statements that they supported impeachment; dissent on a large scale

took place within pro-govemment parties.

Despite the growing pressure for impeachment, Collor and his task force appeared

optimistic. They had a reason to be so. At the time, two Brazilian laws conflicted with each

other regarding voting procedure for impeachment. One law (lei 1079 of 1950) stated that the

voting had to be roll-call, while the House’s internal code stated that the voting procedure for

impeachment (for common crime) was secret voting. The president wanted a secret vote, for.

as the members o f the task force commented, the strategy o f vote-buying had the possibility of

success only if a secret voting procedure was chosen.46 Collor and his allies argued that lei

1079 was revoked when the Constitution o f 1988 went into effect.

As it became clear that the Speaker of the House, who had the authority to define the

procedure, was going to choose roll-call, the Collor team took the case to the Supreme Court.

Against Collor’s hope, on September 23rd the Court ruled in favor of the Speaker, stating that it

was not against the law to vote by roll-call. In the ruling, the Court also endorsed the

Speaker’ s time-table, which set the voting merely four days before the municipal elections.

The Court’ s decision increased the probability of impeachment for two reasons. First, roll-call

made it impossible for legislators to lie to their constituents and families without risking a

harsh criticism and possibly loss o f support. Second, because of the proximity o f municipal

elections to the vote on impeachment, defying voters’ preference for impeachment was very

46 O Estado de Sao Pau lo August 28, 1992. p.6; O G lobo August 28, 1992. p.8.

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88

costly for politicians. Thus, even a legislator who had supported the president (and received

benefits for the support) could hardly withstand the pressure to vote for impeachment.

On the 29th of September, the House decided by a landslide vote of 441 to 38 (with 23

absentees and I abstention), to approve the request of impeachment. President Collor was

suspended from office on October 2nd as the result of this vote.

4. The Impeachment T rial in the Senate

President Collor only needed 28 senators to either be absent, abstain, or vote against

impeachment in the trial by the Senate in order to block impeachment: as we set out at the

beginning of the chapter, conviction requires votes of two-thirds o f the Senators’ vote.

However, even this much support was hard for the president to obtain, given the composition

of the Senate. As of 1992, Collor's party. PRN, itself held only 5 seats out of 81 in the Senate.

The largest party, with 26 seats, was PMDB. his main opposition party. PRN and its coalition

partners PFL. PDS. and PDC all together held exactly 28 seats, and even here support for the

president had been reduced over the course of the CPI and the Chamber’s voting.

Already by the end of August, three of five PRN senators declared their support for

impeachment, after the CPI report was read in the Congress. PMDB senators who participated

in the CPI also pushed hard on their colleagues to vote for impeachment, once the CPI’ s work

was completed.4' Yet another Senator promoting the conviction of Collor was Jose Samey, of

PMDB. During Samey’ s presidential term. Collor demanded congressional investigation of his

government. The investigation prompted an opposition legislator to request Samey’ s

impeachment.48 Given this history, local media described Samey’ s activities as taking revenge.

47 They had been self-imposing silence on the issue until the end of the work o f CPI.

48 The request was not taken up by the Speaker o f the House at the time.

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Revenge or not. Samey actively sought support for conviction of the president, especially from

the PFL.49

On December 3"1, the senators finally voted on whether to take up the request for

impeachment approved by the House and open an impeachment trial. The voting result (67 in

favor. 3 against initiating impeachment trial) suggested that Collor was highly likely to be

convicted. Many of Collor's allies recommended him to resign, but he refused to do so and

kept trying to maneuver the senatorial process, this time intent on delaying the senatorial trial

with various excuses.

Collor’s strategy to delay the trial backfired in the end. however. Collor dismissed his

defense lawyers on the 21s1 o f December, on the eve of the day scheduled for the trial. The

presiding officer for the impeachment trial, the Chief Justice of the Supreme Court. Sidney

Sanches, decided to postpone the trial only a week, instead of until January as President Collor

hoped. The voices in the Senate, demanding that the trial of the president be continued even if

he resigned, grew stronger, as senators were, according to local media, "irritated" by the

president’s maneuver.50 Even senators who were leaning toward voting on Collor's side until

the moment were annoyed by this maneuvering, and decided not to vote to save the president.51

Against the Collor team’ s appeal, the Supreme Court upheld Sanches’ decision, and the

trial was initiated on December 29th. Only then did Collor decide to resign, hoping to escape

from the punishment that accompanies conviction for crime o f responsibility: eight years'

suspension o f political rights, making him ineligible for any electoral office. His resignation

49 His own party. PMDB. had already decided in favor of convicting Collor. Samey had a group of
followers in PFL as well, and it is this group that he targeted his persuasion efforts to.

50 This irritation is understandable: who would like to come back to work in Brasilia right after
Christmas?

51 O Globo December 23, 1992; ibid, December 28, 1992, p.3.

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letter was read to the Senators about two hours after the trial had begun. Once again, Samey

took the initiative in convincing other party leaders to continue the trial even after the letter

was read.52 The Senate voted with a large majority (73 to 8) to continue the trial and by 76 to 3

voted to convict the president.

5. The Common Crime Process

Although the ousted president Collor appealed to the Supreme Court (STF) that the Senate

had no authority to take away his political rights after he had presented his resignation, the

Senate's decision was upheld in the Court’ s decision in December 1993.53 Thus, the ex­

president was subjected to the punishment that accompanies this conviction, i.e.. eight years'

suspension of political rights. No further punishment, such as confiscation of his assets, took

place, however, because the president was absolved o f common crime charges in the trial in the

STF that ended a year later, in December 1994.

The Prosecutor General made his accusation on November I2lh. 1992. However, the

process was started only on April 28th. 1993. when the magistrate-in-charge, Umar Galvao.

presented a report on which the magistrates made the decision whether to accept to open a

process in response to the Prosecutor General’ s accusation. Galvao was nominated by Collor.

and he was one of the three magistrates who voted in favor of secret voting for the House

decision on impeachment. He was also widely criticized by the legal community for letting PC

Farias leave the country in December 1992, after PC had been officially accused by the

Prosecutor General, for a minor operation (to stop snoring) in Spain.54

52 Estado de Sao Paulo December 30. 1992.

53 See Section E for discussion of how the decision, appealed by the ousted president, was upheld by the
judiciary.

54 Jo rn al do Brasil December 27. 1992.

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The STF made the decision to open a common crime process, accusing Collor of passive

corruption, by unanimity. The process faced many obstacles, such as the need to obtain

information from overseas, which impeded a speedy trial. The first phase o f the trial was

finally concluded on December 7th, 1994. It was clear that the public had long lost interest in

the trial: there were many vacant seats in the audience booth, and the only public manifestation

was one organized by about thirty ex-public employees fired by president Collor.55 On

December 9th. Galvao read his sentence which recommended absolving Collor, PC, and

Collor’s ex-secretary, arguing that the evidence provided by the Prosecutor General, which

included proof of the existence of 23 phantom companies related to PC, 120 thousand checks

issued by these companies, and proofs of gifts from PC to Collor (two ranches, expenses for

the renovation o f the president’s private residence and of Collor’ s apartment in Maceio. a Fiat

Elba, and an apartment in Paris), were still not enough to prove that Collor was actually and

personally involved in corruption. On the 12lh. the STF ruled, in a vote o f 5 to 3. to approve

Galvao's sentence.

Such a ruling disappointed many Brazilians, but was not unexpected by the public, nor the

Prosecutor General Aristides Junqueira. In a survey conducted on the day o f the impeachment

trial in the Senate. December 29. 1992. over 80% o f survey respondents in Sao Paulo believed

that the president would not be imprisoned.56 Long before the Court opened the process, in

March o f 1993, the Prosecutor General complained that the Penal Code and Penal Procedural

Code of Brazil were so out-dated that they were inadequate for judging white-collar crimes.57

55 F olh a de Sao Paulo December 8. 1994.

56 Ibid., December 30.1992, special edition p. 12.

57 Brazil’s Penal Code had not been revised since 1940. and the Penal Procedural Code, since 1941. The
crme of passive corruption is described in merely one. albeit long, sentence in the Penal Code.

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92

Brazilian prosecutors argued at the time o f the trial that since concrete proofs are required to

condemn a suspect under the current penal (and penal procedural) codes, and since white-collar

criminals rarely leave any physical evidence or commit the crime in front o f witnesses, it is

extremely difficult to condemn someone for passive corruption.58 The case o f Collor was not

exempt from this difficulty o f proving the existence of a crime of passive corruption. Despite

all the evidence that indicated that the president had received gifts from PC, the Prosecutor

General failed to prove that the president had used his position as the president to return the

favors. The ex-president swiftly began a campaign to come back to the political scene, while

PC Farias was still in prison partly for financial fraud committed during Collor’s presidential
59
term.

E. Why Was President Collor Impeached and Removed from Office?

In Brazil's history since its independence, there were five failed attempts to impeach a

president before President Collor was impeached and removed from office.60 Seven presidents

left office before completing the constitutional term, but none of the early terminations were

related to accusations o f corruption, with the possible exception of President Vargas, whose

suicide may have been due partly to an ongoing congressional investigation.61 Accusations of

corruption are nothing new in Brazilian politics. During Brazil’ s first democratic period (1946-

64), such accusations against the federal government were a staple of opposition politicians.

While criticism o f government was toned down during the military regime, with the return of

58 J o m a l do B rasil March 29. 1993.

59 Farias completed two years o f his term, when he benefited from amnesty at Christmas and was put on
parol, in December 1994. He was found shot dead, however, in 1996.

60 See Jose Wamberto, "O ‘impeachment’ no Brasil” C orreio Braziliense July 16, p.7.

61 For the argument that Vargas's suicide had to do with congressional investigation, see Gerardo Mello
Mourao. “Historias da CPI” F olh a de Sao Paulo July 3, 1992.

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democracy the media and politicians quickly began to denounce corruption again. The Samey

administration, which preceded Collor’ s, was heavily criticized for rampant corruption in

government (and Fernando Collor was one o f the harshest critics). In fact, based on the finding

o f a CPI that investigated corruption in the federal government, a senator requested Samey’s

impeachment. The request was shelved by the then-Speaker of the House of Deputies,

however, and no further action was taken. None o f the accusations and investigations led to

impeachment and removal of a president before the case of president Collor. Indeed, given the

institutional settings, as discussed in section B. impeachment and conviction seems very

unlikely. Why did Collor become the first president in Brazilian history to be impeached and

removed in an impeachment trial?

1. The Conventional Answer to the Question and Its Limitations

The answer most commonly given to this question is that President Collor alienated

himself from the Congress to such an extent that he had too few allies in the Congress to block

the attempt o f impeachment. According to Weyland (1993). Collor came to antagonize the

Congress because he alienated himself from even his allies, as he by-passed it in important

policy-making processes. In fact, it is well known that Collor extensively resorted to what is

called provisional measures (in Portuguese, medidas provisorias. or MPs) in his first year of

administration.

Under the Constitution of 1988. the president is entitled to use the MPs. which are valid

for 30 days without the approval of the Congress. I f the Congress does not approve an MP. the

president could simply issue another MP, unless (and until) the Supreme Court declares it

unconstitutional.62 Collor was notorious for his frequent use of MPs in the first year o f his

62 Until recently, contesting the constitutionality was the only way to curb abuse of MPs: a Supreme
Court ruling declared that presidents cannot re-issue MPs that have been rejected by the Congress, and
the Congress has been working on to further limit the abuse of MPs.

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administration, when he issued 143 MPs: the total of MPs during the Samey administration

(that is, since when the Constitution of 1988 went into effect) was 147. The contrast between

the two is also shown in the number of revision-resubmission of controversial MPs. While

Samey did only up to two revisions on an MP rejected by the Congress, Collor made the record

o f six revisions on one MP. Disputes involving some controversial MPs worsened Collor's

relationship with the Congress, especially with the PMDB, the largest party in Congress. Thus

it is argued that Collor’s confrontational attitude towards the Congress was the key factor for

the impeachment to take place. Weyland also argues that without the “ final push,” i.e.. popular

protest demonstrated by the marches on the streets, the impeachment would not have gone

forward. Flynn(l993) also attributes Collor's impeachment to his lack of allies in the

Congress, although he too lists other factors such as popular pressure and procedural rules.

Samuels (1994). however, points out that, based on his interviews and his observation

realized right before the impeachment voting in the Chamber, legislators were not certain until

late in September whether impeachment would really take place. By reading the local papers

o f the period, one can easily discern the change in the tone of the papers and comments by

politicians from July, when impeachment was still seen as a remote possibility, to September.

Since Collor's status as a president from a small party did not change over this time, such a

status by itself cannot explain why the perceived probability of impeachment increased over

this period. Furthermore, according to Figueiredo and Limongi's works in 1996, the

confrontation between Collor and the Congress over MPs was ameliorated in his second year

o f office. In 1991 Collor began to resort to MPs with much less frequency: the total of MPs

fell to a remarkable 11. Also, he reshuffled the cabinet to obtain more support from the

Congress. In addition, according to Figuerredo and Limongi, the approval rate of MPs in the

first o f year o f Collor administration (73.7%) is comparable to that of Samey’ s (73.3% in

1988). That is, Collor was able to muster congressional support, despite his confrontational

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approach, for the majority o f MPs. Given these facts, the explanatory power that the

conventional explanation gives to the president's lack of congressional support seems

overstated.

The explanatory power o f popular pressure is also not as clear-cut as it may appear at first

glance. As pointed out earlier, an opinion poll taken in late June of 1992 showed that 67% of

the respondents were against removing the president. Only a few months later, however,

another opinion poll found that 80% of the respondents were in favor of removing the

president.63 While some analysts attribute the anti-Collor sentiment of the public to the

administration's failure to bring the country’ s economy back to good health, it is difficult to

explain the sudden shift in public opinion about impeachment that took place in just a few

months based on the administration's economic performance. The monthly inflation rate

between December of 1991 and November of 1992 hovered around 20 to 25% a month,

without any sharp drop or rise. Unemployment in metropolitan Sao Paulo, the largest

industrial region of the country, actually registered a moderate decline between June and

September of I992.w To be sure, the administration's economic performance disappointed

many, especially since the first several months of Collor administration was widely viewed as

successful. However, the economic deterioration preceded by many months the change in

public opinion: recall that polls taken at the end of June showed a large majority supporting the

president to stay on.

From the above argument, it is clear that we need to look beyond Collor’s one-man style

o f government and the protest marches to explain why he was impeached. Doubtlessly, these

factors positively affected the probability o f impeachment. O f course, i f the president enjoyed

63 F olh a de Sao Paulo December 30, 1992, special edition p.9. The poll was taken in twelve largest
capital cities of Brazil on September 29, 1992.

64 See F o lh a de Sao Paulo December 30. 1992. Special edition p.l 1.

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strong support from Congress and the people, it is unlikely that impeachment would have

happened. I do not intend to refute this argument, but rather redirect the question. The

question is not whether the president lacked support, but why the legislators and the voters

came to support impeachment. We need to examine in more detail why Collor came to lack

support in the Congress to block impeachment, and why the popular sentiment toward

President Collor changed over a relatively short time. In the following I w ill show that the

institutional characteristics of the impeachment process that affected the informational role of

the congressional investigation committee (CPI) were the key to the impeachment and removal

o f the president.

2. The C P I’s Informational Role and Its Structure

In Chapter 2. I argued that whether a president can weather an impeachment crisis

depends on the availability and legitimacy of information that seriously casts doubt on the

president's innocence. I also argued that whether such information becomes available depends

on who investigates the president, for the official investigation produces or authenticates

certain pieces o f information and transmits the screened information to the legislators and the

public. In Brazil, as we saw earlier, a congressional investigation committee is the official

institution that performs the task of investigating matters relevant to the public interest and

national order. In the case at hand, the investigative committee's findings were crucial to the

change in public opinion and in legislators' calculations regarding impeachment. The findings,

in turn, were made available to the public through the mass media. The media was also an

important source o f information, often providing pieces of evidence that led the investigative

committee to deepen their scope of investigation. I w ill refer to the role o f the media where it

is important, but I concentrate on the role o f the investigative committee, which was the

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official investigative body and without whose authentication information the media provided

would not have become part o f the official investigative report.

The congressional investigative committee in Brazil has several features that favor the

provision o f what Strom (1990) calls “ structural opportunities for oppositional influence,” as

explained in Chapter 2. The opposition took the opportunity, by actively investigating not only

the president's friend's deeds but also financial transactions associated with the president's

assets. The important structural features of the CPI are the composition of the committee

(which is affected by the ad hoc nature of the committee, the rules governing selection of

committee members including the chair and the investigator, and the party system), the powers

given to the principal investigator and the committee chair, and the internal rules that allow for

broad participation in the committee's activities by regular members o f the committee as well

as by non-members of the committee. I w ill discuss how each of these features provided the

opposition with the opportunity to gather and disseminate information that led to impeachment

o f the president,

a. The Composition of CPIs

• The strategic selection o f members

In contrast to Colombia's Committee of Investigation and Accusation. Brazil's

congressional committee in charge of investigation is not a permanent committee. CPIs are

formed anytime enough legislators support the formation of an investigative committee. The

scope o f the investigation, the number of seats to be distributed among parties, the budget

allocated to the committee and other matters are all decided at the time o f the formation of a

CPI. The ad hoc nature o f the CPIs means that committee members can be selected

strategically. As explained in the section C. the selection o f CPI members is in the hands of

party leaders. Party leaders can decide whom to nominate to a CPI according to whether the

CPI is likely to have grave consequences for the party, or to attract much public attention that

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may be electorally beneficial for the party. In the case studied here, it seems that the strategic

choices made by one o f the opposition parties, the PT, and by one of the governing parties, the

PFL, as well as the perhaps not-so-strategic choices made by the PMDB and the PDS’ s leader

Espiridao Amin, were critical in producing a highly active CPI.

As we saw earlier, the PT was over-represented in the CPI, thanks to the seat o f suplente

(a substitute member) given to it by the PSDB's leader in the Senate. Indicating its intense

interest in the committee, the PT sent Deputy Jose Dirceu and Senator Eduardo Suplicy to the

committee. The pair had been known to be searching for proof o f PC Farias’s criminal

activities and o f the president’s ties to PC Farias.65 Dirceu was the first to raise his voice

demanding a CPI. and following Pedro's accusations, he led the effort to gather signatures

requesting the installation of a CPI. Once becoming a member of the CPI, Dirceu proved to be

a competent and dedicated investigator. Even the president of the CPI. who was from the

governing coalition, praised him by saying, " I f there were SNI (the secret service) in the Lula

administration. Jose Dirceu would be its chief."66 In addition. Suplicy, a suplente of the CPI,

played an important role in defeating one of the key strategies of the president Collor's team.

The strategy was to explain Collor’s suddenly acquired wealth by a supposed loan from a

Uruguayan businessman. Suplicy brought an office worker to testify at the CPI that the loan

was a hoax.

A short description of its characteristics may help understand why the PT came to play

such an important role in the CPI. PT is considered a unique party in Brazil for it is the only

party that has been formed from bottom-up. with a clearly class-based ideology. Unlike other

parties, party discipline is very strong. Yet. it is also unique in its internal democracy: party-

65 O G lobo June I. L992. p.3.

66 O Estado de Sao Paulo August 25, 1992. p.7.

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level decisions are subject to approval by its members at the local level. The PT also enjoys the

reputation of a '‘clean” party. Since it first competed in the 1982 election, PT’ s share in the

Congressional seats has steadily increased, from 8 seats(1.7%) in the House in 1982 to 16

seats(3.3%) in 1986, to 35 seats(7.0%) in 1990, the same year when it elected its first senator.

It was a small, but significant party in the fragmented Congress, where the largest party,

PMDB. had only 19.7% of seats in the House. The party advocates social justice and is

ideologically sharply opposed to the liberalization of the economy, and was the strongest

opposing voice against president Collor's economic and social policies. Additionally, the

party’s leader, Luis Inacio Lula da Silva, competed with Collor in the run-off election in 1990.

It is possible that the defeat of Lula, which his close friends attribute to Collor's negative

campaign against him, added fuel to the PT's zeal to investigate Collor.67

As for the choices made by the PFL, the most crucial one was the selection o f the

committee chair. The PFL appears to have been more interested in managing the committee to

increase its influence over the president than in assuring that the president be left unaffected by

the investigation.68 Such a strategy may have seemed best for the party at the time, for the

possibility o f impeachment was conceived to be very small. The party’ s strategy is reflected in

its choice for committee chair. The committee chair, Benito Gama, was a confidant o f the

party's most powerful leader, but Gama also promised impartiality in the investigation when he

was selected to be the committee chair.69 Although some friction took place in the CPI in July,

as the CPI began to collect critical evidence, even the opposition members of the committee

67 Weyland (1993), p. 18. For more details of the negative campaign, see Conti (1999), p.276.

68 Krieger. et.al. (1992), 176-77.

69 O G lobo June 1. 1992. p.3. Gama even told the reporter that he would not vote against the truth, even
if the truth was about the president.

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preferred to work with Gama rather than to fight against him.70 At the end of the investigation.

Gama did not hesitate to compliment the committee’ s work, even though its final report

contained incriminating language against the president.

Such a conclusion o f the investigative committee was not what the PFL's party leaders

were expecting at the onset o f investigation. However, because the leaders chose the strategy

of pressuring the president by initially letting the committee do its work, the opposition

members took the opportunity. They were effective and efficient in its investigation and

information dissemination, perhaps much more so than the PFL leaders imagined. The

investigation attracted attention from the media and the pubic, and it was too late and

politically risky to try to slow down the investigation, by the time they realized that it was

going to affect the president.

The nomination of the principal investigator by the PMDB leaders was not as strategic as

the two choices discussed above, but was equally important for the performance of the

committee. The party leaders initially tried to nominate Pedro Simon, a prominent senator

known for personal integrity and for fighting against corruption. However. Simon refused,

saying that he was not fit to the position since he already had formed his opinion that PC Farias

has committed crimes.71 Senator Amir Lando stepped in. lobbying for the job. Lando was

considered to be a moderate, and some leaders doubted that he would conduct a vigorous

investigation that could negatively affect the government. Lando won over the skeptics in the

end. giving a speech that demonstrated his enthusiasm and assured that he would work to find

out only the truth.72 Lando had experience in investigative tasks, and was confident about his

0 J o m a l da Tarde July 9. 1992, p.3.

'* O G lobo June 1. 1992, p.3. It is also likely that he did not think the CPI was worth his time, given that
at that time the CPIs were not considered to be an effective mechanism for fighting corruption.

72 Personal interview with Senator Amir Lando. June 1. 2000, Brasilia.

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abilities. He was also careful not to make any statement about the investigation to the press,

thus avoiding politicization o f the committee’ s work and lending legitimacy and credibility to

his final report.73 Although the local media called him "timid,” Lando resisted many pleas and

pressure not to mention the president in his report.74

Finally, the decision by the PDS’ s leader Esperidiao Amin was the most surprising and

perhaps the most decisive in the high quality of investigation by the CPI o f PC, although it is

not clear how accurately Amin foresaw the impact of his decision. As mentioned earlier, it

seems that the decisive factor in Amin’ s choice of Jose Bisol, an opposition Senator and a

lawyer, was the power struggle between Amin and the then-chief minister o f the government.

Jorge Bomhausen. Although Amin attributed his choice to Bisol’s expertise and to the need

for an effective committee to investigate corruption, it would have been difficult for anyone to

predict how Bisol's participation might affect the committee's performance and the possibility

o f impeachment. As it turned out. Bisol, as the sub-investigator o f the CPI in charge o f bank

transactions, was crucial in obtaining important banking information that proved links between

the president's expenses and PC Farias's businesses, as well as the revelation that the

president's secretary and PC Farias were not affected by the bank account freeze. He was also

one o f the most vocal opposition members when it came to complaining about the committee

chair's alleged efforts to keep some vital information out o f reach of other members o f the

committee.

73 Lando did not speak to the press during the entire investigation, until he produced his final report.
Author interview with Senator Lando, June L. 2000. Brasilia.

74 For the press’s view of Lando. see. for example. Krieger et. al. (1992), pp. 183-85.

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• The selection rules and the party system

It is important to point out that, while party leaders were given the chance to make these

choices strategically because of the ad hoc nature of the committee, these choices were made

within the institutional framework at the time. It was the rules o f proportional representation

and power sharing, on one hand, and the party system, on the other, that determined which

parties were given the power to nominate the members, including the committee chair and the

principal investigator. The rule of proportional representation in the committees, combined

with a fragmented party system, leads to the formation of a committee representing many

parties, none o f which would dominate the committee.

At the time the CPI of PC Farias was installed, nineteen parties were represented in the

House of Deputies. The largest party in Congress was an opposition party. PMDB. Although

the governing coalition managed to hold a majority in the House o f Deputies, the coalition was

comprised o f many small parties that each held less than 10% of the seats, except for the PFL,

which held 16.7% o f the seats.75 The president’s own party held only 8% of the seats. In the

Senate, the opposition parties had more seats than did the parties in the governing coalition,

and the president’ s party had only 3.7% of the seats.

Such a configuration in congress meant that, when nominating the committee chair and

principal investigator, the president's party was not even close to being included for the

selection. These important posts went to the PMDB and the PFL. In addition, reflecting the

balance o f power in the two houses, the opposition and the governing coalition parties had been

allocated an equal number o f seats in the committee (although, as we saw above, one seat was

given to the opposition and thus the balance was tipped in favor o f the opposition). A total of

75 See Mainwaring (1999), 72-73. The governing coalition consisted o f the president’s party (PRN),
parties that had or had held cabinet participation (PDS. PET., PL, PTB, PTR), and PDC, which was in
Collor’s electoral coalition and had supported the government. PSDB participated in the cabinet from
April 1992, but was considered an opposition party.

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ten parties had representatives in the CPI of PC Farias. Even the largest party in the

committee, PMDB, controlled less than 30% of the votes. Four parties had only one member

in the committee. In addition, once selected for the committee, party leaders could exercise

little control over the committee members short of removing them. One PFL deputy became

increasingly supportive of the investigation conducted by the opposition members of the

committee, despite its negative consequences for the president. He was so convinced of the

president’s guilt that he pronounced his intention to vote to approve the CPI’ s final report, only

to be forced to resign from the committee to give his seat to a party loyalist.

The power-sharing rule, typical of multi-party democracies, makes it even more difficult

for either the governing coalition or the opposition to control the committee's work. Since the

two most important posts in the investigative committees are customarily given to the two

largest parties, one o f the two positions is likely to go to the opposition, unless the governing

coalition contains the two largest parties. Unfortunately for President Collor. during his term

the largest party, the PMDB. was in opposition. The leaders o f the PMDB were slow to join

the other opposition parties to request the formation o f the CPI of PC Farias, and were not

particularly supportive of the PT’ s failed attempt to include the president as a subject of the

investigation. Still, it was a party in opposition, and the principal investigator chosen from the

party had no interest in controlling the investigation to protect the president. As we saw above,

when some o f the party leaders did try to persuade the principal investigator to omit mention of

the president in his report, such pressure was ineffective, for party leaders lacked disciplinary

measures.

In sum. the strategic choice of committee members by party leaders, the participation of

many parties in the committee due to the proportional representation and the multi-party

system, and the power-sharing arrangement for the selection o f the principal investigator and

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the committee chair, all contributed to the decentralization of information control in the CPI of

PC Farias.

b. Powers of the Committee Chair and the Principal Investigator

The balance of power between the committee chair and the principal investigator is

another important element in determining the degree of information monopoly, either by the

president's friends or by his opponents. When the interests of the committee chair and that of

the principal investigator conflict, the balance of power between the two becomes critically

important for the investigation's outcome. On paper. Brazilian rules give the committee chair

strong control over the investigation. If these rules are followed strictly, the committee is not

likely to produce a rigorous investigation if the chair is from the president's party or one of the

coalition parties. How much o f the control that is authorized on paper is exercised in practice

often depends, however, on strategic interaction among the members of the committee. In the

CPI of PC Farias, the regular members of the committee from opposition parties paid close

attention to the committee chair’ s behavior, so as not to let him control the investigation.

As we saw above, when the chair appeared (at least to the opposition members' eyes) to

be slowing down the investigation, the opposition members complained to the media, which

duly reproduced their complaint for the public to see. The committee chair denied any

intentional slowing-down of investigation, and the vital documents long requested by the

opposition members o f the CPI were delivered. When the committee chair appeared to be

trying to monopolize access to critical documents such as bank account records, the opposition

members o f the committee once again took the matter to the media. The documents were made

available to all the members o f the CPI. Apparently, the committee chair preferred to maintain

his reputation as an impartial chair, rather than to protect the president at all costs. This was

understandable especially because the costs of such protection rose as the investigation

proceeded. The CPI’ s activities produced more and more evidence that questioned the

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president's innocence and made many Brazilians angry. The CPI was also very closely

followed by the media, and, consequently, by the public. Thus, any attempt to control the flow

of information into the committee to the president’ s advantage was politically costly, and the

opposition members of the CPI kept watch over the committee chair precisely to detect such an

attempt and to denounce it to the media. Although on paper the committee chair could exercise

extensive control over information flow into the committee, the opposition members of the

committee made such control politically unattractive.

In addition, the Brazilian rules do give the principal investigator one very important

power: the power to write the final report on her own. without having to consult with the

committee chair or other members. The other members of the committee can only vote to

approve (or disapprove) the report as it is. The principal investigator Amir Lando took this

autonomy to its full extent. Many, including some key members of his own party, encouraged

or pressured him not to mention the president in the final report, but the principal investigator

did not give in.76 Because the principal investigator is the only one in charge o f writing the

report, no one could change the content of the report that implicitly recommended

impeachment. As the content of the final report became known widely by legislators and the

public alike, leaders of political parties that until the moment had been against impeachment

began to change their discourse, citing the report as the reason for the change in their opinion.77

c. Regular Members’ Participation in the Investigation

The performance of the investigative committees would also vary by how actively the

regular members of the committee can participate in the investigation and obtain (and

disseminate) information. If regular members of the committee can actively participate in the

76 Interview with Senator Amir Lando. June 1. 2000. Brasilia.

77 See. for example.O Estado de Sao Paulo August 27, L992, p.4; Folha de Sao Paulo August 25, 1992.
p.1-14; Jo rn al do B rasil August 26, 1992. p.8.

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investigation, they might bring evidence or demand testimonies that the committee chair and/or

the principal investigator fail to provide. Such information could attract media attention,

especially if they offer surprising or shocking revelations. If the regular members keep feeding

the media with new information, the public w ill stay informed, and is likely to stay interested

in the investigation, even if the committee chair and/or investigator does not provide

information. The participation of regular members in investigation also makes it difficult for

the committee chair or the principal investigator to conceal or destroy information provided

from outside the committee, such as from banks and real-estate agencies, that can contain some

crucial piece o f evidence. By simply being present at the committee’ s sessions, regular

members of the committee provide many eyes to watch over the activities of the committee

chair and the principal investigator.

Broad participation o f regular members characterizes Brazil's investigative committees.

Unlike Colombia, where the principal investigator is in charge o f the investigation, there is no

rule governing CPIs that states that the principal investigator is exclusively in charge of the

investigation. Regular members o f the CPIs are entitled to pose questions to those testifying in

the CPIs. Even legislators that are not members of CPIs can participate as observers in CPIs'

sessions unless the committee decides to make the session closed to non-members. In addition

to these rules. Brazil's fragmented party system gives even the smaller opposition parties some

of the seats in the committee. Thus, even if committee members from the governing coalition

do not actively participate in investigation, the committee can still produce a large amount of

information at the hands o f opposition members in the committee.

In the case studied above, the CPI’ s opposition members were able to supply information

to the media and to the public because the investigation was carried out jointly by the whole

committee. O f particular importance was the subcommittee on banking created within the CPI

that investigated bank transactions related to PC Farias’ s accounts. The subcommittee was led

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by Jose Bisol, an opposition Senator with legal expertise, and two other committee members

from the opposition also actively assisted the subcommittee's work. Bisol was often featured

in press coverage o f the CPI’ s activities, both for the important information that the

subcommittee managed to collect, and for his direct criticism o f the Collor administration's

attempts to influence the CPI’ s work. The subcommittee discovered that the president's

secretary and PC Farias were not affected by the bank account freeze, a finding that prompted

many legislators to support impeachment. Bisol’s criticism often extended to the committee

chair, as mentioned above. Although not as visible in the media as Bisol, another opposition

senator in the committee, Eduardo Splicy, played an important role in undoing Collor's

friends' cover-up operation. Yet another opposition member o f the committee. Odacir Klein,

headed another subcommittee, in charge of fiscal matters, and proved that PC Farias paid for

remodeling the president's apartment in his home state. The news was immediately

disseminated through mass media. As these examples demonstrate, the active participation of

regular members in the CPI produced a number of crucial pieces o f information that influenced

the change in public opinion, as well as the final report of the committee.

One may wonder why only opposition members were placed in such key positions inside

the committee. It is the combination o f the simple majority rule that governs decisions within

committees and the majority status o f the opposition in the committee that made such

nominations possible. The committee members from the governing coalition could not vote

down any nomination within the committee, simply because they were outnumbered. They

may have protested, but if they did. such protests were ignored by the press, for no paper at the

time spoke o f the governing coalition's attempts to influence the nominations for

subcommittees. In addition, members o f the governing coalition were represented in these

subcommittees, although they did not head them. Their presence did not affect the opposition

members' performance, however, because, unlike in other committees, in investigative

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committees there is little room for negotiating. In committees studying a bill, committee

members not satisfied with the majority’s bill can present an alternative bill; in investigative

committees, their central function is to collect information. Minority members do not have the

option of presenting alternative information, for example on bank transactions, even if they are

not happy with the information. As a minority in the CPI, there was little the committee

members from the governing coalition could do to keep the committee from collecting

information that affected the Collor administration negatively.

The opposition members of the committee were also in close contact with the media, and

used the power of information to keep the investigative process going, as well as to keep the

public interested in the process. I have already detailed how opposition members used the

media to discourage the committee chair from slowing down the investigative process and

from monopolizing access to vital information. The opposition members of the committee, as

well as some opposition legislators who were not members of the CPI but who frequented the

CPI’s sessions, contacted the media whenever the CPI acquired important information.78 The

principal investigator and some of the opposition members o f the CPI never shared information

with the media, but other CPI members seemed less troubled (and rather eager) to contact the

media, which often put names and pictures of the opposition legislators in its reports. When

they could not disclose the information itself, such as in the case of bank records, they would

still appear in the media to announce that they had obtained important evidence that suggested

the president’ s close relationship with PC Farias, without actually showing the evidence but,

nonetheless, publicizing the accomplishments o f the CPI. By feeding the media with

information, the opposition legislators gained publicity. In turn, by transmitting the

information provided by the CPI. often with eye-catching, if not always accurate, captions, the

78 A deputy from PT. Aloisio Mercadante, stood out tor his frequent appearance both in CPI and in
media reports, although he was not a member o f the CPI and had no credit to claim for CPI's work.

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media made it impossible for even the least interested to ignore the investigation, and

contributed greatly to strengthen public opinion against the president.

3. The Informational Role of the CPI of PC Farias

The above account demonstrates how the organizational rules of the investigative

committees, both formal and informal, applied through and within the existing party system,

contributed to producing a CPI in which the president’s allies failed to monopolize

information. The rule of proportional representation in CPIs, applied to the fragmented party

system, meant that many parties, both from the governing coalition and the opposition, were

represented in the CPI. The ad hoc nature of the committee led to strategic choices of members

by party leaders, which resulted in a committee with a majority held by the opposition, headed

by a chair not particularly loyal to the president, and with a number of opposition legislators

skilled in investigative work. The power-sharing rule, typical of multi-party democracies, at a

time when the largest party was in opposition, produced a committee whose principal

investigator was from the opposition. The participatory, rather than secretive, nature of the

committee allowed for active involvement o f regular members o f the committee in

investigative work, which produced a large amount of important evidence and whose results

were quickly transmitted to the media.

It may seem that the opposition controlled the committee's informational role, especially

in terms of information flow out of the committee. In fact, the opposition members of the CPI

were cited much more often than members from the governing coalition in the coverage of

CPI's activities. This is not surprising or problematic, however, given that the CPI members of

the governing coalition were not providing information, as they were not trying to investigate

but instead trying to keep the investigation from going too far for their liking. Some o f the CPI

members from the governing coalition tried to discredit the committee’ s opposition members

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by taking their complaint to the media, but did not succeed. They charged that some o f the

classified information was leaked to the media by opposition legislators, but the charge was

denied even by the committee chair, who had the only key to the safe where all the classified

documents were kept. This example shows, however, that access to media was available to the

governing coalition, and thus the opposition members were not monopolizing information flow

out o f the committee. The difference between the two sides is that the information provided by

the CPI members from the governing coalition was not as valuable to the media because it

tended to be accusations without evidence against the opposition members of the CPI. while

the opposition members continued to provide information with physical evidence that

questioned the president's innocence.

As for the inflow of information, the opposition members contributed to make more

information available to the committee, while members from the governing coalition did not,

but the information obtained by opposition members was accessible to any member o f the

committee. Many o f the important testimonies were heard in sessions open to all members of

the CPI, and even the secret testimonies counted with the presence of both the committee chair

(from the governing coalition) and the principal investigator (from the opposition). Thus, both

sides had opportunities to ask questions to check the consistency of the testimony, and no CPI

member complained to the media o f biases in favor o f opposition members regarding these

testimonies. For example, during the testimony by the president's secretary's driver, some of

the CPI members from the governing coalition asked questions. Their questions were not.

however, to verify the consistency o f the testimony, but to make personal attacks on the

driver.79 One can see that the CPI members from the governing coalition did not use their

opportunities for collecting information wisely, but it is clear that the inflow of information

was not monopolized by the opposition members. Furthermore, the authenticity o f hard

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evidence such as bank records was never questioned, even though they were mostly requested

or collected only by the opposition members of the committee. Although the president and his

friends often counter-argued the testimonies and proofs, they failed to establish the falsity of

the evidence. It was on the basis o f this credible information collected by the CPI that the

Congress proceeded with the impeachment process.

The importance of the information provided by the CPI in determining the fate of the

president was pointed out at several points in section two. To repeat, the information provided

by the CPI contributed to the change in public opinion and in legislators' calculation of the

costs and benefits from their vote on impeachment. Let us review these changes in some more

detail.

a. The Change in Public Opinion

The shift in public opinion was most noticeable between the end of June and mid-August,

when the massive demonstrations of black-clad marchers clearly indicated the preference of the

public for impeachment. This is also the period when the CPI obtained, both through its own

investigation and through the media, many importance pieces of information that suggested the

president's close relationship with PC Farias. The driver for the president’ s secretary first gave

an interview to the magazine IstoE. published on June 27m. and then testified in the CPI on July

1st. that the secretary regularly received money from PC's companies to pay the president's

private expenses. He also testified that the president's car had been purchased with money

provided by PC Farias. The CPI found evidence that the secretary was indeed receiving checks

cut by PC Farias's secretary on July 3rd. Also in July, on the 21st, the CPI discovered that the

president’ s wife, who was in the center c f a financial scandal in August 1991. was receiving

checks signed by PC. Days later, a national newspaper O Globo reported the existence o f a

79 Conti( 1999:620) and Veja (July 8. 1992:22) describe these questions and the driver’s answers.

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check that confirmed the testimony by the driver in the CPI about the president’ s car, and the

CPI concluded in mid-August that PC bought the car using a false identity.

In short, the information collected and made public between end o f June and mid-August

clearly linked the president with the illegal activities of PC Farias. Prior to this period, the CPI

had not been able to establish such a link: although the president’ s brother Pedro testified in the

CPI, his testimony was weak and not accompanied with physical evidence. Others testified in

the CPI that provided information on PC Farias’s possible crimes, but no evidence existed to

substantiate Pedro Collor's claim. Beginning with the disclosure by the president's secretary’s

driver in late June, however, evidence began to flow into the CPI that suggested the president’s

involvement with PC Farias. Although some o f the important pieces of information did not

originate in the CPI. it performed the task of verifying them. In other cases, such as bank

records, the CPI itself was the source of information. Without the mounting evidence that

suggested that the president was not innocent, it is doubtful that the demand for impeachment

would grow so rapidly in such a short time. The president's friends are also partly to be

blamed for the change of public opinion, for their failed attempt at misinforming the public.

As we saw earlier, some o f the president's friends decided to mount a cover-up operation in

Uruguay, in late July. It did not succeed because, two days later, an office worker told the CPI

that her company was involved in the cover-up operation. Caught in a lie, the president's

friends certainly did not help him reclaim the public's confidence.

Disapproval o f the president manifested itself in the form o f protest marches. The first

recorded protest march happened on August 11 in Sao Paulo, attracting a total of ten thousand

students.30 This was two days before the president gave a speech asking supporters to take to

the streets. Another protest march organized by students took place, on August 14. this time in

80 Conti (1999), p.648.

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Rio de Janeiro.81 Thus it is not accurate to blame the president’ s speech for the beginning of

protest marches, but it is likely that the speech, whose clips were broadcast by many TV

stations, prompted many to march in black clothing on the day specified by the president for

his supporters to march. As the CPI, as well as the independent media, continued to produce

even more information that questioned the president's innocence, demonstrations demanding

impeachment continued in many large cities.82

Interestingly, the public's confidence in the CPI seems to have grown tremendously

between June and August as well. De Souza (1999) documents that a large majority (71%) of

respondents in a poll taken in Sao Paulo on June 24 thought the CPI was “ a sham and would

get nowhere."83 This skepticism seems to have disappeared, however, by the time the CPI's

final report was read in Congress. The same polling agency’s data showed that while before

the CPI report was read only 30% o f respondents thought impeachment would happen, after

the reading o f the report in Congress the figure doubled to 63%.w Many non-governmental

organizations, from unions to business associations to church groups, began to voice their

demand for impeachment only days after the CPI report was read. There is also anecdotal

evidence of attention given to the CPI: the CPI's principal investigator Lando, whom a

newspaper named as "the most recent star” of his party, received many invitations to rallies for

his party's candidates in mayoral races.83

81 Another factor that contributed to the activism of students seems to be a T V drama series on the
student movement for democracy under dictatorship. The series started in late July and ended the same
week that the president convoked a supporters' march. See Conti (1999). pp.648-50.

82 For example. Veja published an article and pictures of the president’s opulent private residence on
September 6. in which the residence's garden designer acknowledged being paid by PC Farias.

83 De Souza (1999). p.96.

84 F o llia de Sao Paulo August 30. 1992. p. 1-2.

85 F olh a de Sao Paulo August 31, 1992, p. I -8.

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b. Changes in Legislators’ Position

Legislators clearly saw the change in public opinion, but it had a different degree o f effect

on different legislators. Legislators who had been actively defending the president’s innocence

minimized the importance o f demonstrations, alleging that they were merely organized by a

minority o f radicals. For opposition legislators, the demonstrations clearly signaled the

public’ s approval of the CPI’ s work and o f impeachment, and many began to speak openly of

the need for the president to leave office. Many, however, remained undecided. In fact, of the

503 deputies o f the House, more than 100 remained undecided well into September, and fifteen

deputies who promised to vote for impeachment, along with thirty undecided ones, were found

to have attended a party set up for the president to meet with legislators.*6

Collor’ s support base in the Congress was Bloco. a coalition of three parties (PRN-

Collor’s own party-. PFL. and PSC). which held 122 seats in the Chamber at the time o f voting

for approval of request for impeachment. He also counted on the cooperation of PDS. PTB.

PL. PDC. and PTR.87 Altogether, the governing coalition controlled 257 seats against 246

controlled by the opposition parties. By law. the request for impeachment cannot be voted on

without the presence o f at least half (at that time 252) of deputies, and the impeachment itself

requires votes of two-thirds o f the deputies (336 at the time). In other words, the president

could avoid impeachment if he could convince 252 deputies to boycott the session, or convince

168 deputies to vote against impeachment. Since the president could still count on some loyal

deputies, the number o f votes the president had to win over from the undecided pool of

86 F olh a de Sao Paulo Septeber 10. 1992; Jo rn al do Brasil September 19, 1992.

87 See footnote 75 for why these parties supported the government. However, some PDC members had
been disillusioned by the president, who did not respond to their requests for public funds (i.e., pork). O
G lobo August 30,1992.

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legislators was not overwhelming, given the large amount o f the federal budget and the cabinet

posts that the president could offer in his bargain.

The president and his allies were aware of this, and began to focus on buying the support

o f undecided legislators. It was public knowledge that the president and his friends were trying

to buy votes, promising cabinet posts, unspecified “ prestige," or promising (and sometimes

actually releasing) government funds for pet projects o f legislators who would pledge to vote

against the impeachment (or to be absent at the House's session on impeachment). Several

legislators close to the president acknowledged the president's vote-buying strategy in media

reports, and some legislators told the media that they were approached with proposals by the

president's allies.88

The CPI's final report and. perhaps more directly, its finding that the president's secretary

and PC Farias were not affected by the bank account freeze, acted as a counterbalancing force

against the president's vote-buying efforts. On August 24th. the day when the CPI report was

read in the Congress. Paulo Maluf. the president o f the PDS. declared his support for

impeachment, threatening to leave the party if it did not follow his intention. Roseana Samey

o f the PFL, the daughter of the former president, also told the PFL's leaders in the Chamber,

while the CPI report was being read, that she would vote for impeachment. The PL met on the

26th and decided to vote for impeachment. The PDC also decided to vote for impeachment, on

the 27th. Even within the president's own party dissidents started to emerge— on the day when

the CPI report was read, one representative already declared his intention to vote for

impeachment. Important figures such as the campaign coordinator for Collor in Minas Gerais

and president o f the Association of the Industries, both PRN senators, also announced that they

would support impeachment. By the end o f August, even ACM told the PFL members in his

88 See. for example, 0 Estado de Sao Paulo August 28, 1992. p.6; F olha de Sao Paulo September 4.
1992, p. 1-5.

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home state o f Bahia to vote as they wished. Individual legislators announced they were turning

in favor o f impeachment, citing the CPI’ s finding about the bank account freeze.

It is possible that some o f these legislators may have made up their mind even before the

CPI’ s report was due. but even if that was the case, the report gave them a convincing and

convenient justification for their change in position in favor of impeachment. More likely,

however, is that the legislators felt a strong pressure from their constituents and local political

ties (with the municipal elections to be held days after the impeachment vote in the House) in

favor o f impeachment. The pressure definitely came to outweigh the possible perks offered by

the president in many of the legislators' calculation, when the Supreme Court decided that the

voting in the House would be a roll-call, making it visible to every Brazilian following the live

coverage of the voting who voted for or against impeachment. The local politicians' worries

were not unfounded, for the polls showed that candidates for mayor supported by the

president's allies began to lose popularity in Rio de Janeiro and Salvador, the stronghold o f two

most important political allies the president had at the moment.39

In sum. the information collected or verified by the CPI altered the calculation of

legislators over the benefits and costs o f voting for impeachment on two fronts. On one. the

shift in public opinion, coupled with an upcoming election, demanded that legislators vote for

impeachment. On the other, legislators were familiar with their colleagues’ hard work in the

CPI. and many of them interpreted the evidence collected by the CPI as credible. The political

costs of voting against impeachment, in the presence of credible information that suggested

that the president benefited from corruption, was simply too high, especially when the voting

was set to be days before the municipal elections, and set to be a roll-call.

89 Conti (1999), p.665.

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4. The Judiciary and the Impeachment Process

The judiciary does not directly participate in the impeachment process in Brazil, but

President Collor brought the judicial branch into the process by taking his conflict with the

congress to the Supreme Court. As explained in Section B. the Supreme Court in Brazil enjoys

a high level of independence from the president and the Congress. Additionally, in a

somewhat paradoxical way. the legacy o f the authoritarian regime encouraged the

independence (or apolitical nature) of the Judiciary. The magistrates nominated during the

military regime continued in their posts after the transition, and. given the fact that they were

selected by military government, they were less likely to have been politically active than

magistrates nominated by politicians. The president of the STF at the time of impeachment

trial, Sydney Sanches, was one of them: Sanches was nominated by president Figueiredo in

1984. During the impeachment trial. Sanches told journalists that he felt “ a certain level of

discomfort" about presiding an impeachment trial against a popularly elected president.90 He

sought to distance himself from politics, delegating potentially politically costly decisions to

the floor o f the Senate.91

In 1992. when the impeachment process began, four o f the eleven magistrates were

nominees of president Collor. One of the four was a cousin of the president. Another

magistrate (who was on the bench before Collor became president) worked as a Minister of

Foreign Affairs for two years during the Collor administration.92 O f the remaining six, only

two were considered to have strong political leanings: one was considered leftist, and the other

was close to ex-president Jose Samey. The other four, including the Chief Justice Sanches,

90 Jo rn al do Brasil December 18. 1992, p.4.

91 J o m a l do B rasil December 18. 1992, p.4; F olha de Sao Paulo December 30. 1992. special edition
p.6.

92 Apparently, in Brazil, magistrates of the Supreme Court can take a leave and return to the Court.

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were not identified as close allies o f any politician. Thus, the STF did not have a majority

controlled by the president’s friends, and, as we w ill see below, even those magistrates

nominated by Collor demonstrated their independence in judgments. Additionally, as if the

Collor administration was not aware o f the potential importance of the Judiciary in the

impeachment process, the Ministry of Economy tried to cut fifty percent from the budget

planned by the Judiciary in late August.93 Although it is not clear how much the conflict

between the Judiciary and the Ministry affected the STF’ s decisions, it was certainly not a

politically prudent move on the Ministry’ s part.

The judiciary was brought in to the executive-legislative conflict in three instances. One

was about the impeachment process in the House. The other two had to do with the process in

the Senate: one was about the date o f the trial, and the other was about the constitutionality of

the Senate's decision to continue the trial after Collor’ s resignation letter was read.

The two main arguments Collor and his allies brought to the Supreme Court in relation to

the impeachment process was that the defense should be given more time, and that the voting

should be secret. The Court ruled that the defense should be given twice as much time (ten

sessions) as the House had originally assigned it (5 sessions), but it upheld the House Speaker's

decision to use roll-call. On this second decision, only one magistrate argued in favor of secret

vote. The other eight magistrates, including two appointed by Collor. supported the legislative

decision to use roll-call.94 When Collor’ s defense team requested more time, the Court

declined the request, arguing that ten sessions were enough. One of the majority votes was cast

9j See O Globo August 28,1992. p.8 for details.

94 Two magistrates did not vote, for they were considered disqualified (one was Collor’s cousin, the
other was an ex-minister of the Collor administration).

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by a magistrate nominated by Collor. After these defeats, the defense team no longer took their

case to the Supreme Court and concentrated on vote-buying in the House.

The Supreme Court’ s decision upholding the roll-call vote in the House was interpreted by

the opposition as a clear sign that Collor would be impeached. The president o f PMDB was

quoted as saying: "there is no doubt now that the president Fernando Collor w ill be

impeached.” 95 Leaders o f the two largest opposition parties. PMDB and PSDB. complimented

the Supreme Court’s decision. The defense team, on the other hand, did not criticize the

Court’ s decision, although apparently very disappointed with it.

It is doubtful, however, that secrete voting would indeed have prevented impeachment,

since legislators who received some benefit from Collor could still have voted in favor of

impeachment if they wanted, without being noticed, precisely because of secret voting.

Indeed, with a roll-call vote, the president and his allies were able to see who actually

"betrayed” them. and. with this information, attempted to "punish" them. The magazine Istoe

published a year later an anonymous accusation that five legislators who allegedly received

money from Collor's supporters voted in favor of impeachment.96 In addition, the House could

have changed the internal regulation, which stipulated that impeachment vote be secret, to roll-

call. erasing the basis of argument employed by Collor’ s defense team.97 The Court's ruling

upholding the roll-call voting simply made such change of internal regulations unnecessary.

In relation to the trial in the Senate, the president’s defense team's main strategy was to

delay the trial as long as possible, using different pretexts. The two requests for delay were

rejected both by Sanches, who presided over the Senate trial, and by the Supreme Court. The

95 O G lo b o September 24.1992. p.3.

96 Isto E December 15. 1993. no. 1263.

97 Indeed, a PSDB deputy proposed reforming the internal regulation for this purpose after Collor’s
defense team’s strategy became public. O G lobo September 15, 1992. p.3.

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Supreme Court also rejected the defense team's demand that twenty-eight Senators be

prohibited from voting in the impeachment trial. If 28 Senators were prohibited from voting,

the Senate would not be able to convict the president, for it would lack the 2/3 majority

required for conviction. The only magistrate who voted in favor of the defense team was Umar

Galvao, who was nominated by Collor and who would later preside over the common crime

trial of the president.

The president's defense team's third attempt to delay the trial took an unusual form: the

president announced he was firing his lawyers in the evening before the scheduled trial. Chief

Justice Sanches decided that the trial would be postponed. However. Sanches refused to give

as much time to Collor as he requested (thirty days), delaying the trial for only a week, to be

held on December 29. While Sanches studied the situation, before he made his decision.

Collor's defense team requested the Supreme Court to delay the trial. The Court, however, did

not make any decision before Sanches made his announcement. After Sanches' announcement,

the Court decided to reject the defense team's request.

In the most difficult decision, however, o f whether to continue the trial after the letter of

resignation was read in the Senate. Sanches preferred to delegate the responsibility to the

senators than to make the decision by himself. It was in this way that the Senate decided to

continue the trial, even though the majority of the judicial community agreed that the trial

should have been suspended the moment when Collor's resignation letter was read in the

Senate. Technically speaking, since Collor's resignation letter was not read before the session

began, it should not have affected the turn o f events. However, the Senate let the letter be read,

and accepted the fact of resignation by inaugurating Itamar as the president. This is why

President Collor challenged the Senate's decision to convict him.

The senators recognized that their decision to continue the trial had shaky legal grounds.

However, they were convinced that not convicting the president would produce an even more

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negative impact on Brazilian society. As the leader of PDS explained: “ Juridically the process

should be extinct (now that Collor has resigned), but politically if would be a bad example not

to continue the trial.” 98 And a PSB senator defended his decision in favor o f continuation of

the trial, saying: ‘There is no senator who does not know what the society expects.”99 Indeed,

opinion polls showed that over 85% o f those polled supported convicting President Collor.100

One poll, taken among residents of Sao Paulo, showed that 80% wanted Collor's political

rights taken away as a punishment.101 In addition, the Senate's decisions were closely watched

by the press, which gave the names of senators who voted in favor of the president for each

decision taken. The final voting was broadcast live on TV. Given the clear message from the

public and the scrutiny, it was no surprise that a vast majority voted for the suspension of

Collor's political rights.

The magistrates o f the Supreme Court were well aware of the political nature o f the

Senate's decision to take the president's political rights away. In fact, during December of

1992, many of the magistrates had said that they considered impeachment a political

mechanism.102 Although the Supreme Court's votes were tied, the final vote, with the three

justices from the Superior Court of Justice, held up the Senate's decision.

In sum. although President Collor tried to bring the Supreme Court magistrates into the

conflict between him and the legislature in his favor, his efforts were largely unsuccessful.

This did not mean, however, that the Court was responding to political pressure: it did grant the

98 F olha de Sao Paulo, December 30, special edition p.6.

99 Ibid.

100 Estado de Sao Paulo December 21, 1992. The opinion poll was taken by Gallup, in 24 states with
2692 respondents.

101 Folh a de Sao Paulo . December 30. 1992.

102J o m a l do B rasil December 18. 1992.

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defense team twice as much time for defense than what the House had originally given, and it

did not convict the president o f common crimes, even though such ruling would undoubtedly

generate criticism of the Court, because the guilt was not proven as defined by the penal code

in effect. The Supreme Court magistrates avoided involvement in political questions as much

as possible, as evidenced by Sanches's decision to defer to the Senate floor the decision to

continue the trial. In other words, the independence of the Supreme Court guaranteed that

neither the president's allies nor his opponents would gain advantage over the other by

bringing the judiciary into the conflict between them.

F. Conclusion

This chapter showed that impeachment and conviction o f a president can happen even

where a super majority of two-thirds of legislators' consent is required, when certain conditions

were met. What are these conditions? The conventional explanation for president Collor's

impeachment and conviction attributes the president's fall to his lack of support in Congress

and to public opinion. While the lack of support from Congress and from voters undoubtedly

contributed to Collor's fall, the conventional explanation does not explain why he came to lack

support. My analysis offers an explanation based on the informational role o f the investigative

committee o f the Congress, the CPI. I demonstrate that it was only after the CPI obtained

information linking the president to the illicit activities of his friend that legislators began to

voice their support for impeachment, and that public opinion shifted in favor of impeachment.

Why was the CPI o f PC Farias able to play such an important informational role? Part of

the answer is o f course sheer luck: some o f the very important witnesses came forward to

testify without the CPI’ s actively searching for them. However, I argue that the organizational

rules of the CPI. applied in a highly fragmented party system, prevented the CPI from being

controlled by the president's allies. The CPI’ s ad hoc nature, proportional representation.

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power-sharing arrangements and active participation o f regular members of the committee all

contributed to make the CPI of PC Farias a rigorous investigative committee. In addition,

some of the committee members (and other legislators who participated as observers) used the

media strategically to publicize the findings of the CPI as well as to criticize the president's

friends in the committee for trying to slow down or obstruct investigation.

Needless to say. the investigative committee’ s work did not directly lead to the president’s

loss of office. The impeachment vote in the House o f Deputies and the impeachment trial in

the Senate determined the fate of the president. The Supreme Court’ s ruling that supported

roll-call, as proposed by the Speaker of the House, instead of secret voting, preferred by the

president, made it impossible for legislators to promise to vote for impeachment to their

constituents and then vote against it to receive rewards from the president. The decentralized

nature of the investigative committee, the roll-call vote, and the attention the media gave to the

impeachment process all contributed to make the process more informative both for the

legislators and for the voters.

A final question is whether this case of the fall of the president, often characterized by

Brazilians as well as academics as "traumatic.” has had any positive impact on Brazil in terms

o f fighting corruption. The signs are mixed. On one hand, the CPIs, once considered

ineffective, have had highly visible investigations o f legislators and judges. Some legislators

have lost their seats as a result of investigation by CPIs, and a judge and some former high-

level government officials have been prosecuted. In short, CPIs have produced some positive

results. On the other hand, however, a CPI that investigated a wide range of corrupt practices

involving the budget planning committee ended far short of clarifying all the wrong-doings and

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punishing the corrupt.103 More recently, an attempt to install a CPI to investigate the current

administration has repeatedly been killed. In other words. Congress has been quite selective in

the use of its investigative weapon against politicians. There has not been any allegation that

an investigation was "cooked up,” but requests to investigate some o f the more serious

allegations o f corruption in Congress or in government have met resistance from the

congressional majority.

We cannot thus be too optimistic about the CPIs' positive impact on the fight against

corruption, but the fact that CPIs are feared by legislators and high level government officials

itself attests to the potential importance of CPIs in this fight. The CPI of PC Farias may have

imposed a traumatic experience on some Brazilians who believed in Collor's promises and

voted for him, only to see him engulfed in a scandal and removed from office, but one cannot

deny its positive effect on Brazilian society. It is only due to this CPI that legislators and

voters are now aware o f the potential power of CPIs to bring hidden activities of the powerful

into the light. Whether the potential is fully realized depends on legislators, and voters who

elect them.

103 One of the few that were punished was Ibsen Pinheiro. the House Speaker whose decision to hold
roll-call vote was crucial in the impeachment of Collor. Pinheiro lost his congressional seat following
the C PI’s recommendation. For details of this CPI, see Krieger, et.al. (1994).

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IV . CO LO M B IA : THE SURVIVAL OF PRESIDENT SAMPER

The Colombian case is about President Emesto Samper (1994-98), who was accused of

using donations from the Cali drug cartel in his presidential campaign in 1994. The Congress

acquitted him o f any charges related to campaign donation by the drug cartel, but the

congressional decision was unable to convince many Colombians and foreigners of the

president’s innocence. Why did the decision lack credibility? Why did the Congress make a

decision that it knew would lack credibility?

A. Argument in Brief

Like Brazil. Colombia’ s impeachment process is legislature-dominant. The House of

Representatives has the sole responsibility to investigate and. if it finds sufficient grounds

meriting a trial, formally accuses the president. Impeachment requires only a simple majority.

This formal accusation is sent to the Senate, where a decision is made whether to accept the

accusation. I f the Senate accepts the accusation, it becomes the trial body unless the president

is accused o f common crimes. In this latter case, the Supreme Court handles the trial.

Conviction in the Senate requires a 2/3 majority vote, while in the Supreme Court it requires a

simple majority.

Colombian legislators are often portrayed as heavily reliant on patronage for support

from voters. As we w ill see later, the electoral system indeed encourages cultivation of the

personal vote based on clientelistic ties, especially for elections in the lower chamber.

Colombian presidents enjoy a wide range of distributional powers once in office, and

presidential candidates also provide the local campaign managers with funds. Thus, a

Colombian president is in a strong position vis-a-vis legislators, especially in the lower

chamber, for his ability to provide legislators with the resources for patronage, as well as for

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the close relationship between the electoral campaigns o f the legislators and the president.

Conversely, a legislator who receives distributional benefits from the president, or who

benefited from campaign funds provided by the president, is unlikely to have any motive to

support an impeachment process against the president.

However, as we saw in the Brazilian case, legislators might be swayed by public outrage

against a president who the public considered guilty of corruption. Public opinion, as well as

legislators' own feelings, about the president can change significantly if credible incriminating

information is provided to them. In this aspect, the structure of formal information provision

can affect the legislators' decisions during the impeachment process. The Colombian

structure, as w ill be detailed later, is legislature-dominant just as in Brazil, but power within

the structure is highly concentrated in the hands of the committee chair and the principal

investigator. Reflecting the dominance of the Liberal Party in the House for the last twenty-

five years, the party held a solid majority in the investigative committee. Given the

concentration o f power in a few hands and the one-party dominance in the committee, the

information control by the majority party in the committee, the Liberal Party, was bound to be

much stronger than the congressional majority in Brazil could hope for.

Based on this brief description, we can predict the following:

• Party System and Impeachment Process

Colombian politics centers around two major, but weakly disciplined, parties.1 The

impeachment threshold is one-half of Representatives present in the session. Thus, especially

in the face o f an allegation o f a serious crime, impeachment is not a remote possibility when

1This situation may be changing: according to Ana Marfa Bejerano. 25% of congressional seats are
now occupied by other, small parties. Author conversation. April 24. 2001.

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the president’ s party does not control the House, or when the president fails to secure support

from Representatives from his party.

• Presidential Powers

Colombian presidents hold a wide range o f distributional powers, and legislators,

especially in the House, rely on patronage for their electoral survival. Therefore, the president

is likely to succeed in securing support from legislators to avoid impeachment.

• Information Control

Given the concentration o f power into the committee chair and the principal investigator,

and given that the Liberal Party controls the majority in the investigative committee, a strong

informational control is expected by the committee chair, who nominates the investigator, in

the interest of the Liberal Party. This means that if the president comes from the Liberal

Party, incriminating information is likely to be discredited or destroyed. If, on the other hand,

the president is not from the party, it is likely that incriminating information is transmitted

through the official venues, even though the credibility o f such information may not be high.

• Predicted Outcome

The outcome w ill greatly differ under a unified government and a divided government.

Under a unified government, where one party controls both the presidency and the House

majority, the information flow w ill be controlled to keep damaging information from

becoming a part of the official investigation. Given the lack of authenticated information that

suggests guilt of the president, public opinion w ill not press for impeachment, and legislators

who may have voted for impeachment if there was enough information and popular pressure

would simply vote against impeachment, along with the supporters of the president. Under a

divided government, the investigative committee might produce information that purports to

prove the guilt of the president. Depending upon the charges, public opinion may be swayed

to support impeachment. Given the weak party discipline and the president's ability to buy

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votes, however, an attempt to impeach a president is unlikely to succeed even under a divided

government. In addition, if the charges are based on weak evidence, the president is unlikely

to be convicted in the Senate or the Supreme Court.

B. Political Institutions in Colombia

In order to understand the processing o f the corruption charge against the president, we

need to know the institutional design of the process, and then the incentives of the decision­

makers involved in the process. For the latter end, we w ill examine the party system, electoral

system, and presidential powers over the legislators to analyze the incentives of legislators,

and presidential powers over the judiciary and the judicial system itself, to analyze the

incentives of the judges and prosecutors.

1. Investigative Process against the President

Colombia's Constitution o f 1991 explicitly states that the House o f Representatives is the

organ in which accusations against public officials should be investigated and. if necessary, be

reported to the Senate with the recommendation for a trial. The Constitution guarantees the

right of any individual to accuse a public official, but the Prosecutor General is specifically

given this accusatory authority.2 The Prosecutor General's Office can conduct an

investigation on its own against public officials, but it cannot arrest legislators and presidents

2 The Prosecutor General is appointed by the Supreme Court, but the president provides the list of
candidates from which the Court must make a choice. The Prosecutor General's term is four years, with
no reelection permitted, but the president cannot tire the Prosecutor General. He or she can also hire
and fire without the approval of the Congress or the president. Thus, the Prosecutor General's office
can be said to be fairly independent. However, the 1991 Constitution greatly reduced the autonomy of
the judicial branch, including the Supreme Court. The increased political influence on the Supreme
Court is likely to reduce the political independence of the appointee to the post of Prosecutor General as
well.

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without congressional approval.3 This congressional approval, in turn, must be first

recommended to the House floor by the investigative committee of the House, the Committee

o f Investigation and Accusation. The Committee o f Investigation and Accusation is given the

task of drafting a resolution based on the committee's investigation. Unlike in Brazil,

however, the investigation and the drafting o f the resolution are handled singularly by the

principal investigator, whom the Committee Chair chooses from the members of the

Committee. The structure of the committee is discussed in section C.

According to the internal regulations o f the Congress, the committee’ s resolution not to

accuse the president directly leads to shelving o f the case: the floor does not have a chance to

disapprove it. Only when the resolution recommends impeachment is it submitted for

consideration on the floor.4 This means that if the committee submits a resolution that denies

the charge or states that there is insufficient evidence, the floor cannot bring indictment. That

is, unless the committee drafts and approves a resolution suggesting that the president is

guilty, he can never be indicted by the full House. In this way. the Committee o f Investigation

and Accusation is given the veto power that can keep an allegation o f corruption from getting

out o f their hands and from its leading to the president's impeachment and trial. Therefore, if

the president can exercise enough influence on the Committee of Investigation and

Accusation, he is safe from any challenge made by his opponents or the prosecutors. The

committee can decide to shelve the corruption charges for lack of evidence, but also it can

3 In 1995, a legal question was raised as to whether the Prosecutor General's Office can also conduct
investigation against the president. The Constitutional Court of Colombia ruled that a investigation by
the Prosecutor General’s Office does not violate the law as long as it does not interfere with the
congressional committee's investigation. However, since a legal action against the president requires
authorization from the Congress, short o f such an authorization the investigation by the Prosecutor
General's Office can go only so far as to take its accusation and evidence to the Committee of
Investigation and Accusation.

4 Internal regulation of congress. Article 343.

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block any further investigation by making the resolution that states that the president cannot

be accused o f the same charge once the resolution is approved by the vote in the full House.

There are four points, or veto gates, where the charge against the president can be

stopped short of trial. The first is the Committee of Investigation and Accusation, as

explained above. The second is the full House of Representatives. Even if the Committee

drafts a resolution suggesting that the president is guilty, the resolution cannot take effect

unless approved by the majority (one-half) o f the representatives present in the session. When

the House indicts the president, it sends the accusation against the president to the Senate,

where the other two veto gates are located.

The Senate’s Committee of Instruction draws up a recommendation either suggesting or

rejecting the trial o f the president. The full Senate votes to decide whether to approve the

recommendation by a simple majority. If the recommendation is to open a trial, and if it is

approved by the full Senate, the president is suspended from office. Thus, the Senate, like the

House, has two veto points: the Committee o f Instruction and the full Senate. The decision in

the Committee as well as the decision to approve the trial (by the full Senate) require a simple

majority: the president needs to obtain support of at least half the members of these bodies in

order to stop the impeachment process short of trial. If the president is accused o f common

crimes, the process is transferred to the Supreme Court. The Court's decision is made by a

simple majority rule.5 If the charges relateto the presidential duties, the Senate handles the

trial. The decision to convict requires at least two-thirds o f the votes o f the Senators present in

the session. In other words, the president may be ableto return to office, if he can obtain

support of at least one third o f the Senators.

5 The Constitution of 1991 does not specify decision-making rules for the Supreme Court. Since,
however, a super-majority vote is always specified when it is applicable, it is safe to assume that
decisions in the Supreme Court are made by a simple majority rule.

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As long as the president holds one of these four congressional veto gates under control,

he w ill be able to stop the impeachment process at some point. Since all the decisions, except

for the Senate’ s final decision on conviction, require a simple majority vote, however, it is not

as easy for a president to stop the impeachment process as it would be for a president in

Brazil, where two-thirds majorities are required for both impeachment and conviction.

Indeed, if the government is divided, that is, if the president and the congressional majority

comes from different and opposing parties, it is possible that the congressional majority may

seek to prosecute the president. If the accusation has to do with the president’ s official duties,

however, it is unlikely to succeed in permanently removing the president, given the quasi-two

party system that operates in Colombia and given that the conviction requires a two -thirds

majority vote in the Senate. It is nevertheless not impossible, for Colombian parties are

known for their lack o f unity, as discussed below. If. on the other hand, a majority of

members o f the Congress (and the relevant committees) support a trial of the president for

common crime charges, there is a greater possibility of a fair trial than that handled by the

Senate. The trial on common crimes charges can be conducted only by the Supreme Court.

As shown below, the Supreme Court has enjoyed independence from political pressure, and

thus is expected to make legally sound judgments. The independence is likely to be reduced

over time, however, with the creation of the Judicial Council under the constitution of 1991. as

discussed in section 2.5.

2. Party System

Colombia’ s two major parties, the Liberal (hereafter PL) and the Conservative (hereafter

PC), emerged as national parties in the 1849 election. The next hundred years were marked

with internal division within both parties, on the one hand, and a confrontational relationship

between each other, on the other hand. Prior to 1958. when the bipartisan National Front

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government was formed, the competition between the two parties involved a high level of

violence. The most notorious o f the violent confrontations took place between 1946 and 1954,

named La Violencia, during which period over 300,000 are believed to have perished. The

agreement to form the National Front put an end to the violence by setting arrangements in

which the two parties were to share the government.

Under the National Front agreement, from 1958 to 1974, the presidency would alternate

between members o f the two parties; cabinet offices and other government posts would be

divided evenly between the two parties; most measures would require two-thirds of the vote in

congress for approval.6 In 1978 the Conservative party refused to join the government, but

again an agreement was made between the PC and the PL that the majority party was to offer

"adequate and equitable" representation in the executive branch to the second-largest party.'

The meaning of “ adequate and equitable" was interpreted differently by different presidents,

however, and by 1986 the two parties no longer shared the government, and the dominance of

the Congress by the PL became the rule.8 Ever since the 1974 election, which was the first

since 1958 without the constraints of the National Front agreement, the PL has held a majority

in both houses o f Congress and. except for 1982-86 and 1998-2002. the presidency. The

National Front government period brought stability to the country, but at the same time

ideological party identification was weakened.

The shift from cooptive to more competitive inter-party dynamics did not, it seems,

strengthen discipline within parties. Within the PL. a division, though not very sharp, exists

6 Even after the formal arrangement of National Front ended, the two parties were to have cabinet
participation in each administration.

7 For more information on the coalition government, see. Jonathan Hartlyn. Politics o f C oalition Rule in
Colom bia. See also, Ronald P. Archer. “Party Strength and Weakness in Colombia's Besieged
Democracy” in Mainwaring and Scully, eds.. Building D em ocratic Institutions, 1995. pp. 164-200.

3 Matthew S. Shugart and Daniel L. Nielson. “Liberalization Through Institutional Reform: Economic

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between the traditional politicians who build up their support base by developing clientelistic

ties and a new, still small group o f party members, comprised mostly of those who become

politicians after establishing their career in other fields such as business or academia.9 But the

majority of PL members belong to the first group, and their fate is dependent on whether they

are connected to a powerful or charismatic individual that makes his way up to the presidency.

The new Constitution of 1991 is clearly intended to encourage the trend away from

clientelistic, fragmented parties to consolidated national parties in the Senate. Subsequently a

law has been passed that aims at strengthening the national party organization. One o f its

provisions is the establishment of a public fund for political parties, and another is the granting

of authority to expel party members for ethical reasons.10 Since roll-call votes are rarely used

in Colombia, unlike in Brazil in recent years, however, party leaders cannot credibly threaten

to punish legislators who do not follow the party line. The expulsion mechanism has sparsely

been put into practice, and since it only comes into life when a party member is found to have

an ethical lapse, its effect on strengthening party discipline is quite limited." Thus, lack of

party discipline persists. The Colombian electoral system is also adverse to fostering party

discipline, as explained below.

Adjustment and Constitutional Change in Colombia", ms. 1994. pp.6-7.

9 According to Senator Dr. Sanchez Ortega. Author’s personal interview. June 28.1995.

I0For detail, see Shugart and Nielson. pp.20-2l.

11 The effectiveness of the threat of expulsion remains unclear, to say the most. Nielson and Shugart
(1999) report of one PL legislator who was expelled for ethical reasons; the PC president’s attempt to
use the ethics committee was ineffective, as described in section D.

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3. Electoral System

The 1991 Constitution requires that elections for president and vice-president.

Congressional elections, and departmental and municipal elections be held separately.

Departmental and municipal elections are held every three years, while national-level

elections are held every four years. Thus, while the national level elections are separated from

local ones, presidents and legislators are elected in the same year. Congressional candidates

often "help" presidential candidates in local campaigns (by distributing small goods, such as

T-shirts, on the presidential candidate's behalf), using the funds the presidential candidate

provides. Thus, although the presidential election is not held on the same day as congressional

election, congressional candidates closely identify themselves with a particular presidential

candidate, from whom they expect patronage if he becomes president.

The new constitution also changed the Senate to be elected in a single nation-wide

district, in contrast to the previous system where Senators were, like Representatives, elected

in departmental districts. Prior to the constitutional change in 1991. both the PL and the PC

tended to have more than one list of candidates per district. According to Archer and Shugart

(1997:133), "[ijn virtually every district in every election, more than one list representing each

o f the two major parties has been run." The House of Representatives is still elected in

geographically defined districts, however, and under the new constitution, the over-

representation o f the rural, thinly populated areas actually worsened. Nielson and Shugart

(1999: 332-33) report that the weight of one vote in the most under-represented district is now

only l/39th o f a vote in the most over-represented district.

The changes in electoral rules were intended to reduce intra-party competition prevalent

in the older electoral system, but any such effect has been quite limited for the House of

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Representatives.12 For example, while the average number o f representatives selected from

each electoral district has been reduced, each still chooses an average o f four to five

Representatives. As there is no restriction on the number of lists each party can submit,

individual candidates submit their personal lists, resulting in multiple lists bearing the same

party label in each district. Voters cannot simply make choices according to the party label,

but must choose between lists that pertain to the same party. Additionally, the lists are not

linked to provide a cumulative effect for parties: if one o f the lists attracts a large number of

votes, a large number of candidates on that list w ill be elected, but the popularity of the list

does not benefit any other list from the same party. Rather, a popular list takes away the votes

that other lists from the same party might have gotten from the voters who identify with the

party. In other words, a vote in this proportional representation system functions as if it were

a single non-transferrable vote.

Because o f the still large district magnitude, the persistence of multiple lists from the

same parties, and the absence of any cumulative effect of popular lists on parties, the electoral

system for the House still encourages the cultivation of personal votes.13 Since voters cannot

distinguish the candidates from the same party by the party label and program, personalistic

appeals, often using promises of patronage, gain importance in electoral strategy. In addition,

rural voters heavily rely on patronage provided by legislators with whom they have developed

clientelistic ties.14 The Representatives for the lower chamber, thus, are still elected largely on

the basis of patronage they provide to constituents. In the Senate, by contrast, there is now a

i: See Nielson and Shugart (1999) for the Colombian electoral system before 1991.

13 See Carey and Shugart (1995) for discussion of electoral systems that encourage cultivation of
personal vote.

14 Nielson and Shugart (1999). p.317. Umitia (1994).

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higher chance of winning for candidates who appeal to the nation as a whole with their

agenda, even if they do not have strong clientelistic ties.15

The change in the nature o f Senatorial election has a significant effect on the Congress,

since both houses have to agree on legislation and constitutional amendments. Its effect on

the processing o f a corruption charge against the president, however, is limited, since the

Senate cannot initiate the decision-making process on whether to take away the president’s

immunity from trial unless the House sends the Senate the resolution suggesting that the

president is guilty. In other words, even if the Senate is willing to lift presidential immunity, it

cannot do so unless the first and second veto gates, i.e.. the Committee of Investigation and

Accusation and the full House, are cleared.

4. Presidential Powers over Legislators

The president enjoys vast appointment power in the government, both to hire and fire

agents. Cabinet ministers and heads o f national government agencies and of public

enterprises, as well as national government employees at lower levels, are all subject to

presidential decisions. During the National Front, according to Martz (1997). economic

policy-making power was increasingly concentrated into the hands of the central government,

away from partisan influences.16 The president's distributional power became most extensive

under the 1968 constitutional revision.17 The new constitution in 1991 was an attempt to

15 Although it may still be too early, there is some support for this argument in literature: Taylor (2001)
finds that there are more senators elected from less geographically concentrated electorate. Crisp et.al.
(2001). using a different definition of geographically-concentrated electorate, arrive at a different
conclusion that senators are still elected from geographically defined constituencies.

16This did not mean that politicians ceased to seek and obtain patronage, of course: economic benefits
were distributed via local clientelistic networks, instead of through the traditional party leaders. See
Archer (1995), pp. 178-181.

17 About the 1968 revision of the Constitution, see Hartlyn, ibid., p.101.

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reduce this concentration o f power in the executive, but some important economic functions

still remain in the hands of the president, such as decisions on public investment, contracts,

negotiation on loans, and sales of public properties. Furthermore, the 1991 Constitution

abolished the practice o f auxilios parlamentarios, the major source of patronage for incumbent

legislators.18 Instead o f guaranteeing incumbent legislators an automatic source of patronage,

the new constitution effectively made them hostage to the executive branch, from which all

funds are dispensed.

Legislators, especially those of the lower chamber, compete with each other for the state

resources in order to maintain the support base. If a Representative offends the president, she

is unlikely to be given posts in the national government or public enterprises that would be

distributed among followers in her district, nor is she likely to receive significant funding for

local development projects. As the president controls national patronage, he can exercise

strong influence on the decisions of Representatives.

Apart from these formal powers that the president can exercise and that can affect

election outcomes for legislators, the informal ties that develop over the years between

resourceful and/or charismatic politicians and their followers still play an important role in

Colombian politics. An example is Horacio Serpa. the Interior Minister during the Samper

administration. He has long been a close associate o f Samper, and helped him in his first bid

for nomination as the presidential candidate of the PL. and was a key figure in the second and

successful bid. He was finally rewarded with an important cabinet post when Samper came

into office, and has been the principal presidential candidate o f the Liberal Party since 1997.

Another possible informal source of power in Colombia is the contributions that are

poured into presidential campaigns. A presidential candidate may distribute the contribution

18 See Nielson and Shugart (1999), p.320 for a brief discussion of auxilios.

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he receives among his co-partisans in the hope that they w ill make the effort of acquiring more

votes for him in their districts. The co-partisans, on the other hand, can gain increased

visibility among voters by campaigning for the presidential candidate with extensive

resources. Such a give-and-take is not problematic if the money is legally obtained by the

presidential campaign, and if it is used entirely to finance the presidential campaigns at the

district level. If, however, the money is contributed illegally to the presidential campaign,

those who knowingly receive a part of it become a part of a secret pact with the president to

keep the origin of the money secret. If. furthermore, the receivers of the illicit money divert a

part of it for personal gains, they w ill be even more adamantly opposed to investigating the

campaign finance of the president.

These formal and informal powers the president holds over legislators are felt strongly in

the lower chamber under the new constitution, because of their high dependence on

clientelistic practices, as outlined above.19 Given the impeachment process in which the lower

chamber constitutes the first and second veto gates for bringing the president to trial, the

strong influence of the president in the lower chamber makes it difficult for the accusation to

be sent to the Senate.

S. Judicial System and the Influence of the President

Colombian impeachment process is legislature-dominant, but the Prosecutor General's

Office (Fiscalia General in Spanish) can play a role in the process as the accusatory body, and

as a source of information through judicial investigation.

The Colombian Constitution o f 199L provides the country with two different sets o f law

enforcement bodies: the Public Ministry and the Prosecutor's Office. The Public Ministry is

similar to the Justice Department in the US. While the Prosecutor’s Office is considered part

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of the judiciary, the Public Ministry is not considered to be a part of the judiciary but of what

is called ’‘control organizations” in the 1991 Constitution. The Attorney General (Procurador

General in Spanish), who heads the Public Ministry, is appointed by the Senate, from a list of

candidates provided by the President, the Supreme Court, and the State Council. The Public

Ministry can impose disciplinary measures upon public officials when it sees fit. but it does

not have the authority to bring them to a trial. This is an exclusive function o f the

Prosecutor’s Office. However, the Public Ministry can intervene in a criminal process

initiated following accusation by the Prosecutor's Office. Thus, there is a potential tension

between the two offices: given that the Attorney General is appointed by the Senate, it would

not be surprising to see the Attorney General trying to influence a criminal process against a

powerful politician from the Senate majority party. The fact that the Public Ministry is given

the power to dismiss public officials, even prosecutors, makes this potential conflict especially

troublesome from the point o f view of independence of the judiciary.

The Prosecutor's Office handles criminal charges except for cases involving military

personnel, and is given the exclusive authority to investigate and accuse those who enjoy

immunity from trial, such as legislators and the president. (However, as has been described

above, in order to hold a trial on a criminal charge against these people, the Prosecutor

General needs approval from the Congress that the immunity be lifted.) The Prosecutor

General used to be appointed by the Supreme Court magistrates under the old constitution.

Under the constitution of 1991, the Supreme Court’ s appointment power is constrained, for it

has to choose from a list of candidates provided by the president. The duration of the term is

short, only four years, and no reelection is permitted. On the other hand, the Prosecutor

General cannot be fired by the president, and the Prosecutor General’s office can hire and fire

19 For an overview of clientelism in Colombian politics between 1958 and 1994, see Martz (1997).

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without the approval o f the Congress or the president, and its budget, once approved, is

autonomously managed.

The fact that the president provides the list of candidates for Prosecutor General means

that the list w ill represent those who the president feels comfortable to have in the post of

potential accuser against him. Naturally, then, it is highly unlikely that an individual truly

independent of the president would be in the list. The Supreme Court still holds veto power,

however, over the list, and thus can force the president to come up with a list that can obtain

the consent from the Supreme Court magistrates. As long as the magistrates remain

independent o f political pressure, then, the appointment of the Prosecutor General would still

assure some degree o f independence from political pressure.20

6. Summary

The institutional design by which the corruption charge against the president is processed

gives the lower chamber of the Congress the initiative to decide whether the president is guilty

or not. The lower chamber consists mostly of politicians who make their way to the Congress

on the basis o f clientelistic ties to their constituencies, and thus have no strong interest in the

national issue of influence o f drug money in politics. The Representatives to the lower

chamber are rather preoccupied with the distribution of patronage whose control is held by the

president, and investigation into corruption of the president would only slow down the

distribution o f patronage. Also, voting for the investigation of the president to be continued

may ruin the connections they have established with the president's circle. Thus, the electoral

20 In 1996. the State Council ruled that the nomination by the Supreme Court for several lower level
courts after the 1991 constitution took effect does not violate the constitution, even though it was done
without a list provided by the Superior Council of the Judiciary. Thus, at least until then, it seems that
the judicial branch enjoyed some autonomy. See. E l Tiempo, March 26.1996, p.lOA.

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system and the institutional design by which two veto gates controlled by the lower chamber

work in favor of an allegedly corrupt president, shielding him from impeachment.

The still-significant independence of the judiciary makes it possible for the Prosecutor

General to request a hearing o f the corruption case in the House Committee of Accusation.

However, the judiciary’ s effort to bring the president to a trial w ill not succeed if the lower

chamber of the Congress blocks the way for trial by ruling that the president is innocent, or

that there is not sufficient evidence.

From these arguments, it may seem that the structural factors pre-determined that the

process be blocked at the congressional level. But let us not rush to a conclusion until we

review the institutional settings in which the scandal took place and analyze the scandal itself.

C. The Committee of Investigation and Accusation

The Committee of Investigation and Accusation, as shown in the case study, is the key

institution in the initial stage of the impeachment process. Without the committee's

recommendation to open a trial, the impeachment process goes nowhere. Whether legislators

and voters demand impeachment and trial o f the president depends on what information they

receive, and the committee can be a key institution here again, since it is endowed with all the

legal powers to summon witnesses and request information from other public entities,

including financial institutions. Given its importance both in theory and in the actual (albeit

failed) case of impeachment process in Colombia. I w ill describe its internal structure in

greater detail in the following.

1. The Committee Structure

In Colombia, the investigative committee o f Congress is called the Committee of

Investigation and Accusation. It is a committee that exists only in the lower chamber of

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Congress, i.e., the House of Representatives. Unlike in Brazil, Colombia’s investigative

committee is a standing committee in the sense that its members are selected for the

congressional term o f four years.21 It has been one of the less important committees, and

nomination for the committee has been handled by the leaders o f the two major parties, the

Liberal Party and the Conservative Party.22 According to a veteran ex-Congressman, the two

parties usually send one senior member of the House with legal expertise to the committee, in

order to make sure that their party members, especially ex-presidents, are not subjected to

investigation by the Committee, but the rest of the members o f the Committee are usually sent

there because their first choice for committee assignments was not available to them.23 The

congressional records also indicate that assignment to this committee is usually not voluntary

but of a top-down nature. Many leave the committee during the four-year term, citing either

personal reasons or assignment to more important committees.22

Although in the earlier years the two parties’ congressional seat shares were somewhat

comparable, the Liberal Party has increasingly become the dominating force.25 Since,

according to the internal rule of the Congress, seats in the Committee of Investigation and

Accusation are allocated according to each party's share in the House of Representatives, this

21 This committee is. however, not officially called permanent committee: instead it is called legal
committee.

22 The two parties together held over 70 9c of seats in both houses of the Congress in the period 1974-
1994 except for in the Senate's 1991 election, in which the two parties together obtained 65 9c of seats.
About committee selection, see Betancourt (1996: 36).

23 Interview with Jaime Arias, October 3. 2001.

24 See. for example. Gaceta del Congreso, September 19, 1994; May 12, 1995; and June 19.1995.

25 The relative parity o f the two parties in the 1970s can be interpreted as the institutional legacy of the
National Front era, in which the two parties were guaranteed parity of representation. See Dix (1967)
and Hartlyn (1988) for detail on the National Front.

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meant that the Liberal party would always have a majority of seats in the Committee.26 In the

particular case of the Committee that was elected in 1994, the Liberal Party in fact held more

seats than it should be entitled to given the composition of the House. (The opposition

members protested to this disproportionality when they realized the potential importance of

the committee for the fate o f President Samper, but their minority voice was ignored by the

Liberal Party majority.) As decisions in the Committee are made by a simple majority, the

dominance of the Liberal party in the Committee would guarantee that the party's preferences

prevail, as long as legislators from the Liberal party in the committee would vote the party

line.

Whether legislators would vote the party line would depend on whether the party could

effectively discipline its members. As described earlier. Colombian electoral system does

exactly the contrary. Furthermore, politicians rely on local and regional clientelistic ties to

advance their career, not the national party organization. They seek patronage, not fulfillment

of national policy objectives. The implication for a president facing an investigative

committee would be that he could not expect a lenient committee simply because his party

holds a majority in the committee. It also means, however, that the president might be able to

bribe the members of the committee if he could hand out attractive patronage. The Colombian

president is in fact well equipped for this purpose. He has vast powers of appointment,

ranging from ministers to medium-level employees of the executive branch to the directors of

state-owned or state-controlled institutions.27 He is also given extensive control over fiscal

policy, as the cabinet prepares the national budget and any increase requested by the Congress

26 Internal Code of Congress Article 311.

27 Archer and Shugart (1997), 118-119.

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must be approved by the president.28 Thus, the lack of party discipline may not be as

problematic for a Colombian president as it may appear in the first place, if the president can

credibly guarantee rewards for legislators who would protect him from vigorous investigation.

This condition is easily met in Colombia, given the vast presidential powers described above.

The investigative committee in Colombia works quite differently from its Brazilian

counterpart in that the investigation is handled singularly by the legislator nominated to be the

principal investigator, virtually outside o f the committee. The full committee's attendance is

required only after the investigator finishes her work, i.e.. when she presents her report. If she

so chooses, she could conduct her investigation without other committee members’

knowledge. She is also authorized to determine when to finish her investigation. Perhaps

even more importantly, the principal investigator could decide that the accusation brought to

the committee does not merit any investigation and recommend the case to be closed.29

Given such wide discretionary power of the principal investigator, who is nominated to

the post is the key to how thoroughly an investigation would be conducted. Like in Brazil, the

chair o f the investigative committee is given the power to nominate the principal investigator.

The difference between the two countries is that in Colombia there is no informal rule of

power-sharing like that witnessed in Brazil. While in Brazil the two largest parties hold one

important position each in investigative committees, in Colombia the second largest party is

only guaranteed to hold the vice-chairmanship. If the chair so chooses, he can nominate

himself to be the principal investigator. Thus, although the chair of the committee in

Colombia does not exercise control over the investigation in the way the Brazilian chair can

28 The Congress could, however, reduce the budget without the president’s consent.

29 The internal code of congress, article 331. dictates that the principal investigator summon the accuser
and hear the accusation under oath. If the accuser fails to ratify the accusation, the investigator can
decide that there is no merit to initiate an official investigation.

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on paper, in reality the chair in Colombia can totally control the investigation by nominating

himself the investigator. If the chair makes this decision, the other members of the committee

can be entirely left out of the investigation. Still, the final report o f the committee has to be

approved by the other members of the committee in order for it to be officially registered as

the final report. The voting rule for the approval, however, is not clear: some legislators

consider that even one dissent in the committee would require the report to be sent to the floor

o f the House for approval. Others contend that a simple majority suffices. Since disputes

over procedures are settled by a simple majority vote, however, complaints from the minority

are likely to be ignored.30

2. The Investigative Committee and Impeachment Process

Although the Committee of Investigation and Accusation (hereafter CoLA) is not directly

mentioned in Constitution as an element in the impeachment process, the way the internal

regulation of the Congress is written makes it impossible for the impeachment process to be

initiated without the CoLA’s report recommending impeachment. If the CoIA report

concluded that the public official in question was innocent, the report does not need to be

approved by the House o f Representatives as a whole.31 That is, as long as the CoIA (or

rather, its majority) concludes that the individual is innocent, the House cannot vote to

impeach the individual even if the floor majority wanted to. However, a decision on whether

to permanently shelve a case (i.e.. to prohibit any future investigation into the matter even if

new evidence appears) requires a decision on the floor of the House.32 If the report

30 See Internal Code of Congress, article 118-121.

31 Internal Code o f Congress, article 343.

32 This is not clearly written in Constitution, but the argument was supported by the Attorney General in
199S and has not been challenged.

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recommends that the Senate try the individual, then the vote in the House becomes a vote on

impeachment.

As discussed in Chapter 2. the congressional investigative committee functions as a

funnel through which all the information it receives from outside sources as well as

information it collects on its own is filtered. The report the committee produces is the result

of such filtering, and it provides a reference point for legislators in their decision on

impeachment. Thus, not only does the investigative committee constitute the first veto gate,

but also it influences the decision by legislators with the information it provides (or does not

provide).

D. The Narco-Scandal of President Samper

1. Political and Economic Background

The National Front agreement of 1958 aimed at preventing further violent conflict

between the two political parties. PL and PC. While violent conflict between the two parties

ceased after the 1958 agreement, by the 60s armed groups developed to confront the

government by force. The forces left out o f the governing coalition, mainly the leftist forces,

resorted to violence until a leftist movement named M-19 decided to participate in electoral

politics in 1990. For a short while, the level of leftist violence was low. although guerrilla

attacks against the government still continued in suburban and rural areas. In its place,

however, a high level of drug-related violence assaulted the country from the mid 1980s to the

early 90s. when the most powerful and violent cartel of Medellin attacked the government,

especially the judicial system, for its increased effort to control drug-trafficking.33 The

33 A Justice Minister was killed allegedly by the drug traffickers in 1984; the 1985 attack on Supreme
Court by the M-19 guerrillas, in which 11 magistrates died, is believed to have been financed by drug
dealers; and two Supreme Court magistrates were killed in 1986.

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Colombian military has been fighting against the drug cartels, although it is sometimes argued

that the Colombian military has been corrupted by the drug lords.34 After the government’ s

confrontation with Medellin cartel ended finally in the government’ s victory, violence related

with drug-traffickers declined. Thus Colombia was enjoying stability compared to the recent

past, when the Samper scandal hit the country.

Samper was the first president to be elected under the new constitution o f 1991. and it

was the first election in which a run-off election was held due to the new constitution's

requirement that a candidate must obtain at least the majority (more than 50%) of votes in

order to win the presidency. Ironically, the new law brought with it a campaign scandal: the

alleged corruption took place in order for the Samper camp to acquire resources for the run-off

election.

The economic crisis of the 1980s did not hit Colombia as it did in other countries. While

other Latin American countries relied on foreign investment to deepen industrialization.

Colombia was never as dependent on loans from abroad for its development. Export earnings

from coffee and horticulture, together with the earnings from drug exports that, under

Colombian law. were treated equally with earnings from licit activities, provided foreign

currency. Colombian foreign debt in the early 90s was about one-fourth of Argentina’s and

half of Venezuela’ s.35 During the tumultuous 1980s. Colombia’ s inflation averaged 24%.

compared to Argentina’s 437%. Brazil's 340%. and Mexico’ s 65%.36 Although the wave of

neoliberal economic reform reached Colombia by the early 90s. the reform thus took milder

forms. The country's GDP growth in 1993 and 1994 was over 5%. far exceeding the average

34Peter Andreas, 1993, "Profits. Poverty and Illegality: The Logic of Drug Corruption” N A C LA Report
on the Am ericas . Vol. X X V II. No.3. pp.26-27.

35 See. The Am ericas Review 1996 pp.2.6. and 93 for comparison.

36 M a (1998), p.5.

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in the 1980s (3.4%). Per capita income also grew during this period, and unemployment was

below 10%. Samper’ s presidency began under quite favorable economic conditions.

An element that cannot be ignored in the Colombian economy is the narco-industry. At

about the time o f Samper’ s election, it is estimated that the drug industry generated about 20%

o f total export earnings in Colombia.37 After the crack down on the drug cartel in Medellin,

the Cali cartel increased its influence, and Cali had an economic boom thanks to the cash

flowing from the drug cartel. Unlike the Medellin cartel that directly challenged the

government, the Cali cartel instead tried to influence the government and politicians by

showering them with money. Samper’ s scandal is only one of many cases of drug-related

corruption of politicians that have surfaced since his election in 1994.

2. The Scandal

On June 21, 1994, two days after Ernesto Samper of the PL won over Andres Pastrana of

the PC in a close vote of 50.41% vs. 48.06%, an audio cassette was sent by anonymous

sources to the radio and television stations and to the judicial authorities, in which apparently

the drug lords o f Cali and their go-between and journalist. Alberto Giraldo, were heard talking

about a contribution to the Samper campaign. The three were allegedly discussing

contribution of S3.75 million in exchange for assurance that appointments to some o f the

cabinet posts important for the cartel, such as defense minister, would be done according to

their preferences. The daily La Prensa, owned by the father of Andres Pastrana, published the

news, while radio and television stations broadcast the excerpts of the cassette. It turned out

that Pastrana had received a copy of the tapes in Cali four days before the election, but did not

make it public and instead turned it over to President Gaviria the next day. Gaviriu left them

37 Andreas, ibid.. p.28.

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in the hands of the Defense Minister, to be handed to the Fiscal General for examination.

Samper denied that any money from the Cali cartel was in his campaign treasury, but when

asked by Pastrana to declare that he would resign if drug money was found in his campaign

funds, he declined to do so.38

The journalist Giraldo admitted his participation in the conversation, but insisted that

Samper turned down the offer. The drug lords also sent a letter to the Prosecutor General

Gustavo De Greiff saying that the money was rejected by the Samper campaign. However,

the investigation was continued by De Greiff. as Samper asked him to investigate the case

immediately after the scandal broke out. De G reiff s decision to personally engage in the

investigation surprised legal experts and was criticized by some. His daughter had worked in

Samper’ s presidential campaign, and critics argued that there was conflict of interest if De

Greiff handled the case. Nevertheless, the investigation by De G reiff was continued and. on

August 16. 1994. De G reiff concluded in a report that there was not sufficient evidence and

closed the investigation. It was two days before De Greiff was to be replaced by the new

Prosecutor General, based on the Supreme Court ruling on June 30 that he must resign as he

had reached the legal retirement age of 65. De G reiff had been a polemical figure, notably for

his public stance in favor o f legalization of narcotic drugs.39 His investigation in fact

consisted o f “ little more than a dozen testimonies and examination o f the campaign accounting

books" over three weeks, and was criticized for its shallowness.40 Samper’ s appointment of

the retiring Prosecutor General to be ambassador to Mexico generated further criticism.

38 Notisur. June 24. 1994. and July 29.1994.

39 For this and other reasons. De Greiff created tension in Colombia's relation with the US. For details,
see Vargas et.al.. p.48.

40 Vargas, et.al.. pp.59-61. Quote is from page 59.

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Samper was not easily let go, however. Because of the Supreme Court ruling on De

G reiff in June, a new Prosecutor General had to be selected before Gaviria handed his office to

Samper on August 8. President Gaviria and Samper made a list of three candidates for the job,

each proposing their favorite candidate and compromising on the third. The Supreme Court

voted to nominate not Samper’ s favorite but the third candidate. The new Prosecutor General.

Alfonso Valdivieso, made it clear from the start that he would not be lenient with the drug

traffickers. The Prosecutor General's Office conducted rigorous investigation into the

activities of the Cali cartel. In one o f their searches during 1994, prosecutors found evidence

that linked legislators and other prominent politicians to the drug cartel. An investigation of

nine legislators, including seven from the president's party, PL, was initiated in relation to the

evidence on April 21, 1995. The investigation marked the official opening o f what came to be

known as "Proceso 8000." a vast investigation o f a wide range of individuals from drug-

traffickers to legislators to government officials. Meanwhile, the cabinet members, including

four ministers from the Conservative Party, issued a statement supporting Samper.41

The Prosecutor's Office continued its investigation, and Samper's campaign treasurer

Santiago Medina was arrested on July 26. The next day. Medina gave a testimony accusing

the president and the ex-campaign manager and now Defense Minister, Fernando Botero Zea,

o f orchestrating the donation from the Cali cartel. On the same day. Samper made a TV

appearance and insisted that if any drug-related money entered his campaign, it was done

behind his back, indirectly accusing Medina. In the same appearance. Samper asked the

House o f Representatives to investigate the allegation against him in the Committee of

Investigation and Accusation. Botero and Interior Minister Horacio Serpa. one of the

staunchest supporters o f Samper, held a press conference criticizing Medina. They made a

41 Notisur. April 14 and May 5, 1995.

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grave mistake, however, o f referring to Medina's testimony that was still classified at the time.

The press conference, intended to reduce Medina's credibility, instead made the two

ministers’ conduct look questionable. On August 2, the Defense Minister Botero resigned.

He was arrested on August 15. Upon the news of Botero’ s arrest. Samper made a statement

that he believed in Botero’ s honesty. The next day, Serpa’s chauffeur was found dead:

according to La Prensa. the chauffeur was scheduled to testify in the Prosecutor’s Office.'1'1

3. The First Veto Gate: the Committee of Investigation and Accusation

The Committee of Investigation and Accusation (hereafter CoLA) was supposed to have

only ten days to make the decision according to the law. In reality, however, the Committee

took until December 14 to make its final decision. Samper, on the other hand, declared a state

o f emergency on August 16. He justified the declaration o f emergency on the ground that

there was increased violence committed by guerrillas and extremists. Critics argued that the

emergency decree was issued only to divert people’s attention from the corruption scandal.43

In fact, the Constitutional Court struck down the decree two months later, as without grounds.

The president declared a state of emergency again, however, on November 2. after the

assassination of the nation's most vocal critic of the president. This time the Constitutional

Court accepted it.

The investigation in the CoIA was conducted by the chair of the committee, Heyne

Mogollon. Although he was authorized to nominate the investigator, apparently the choice

was made in a drawing, from which he emerged as the investigator.44 Mogollon was accused

42 Betancourt, p.30.

43 Notisur. August 4 and 25.1995.

44 Unfortunately, there is very little information regarding how the drawing was actually conducted,
other than a one-sentence description in E l Tiempo that the choice was made in a drawing.

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of diverting agricultural funds for his electoral campaign, and also was believed to have

benefited from the drug cartel contribution to the Samper campaign.45 Some members of the

rival Conservative Party recommended a multi-party advisory team to assist the CoIA, but the

call did not produce any change in the CoIA or the choice o f the investigator.46

Even the Conservative Party itself was not united as to how to react to the investigation.

The party's president publicly urged the members that the party pull out of the government in

August of 1995. However, in a meeting o f legislators from the party on August 16, an

overwhelming majority (62 to 22) voted in favor of staying in the government. Some of the

party members attributed the decision to the high-level posts that the government had

promised to offer its supporters.47 The party leadership tried to discipline the internal

opposition through the party’ s ethics committee, but the committee never took up the request

from the party’ s president.48 The internal conflict of the Conservative Party surrounding its

members who stayed in government positions would continue into summer of 1996.

The final report was completed over three months after the original due date. In addition

to the slow pace of the investigation, critics pointed to the closed nature of the investigation.

Some legislators complained that they were not permitted into the room where the CoLA met.

despite their right to do so as legislators.49 The report, as was predicted by the critics,

concluded that there was not sufficient evidence to warrant a continued investigation against

the president. On December 14, 1995, the report was approved by a vote o f 14 to I in the

45 Betancourt, p.39.

46 E l Tiempo August 30. 1995.

47 E l Tiempo August 17. 1995.

48 Interview with Jaime Arias. October 3.2001.

49 Interview with Betancourt. October 12. 2001. Apparently, she was not the only one. Another
legislator. Maria Paulina Espinosa, also complained that she was not allowed to participate in the
hearings in a floor debate on February 7. 1996.

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Committee. The Committee’s decision to support Principal Investigator Mogollon’ s report

was no surprise. Eleven of the committee members belonged to the PL, and some were

accused of benefiting from the same, illegal contribution from the cartel, including the

president of the committee. The finding, however, did leave room for future investigation,

since the House as a whole did not vote on the report and on whether to permanently shelve

the case.50

It seemed as if the scandal was over for the president. In January of the following year,

however, shocking revelations brought the case back into the public eyes. Fernando Botero.

the ex campaign manager for the president, told the media that the president was fully aware

o f the donations from the drug cartel.51 A Senator gave TV interviews in Spain and Colombia

that the president took personal initiative in distributing drug-related contributions, and that

Samper was confident that the congressional committee would absolve him.52 The president

did not immediately respond to these revelations, promising a later press conference. On

February 14, the Prosecutor General Valdivieso presented his accusation against the president

to the CoIA. He argued that enough evidence had been gathered to merit another

investigation by the committee into the campaign finances of the president.

50 A law passed in June 1995 had made it possible for the CoIA to permanently shelve a case, without
the full House’s approval. The Constitutional Court, however, declared on December 14, 1995. the
same day when the CoIA approved Mogollon’s report, that this provision was unconstitutional. See
Betancourt (1996), 27.

51 The ex-campaign manager. Fernando Botero, attempted to distance himself from the accusations by
putting the blame on the president alone. This strategy reduced the credibility of his statements,
however. The president himself told reporters that had Botero admitted his role in the presidential
campaign's accepting the drug-money contribution, the president could have been forced to resign.
Vargas. et.al. (1996). 446.

52 The Senator. Maria Izquierdo, cooperated with the judiciary in hope of reduction o f her penalty, but
she became one of the very few who were actually sent to prison. For her testimony, see E l Tiempo
January 17. 1A and 8A, and January 30, 1996. 1A and 7A.

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By this time, opinion polls started to show that a majority o f Colombians thought Samper

was guilty and should resign.33 Street protests also began in late January, whose participants

were mostly students and housewives, calling for Samper’ s resignation. At some of the

protests, the central square in front of the capitol building was filled with participants.54 In

one o f the protests, more than 4,000 business leaders gathered and demanded that Samper step

down, but their voices did not seem to shake the resolve of House representatives either.55

Despite all the evidence collected by the Prosecutor General’s Office, the prospect for a

vigorous investigation in the CoIA was dim: Mogollon would once again head the

investigation. Initially, the investigator was chosen by a drawing, just as in 1995. The

legislator who drew the card to be the investigator was yet another PL member, and was

known to be a loyal supporter of the president. One could therefore expect little change in the

coming investigation, but even this little change never materialized: after four hours of

conversation with Mogollon behind closed doors, he issued a statement that this was a

continuation of the earlier investigation against the president and, therefore, should be headed

by Mogollon.56

Although the members o f the CoLA remained the same, having ten of its members under

investigation by the judiciary, and although the investigation was to be led again by Mogollon.

some changes were made. In the face of heavy criticism against the CoIA from NGOs and the

opposition, the committee voted in favor of a proposal to have two sub-investigators to assist

53 E l Tiempo, January 24.1996. p. 1A and 9A.

54 Interview with Jaime Arias. October 3.2001. In contrast. El Tiempo’s reporting indicates that size of
protests remained small, with less than two thousand participants per protest E l Tiempo. January 24.
1996. p.lOA. and January 31. p. I A.

55 Notisur, June 21. 1996.

56 E l Tiempo February 16. 1996.

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the principal investigator. The proposal was made by Mario Rincon, a CoIA member from the

PC who cast the only vote against the first CoLA. report that absolved the president.57

Little changed in the way investigation was actually conducted, however: Mogollon

chose the two sub-investigators, arguing that he was authorized to name them. The

nomination was delayed until early April, leaving little time for the sub-investigators to

engage in investigative activities. Mogollon did name one o f the sub-investigators from the

opposition party PC, but apparently only for window-dressing. The sub-investigator from PC.

Rodrigo Arcila, was a substitute (like in Brazil, a substitute legislator fills in the vacancy o f a

legislator who takes leave) and thus he himself was worried about his lack of experience, and

his tenure was not secure.58 The other sub-investigator was named from PL. and was under

investigation for allegedly asking for a bribe.59

A PL member of the CoIA, Francisco Canossa. who demanded a rigorous investigation,

resigned from the committee citing dissatisfaction with its work and criticizing Mogollon for

his manipulation of the naming of the sub-investigators.60 Although a law was implemented

to allow public access to the documents contained in the CoLA's report, the committee was

very slow in responding to demands for access, and some parts o f the documents were missing

when the copies were finally handed to the citizens who demanded them.61 Many members of

the CoIA. and the committee chair in particular, were accused for receiving or being promised

57 E l Tiempo, March 9.1996. p.6A.

58 In fact, the legislator for whom Arcila was substituting came back to the House only days before the
final vote in the House on impeachment.

59 E l Tiempo April 13, 1996.

60 Canossa drew up fifty questions for Mogollon to ask the president, but Mogollon only asked a couple.
Canossa was also critical of the manipulation of nomination of sub-investigators by Mogollon. See E l
Tiempo April 8. 1996. 1 and 8A. and M ay 3, 1996, 7A.

61 Comision Cludadana de Seguimiento (1996), p.32.

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administrative positions and funding for their constituents in exchange for supporting the

president.62 The committee chair was also said to have conducted some interrogations in

which he pressured the witnesses to say what he wanted to hear.63

None o f these criticisms seemed to affect the principal investigator or the House’ s

majority, and investigation by CoIA was continued. A ll the attempts by the opposition to

create a real change in the CoLA. or to challenge the committee as not suited to the job. failed

in a Congress that was dominated by a majority supporting the president.64 On May 19.

Mogollon issued a sixty-six page report, repeating the same finding he presented less than six

months earlier: that the president was innocent and that the process should not go further.

Mogollon dismissed testimonies of Medina and Botero as not credible because they

contradicted with each other, although they converged on the point that Samper knew of the

cartel’s contributions. Dissatisfied with Mogollon’ s report, the sub-investigator from the PC.

Arcila. issued his own report recommending that the House pass the matter to the Senate.

Arcila also criticized Mogollon for ignoring the two sub-investigators in the investigation.65

On May 23. 1996. the committee voted. 10 to 3. to accept Mogollon’ s report. Two committee

members from the Conservative Party voted with the majority. This time, however, the report

62 Vargas et a!., pp.451-52; E l Tiempo March 10. 1996. and March 25, 1996. Gaceta del Congreso
February 22, 1996 (which contains record of a House session on February 7) also contains some
reference to the supposed "favors" received by committee members. In interviews with Camacho,
Victoria, and Betancourt, the accusation against Mogollon was repeated, although with some
differences. According to the interviewees, he received funding to pave a road in his district, but did
not use it either because it was already there (Victoria) or because it was never built (Betancourt).

63 E l Tiempo June 18. 1996. 1A and 9A.

64 These included attempts to bring an independent legislator into the CoIA; to declare that the CoIA
should abstain from investigation because the majority of its members were under investigation for
related charges of drug corruption; to declare that the CoIA was not a valid committee because it did
not have proportional representation of parties; and to declare unconstitutional Mogollon’s proposal to
permanently shelve the case.

65 E l Tiempo, May 22. 1996. 7A.

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was sent to the floor o f the House o f Representatives, so that a decision can be made on

prohibiting further investigation.

4. The Second Veto Gate: the House of Representatives

The House began its debate on the Committee’s report on May 28. but due to the large

number of Representatives who requested to speak, the voting only took place on June 12.

19%. By then it was known that the House Speaker Rodrigo Rivera was inclined to have

separate votes on political and criminal responsibilities of the president. When it came to

voting, an influential legislator and a very close friend of the President initiated an appeal

against the Speaker’ s decision to have two separate votes.66 The appeal was supported by a

wide majority (106 to 49), and Rivera had to agree to have a single vote.67 By a vote of 111 to

43. the House voted to approve the CoIA’s report and suggestion to permanently shelve the

case. Nine members o f the president's party, including the Speaker, voted not to approve the

CoIA’ s report.68

The House’ s decision virtually put an end to any further investigation on the matter, since

the approval of the CoIA report meant that President Samper could never be tried on charges

o f illicit contributions from Cali cartel, even if new evidence was found. Meanwhile, those

who admitted the president's, in addition to their own. involvement in receiving drug money

for the presidential campaign, have been arrested and held in prison. The president survived

without facing the formal impeachment process, although his government was viewed as weak

66 The Colombian Congress’s Internal Regulation allows for the floor to appeal the Speaker’s decision.

67 Gaceta del Congreso. June 19, 1996. pp.512-13. Rivera confirmed this story on October 3.2001.

58 The remaining Liberal party members. 80 of them, with Conservative party’s 22 members and nine
other legislators, voted to approve the report.

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and fiscally irresponsible by many (including some o f his former supporters), and he

continued to be the subject o f harsh criticism from the US government.69

E. Analysis: Why Was Samper Not Impeached?

Although details of the investigation carried out by the Prosecutor General were not

described above, evidence collected by the Prosecutor General’ s office by the fall of 1996

suggest that it is very likely that the president knew of the contribution from the Cali cartel. In

addition to the audio cassettes that initiated the scandal, photographs and memos written by

the campaign manager, the Cali Cartel's accountant’s testimony and notes detailing financial

transaction with politicians, and a copy o f the check written by the cartel’ s ghost company on

behalf of Samper’s campaign, have been acquired as credible evidence. Thus it does not seem

fair that the charges presented by the Prosecutor General Valdivieso were not credited in the

Congress as providing enough evidence to merit a trial. In addition, the credibility of the

institutions that handled the claim is very low given that they were dominated by Samper's

supporters.

Why did the investigative committee choose to ignore the mounting evidence and

recommend absolving the president? Why did Colombian Representatives in the House fail to

recognize the flaw in the investigation by the CoIA. and even declare that the investigation

never be opened again? What exactly were the incentives o f the decision-makers? These are

the central questions in the analysis. Just as in Brazil, the analysis centers on the investigative

committee, for its role as the first veto gate and as information control mechanism was as

important as that played by the committee in Brazil. How the institutional characteristics of

the committee contributed to its function as an effective veto gate and a filter is explained.

69 The US government even revoked the president’s entry visa to the country.

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Then I analyze how the committee’ s information control affected public opinion (that never

strongly demanded impeachment), and how it affected legislators’ decision to absolve the

president. In addition, as another case of legislature-dominant impeachment process, the

Colombian case illustrates the limited role the judiciary can play even where the Constitution

gives it a role to play. I will discuss these in this order in the following.

1. CoIA’s Characteristics That Contributed to Absolving the President

a. Rules on Selection

Colombian congress's internal code stipulates that each party should have its

proportionate share of seats in committees, just as in Brazil. However, because in Colombia a

single party, the Liberal Party (PL), has been dominant in the House, the PL is guaranteed to

hold the majority o f seats. In Brazil, in contrast, this same rule produced a committee where

numerous small parties were represented and where the governing coalition and the opposition

held about the same number of seats. Another difference between the two committees is that

while Brazilian CPIs are ad hoc committees. CoIA o f Colombia is a permanent committee,

which is selected at the beginning of the term and has the same members unless someone

resigns from the committee. Yet another, perhaps more important, difference lies in the

selection o f the committee chair and the principal investigator. In Colombia, the committee

chair is selected in an election within the committee. Since one party holds a majority of

seats, the chair naturally comes from the PL. The chair’ s term is only one year, and he cannot

be reelected, but since the PL has more than four members in the committee and the legislative

term is four years, it is unlikely that it would pass the post to the other parties. The chair, in

turn, has the authority to name the investigator. Since the PL holds a majority o f votes,

objections from the other parties are unlikely to produce any change. In contrast, in Brazil, as

we saw in Chapter 3. the posts o f the chair and the principal investigator were negotiated

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between the governing coalition and the opposition, and each held one of the important

positions. These rules that allow concentration of power in Colombia produced a very

different committee from the one in Brazil.

According to the internal regulation o f Congress, committee members are to be elected at

the beginning o f the congressional term, giving proportional representation to parties. In

practice, however, a single list of candidates for the committee was presented and approved

without debate at the beginning of congressional term in 1994. The list contained eleven PL

members and four PC members. Since PL held less than 55% of the seats in the House, it

should have only had nine members at the most out of the 15-member committee. PC.

holding close to 35% o f seats, should have had at least five members. Representatives from

small parties, who together held about 10% of House seats, had no representation. According

to congressional records, it seems that no one complained or contested the disproportionately

large representation o f the Liberal Party at the time of committee selection. 0 Given that the

investigative committee was not considered an important committee at the time, this is not

surprising. If the committee was formed ad hoc like in Brazil to specifically investigate the

president, the reaction to the selection would have been quite different. Since the committee

was a permanent committee and since no one contested its composition at the time of

formation, it was too late to try to change the composition when legislators realized the

importance o f the committee in deciding the fate o f the president.

The demand for a change in the committee’ s membership grew further when the media

revealed that ten out o f fifteen members were suspected of receiving drug money. Even in the

face of this revelation, the president's allies argued that any attempt to change the

investigative committee's composition, except to fill a vacancy, violated the existing laws and

70 In February o f 1996, a PL legislator resigned the committee, and the House voted to replace her with
a PC legislator, but he belonged to the PC dissident group in favor of staying in government.

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voted down such proposals. While this argument contains truth, it is also true that the House

could have changed the rules regulating the composition of the CoIA.71 Since the majority in

the House was not interested in finding incriminating information, however, it had no

intention o f changing the composition of the investigative committee. When there was a

vacancy, a substitute was approved by a simple majority vote. Because the PL held a majority

in the House, and because a significant number of PC members also supported the president,

attempts to bring in more opposition members and independents were repeatedly defeated. In

this way, the pro-president majority kept the committee under its control,

b. Committee Chair and Principal Investigator

Until the investigative committee suddenly gained visibility in the summer of 1995,

Heyne Mogollon. the committee's chair, was an unknown Representative from a small town in

Cordoba. His term as the committee chair started on July 20. 1995, only a week before

Samper's campaign treasurer Santiago Medina testified that Samper knowingly accepted the

drug cartel's contribution. President Samper requested the CoIA to investigate this charge on

the same day, July 27. If the committee had been formed for the specific purpose of

investigating infiltration o f drug money into election campaigns, it is doubtful that Mogollon

would have chaired the committee, for he had allegedly received such money himself (and

admitted it in the House's Ethics Committee).72 Helped, in a way. by his anonymity, his

becoming the principal investigator did not prompt criticism from opposition or the media.

Although the press reported already in August of 1995 that Mogollon had worked for

Samper's campaign, neither the PC nor the media questioned his appointment to be the sole

investigator of the president. In fact, it was only in the spring o f 1996 that the media and the

71 Since the investigative committee does not have its counterpart in the Senate, changing the rules did
not require approval by the Senate.

72 Betancourt (1996), p.40.

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opposition politicians actively called public attention to Mogollon’s lack of credibility as an

investigator.

If the chair and the principal investigator have diverging political interests, how much

power each has within the committee becomes a critical issue. The informal rule of power-

sharing in Brazil means that the chair and the investigator come from two different parties,

and thus it is likely that the investigator and the chair have divergent interests. Such

divergence indeed existed in the CPI that led to impeachment of President Collor. In

Colombia, there is no power-sharing, for the second largest party is only guaranteed the vice­

chairmanship of committees. Although the committee chair did not directly nominate the

principal investigator, as he is authorized to. in the case studied above, he emerged asthe

principal investigator. In the first investigation, in 1995. he became the investigator asthe

result of a drawing within the committee, although it is not clear how the drawing was

conducted. In the second investigation, he became the principal investigator after a long

negotiation with the legislator who presumably drew the card to be the investigator. Some

members of the committee demanded a new drawing, but they were outnumbered by the

supporters of Mogollon.

When the committee chair and the principal investigator share the same political

incentive not to pursue the investigation, and when these two control the information flow,

there is almost no hope for a rigorous investigation. The investigative committee headed by

Mogollon illustrates this point. By having a single individual, known to be the president's

loyal supporter, be the chair and the investigator at the same time, the committee majority

made sure the chair and the investigator had perfectly matching interests, to absolve the

president.

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c. Participation by Regular Members of the Committee

The Colombian congressional rules only require the presence o f the principal investigator

for the investigation. In other words, the principal investigator is given such broad discretion

that he or she can virtually shut out the regular members o f the committee from the

investigation. Thus it is quite possible that the investigation is conducted to suit the political

incentives o f the principal investigator. This is indeed how the investigation of President

Samper was conducted.

The investigator in Colombia is not without limits, however, for the committee as a

whole can make its own rules for how the investigation should be carried out. and regular

members, while not required to participate, are not prohibited from participation. In fact, the

committee did vote in favor of a proposal, made by a PC member, to have two additional

investigators for the case against the president.

Mogollon effectively killed the effect o f the change, however, by not nominating the two

additional investigators until the investigation was near closing. In addition, he chose one PL

legislator who was known to favor absolving the president, and the other chosen investigator,

from PC. was inexperienced in investigative work, although there were legal experts from PC

in the committee. As we saw earlier, Mogollon did not allow some legislators to come into

the room where he conducted inquiries, arguing that the process was classified, even though

legally legislators had the right to enter. Even regular members o f the committee were

effectively barred from active participation, for Mogollon single-handedly conducted

questioning until merely one month before the investigation was to be concluded. Most of the

questions prepared by one o f the regular members. Francisco Canossa, were left out o f the list

o f questions.

This concentration o f power to investigate into the hands of the principal investigator is a

striking difference from the way investigation was conducted in Brazil. Brazilian committee

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members directly asked questions to witnesses, followed up leads provided by the media, and

in some cases brought new witnesses and new evidence to the committee. Legislators who

were not committee members were also allowed access to the committee’s sessions. In

Colombia, regular members' only direct participation in investigation happened in the last

month before the report was due. and was limited to only two members who had been selected

by the committee chair to be his auxiliary investigators. The committee members could, if the

majority so wished, have changed the rules governing the investigator’ s powers to allow

broader participation of committee members. The inclusion of two investigators in the second

investigation was indeed an attempt in this direction, although Mogollon thwarted the attempt

by selecting the investigators by himself. As was pointed out earlier, the majority favored

having Mogollon control the investigation, and thus his control, including the nomination of

the two sub-investigators, was maintained.

2. Information Control by the Investigative Committee

The first veto gate, i.e., the investigative committee, had a dominant majority that had no

interest in digging deep into the alleged infiltration of corrupt (drug-related) money into

electoral campaigns. On the contrary, the majority's interest was either in keeping as much

information out of the public eye and ear as possible, or in trying to discredit information

about the drug money.

That the investigative committee has a majority supporting the president does not. by

itself, guarantee that the president’s friends would completely control the informational flow.

I f minority members can participate in investigation, they might be able to bring important

incriminating information to the public's attention. Such broad participation o f regular

members characterized Brazil’ s investigative committee studied in Chapter 3. However, the

Colombian committee is characterized by its lack o f participation by regular members. Thus it

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is quite possible that the investigation is conducted to suit the political incentives of the

principal investigator. This is indeed how the investigation of President Samper was

conducted. The committee chair conducted hearings by himself, and questions submitted by a

regular committee member were largely ignored at the hearing o f the president’s testimony.

Two sub-investigators had a very limited participation, because their nomination was delayed

by the committee chair (and simultaneously the principal investigator) and they could

participate only in the last month of the investigation. Thus, there was a very limited room for

the regular members to produce new information for the investigation.

As discussed in chapter 2. the investigative body functions as the producer of new

information, as the filter for information from outside the investigative body, and as the

selective transmitter of information to the public. In the case of Colombia, the principal

investigator performed most of the functions of the investigative body, for he alone was given

the responsibility of preparing the committee’ report. Not only did the principal investigator

keep new information from being produced by other members o f the committee, but also he

filtered out most o f the valuable information collected by the Prosecutor’ s Office.

Since there exist at least two rigorous studies o f the shortcomings o f the committee

report. I w ill not dwell on them here in detail.73 The problems the report’s critics point out

are, first, the report dismisses what seems credible and corroborated testimonies and evidence,

second, testimonies that are referred to as proving the president's innocence are often taken

out o f longer testimonies that actually contain parts that cast doubt on the president’s

innocence, and. third, possible leads to new information provided by witnesses that could have

been easily followed up to prove the president’s involvement (or lack o f it) were not followed

73 See. for example, the report by the Citizens’ Oversight Commission which had prominent lawyers
working for them, and Ingrid Betancourt's detailed analysis of the report, both published in 1996. For
an excellent review o f these and other important works on this political crisis, see Dugas (2001).

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up by the committee’ s investigator. In addition, the principal investigator, along with the

committee's secretariat, kept the public and the legislators uninformed. Legislators were often

denied access to the hearings, and requests for information that was supposed to be public

were answered slowly and only partially. The Representatives did not have access to the

CoIA’ s full report until three days before the debate in the House was to start.

Thus, in this case. Krehbiel’ s main argument, that committees control the flow of

information to further the cause of the majority, seems to hold. The committee chair dutifully

chose to provide information that only benefited the president (and his allies) to the Congress

and to the public, and chose to ignore information that may have put the president in danger of

impeachment. As the president, the congressional majority, and the committee chair came

from the same party, this description seems to fit Krehbiel’ s informational theory. The

evidence does not refute Cox and McCubbins’ argument that committees work for the

interests of the majority party either. Although Colombian parties are known for their lack of

cohesion and discipline, it is hard to imagine why a legislator would want a president from her

party to be removed, especially when she has established relations with the president to insure

sufficient pork for her district.

An alternative explanation is also possible, however: that the committee chair acted to

further his personal objectives. In this explanation, the chair's decision to selectively use

information is attributed to his expected payoffs from the president, who would be grateful for

the chair's shielding him from investigation and possible impeachment. As mentioned above,

the local media reported (as did some legislators) that the committee chair was already

receiving such payoffs during the investigation. This personal motive does not necessarily

conflict with the legislative majority’ s: in the case I examined above, the preexisting

legislative majority was not interested in impeachment.

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The legislative majority can shift, however, as we saw in the case o f President Collor.

The Brazilian legislative majority was not interested in impeachment at the beginning of the

process, just as Colombia's. The difference between the two countries is that in Brazil the

legislative majority shifted toward supporting impeachment, as more information became

available. In Colombia, there was no such opportunity for shifting the legislative majority

because of the total control of the investigative committee by the committee chair.

3. Decisions by the Members of the House of Representatives

Given the legislative-dominant impeachment process with majoritarian structure of the

investigative committee, and given, as a result, the tight information control by the pro­

president majority in the investigative committee, the likelihood of impeachment was very

low. It seems that the president made sure that it stayed that way by distributing funds and

positions to some members o f the investigative committee, especially the committee chair and

principal investigator. Heyne Mogollon. Opposition legislators and the media revealed the

favors Mogollon was receiving from the executive, but the House majority, as well as the

majority in the committee, turned a deaf ear to such complaints. The majority was simply not

interested in investigating the president, but in putting an end to the efforts to investigate the

president.

This majority included a large segment o f the Conservative Party, for, as explained in

section B. legislators in the House rely heavily on patronage provided by the president, and

thus many Conservatives saw more benefit in supporting the president than in accusing him.

especially since impeachment seemed unlikely and removal o f the president seemed

impossible.

The report approved by the Investigative Committee provided a convenient justification

for the majority to vote to absolve the president. Many legislators argued in their televised

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debate before the impeachment vote that they believed that the report was a result o f a

rigorous work by the committee, that the committee had not violated any regulation or law in

its investigative process, and that therefore the report should be accepted as it was. In other

words, the report provided a cover for the majority in the event that the president’ s guilt was

somehow proven in the future, for they only had to say that they trusted the committee and

that they, too, were deceived.

The supporters of the president also appealed to anti-American sentiment in Colombia,

which was stimulated by the U.S. government’s anti-drug policies that were considered highly

interventionist.74 Speeches in the House made by the president’s supporters often denounced

the U.S. government as backing the attempt to oust a democratically elected president in

Colombia, and denounced the legislators who supported impeachment as collaborators o f the

U.S. government.75 Given the poor execution o f the investigative report and the poor

performance of Mogollon on the floor, these allegations were perhaps a more effective means

to attract public support for not impeaching the president than defending the investigative

committee and its report.76

In addition, the scandal involving Samper began right after the elections for the president

and the legislators. At the time of the impeachment vote, the next congressional election was

still two years away. That is. even if the public was angry at the president and wanted the

Congress to impeach him. the legislators' not doing so would not have as much impact on

their popularity in the next election as it would if the election was near. On the other hand.

74 Canon (1998) details the interventionist role o f the U.S. government in the drug scandal.

75 See, for example, speeches by Martha Ctalina Daniels (June 4), Juan Jose Chaux (June 7). and Oscar
Gonzalez (June 8), published in Gaceta del Congreso No. 250 (published on June 19, 1996).

76 E l Tiempo June 2. 1996, reports that the principal investigator’s presentation of his report was
interrupted by so many powerful critical comments by the pro-impeachment forces that his presentation
increased the chance for the impeachment, instead o f decreasing it.

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supporting the president in this crisis had the potential for a long time (two years until the next

presidential term begins) o f patronage distributed by the president. Being critical of the

president carried the risk o f losing such patronage. In fact, in a cabinet re-shuffle in December

o f 1995, those who were loyal to the president gained more cabinet posts, while those who had

strong ties to the president's critics, such as the PC presidential candidate Andres Pastrana,

were shoved out.77

To reduce the incentive to investigate and accuse the president even more, the public was

not as angry at Samper as Brazilians were against Collor, or Venezuelans against CAP. A poll

taken in summer 1995 found that the majority of Colombians believed that both Samper and

Pastrana (the PC presidential candidate) were corrupted by the drug money.78 Until January

of 1996, the majority thought Samper was guilty of knowingly receiving drug money from the

Cali cartel and still did not think Samper should resign. The street protests never reached the

scale of those in Brazil or Venezuela.79

The media, according to Garcfa (1997: 40). for most part did not conduct its own

investigation, but simply transmitted information that the protagonists in the scandal (such as

the ex-campaign manager, campaign treasurer. Samper and his lawyer) provided.80 While in

Brazil investigative journalism kept the public's interest in the scandal and provided openings

for opposition legislators to investigate, in Colombia the media did not play such an active

role. In addition, even when the media did produce some possible openings, the committee

77 E l Tiempo December 22, 1995.

78 Notisur, August 25.1995.

79 The lack of enthusiasm might have to do with the seemingly widespread view among Colombians
that drug-related money is not a problem, that the problem is with consumption and violence related to
drugs. This point was made during author interview with Roberto Camacho, on October 5. 2001, and is
shared by the most widely read columnist at the time. Enrique Santos Calderon (1997).

80 An exception should be made, however, for the weekly Semana which tried to obtain information
from alternative sources, although not all of these sources were equally reliable.

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was in no way going to follow them up, as explained above. In short, there was no

information build-up that might have produced a stronger public demand for impeachment, or

at least for the continuation of investigation.81

By giving the exclusive power of investigating the president to the clientelistic House,

instead of having the less patronage-seeking Senate participate, the 1991 Constitution made it

quite difficult to impeach a president even if there are sufficient grounds for it. Worse still,

under the current system, the House has the power to declare that a case against the president

is closed, effectively giving the president immunity from future investigation and trials related

to the case. The House majority in 1996 used all the power at its disposal to do exactly that,

and succeeded, despite strong objections by legislators with legal expertise that such a

declaration would impinge upon the authority of the Prosecutor’s Office.82

4. The Limited Participation of the Judiciary

Colombia, like Brazil, has a legislature-dominant impeachment process. This does not

entirely shut out the judiciary branch from the process, however: the Colombian Prosecutor

General is given the authority to file criminal charges against the president and to request that

the lower chamber o f the Congress review the accusation. If the lower chamber, the House of

Representatives, decides that the accusation is well founded with evidence, the House then

sends a request to the Senate to lift the president's immunity from trial. This institutional

design makes it possible for a judicial entity, the Prosecutor General’s office, to bring up the

issue o f presidential corruption to the House and to the public's attention. It does not.

81 Opinion polls conducted during this period did not even mention the word impeachment and instead
asked people if they thought the president should resign.

3: See. for example, the discourse given by Roberto Camacho, on June 3. 1996.

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however, give more than whistle-blowing ability to the judiciary, for unless the House agrees

with the whistle-blower, the charge against the president does not have any political effect.

In addition to serving as a veto gate, the House can (and did in the case above) constrain

the investigative functions o f the Prosecutor’ s Office. Clearly, the Prosecutor General must

provide sufficient information to justify his accusation against the president, and for this his

office must conduct an investigation. However, the House’ s investigative committee is also in

charge o f investigation. In the case analyzed above, the question of who could investigate the

president became a point of tension between the House and the Prosecutor’ s Office in the fall

o f 1995, as the shortcomings o f the investigation by the committee became clear. The

question was put to the Constitutional Court, which ruled that both can investigate, provided

that one’ s investigation does not prejudice the other’s functions.*3 Dutifully following this

ruling, the Prosecutor General handed over all the information his office collected to the

committee after he presented his accusation, despite the known biases of the committee.

Unfortunately, as we saw. the fruits of investigative efforts of the Prosecutor’s Office were

largely ignored by the committee. In addition, the House closed the door to future

investigation by the Prosecutor’ s Office, by declaring that the case was permanently shelved.

5. Summary

The majority o f the representatives in the House did not have any incentive to put the

president on trial. One may attribute the lack o f incentive to the absence of societal pressure

against the president. It is true that Colombians were never as angry as Brazilians or

Venezuelans, or at least did not demonstrate their anger in direct action. It is also true that

since the scandal took place just after the election, the voters’ anger against the president for

83 E l Tiempo October 13, 1995.

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corruption and against the House for doing nothing was not going to be translated into votes in

an election anytime soon. This also reduced incentive to take up the corruption issue.

It is important to remember, however, that these circumstantial factors came into play

within the political structure in place. O f particular importance was the majoritarianism in the

structure of the investigative committee. Without it, it would have been impossible for the

president's supporters to have the high level o f control of information flow into and out of the

committee. The committee was dominated by the president's party, and the committee chair,

who practically nominated himself to be the principal investigator (which was perfectly legal,

since the Congress's internal regulation gives the nominating power to the chair),

monopolized the investigation (again perfectly in accordance to the internal regulation). The

president, to whom the constitution gives vast distributive powers, made sure that his

supporters remained supportive, by handing out public works or funds to them. Protests from

the minority, both in the investigative committee and on the floor, were either ignored or

defeated in voting, for all the decisions within the committee and on the floor required only a

simple majority.

Because o f the complete control of the investigative committee by the president's

supporters, the committee lacked the credibility that Krehbiel would expect from efficient

congressional committees. As I argued in Chapter 2, however, efficient provision of credible

information may not be the most important task for committees: the congressional majority

might have interest in a committee's authenticating the prior beliefs or preferred outcome of

the majority. The Colombian investigative committee did produce a report that the House's

majority wanted, declaring that the president was innocent and that the process should be

permanently closed. Unlike in Brazil’ s committee, there was no strategic opportunity for

opposition members to influence the committee’s performance, since the committee chair (and

the principal investigator) successfully kept other members of the committee away from the

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investigation until the very last moment. The participation o f the sub-investigators was quite

limited both in time and scope.

In sum, the committee structure in Colombia left no room for opposition members o f the

committee to strategically incorporate or disseminate information that could influence the

public's attitude toward the president or the legislators' decision on impeachment. Any

attempt to change the committee structure was doomed to fail, given the simple majority

decision rule and the pro-president majority in the House. For a large majority of legislators,

who rely heavily on patronage to cultivate the personal vote, the benefit from the president’s

rewards, in the form of public works, positions, and funds, exceeded the costs from not

investigating his possible wrong-doing.

F. Conclusion

The hypothesis posed at the beginning o f the chapter proved to be consistent with the

outcome of the drug-related corruption scandal in Colombia. The long clientelistic tradition in

Colombian politics that survived even the land-mark change o f Constitution in 1991 worked

in favor of President Samper, who. despite the continuous speculation that he would resign,

survived the scandal. The new constitution written in 1991 has been said to be a compromise

between the traditional politicians and those who aim at creating a consolidated party system

where policies rather than patronage decides the winner. The compromise, unfortunately, did

not succeed in creating a credible system for processing a corruption charge against the

president. The House o f Representatives, which maintained its clientelistic feature thanks to

the compromise made in designing the new constitution, holds two veto gates against charging

the president o f corruption. And it used its veto gates effectively in the case analyzed in this

chapter.

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After the first ruling in the House Committee o f Accusation that there was not sufficient

evidence, the charge against the president would never have been taken up by the House again

unless the Prosecutor General Valdivieso requested reopening o f the case. The investigation

conducted by the Prosecutor General also raised the attention level of the general public.

However, the judiciary’ s effort to bring the president to a trial did not succeed, prevented by

the lower chamber o f the Congress, which was dominated by the PL legislators. The

Colombian judiciary, for its independence from the political pressures, was able to bring the

charges into public, but the veto gates set by the Congress stopped the accusation short of

impeachment and trial. If Colombia had a corruption management scheme like Venezuela's,

in which the judiciary has the first say and the Senate decides on lifting presidential immunity

without interference from the lower chamber, it is likely that Samper would have been

sentenced and impeached. However, the institutional design in place gave initiative to the

clientelistic House of Representatives, and blocked further investigation, let alone punishment,

o f the president’s corruption.

During the impeachment process against President Samper, some legislators, both from

the Liberal and the Conservative parties, realized that the investigative committee, as

structured at the time, would fall far short o f conducting a rigorous investigation, and

demanded changes. Their proposals were repeatedly defeated by a majority determined to

protect the president. Once the impeachment process was over, with the House absolving the

president, the interest in changing the investigative committee's composition rapidly

disappeared. In contrast, supporters of the president seemed not to lose interest in retaliation

against those who sought to investigate the president. In July, when congressional committees

elected their chair and vice-chair for the coming year, more vice-chair posts were given to the

PC group that supported the president than the Conservatives that demanded a fair trial of the

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president.84 In August, the CoIA began an investigation against the Prosecutor General

Alfonso Valdivieso for allegedly misusing public funds when Valdivieso was the Minister of

Education during the Gaviria administration (that preceded Samper). Although the

investigation concluded that Valdivieso was innocent, he was never left free from slanting

comments from some o f the Liberal politicians during Samper’ s term.85

Not everyone lost interest in changing the rules governing investigations of the president,

however. In the House, a proposal was presented to delete the clauses in the Internal

Regulation o f the Congress that give the House the authority to permanently shelve a case.86

In the Senate, as a part o f the constitutional reform, it was proposed that the investigative

authority of the investigative committee be transferred to the Prosecutors' Office when the

accusation involves the president.87 If it were implemented, this change would have moved

Colombian impeachment process to the judiciary-participant model. However, neither attempt

for reform was successful, due primarily to the continuing resistance to reform in the House.

It would be premature to abandon all the hope for change in Colombia: unlike the case of

investigation against the president, that the reform initiatives were rejected does not mean that

they cannot be proposed again in the future. O f special concern are the features of the

investigative committee that make it so easy to be controlled by a single individual from the

majority party in the House. Changing the rules on committee structure, to ensure a broader

participation of regular members in the committee, as well as to create a more balanced

84 E l Tiempo, July 26. 1996. The chair posts were all in the hands of the PL.

85 For example, there were rumors spread by these critics that Valdivieso had presidential ambitions and
was merely using Proceso 8000 to gain popularity. When he did leave the office in an apparent bid for
presidency, as is required of any public official who intends to run tor electoral office, the critics once
again jumped on him and criticized him for abandoning his responsibilities.

86 Interview with Roberto Camacho. October 5,2001.

87 I am indebted to Matt Shugart for this information.

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177

committee that is not dominated by the president’ s friends (or enemies), does not take away

the authority to investigate the president that the Constitution granted (quite unwisely) to the

House, which has been a major argument against some o f the above-mentioned proposals. It

would instead give far more credibility to the committee and its work.

President Samper, who was absolved by a committee controlled by a loyal supporter,

never regained the legitimacy to govern effectively. The economy, which had registered over

5% growth in the 1993-95 period, grew slowly starting in 1996, dropping to less than one

percent growth in 1998.88 Inflation began to creep up to double digits in 1996 and

increasingly worsened. The economic problems might not have been avoidable even without

the political crisis, but the unresolved political crisis certainly reduced the government's

ability to tackle them. One can only hope that legislators realize that they have far more to

gain than to lose from the institutional reform proposed above.

88 Per capita GDP growth was even less impressive in the 1996-1998 period, and was negative in 1998.

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V. VENEZUELA: IM P EA C H M EN T UNDER JU D IC IA R Y-D O M IN A N T SYSTEM

In this chapter I analyze the impeachment and subsequent removal of president Carlos

Andres Perez in 1993. The Venezuelan case is different from the other two cases in an

important way. Venezuela, from 1961 until 1999. was the only country where the judiciary, and

not the legislature, investigated the president. The House of Deputies may conduct an

investigation, but the law dictated that the findings of the investigation should have no legal

impact on the Supreme Court's decisions. The Senate only decided whether or not to accept the

report from the Supreme Court on the president's alleged criminal activities, without

conducting its own investigation. Unless the Court recommended a trial, impeachment was

impossible.

Given these distinctive features o f Venezuela's impeachment procedure, the first section of

this chapter describes the impeachment procedure in detail, with a particular emphasis on the

role o f the Judiciary, for it is this branch that investigated the president and decided whether

there were sufficient grounds to merit a trial. The trial, both of political and common crimes,

was conducted by the Supreme Court when the accused was the president.1 I w ill compare this

judiciary-dominant pattern of impeachment with the legislature-dominant pattern observed in

Brazil and Colombia, and explain how the difference between the two might affect the control

over information on the investigation by the president’s allies and enemies. Section B details

the impeachment, the removal and the trial of President Perez. Given the high level of political

instability at the time and its impact on the magistrates who made many important decisions in

the impeachment process. I w ill spend more time explaining the socio-economic and political

1 For legislators, common crime trials are held by courts at the lower levels, but the Supreme Court still
handles trials on political crimes.

178

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179

climate at the time of scandal and impeachment than I did for the other two cases. Section C is

an analysis of why President Perez was impeached, removed and, three years later, convicted,

with an emphasis on the distinct features of the judiciary-dominant impeachment process.

A. Judiciary-Dominant Pattern of Impeachment Process in Venezuela

1. Overview of Impeachment Process under 1961 Constitution

As I discussed in chapter 1. the Venezuelan impeachment procedure is unique in that it

heavily relies on the Judiciary to make decisions on the fate o f the president (and legislators)

accused of wrong-doing. While in Brazil and Colombia the investigative committees of the

Congress present the official accusation to the lower chamber, in Venezuela the Prosecutor

General (called Fiscal General in Venezuela) presents the official accusation." The Prosecutor

General's office is called the Public Ministry, and it oversees proper application of law as well

as protection of human rights. ' One of the functions attributed to the Prosecutor General is to

present accusation against public officials when they commit administrative, civil, penal or

disciplinary offenses related to their public duties.

The accusation is presented to the Supreme Court, and not the Congress. The accusation

must be accompanied with evidence that supports the charges.4 Thus, it is the office of the

Prosecutor General that is officially in charge of investigating the president for offenses

committed in relation to his public duties. Although the Constitution grants investigative

" Constitution of 1961. Article 220.

’ A separate organ, the Procuradurfa General, offers legal counsel to the government and represents its
interests. The head of this organ is appointed by the president, with authorization from the Senate.

4 Organic Law of the Supreme Court of Justice. Article 146.

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authority to the legislature (both as chambers or through their committees), it sets specific limits

on the investigative function not to interfere with that corresponding to the Judiciary.5

Upon the presentation of an accusation by the Prosecutor General, the Supreme Court's

Chief Justice (called President in Venezuela) designates a magistrate in the Court to be the

presenter ("ponente’' in Spanish) of the case. The Chief Justice can designate himself to be the

presenter, just as Colombia's investigative committee's chair can designate himself to be the

presenter. The magistrate-presenter then studies the accusation brought by the Prosecutor

General within ten sessions after the accusation has been presented, and recommends either that

a trial be held, or that the accusation be dismissed. The decision, like all other decisions in the

Supreme Court, is made by an absolute majority vote.

If the magistrate-presenter recommends a trial, and the recommendation is approved by the

full Court, the decision is communicated to the Congress. When the accusation is against a

legislator, the chamber to which the legislator belongs (i.e.. either the Senate or the House) will

decide whether to consent to the trial, whereby the legislator's immunity from prosecution is

taken away. When the accused is the president, the Senate decides, by an absolute majority

vote, whether or not to authorize a trial. This decision, although not called impeachment in the

Constitution, constitutes an impeachment vote, for a trial cannot be initiated without it. In other

words, even in the judiciary-dominant system, the legislature (the Senate, to be precise) can still

stop the impeachment process short of trial. The difference between the Venezuelan

impeachment process and the legislature-dominant processes is that there is only one instance

for the legislature to stop the process. The House o f Deputies has no influence on the decision to

impeach the president in Venezuela.

5 Constitution o f 1961. Article 161.

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Upon authorization of a trial (i.e.. impeachment), the accused individual is suspended from

office, and the Supreme Court proceeds with a trial in case o f political crimes. For presidents,

the Supreme Court also handles trials for common crimes.6 This means that a president accused

o f any crime, be it a political or common crime, has no way of appealing against decisions made

by the judiciary, for his trial is held by the ultimate court, the Supreme Court.

2. The Organization and Independence of the Judiciary

From the above sketch, two organs within the judicial branch stand out for their significant

role in the impeachment process: the Prosecutor General (and his office, the Public Ministry)

and the Supreme Court. In order to understand the decisions made by the personnel in the

judiciary, we need to know whom they are accountable to. and to what kinds of pressure the

magistrates and the Prosecutor General may be susceptible,

a. Prosecutor General and the Public Ministry

Prosecutor General is the head of the Public Ministry, which is in charge of overseeing

proper administration of law. including respect of human rights in prisons, as well as of

prosecuting public officials of all levels when they are suspected of committing crimes in

relation to their public office. When the accusation involves the president, members of the

Congress. Supreme Court magistrates, cabinet ministers. Prosecutor General. "Procurador

General" (State Legal Counsel). Comptroller General, governors, or ambassadors, the case is

taken directly to the Supreme Court.

The Public Ministry is considered a part o f the judiciary in the 1961 Constitution, and the

Prosecutor General must have the same qualifications as the Supreme Court magistrates. The

6 Organic Law of the Supreme Court of Justice. Article 149.

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Prosecutor General is appointed by the Congress (in a joint session), for a term o f five years

coinciding with the term of the Congress and the president. The president has no control over

the selection o f the Prosecutor General. Congressional influence would depend on whether the

two chambers have the same party or parties holding a majority of votes. If the two chambers

have majorities comprised o f different parties, it is less likely that a Prosecutor General w ill be

selected using purely partisan criteria. In addition, it is possible that the Prosecutor General

might ignore partisan demands once he is sworn in. since there is no direct way the Congress

can punish him for not following the party line/ The Prosecutor General cannot be impeached

by the Congress: removal only happens if the Prosecutor General is convicted in a court trial.

The president has no influence on the Public Ministry’ s budget, either. Prior to 1977. the

executive branch planned the ministry's budget, but since 1977. the law established that the

Judiciary enjoy budgetary independence. This means that the Public Ministry, as well as the

Supreme Court, would propose their own budget directly to the Congress. Budgetary

independence, however, does not mean that the Judiciary always gets what it wants: the

Congress can cut the budget the Judiciary proposes. In this way. too. the Congress can exercise

some influence on the Public Ministry, by cutting or threatening to cut the budget when the

Congressional majority is not happy with the Ministry's performance. The Prosecutor General

is also required to present an annual report to the Congress.

In sum. the Prosecutor General and his office, the Public Ministry, are subject to possible

budgetary constraints by the Congress, and the Prosecutor General owes his or her position to

the Congress. Therefore, it would not be surprising, if the two houses of the Congress have

7 For a discussion of the functions of the Public Ministry in Venezuela and some other countries in Latin
America, see Shugart. Moreno and Crisp (2000).

s Congress could try to influence a Prosecutor General's career after he leaves office if he is appointed to
a position that requires congressional confirmation. Unfortunately. I know of no study on this subject.

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majorities comprised o f the same party or parties, that the Prosecutor General and his office act

in the interest of the majority party or parties. Since, however, the Prosecutor General cannot be

removed from office unless he is convicted o f a crime by the judiciary, the Prosecutor General

may act independently o f partisan interests once in office. ’

b. The Supreme Court Magistrates

If the magistrates were completely apolitical, they would be making decisions solely based

on their interpretation of the laws and the evidence. This, however, was not the case in

Venezuela in 1993. At the time the Supreme Court magistrates were chosen by the Congress for

a fixed term of 9 years.10 They were not barred from reelection, but since 1979 none of the

magistrates have been reelected.11 Until the late 1990s. the two major parties. Accion

Democratica (AD) and Comite de Organizacion Politica Electoral Independiente (COPE1.

Christian Democrat), jointly made the appointment decisions. Although the AD has dominated

the Congress for most part of the last four decades, the Supreme Court has had magistrates who

are closer to the COPEI than to the AD. Some were well connected to both parties (or factions

within both parties).12 As for removal, neither the Constitution of 1961 nor the Court's Organic

Law of 1976 contained any specific article regarding who had the power to remove the

magistrates.13 The common interpretation of this rather surprising situation was that the Court

^ These appointment procedures have been significantly changed in the new constitution. See Shugart
et.ai.. op.cit..

10 Given the provision in the Court’s organic law that no two members of the same family can serve on the
Court, the Congress could virtually challenge the sitting magistrate by appointing her kin to the bench.
Which of the two magistrates could serve was then to be decided by the Court in a two-third majority
vote.

11 Calcano de Temeltas (1994). p.49.

12 See Ojeda (1995). 93-96; Zuloaga (1996). 10-11.

13 In contrast, the current constitution gives the power of removal to the Congress.

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itself had the power to remove its own magistrates, as had been the case under the 1948 Organic

Law.14 Given that the Supreme Court had the authority to judge on the constitutionality of laws,

the magistrates thus faced no threat o f removal by politicians.

The Supreme Court's budgetary independence was defined in the same terms as that of the

Public Ministry: that is. it proposed its own budget (instead of the executive branch making the

proposal), but the budget had to be approved by the Congress. According to one of the Supreme

Court magistrates, who wrote an essay on judicial independence in 1994. the Congress “ has

demonstrated a high level of responsibility, collaboration and understanding of the Supreme

Court's most pressing needs."15 Once the budget is approved, the Chief Justice is in charge of

internal management o f the budget, as well as of the personnel of the Court.

The above account suggests that the Venezuelan judiciary has budgetary constraints

imposed by the Congress and the nomination suffers from political screening, but in other

aspects (such as removal from office and internal management) the Supreme Court enjoys a

relatively high level of independence. This does not. however, mean that it functions

efficiently. In fact, the Venezuelan judicial system has been criticized not only by the

Venezuelans but also internationally, by NGOs. businesses and government agencies, for its

own corruption.16 According to The Economist, one of the best-sellers in Venezuela for 1995

was entitled “ Cuanto Vale un Juez” (How much a judge costs).17 According to Coppedge

( 1994a: 47). the courts "seemed never to Find sufficient evidence to justify a trial or a conviction

14 Calcano de Temeltas (1994). p.53.

15 Calcano de Temeltas (1994). p.85.

16 The abuse of criminal laws by the judges is so common that it has its own name, judicial terrorism.
See, The Economist September 14.1996. pp.4l-42. Venezuela was ranked by the Transparency
International, an NGO specializing in corruption, as the most corrupt in Latin America according to its
survey in 1996. See New York Times. June 3.1996. p.A4.
17 The Economist September 14.1996. p.41.

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[for corruption]” . Still, there are some institutional factors that can work positively for the

Venezuelan judiciary to be more politically independent than in some other systems and avoid a

type I error, at least when the accused is a president and not a powerful legislator.

One is that the magistrates were selected by the Congress, instead of the president. It is

quite plausible that under the Constitution o f 1961, congressmen, with an interest in reelection,

were more responsive to societal demands than the president, who. under the 1961 Constitution,

could not be immediately re-elected.18 Thus, the selection o f the magistrates is likely to have

been influenced by the political climate. Under heavy criticism o f political biases in judiciary,

legislators might choose magistrates who were not strongly identified with political parties. If

this is the case, there is less room for the president to exercise influence on the judiciary than

where the party of the president can select magistrates that are the president’ s friends and

supporters.

Secondly. AD and COPEI collectively chose magistrates based on an informal agreement

between the two parties. In addition, as described below. AD was internally divided, and some

judges were said to have strong ties with specific factions rather than parties.1'' Thus if the

president’s party selected magistrates who were not close friends of the president, they could

constitute a majority together with those magistrates close to the opposition party. If this is the

case, the probability of indictment is higher than where presidential appointees or friends

dominate the Supreme Court.

Another characteristics of the Venezuelan judiciary until 1999 is that Supreme Court

magistrates' terms were limited to nine years, and most o f them maintained close ties to a

political party. For this reason also, magistrates were more sensitive to the strong surge of

18 Venezuelan Constitution of 1961. article 184.

19 Ojeda (1995). pp.94-96.

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societal demands than may be the case where Supreme Court magistrates are life-time

appointees, or where they have longer terms, or where their career afterwards is not affected by

politics. Thus where there was a strong societal pressure against the president and neither party

tried to be protective of the president, the magistrates were likely to respond to the pressure and

rule against the president as a way to save the career of the magistrates themselves. Such

responsiveness might, however, be in conflict with their role as an impartial judge whose

decisions should be solely based on facts.

Although the Supreme Court magistrates were not as politically independent as would be

ideal, they were not so much dependent on the president as they would be where presidents

appoint magistrates. The congressional selection of magistrates reflects the societal demands to

a greater extent than is the case where magistrates are appointed by president or are life-time

appointees. Thus, despite its many shortcomings and its own corruption problems, the judicial

system prevents its magistrates from becoming the president's tools and pushes the Supreme

Court magistrates to indict the president where the political and societal pressure to do so is

strong. Its responsiveness (if not vulnerability) to political and societal pressure, however, also

lowers its credibility as an independent institution that checks the legality of politicians’

activities.

3. The Legislature in the Judiciary-Dominant Impeachment Process

While the impeachment process in Venezuela under the 1961 Constitution was heavily

dependent on judiciary, the legislature played three important roles. One was that the Congress

selected both the Prosecutor General and the magistrates of the Supreme Court. The second role

was the Senate's vote to impeach, upon the Supreme Court’s ruling that there are sufficient

grounds for a trial. The third was the vote, in a joint session of the two chambers, to declare the

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absolute absence o f the president. The distinctive characteristic o f the role of the Congress in

this judiciary-dominant system was that none o f the decisions required super-majority. This

makes impeachment and removal easier compared to many other systems where two-thirds of

legislators need to agree on the impeachment and/or removal. However, the fact that the case of

President Carlos Andres Perez was the first in Venezuela’s democratic history that a president

was impeached and removed, despite many allegations of corruption in previous

administrations, suggests that other forces than the voting rules were at play in determining the

probabilities of impeachment and removal.

It is a fair assumption that both the selection of judicial personnel and the vote on

impeachment were affected by the quasi-two party system that developed after the dictator

Marcos Perez Jimenez was ousted in 1958. During the first decade (1958-68). three parties.

AD. Union Republicana Democratica (URD). and COPEI shared power. The power-sharing

was institutionalized, under the formal agreement known as Pact of Punto Fijo. The three

parties agreed to respect the outcome of elections and to share political responsibility and

patronage. The URD rapidly lost its initial electoral strength, and between 1968 and 1993

Venezuelan politics centered around two major parties. AD and COPEI."0 As the Pact of Punto

Fijo expired in 1968. the two parties formed a series of agreements known as Pacto Institucional

to maintain the practice of power-sharing.

One example of power-sharing is that both parties had some cabinet posts in each

administration until 1974 (and briefly in 1992. as detailed later), and leadership of various

secondary organizations such as trade unions was shared among them. Another example is the

informal agreements under which the fifteen Supreme Court magistrates who served a nine-year

20 For more details of early development of party system, see Komblith and Levine (1995). especially pp.
39-48.

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term were selected from those who identified closely with AD or COPEI. As mentioned above,

this selection process makes the trial of the president more likely than it would be with

magistrates appointed by the president or by the president’s party alone, although the

magistrates can hardly be said to be independent o f politicians.

Ideological distance between AD and COPEI increasingly shrunk, as both headed toward

the center. Relatively speaking. AD has pursued more statist policies and COPEI more

conservative. Both had long come to rely on the oil-based state revenues for constituent

services.21 In fact, it was an AD administration, the second Perez administration, that tightened

up government spending and vigorously pursued a liberal economic policy. The movement

toward the center by both AD and COPEI made room for a third party to emerge and capture

votes, especially on the left side of the ideology scale. Indeed, a leftist party MAS became the

third largest party between 1974 and 1993. passing the once-powerful URD. Another leftist

party La Causa Radical (Causa-R) captured urban voters since the 1980s. and in the 1993

election passed the MAS to become the third largest party." The party gained high visibility

especially in the early 1990s. as it raised the issue of political corruption in Congress. It is

interesting to note that, just as PT. a leftist party, pursued the corruption investigation in Brazil,

it was the Causa R that presented the first official accusation against CAP to the Supreme Court.

An additional factor that is likely to affect the legislators is divisions within parties. Under

1961 Constitution. Venezuelan party leaders exerted strong power over party members, for they

were in absolute control of candidate selection due to the closed list system. Party members

who publicly opposed the party line were punished with disciplinary measures such as

expulsion from party and removal from important party posts. Nevertheless, the parties were

21 See Naim (1993). 130-133.

22 For more information on La Causa-R party, see Lopez Maya (1998). 84-88.

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not free o f internal divisions. As Coppedge ( 1994b) aptly shows. AD ’ s history as a party has

been filled with internal conflicts, mostly when it held presidency.13 AD experienced two large

splits in the early 1960s. one caused by ideological conflict and another by a generational gap.34

Ever since the 1960s. internal division, usually over the nomination of the presidential

candidate, have characterized the party. President Perez and his predecessor. President

Lusinchi. were once allies, but became bitter rivals during Lusinchi's term over the nomination

issue.

Repeated factionalization may be attributable to the position of AD as the party that has

held power for most of the democratic history of Venezuela. The existence of a rival faction

certainly makes it difficult for a president to enjoy solid support from his party, especially when

the rival faction controls crucial posts within the party. President Perez found himself precisely

in such a situation in 1993.

4. Presidential Power

The Venezuelan presidency, under the 1961 Constitution, was one of the weakest in terms

o f its power to legislate and to define the national budget among presidential democracies.35 It

did have the appointment power, just as in other presidential democracies, but its effectiveness

in negotiating with the legislature was quite limited: given the strong discipline exercised in

Venezuelan parties, there was little, if any. room for presidents to negotiate with individual

legislators over their vote. The closed-Iist electoral system discussed above meant that, unlike

in Brazil and Colombia, legislators were elected on the basis of their party loyalty and

contribution to the party, not on the basis o f personal votes. In short, the vote-buying strategy

33 See. in particular. Coppedge ( 1994b). 94-135.

34 Rivas Rivas (1987); E l N acion al 1994 May 26. p. ID .

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that both Collor (unsuccessfully) and Samper (successfully) employed was simply not available

to the Venezuelan presidents. In addition, as mentioned above, presidents had no direct

participation in the selection o f the Supreme Court magistrates, and had no power to influence

the budget for the judiciary. Compared to presidents in Brazil and Colombia, therefore.

Venezuelan presidents under the 1961 Constitution were much less likely to succeed in

influencing the decisions o f legislators and magistrates.

5. The Judiciary Dominant versus Legislature Dominant Impeachment Procedures

At a first glance. Venezuelan impeachment procedure before 2000 may appeal to those

who are wary of the abuse of impeachment procedure by the political opponents of the

president. With the requirement that the Supreme Court make a decision on the guilt of the

president before the Senate can act on impeachment, one may expect that frivolous charges

made by the president’s opponents would be dismissed. The Venezuelan procedure before 2000

may also be attractive to those who are concerned that it would be too difficult to impeach a

president with heavy involvement of the legislature where the president’s party controls the

majority. The Venezuelan procedure significantly limited the Congress's involvement in the

impeachment process (by letting only the Senate participate, and only after the Supreme Court

had judged the merits o f a trial). In addition, the involvement o f the Supreme Court makes it

harder for the Senate to justify its decision to absolve the president. If the legislature does not

approve opening a trial against the president despite the Supreme Court’s decision that there are

sufficient grounds for it. critics w ill quickly point out that the president is treated as if he is

above the law. It would also undermine the authority o f the Supreme Court. Thus, such a

decision by the Senate could harm both the Congress and the Supreme Court, and it would

25 See Shugart and Carey (1992). p. 155.

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certainly make it difficult to ask Venezuelans to respect the rule of law. Based on this account,

one may conclude the Venezuelan impeachment procedure before 2000 should be the model for

all presidential systems.

Unfortunately, the judiciary-dominant procedure is not a panacea, for the following

reasons. First, the judiciary-dominant procedure is likely to lead to politicization of the

judiciary. When an impeachment process involves a popular or powerful politician, it is

inevitable that the magistrates' decisions draw public attention and perhaps misguided

interpretations. Even when decisions are made solely on legal grounds, there likely are critics

that depict the decisions as politically motivated, either in favor o f or against the accused

politician. A judicial decision on whether a crime has been committed is transformed into a

political question of whether a magistrate is in favor of or against a politician. In a country like

Venezuela between 1961 and 1999. where the Supreme Court magistrates were appointed by

the Congress fora limited term, involving the Court in impeachment processes only exacerbates

the already existing politicization. Needless to say. the existing politicization, in turn, is likely

to affect the magistrates' decisions. Worse still, a legally sound argument by a magistrate may

be dismissed by the public and the critics simply because the magistrate is believed to be close

to the accused politician's party, or. conversely, to an opposition party.

Secondly, the rights of the accused individual may not be awarded due protection,

especially where the Supreme Court is not separated from Constitutional Court. like in

Venezuela. Recall that in Brazil President Collor resorted to the Supreme Court to complain

about the impeachment process in Congress. Although not all o f Coilor's requests were

granted, he did gain more time for defense. In Venezuela, however, all important decisions but

one are made in the Supreme Court: the Court decides whether the gathered evidence merits a

trial, the Court decides whether to issue an arrest order, and the Court decides whether the

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president is guilty of administrative and/or penal crimes. While an accused president could still

contest the decision made by the Senate (to let a trial begin, i.e.. to impeach), his complaints

about the other decisions are highly unlikely to be heard by the Supreme Court, for it is the

Court itself that makes these decisions. Even in the case of the Senate’ s decision to impeach,

this decision is made only when the Supreme Court recommends opening a trial. Thus, the

Court is unlikely to invalidate the Senate's decision to impeach, unless it finds gross

unconstitutionality in the Senate's decision process.

What about the informational role that an investigative body may play? Recall that in

Brazil, the flow into and out o f investigative committee was not controlled by the president’s

friends, while in Colombia it was. and how this difference in informational control affected the

outcome of the impeachment process. In Venezuela, the official investigation is handled by the

judiciary: although the Congress has an investigative capacity, its investigative function is

specifically limited not to interfere with the judicial investigation.The Public Ministry and. to

some extent, the Supreme Court perform investigative tasks. The Public Ministry must gather

proof of criminal activities before it accuses an individual before the Supreme Court. Thus, the

primary investigative function falls into the Public Ministry's hands. The Court, however, may

acquire additional information if witnesses summoned to the Court provide information not

contained in the Public Ministry's accusation. More importantly, in the Court the defense team

can call up witnesses to provide information that may run counter to the information provided

by the accusation.

Control over information, then, is limited in the Court: the Court cannot refuse to hear

testimonies from either the defense team or the plaintiff. This is in sharp contrast with

26 This does not. of course, prevent the Prosecutor General from obtaining information from
congressional investigation. Indeed, the Prosecutor General who presented accusation against CAP drew
his argument substantially from the information obtained through congressional investigation.

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congressional investigative committees that can decide which witness to summon. The

apparent difference may be misleading, however, since magistrates can dismiss witnesses, just

as legislators can. In theory, of course, magistrates cannot dismiss proofs without legal

justifications, but ultimately the decision is made by a person with at least some subjectivity. In

a system like Venezuela’ s, where magistrates are appointed for a limited time by the Congress,

their decisions are even more likely to be influenced by the political climate than where

magistrates are life-time appointees. They might decide to ignore information not convenient

for the politically desired outcome or decision. Thus, the lack of control of in-flow of

information in the judiciary-dominant impeachment process does not make the Venezuelan

impeachment process substantially different from legislature-dominant ones in terms of how

incoming information is processed through investigation and affects its conclusions.

In addition, the initial investigation by the Public Ministry, instead of the Congress, can be

problematic. If the Congressional majority and the president come from the same party, the

Prosecutor General may be a sympathizer o f the president and may not carry out a rigorous

investigation. Given that the investigation is of a judicial character, its findings may not be

made as readily available to the media as in cases of investigation by Congress, where

legislators compete for public notice by "leaking" information. Thus, the Prosecutor General

may be able to consign an investigation of possibly serious consequences to oblivion simply by

not disclosing what he finds in the closet. On the other hand, this secrecy can work against the

accused individual, for he or she may be left in the dark as to how the investigation is

proceeding, and thus has no room to refute or prepare to defend against the charges formed by

the Prosecutor General.

In sum. the judiciary-dominant impeachment procedure has some advantages over the

legislature-dominant procedure, but it also has some shortcomings, especially when the

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judiciary is not independent o f political pressures and ties to politicians. In the case of

Venezuela under the 1961 Constitution, we can predict the following:

• Party System and Impeachment Process

Parties play a far more limited role in Venezuelan impeachment process than in the other

two countries, because impeachment cannot happen without the Supreme Court's

recommendation for a trial. However, once the Court recommends a trial, impeachment is quite

likely for a minority president, given the low impeachment threshold o f one-half of Senators.

Even a president whose support base in Senate commands a majority might be impeached if the

Court’ s recommendation is based on strong indication of the president's guilt.

• Presidential Powers

The president has no institutional influence on the Prosecutor General or the Supreme

Court magistrates. His influence on individual legislators is limited both due to strong party

discipline and due to the relatively weak distributive powers Venezuelan presidents enjoyed

under the 1961 Constitution. Thus, the president's power to influence the impeachment process

is quite small.

• Information Control

The Prosecutor General heads the official investigation and presents the accusation, and a

Supreme Court magistrate writes a report on the merit of a trial based on this investigation. This

phase o f the impeachment process is classified, i.e.. information is not made available to anyone

except for the Prosecutor General and the magistrate who writes the report. Other magistrates

on the Court are barred from making public statements about the case until after they vote on the

report. Information is tightly controlled by the Prosecutor General, during the first stage, and

the magistrate-presenter of the report, in the second phase. The magistrate-presenter is

appointed by the Chief Justice. Thus, if both the Chief Justice and the Prosecutor General had

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an interest in impeaching the president, information suggesting his innocence is likely to be

filtered out of the official channel, while incriminating information o f dubious authenticity

might be incorporated into the official transmission (i.e.. the accusation and its assessment by

the Supreme Court).

• Predicted Outcome

If the Prosecutor General and the Supreme Court Chief Justice are interested in impeaching

the president, it is highly likely that the Senate w ill be presented with a recommendation for a

trial of the president. Given the lack of influence the president can exercise over individual

legislators and magistrates, the president is unlikely to succeed in preventing impeachment,

unless his party commands majority in the Senate and can credibly demonstrate the president's

innocence. Since the investigative process is in the judiciary's hands and information is

inaccessible until the Supreme Court votes to recommend a trial, it w ill be difficult for the

president's party to prepare a strong argument in the president's defense. If. on the other hand,

the Prosecutor General and/or the Supreme Court Chief Justice were not interested in

presidential impeachment, the process is highly unlikely to reach the Senate floor, for one of

them would block the impeachment process from going further, by either concluding that the

president is innocent, or. in the case of the Supreme Court, by not initiating the assessment of

the accusation.

B. The Story: The Ouster of President Perez amid Political Instability

Carlos Andres Perez (or CAP. as he is known in Venezuela) was president of Venezuela

during the oil boom of 1974-1979. As the country found itself in economic distress in 1988, the

electorate turned to CAP again. He became president the second time in 1989. becoming the

first Venezuelan to do so under democratic rule. His popularity quickly dwindled, however, as

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196

he began to implement an austerity policy. A coup attempt took place in February 1992. In

November, a critic o f CAP. Jose Vicente Rangel, accused him o f using public funds for private

purposes. Another coup attempt happened at the end o f the month. In January 1993. Rangel

Filed his accusation against the president with the Prosecutor General. On March 11. 1993. the

Prosecutor General requested the Supreme Court to evaluate the charge, following the

procedures defined in the Constitution. The Supreme Court decided on May 20. 1993. that there

was enough evidence to merit a trial o f the president. The next day the Senate voted to strip

CAP of immunity from trials, and the president was suspended from office. In August, the

Congress declared the presidency vacant, effectively removing CAP from office. In the

Supreme Court trial that finally came to the close in May of 1996. CAP was found guilty of

mismanagement of the fund and sentenced to a 28-months prison term.2'

The two coup attempts and subsequent threats by the coup leaders to resort to force sets this

case apart from the other two. where no military action took place during or prior to

impeachment process. Given this instability, the removal of the president without violence was

pictured by some as the victory of democracy. Others, however, have posed troubling questions

about the impeachment process and the removal o f CAP. First. I w ill describe the political and

socioeconomic climate at the time, and then review the impeachment process that took place in

the specific political and socioeconomic context.

Because of his age. CAP was not put in prison but served his term staying at home, in accordance with
Venezuelan penal code.

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1. CAP’s Second Term and the Economic Crisis

During CAP's first administration, his government was widely known as corrupt. One

major scandal regarding the over-priced refurbishing o f a refrigerated container ship almost led

to a judicial process against CAP soon after he left office.28 Yet Venezuelans did not seem to

care, as an editor describes the mood in the period of abundance: “ sure he steals,but he lets us

steal too."29 Indeed, in the oil boom years, corruption was not a political issue, andsome even

seemed to admire Perez' audacity and “ machismo"/0 When he initiated his second term in

1989. however, the economy had deteriorated dramatically, hard hit by the debt crisis in the

early 80s. The deterioration of the economic situation was a result of a long-time reliance on

oil: inefficient domestic industries were subsidized with oil revenue, while expected revenue

from oil discouraged fiscal discipline and encouraged borrowing readily available foreign

capital.'1

CAP's victory at the polls was at least partially due to the expectation, albeit unrealistic,

that he might bring back the good old days of state-led industrial policy and subsidies.'2 While

campaigning. Perez remained vague about economic policies/3 His rallies, according to Martz

(1995:42). often turned “ into celebrations of personality rather than program."'4 Once in office.

28 Ewell (1993). p. 123: Ellner (1993). p. 16. Coppedge (1988). pp. 283-86.

29 Anonymous editor of NA CLA Report on the Americas (1993). p. 12.

30 Ellner. ibid.. p. 16.

31 For an excellent critical review of Venezuelan economic policy, see Karl (1995) and Naim (1993).
19-25.

32 McCoy and Smith 1 1995). p.252.

'3 This vagueness may have partly been due to the fact that President Lusinchi did not let Perez have
information about economic and fiscal commitments his administration had made. Martz (1995). p.42.

34 Martz (1995). p. 42 and footnote 14 (p.52). According to Manzetti and Blake (1996: 671). CAP
suggested in his campaign that he would increase government spending to bring back prosperity.

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however, his policy took a radically different course from his earlier administration. He

eliminated the multiple exchange rate regime that was widely known as a major source of

corruption. He proceeded with privatization of major public enterprises such as banks, hotels, a

telephone company, and an airline. Unfortunately, the privatization process was marred with

rumors o f corruption.35 The elimination o f price controls on most food items, as well as a

gasoline price hike (and. as a result, transportation) led to riots in February 1989. merely one

month after CAP took office and 11 days after he announced his economic adjustment program.

According to the official record, the Caracazo. as the riot in Caracas became known, and riots in

other cities at the time together resulted in 600 death.36

By early 1992 CAP's critics were demanding his resignation, and a coup attempt took

place on February 4th. 1992. Only a month after the failed coup, on March 9-10.1992.

reportedly more than 2 million residents o f Caracas, frustrated by the declining quality of life,

banged on pots and pans and demanded Perez’ resignation. ’7 By this time. GDP growth and the

unemployment rate were showing positive signs. However, the living standard in 1992 was still

lower than a decade ago. '8 The government admitted in 1992 that 57% of Venezuelans could

not afford more than one meal per day. and that average annual per capita income had dropped

by SIOOO in five years, to $2400.39 Citizens groups and unions estimated that 20% of the

35 Manzetti and Blakel 1996). and various issues of Notisur in 1992 and 1993.

36 Different sources suggest different figures, ranging from 260 to 2000 death. See. for example. Ewell
(1993). pp. 120-L25; Serbin (1992). pp.24-26.

37 Ewell (1993). p. 125. The reasons for protest were many: Ewell lists corruption, poor public services,
personal insecurity, the slowness of reform, and declining living standards.

38 The Economist. March 20.1993.p.48. GDP growth for 1991 and 92 was 10.4% and 7.3%. respectively.
According to Naim (1993: 60). unemployment rate dropped from 10% in 1989 to 7.5% in 1991.

39 Notisur. February 12.1992.

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population may not be able to afford even one meal.40 Opposition politicians criticized Perez

for his neglect o f the poor, and argued that the 1989 riots and the coup attempts in 1992 were the

result o f such neglect41

As economic hardship continued to plague the nation, the media grew increasingly critical

of corrupt politicians.42 The populace, who trust the media even more than the Church, quickly

absorbed the criticism as its own.43 In one opinion poll taken in March 1992. 56% of those

polled said corruption was the most important problem for the nation, far more than the cost of

living (17%) and unemployment (1 1%).U Another poll taken in spring of 1992 found that 77%

of those polled had negative views of political parties.45 The approval rate of the Perez

administration was close to a single digit.46 The allegation in 1993 that Perez misused a secret

public fund furthered social frustration and tension, resembling “ the dramatic scenes in Caracas

of furor and vandalism of February 27 and 28 of 1989.” 47 Afraid of violence and confusion.

40 Daniel C. Hellinger. "Venezuelan Democracy Crumbling even before Coup Attempt” Notisur
February 12.1992.

41 Ewell, ibid.. p. 120. Serbin. ibid.. pp.24-26. Indeed, the leaders of the February coup had called for
reversal of neoliberal policies and alleviation of poverty as two of their five-point program, along with the
end of corruption. Latin Am erican Weekly Report. February 20.1992.

42 Templeton (1995). citing Perez Perdomo (1995). suggests that the media became more critical of
government after CAP eliminated the corrupt foreign exchange system under which media companies felt
pressured not to be too critical, rest their economic interests be damaged.

43 One poll found that people had greatest confidence in the media (54.4%). followed by the Catholic
Church (48.2%). Poll was conducted by Eco Omnimagen. conducted in March and April of 1992 in
Caracas, with 500 residents interviewed. See. Notisur. June 10.1992.

44 El N acion al. May 25. 1992. p.D-2. Quoted in Manzetti and Blake, ibid.. p.28.

45 Notisur. June 10.1992.

46 The Economist. March 20.1992. p.48.

47 Ricardo Escalante (1994). D e La C aida de Perez a la del Banco Latino . p. 15.

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the rich fled the city in private planes, and long lines formed in grocery stores in anticipation of

shortage caused by riot. 48

In short, as Ellner (1993) states, tolerance for corruption was worn thin by people's

frustration with CAP’ s liberal economic policy and by their perception that CAP’ s come-back

brought back not the prosperity o f his first term but mere corruption. It may be said that the

popular feeling now was that "he steals, and he steals from US!" Such feeling of discontent and

disillusionment led many to identify with the coup leaders, although many still disapproved of

the violent acts, as we w ill see below.

2 . Political Instability Heightened by Coup Attempts

Venezuela had been known for its stability of democracy, especially when compared with

other South American middle-size countries. Along with Colombia, it maintained democratic

regimes during the 1960s and 70s when other South American countries experienced military

coups and takeovers. And it has not suffered from severe violence caused by guerrilla

movements and drug-related organizations to the extent that Colombia has. since the early

1970s when leftist guerrillas became pacified. The 1989 riot and two attempted military coups

in 1992 totally changed Venezuela’ s image, however. While the riot was an unorganized event

that was triggered by the anger of the populace, the coup attempts and criticism by opposition

politicians took a more organized form and thus had stronger and lasting effect on Venezuelan

politics.

Already in 1988. before CAP came into power, there were signs o f a military uprising. On

October 29.1988. while the then-president Lusinchi was out of country, an army Major put out

tanks on the street o f Caracas. The incident was covered up by the authority as nothing to do

48 ibid.

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with a coup attempt. By then the existence of a group o f army officers called bolivarianos was

known, and the Major was said to be linked to the group. The group allegedly was devoted to

nationalism and to rooting out corruption. During the 1989 rioting, pamphlets bearing the name

bolivarianos were circulated. After two coup attempts failed without any actual mobilization of

armed forces in December of 1989 and o f 1990. the group kept silence for a year, only to carry

out another coup attempt in February 1992.'*‘)

Two failed attempts of military coup took place in 1992. one on February 4th and another

on November 27th. While both were contained by armed forces loyal to the government, the

Perez administration was severely damaged by these events. Neither his cabinet shuffling nor

policy changes away from austerity helped the president recover from the loss of enthusiasm

and hope that he once enjoyed from the populace. The administration's approval rate was

already as low as 19% in early 1992.50 The coup leader's accusation of corruption in the

government was also supported by the general populace: according to Templeton (1995). who

conducted a poll a month after the February coup. 40% of respondents attributed the coup to

■'corruption, bad government in general." 51

Although a majority of Venezuelans did not support the idea of a military takeover, they

sympathized with the cause of the rebellion. Calls for CAP’ s resignation grew stronger, and a

prominent COPEI politician Rafael Caldera started a movement in Congress to make the

president resign one year before his constitutional term was over. The political battle between

CAP. with reluctant support of his own party AD. and opposition led by Caldera that demanded

his resignation, spread into the military barracks, triggering yet another coup attempt in

40 Latin Am erican Weekly Report. February 20.1992.

30 The Wall Street Journal. February 5.1992. Cited in Notisur. February 12.1992.

51 Templeton (1995). 80. Cited in Ray (1998). 125.

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November 1992. According to a leader of the coup, the decision to go ahead with a coup was

made when CAP refused to include a referendum on whether to let him complete his term in

office in the state and municipal elections to be held on December 6th of that year.52 He also

criticized the government for neglect of the people and for corruption in the government and in

the judicial branch, thus further increasing public attention to these issues.

President Perez again managed to stay the coup attempt. Yet people’ s sympathy did not go

to the president but rather to his opponents. In the state and municipal level election held on

December 6.1992. COPEI. which had pulled out of coalition government in June as its

dissatisfaction with the government grew, defeated AD in many states and cities.53 However,

the abstention level was also very high (56%). indicating general dissatisfaction with traditional

parties and politicians.54 One example of this is that Caracas' mayor was elected from Causa-R.

the fast-growing opposition party that initiated the public inquiry into CAP's alleged corrupt

activities. As the accusation that the president misused the state secret funds began to spread,

the fear of another coup grew. It did not help calm the heightened sense of insecurity that the

Defense Minister remarked on March 12 that he could not guarantee that a third coup attempt

would not occur. With such fear mounting, coupled with the damage from losses in the 1992

election. AD had no gains to make by protecting CAP. Indeed, the party's president at the time.

Humberto Celli. made a public comment recommending President Perez' resignation if the

Supreme Court found grounds for a trial against him. a comment that cost him his presidency of

the party. Even after he was forced to resign from the party presidency, however. Celli never

ceased his criticism of the president and the corruption in government. Despite his defiance, the

52 Notisur. December 8.1992.

53 COPEI entered into coalition government in February 1992 after the coup attempt at the urgning of
President Perez. See Martz (1995). especially pp.44-45. for the COPEI and A D ’s response to the crisis.

54 Notisur. December 8.1992.

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AD leadership did not expel him from the party, and he enjoyed support from some prominent

adecos.55

Thus. CAP faced political challenges regarding his corruption charges from a multitude of

fronts: the opposition parties, the opposition within his own party, the military, journalists, and

the anti-corruption protesters on the street and in households.

3. The Charges and the Evidence

The first to make a public statement about CAP’s misuse o f secret funds was a journalist

working for one of the country’ s most widely circulated dailies. El Nat ional. An article titled

"From 11.000 to 25.000 m illion" was published on May 19.1992. It did not. however, trigger a

scandal at the moment. The beginning of the scandal was the accusation made on TV as well as

in a national newspaper by an influential opinion leader and a three-time presidential candidate.

Jose Vicente Rangel, on November 8. 1992.56 Rangel alleged that president Perez used 250

million bolivars in the national secret funds in 1989 to pay back his campaign debt.

The Venezuelan president had the legal authority of creating and using secret funds for the

purpose of protecting national security, and the funds are not screened by the Congress.

According to Rangel, however. Perez used this fund for private gains. Rangel accused CAP of

taking 250 million bolivars out of the secret funds and converting them into dollars just before

issuing a presidential decree to devalue the bolivar by over 60%. After the devaluation. Rangel

alleged. CAP returned 250 million bolivars to the secret funds, keeping 11.4 million dollars in

his pocket. Some press reports alleged that CAP used the money to finance his inauguration

'5 The adecos. or members of AD. that supported Humberto Celli included Octavio Lapage and Carlos
Canache Mata.

56 Another journalist. Andres Galdo. made the accusation first, but Rangel’s popularity seems to have
been the key to the explosion of the scandal.

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celebrations.57 Within a week following the public statement by Rangel, one o f the opposition

parties. La Causa Radical, first presented the charges o f corruption against CAP to the Supreme

Court. The Causa-R based its accusation on the information provided by Rangel.58 The

accusation was officially acknowledged by the Court in December, but no further action was

taken.

On January 11. 1993. Rangel filed a formal accusation against the president and two o f his

ministers at the office o f the Prosecutor General. Subsequently, on March 11. 1993. Prosecutor

General Jaime Escovar Salom requested the Supreme Court to decide whether there was enough

evidence o f crime to open a trial. He presented a 74-page report in which he charged that a part

of the secret funds intended for national security, the by-then famous 250 million bolivars, was

illegally transferred from the Ministry o f Interior to the Secretariat o f the Presidency. His report

drew heavily on the information provided through the investigation by the Special

Subcommittee of Prosecutor Control in the House of Representatives.5,) The Subcommittee,

with a COPEI legislator as a chair and with the president's party in minority, had been

investigating the case since November 1992. when Rangel publicly accused the president of

embezzlement.

The Prosecutor General argued that the transfer o f 250 million bolivars could not have

been carried out without the president's knowledge, and that the transfer and alleged use of this

fund for private purposes constituted the crimes of malfeasance and embezzlement. He asked

the heads o f the two ministries, as well as the president, be tried for these crimes.

,7 Notisur. December 8. 1992, and March 16. 1993.

58 Notisur. December 8.1992 and June 7.1993. See. also. Ellner. ibid.. p. 15.

The subcommittee’s chair. Nelson Chitty La Roche, states that the Fiscal General requested every
document, especially testimony, be sent to him. Chitty La Roche (1993). p.223.

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The allegation that the 250 million bolivars were used for private gains is not substantiated

in the Prosecutor's report, however: the report cites many (and some contradictory) testimonies

about the transfer of the funds, but nowhere in the report is there a discussion of how the money

was spent. The only possible source of this allegation o f embezzlement is the complaint filed by

Rangel, which was in turn based on information from anonymous sources. Rangel did not

provide any physical evidence of embezzlement in his complaint. However, he ascertained that

one of the venues through which the secret funds were "embezzled" was the mission sent to

Nicaragua to protect the newly elected president Chamorro in her inauguration ceremony. The

mission indeed took place, but it was not clear how a mission to the exterior would qualify as

embezzlement.60 Other than this mission, the congressional investigation had not been able to

unearth any physical proof of embezzlement, nor did. apparently, the Public Ministry.

Even before the Prosecutor General presented his accusation. CAP faced a hostile

Congress. CAP's state of the nation address to congress on March 11 was delivered amid

legislators' jeering and chiding.61 They were protesting against his refusal to cooperate with the

congressional inquiry commission on the currency exchange scandal. In major cities student

protesters led violent demonstrations.62 Perez, on the other hand, accused his accusers o f being

politically motivated, arguing that those who could not defeat him in election were now trying

to bring him down by false accusations. He also asserted, however, that he would respect the

60 Since embezzlement is a crime of diverting money from its intended use to realize private gains, an
official mission to another country could hardly be defined as embezzlement. The only way to do so
would have been to prove that a part of the money intended for the mission was indeed pocketed by the
president.

61 According to The Economist (March 20. 1993). the Prosecutor General’s accusation was presented
later on the same day.

62 Notisur. March 16. 1993.

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Supreme Court's decision. Some media even reported that should the Court find sufficient

evidence to bring him to a trial, he would resign.6j

4. Impeachment and Removal of the President

Supreme Court president Gonzalo Rodriguez Corro assigned himself to be the presenter of

the case. The full court was to decide, based on his study, whether there was sufficient evidence

to bring CAP to a trial. The study was completed on May 5. 1993. Perez requested that the

decision at the Supreme Court be made immediately, arguing that the waiting period would

exacerbate political instability, but the Court refused his request and took until May 20 to make

its final decision.64 Meanwhile, opposition members of congress circulated rumors that the

Supreme Court president had recommended a trial, although the court's 15 magistrates kept

complete silence on the decision until it was final.65 The leaders of COPEI and MAS also made

public comments urging, if not threatening, the Supreme Court to rule in favor o f a trial.66

The 15 days before the Supreme Court decision saw heightened political instability and

tension. On May 12. a group o f army personnel linked to the February 1992 coup leader Hugo

Chavez threatened to resort to violence against the Supreme Court magistrates if the magistrates

voted against sending CAP to trial. The group also suggested a plan o f forming a joint

civilian-military transition government headed by Chavez once CAP was removed from office.

The president's side, on the other hand, tried to convince the populace that attempts to weaken

the government and aggravate the political crisis were taking place, naming three states where

63 Leyla Bartet. “Venezuela en Dos Tiempos" in Q ueliacer June 1993. no.83. p. 105.

64 The Supreme Court was to make its decision in two weeks.

65 Notisur. May 14 and 21. 1993.

66 See. for example. Caldera's comment on May 17 and the prediction of “major crisis" by Freddy
Munoz, of MAS. on May 18. both in E l Universal.

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subversive violence was reported to have risen. But the governors of these three states refuted

such claims, prompting criticism that the Perez administration was trying to obscure the secret

fund scandal by scaring people.67

On May 20. the Supreme Court voted on the merit of trial o f CAP on charges of

malfeasance and embezzlement o f S17 million in secret security funds. Nine magistrates voted

in favor of trial, while six abstained. The next day the Senate voted unanimously to strip CAP of

presidential immunity, which meant that CAP was temporarily removed from office. Even the

president's party supported the impeachment, arguing that it respected the Supreme Court's

judgment. The president himself had requested the party to do so. before the Supreme Court's

decision was known, believing that the decision would be against holding a trial.68 Although

critical of the Court's decision, the president complied with it and left the palace on a temporary

leave. He did not resign, however, refusing to give in to his critics" demand to do so.

The 1961 Constitution (Article 188) allowed the president to be on a temporary leave for

up to 90 continuous days.69 After 90 days, the Congress, in a joint session, could decide

whether the leave should be characterized as a permanent leave. If the Congress declared the

permanent leave of the president, it chose a new president to complete the term. As the trial of

CAP was nowhere near an end after 90 days had passed, the Congressional majority decided to

put this constitutional clause in use. The Congress, in a joint session, voted on August 31. 1993.

to declare the permanent leave o f the president. 0 The AD voted against the permanent removal,

but it did not have enough votes to prevent the decision, for the decision only required a simple

6/ The stories in this paragraph were obtained from Notisur. May 21. 1993.

68 Interview with President Perez. December 20. 1999.

69 When the president takes a temporary leave, he was to appoint a minister to be the interim president.

0 In the same session it voted to make the interim president the president for the rest of CAP's term.

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majority. CAP accused the decision as a "coup against the Venezuelan constitution". He

insisted that he still was the constitutional president and would return to the office once

absolved of the corruption charges by the Supreme Court. '1 He tried to challenge the

Congressional decision by asking the Supreme Court to judge on its constitutionality, but the

Court never took up the case.

5. The Trial

The trial did not come to an end until over two years after CAP's presidential term ended in

February 1994. In addition to the legal disputes between the defense and the prosecuting teams,

the trial had to overcome a wave o f violence involving bombing attempts. In mid-July of 1993.

letter bombs were sent to two of the Supreme Court magistrates who were said to be pressing

most for opening a trial against the president. Another bomb was set in the Court building and

exploded, permanently injuring a Court employee. Several other bombs were set and exploded

in Caracas, including one at the national headquarters of the main business organization.

Fedecamaras. An agent and ex-agent of the secret police (Direccion de Servicios de

Inteligencia y Prevencion del Estado. DISIP) were arrested in August as principal suspects of

the court bombings. They claimed to have acted on orders from the former head of the DISIP

Henry Lopez Sisco, a close associate o f former president Jaime Lusinchi. who. like Perez, was

accused of misuse of the secret funds.:

On May 18. 1994. the Supreme Court issued an arrest order, and CAP was sent to a prison

despite the fact that under the Venezuelan penal code he was entitled to be under house arrest,

due to his age (over 70). The next day the AD suspended his party membership. The Court

,l Notisur. September 10.1993.

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acknowledged the legal right of house arrest for the ex-president only after the defense team

requested it two months later. The Court’ s arrest order was still based on weak evidence of

crime: the Public Ministry, which was investigating the president, had not been able to provide

any physical evidence that the ex-president had embezzled the secret fund. The Prosecutor

General Badell. who took office under the new Congress in 1993. made clear, perhaps

unintentionally, that there was no physical evidence of embezzlement, when he declared that the

ex-president was guilty of spiritual embezzlement.73

The final sentence was pronounced on May 30. 1996. three years after the trial was

initiated. By then, both the defense team and some of the magistrates themselves believed,

because of public and private comments made by the magistrates, that CAP would be

absolved.4 As time passed, and as the allegation that the ex-president benefited privately from

the secret funds found no proof, the public opinion was already shifting in favor of the

ex-president. 5 Political pressure to convict the president, persisted, however. b After

reviewing a 700-page report by the trial judge that suggested a four-year imprisonment, the

Supreme Court decided to give CAP a shorter sentence, of 28 months. The magistrates

convicted CAP of mismanagement of the secret funds, but the charge o f embezzlement was

: Ellner. ibid. p. 14. Ewell, ibid.. p. 125. Notisur. September 10.1993.

73 The Fiscal’s comment was issued on October 26. 1995.

4 Interview with Dra. Hildegard Sansd. February 6. 1997. Interview with Dr. Rafael Perez Perdomo.
February 4. 1997.

5 See Cabrujas (1994:111-15) and Corradi (1996:238).

6 It is said that the president Caldera's words, published in the mass media before the Supreme Court
gave its sentence, that CAP would be sentenced guilty put pressure on the judges to change their votes.
Information obtained at personal interview with Dr. Rafael Perez Perdomo. one of the defense lawyers,
on February 4.1997.

77 Because of his age. CAP was not put in prison but served his term staying at home, in accordance with
Venezuelan penal code.

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dropped. Eleven magistrates voted in favor, while four abstained. The Court also ordered him

to "restitute, repair or indemnify the damage to the public patrimony once the corresponding

sum was established." 8 Since there was no proof such as receipts or documents to identify how

the secret funds were spent, it was unclear how the alleged damage could be calculated. '9

The ruling was viewed as unsatisfactory by the critics of the ex-president, his defense team,

and less passionate observers. For the enemies of the ex-president, the ruling was too soft on the

ex-president. For the defense team, the ruling should have been absolution of the defendant,

since, in its view, no crime had been proven. The less passionate observers lamented that the

trial did not lead to thorough investigation into the use of the secret funds, nor did it produce a

convincing legal argument for convicting the ex-president o f mismanagement of funds.80

According to Rey (1993). if the argument used by the Supreme Court in convicting CAP was

applied to all public servants, the "immense majority" would have to be charged with the same

crime. St

Immediately following the ruling, the AD permanently expelled CAP from the party. The

ex-president, on the other hand, interpreted the Court ruling as a sign of approval of his

presidency, and claimed to return to political life as soon as possible.82 The shorter than

three-year sentence meant that CAP could return to political office after completing his prison

8 The Chief Justice said this sum included the costs of the troops sent to Nicaragua. E l Universal May
31. 1996. As of November 1999. the question whether the former president must pay the costs of the trial
was yet to be resolved, as the defense team contends that since the president was absolved of the more
serious crime he need not pay the costs of the trial.

79 The Court did not ask CAP to account for how’ the funds were used, and instead decided to hire
"experts" to calculate the alleged damage caused by the ex-president and government officials.

80 See. for example. Bermudez (1996) and Corradi (1996).

81 Ray (1993). p. 112.

8‘ New York Times. May 31. 1996. Notisur. June 7. 1996. Escalante, ibid.. p. 16.

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term. On September 18 at midnight his house arrest ended, and CAP started to visit several

cities in Venezuela, announcing that he would rescue the AD from its current poor state, despite

the party leaders' insistence that CAP would never be allowed to join the party again. The party

subsequently expelled 67 members who visited Perez to congratulate him upon his release and

publicly stated their support for CAP. Such harsh treatment backfired in a way. as the media

pictured CAP as "a victim" threatened with political assassination/1

However, the former president was not easily welcomed back to the political arena. On

July 3. the Senate revoked CAP's lifetime Senate seat as a former president, on the grounds that

the Constitution allowed such procedure when a senator was convicted of a crime committed

while performing public duties. Also, the Congress set up a committee to investigate CAP's

bank accounts in the US. Switzerland, and the Grand Cayman Islands, whose existence CAP has

denied/4 The first to make the allegation that the ex-president had accumulated wealth in

overseas accounts was the same journalist who accused CAP of embezzlement of the 250

million bolivars. The congressional investigation came to naught.

C. Why Was CAP Impeached?

Some saw the impeachment process as vindication of functioning democracy, for CAP was

not removed by force but by a constitutionally sanctioned process, and. in their view. CAP

deserved to be punished for corruption. After all. this was not the first time he was criticized for

corruption: his first term (1974-79) was widely viewed as a corrupt administration, and an

attempt to hold him accountable for a corruption scandal took place briefly after he left office/5

s3 Notisur. October 11. 1996. quoting Luis Garcia.

84 New York Times. May 31. 1996. Notisur. October 11. 1996.

s5 Under the constitution of 1961. presidents were granted life-time seat in the Senate after they left
office. Thus. CAP could have been impeached as a senator. The Congress voted that CAP was politically

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Besides, unlike in the 70s. Venezuela was in a deep economic crisis. Why let him steal from the

public coffer when the majority of the populace was suffering economic hardship, aggravated,

in the majority's view, by his austerity policies?

While this view may be supported as a political discourse, the way the impeachment

process unfolded begs questions o f political biases. I have listed them in Appendix 2. For

example, the Prosecutor General, days after submitting the accusation to the Supreme Court,

made a speech that can be interpreted as putting pressure on the Supreme Court to facilitate

impeachment/6 The Senate voted to authorize the trial without a careful examination and

debate o f the ruling. Although the Prosecutor General accused the president of embezzlement,

his office was never able to provide firm evidence such as bank transactions that proved the

charge. Had the accusation been more accurate, it is doubtful that the president would have

been forced out of office. Yet. both the Prosecutor General and the Supreme Court (at least

initially) made their decisions based on the accusation made by Rangel, whose accusation relied

solely on an anonymous witness.

These facts suggest that the Prosecutor General, the majority of Supreme Court

magistrates, and the majority of the Senators were more interested in impeaching the president

than in having a fair impeachment process. As Juan Carlos Rev categorically states. 'The

judicial process against Carlos Andres Perez [was aj more political decision than legal."8' Why

were they so inclined, and why were they able to impeach the president with such ease and

responsible for the shady deal, but did not find him administratively responsible, which would have
banned him from running for presidency again. For details of the case, see D iccionario de la Corrupcion
en Venezuela volume I.

86 According to E l N acion al (March 16. 1993). the Fiscal General said that the future of the democracy in
Venezuela depended on the Supreme Court's decision and that the decision would show whether rule of
law exists in Venezuela.

87 Rey( 1998). p 129. This and his earlier (1993) work provide an excellent analysis of this impeachment
case.

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speed despite weak evidence? Why could the president not challenge the impeachment process

like president Collor did in Brazil? First. I w ill explain how the institutional setting in

Venezuela was prone to type II errors, that is. how it made impeachment easy once the

Prosecutor General, the Supreme Court, and the Senate majority had an interest in removing the

president, despite weak evidence of crime. Second. I w ill explain why such a majority came

into being in the Supreme Court and the Senate.

1. The Venezuelan Impeachment Process and Type I I Errors

As I pointed out in Section B. the judiciary-dominant impeachment process has a high risk

of type II errors if the judiciary is politicized. There are three reasons for this argument. One is

that decisions in judiciary-dominant processes are made without the requirement of a

super-majority at any stage of the impeachment process. Two. the tight information control by

the Prosecutor General and the magistrate-presenter of the Supreme Court makes it difficult for

the president's supporters to prepare their counter-argument showing his innocence, since they

do not know on what evidence the accusation is being made until it is revealed to the Senators.

Three, if the judiciary-provided information is perceived more credible, relative to that provided

by politicians, the legislature would be under strong pressure to go along with the judiciary's

judgment. This does not mean that the legislative majority would always follow the judiciary's

recommendation. However, parties that vote against the judicial judgment can be risking loss of

electoral support, especially if voters strongly support the president's ouster. I w ill analyze how

these three factors played into the impeachment and removal o f CAP in the following.

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a. Majoritarian Decision-Making Rule

In the Venezuelan impeachment process, none of the decisions require a super-majority.

The Prosecutor General can unilaterally decide whether or not to accuse the president. The

Supreme Court decides by an absolute majority vote whether to recommend the trial . The

Senate decides, also by an absolute majority vote, whether to authorize the trial. The final

sentence is approved by an absolute majority vote in the Supreme Court. In the case analyzed

here, another vote in the Congress, that of declaring the permanent absence of the president, also

required an absolute majority in the joint session of Congress.

As argued in Section B. the absence o f the requirement of a super-majority in the

judiciary-dominant system is not a problem if justices were to make their decisions based solely

on the available evidence, without any prior preference over the outcome of the impeachment

process. When, however, there is a pre-existing majority in favor of impeachment, the

judiciary-dominant process functions just like the majoritarian legislature-dominant system, as

we saw in Colombia. What is more, because the president has little, if any. influence on the

Prosecutor General, the Supreme Court magistrates, and legislators as individuals (given the

strong party discipline), the president cannot effectively bargain with the decision-makers, as

the Colombian president Samper did.

O f course, the pre-existing majority does not always stay together: the Brazilian case

illustrates this point. The legislative majority was against impeachment until the congressional

investigative committee provided compelling evidence and the voters began to pressure

legislators to vote for impeachment. However, in Venezuela the probability for the majority to

shift (in this case, from pro-impeachment to anti-impeachment) was much smaller than in

Brazil, and even in Colombia, since Venezuelan parties had much stronger disciplinary

measures at their disposal. Furthermore, the informational process was controlled firmly by two

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individuals that had an interest in removal of the president, making it highly unlikely that the

legislative majority would shift away from favoring impeachment.

A twist in the impeachment process analyzed here is that the president was not removed as

a result of the impeachment trial, as was the case in Brazil, but was removed because the

Congress declared that the presidency had been permanently vacated. If the impeachment

process were to run its full course, the Congress would have waited until the Supreme Court

made its final judgment on whether the president indeed committed a crime, and could remove

him from office only if the Court judged the president guilty. Unlike removal by trial, the

declaration of permanent vacancy did not require a prior judgment by the Supreme Court. For

the legislative majority comprised o f the president's adversaries, the declaration o f vacancy was

a preferred option to waiting for the impeachment trial to end. since the former would result in

the removal of the president much more quickly, and since the declaration did not depend on the

judiciary to make the decision the legislative majority wanted it to make. Although the

president’s party protested, the majoritarian decision-making rule left no room for the protest to

have any impact on the fate of the president, just as the minority was rendered powerless in

Colombia.

b. Information Control by the Judiciary

In a mirror image to Colombia's investigative committee, which was controlled by the

president's sympathizer, the investigation of corruption charges in Venezuela was controlled by

the president's opponents, who occupied the strategic posts of the Prosecutor General and the

Supreme Court Chief Justice. To make this parallel clear. let us examine the characteristics of

the judicial investigation in the same order I examined investigative committees in Brazil and

Colombia: the selection of the investigators, the power of the principal investigator (the

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Prosecutor General and. to an extent, the magistrate-presenter) and the chair (Chief Justice in

this case), and participation by other members of the investigative body in investigation.

The principal investigator in Venezuela is the Prosecutor General (and other prosecutors in

the Public Ministry, if the Prosecutor General so chooses). The Supreme Court functions as if it

were the committee of instruction, in that its approval is necessary in order for the Congress (the

Senate) to make its decision whether to authorize trial. The magistrate-presenter functions as if

he were the principal investigator of the committee o f instruction. The Chief Justice is like the

chair of the committee of instruction, for he names the magistrate-presenter. In the

impeachment process against President Collor. the committee of instruction played only a token

role, for the demand for impeachment was so strong by the time the investigative committee

submitted its report to the full House. In theory, however, the committee of instruction could

function as another veto gate, just as the Supreme Court could in the Venezuelan process by

declaring that the Prosecutor General's accusation is not well-founded. The Supreme Court

(and. in theory, committee of instruction) thus functions as another filter of information that

would be provided to the legislature and the public.

The Prosecutor General is appointed by the Congress in a joint session at the start of the

five-year legislative term. Like the investigative committee in Colombia, thus, neither the

president's supporters nor his opponents can influence who becomes the investigator after a

scandal erupts involving the president. Additionally, unless the president's party commands

majorities in both chambers, it is highly unlikely that the Prosecutor General would be a loyal

supporter of the president, for the appointment must be approved in a joint session of the

Congress. Furthermore, while the Colombian president could use his distributional power to

influence the investigators, the Venezuelan president had no leverage over the Prosecutor

General, whose office is guaranteed independence from the executive in both budgetary and

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personnel decisions. In sum. the investigator of the president in Venezuela was unlikely to be

his loyal supporter, and the president had no institutional means to influence his decisions.

As for the Supreme Court magistrates, they, too. were appointed by the Congress in a joint

session, for a fixed nine-year term. It was thus impossible for any president to count on a

majority in the Court that pledged loyalty to him. As I explain in section 2. the situation for

CAP was even less favorable, for the Court had just gone through a major change of

membership that brought relatively more politically independent justices into the bench. The

magistrate-presenter of the report on the merit of a trial was selected by the Chief Justice of the

Supreme Court. The Chief Justice, in turn, was selected by the Supreme Court magistrates

themselves. The only opportunity for strategic choice that could influence the impeachment

process was the selection of the magistrate-presenter by the Chief Justice. Here. too. the

president had no influence.

As for the power o f the investigator, the exclusive investigative authority o f the Prosecutor

General resembles that of the principal investigator in Colombia. The difference is that while

the other members o f the investigative committee in Colombia should have been entitled to

participation, in Venezuela it was illegal for any legislator or media personnel to have

information about the investigation, due to its judicial nature. In addition, the Prosecutor

General is simultaneously the principal investigator and the head of the institution, just as

Colombian committee chair was simultaneously the principal investigator. The Prosecutor

General could thus conduct investigation and filter the information as he saw fit to his interests,

leaving no room for evidence that contradicted his preferred outcome, just as the principal

investigator/committee chair in Colombia did.

The power of the magistrate-presenter is similar in that he alone prepares the assessment

report o f the accusation, and the full Court participates only in the decision to approve the

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presenter's report. His power is limited, however, in that the nomination to be the

magistrate-presenter is done by the Chief Justice. That is. the Chief Justice would choose a

presenter who would write the report that serves the Chief Justice's interests.

In terms of participation, since the Prosecutor General handles the investigation as the head

of the Public Ministry, and unilaterally chooses his assistants among employees of the Public

Ministry, participation of these assistants in the investigation is unlikely to lead to changing the

content o f the accusatory report away from the Prosecutor General’ s preferred outcome. In the

Supreme Court, magistrates can write dissenting opinions to be attached to the

magistrate-presenter's report, but they cannot make public comments prior to the presentation

of the report. Coupled with the use o f language inaccessible to most lay persons in the judicial

writing, the impact of dissenting opinion by a magistrate is bound to be limited, especially when

the dissent runs counter to the predominant public opinion.

In sum. the Venezuelan impeachment process is very similar in its majoritarian tendency

with Colombia's on all three characteristics that affect the degree of information control. Just as

in Colombia, the informational monopoly by one extreme of political interests led the

impeachment process to a problematic ending, as we have seen above,

c. The Credibility of Information

At the time when the allegations were made that President Perez had misused secret funds,

the media enjoyed the highest level o f confidence from the residents of Caracas, while political

parties were at the bottom of the list.88 Therefore, when the media reported that the president

had misused public money, no one. except for the president and his allies, questioned the

credibility of the information. Although no evidence accompanied the accusations in the media,

the Prosecutor General began his investigation based on one o f the journalists' accusations. The

88 Notisur. June 10. 1992.

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Supreme Court, in turn, recommended opening a trial against the president based on the

Prosecutor General's accusation that did not provide physical evidence of wrong-doing by the

president. The Senate, in its turn, voted to authorize the trial, based on the Supreme Court

ruling, which the Senators had only received on the day of the vote. In short, decisions were

made based on the assumption that the information the decision-making body received was

credible, without actually examining the credibility by evaluation of charges and evidence.

The assumption of the high credibility of information would be sound if the information

provider behaved as the efficient congressional committees would in Krehbiel's theory. An

independent, objective judiciary would certainly provide credible information, recommending

trial when the president is guilty and not recommending it when he is innocent. In the case

analyzed here, neither the Prosecutor General nor the Supreme Court magistrates were

independent from political pressures and ambitions, and so the credibility of information they

provided was much lower than the independent judiciary's. However, because the media had

provided the initial information, and the media was perceived to be more credible than any other

institution in Venezuela at the time, the Prosecutor General and the Supreme Court's decisions

that authenticated the incriminating information, despite lack of physical evidence, were

accepted as credible by the populace. Even if Senators were aware of the lack of evidence of

crime in the accusation, there was no benefit for any political party, even the president's, to

contest the credibility o f information provided by the media and authenticated by the Prosecutor

General (and the Supreme Court), all of which were perceived to be more credible than political

parties at the time. The only payoff any party could expect from questioning the credibility of

information provided to the Senate by the judiciary and the media was more criticism from the

media and even further alienation of voters from the party.

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2. The Formation of the Anti-Perez Majority

The previous section explains why. once an anti-president majority is formed in the

judiciary and the legislature, judiciary-dominant impeachment process is prone to type II error.

Conversely, without an anti-president majority, type II error is highly unlikely: one only needs

to remember that the request for trial, submitted by an opposition party, was simply left

unanswered by the Supreme Court in late 1992. despite the fact that the request was based on the

same information on which the Prosecutor General would later rely to form his accusation. In

this section. I w ill trace the formation of the anti-Perez majority in the three key institutions: the

Public Ministry (in the person of Prosecutor General), the Supreme Court, and the Congress.

a. The Prosecutor General

O f the two Prosecutor Generals that occupied the position during the prosecution and trial

of the former president, the influence of the first (who served between 1989 and 1994). Ramon

Escovar Salom. on the case is quite significant. Escovar Salom repeatedly made public

statements about how the Supreme Court should make its decision on the merit of a trial, as well

as other statements on his combat against corruption.*0 This zeal to prosecute the president may

at a first glance be somewhat surprising, given that the Prosecutor served as the Foreign

Minister during Perez' first administration. It is not so surprising, however, since in 1989

Escovar Salom was selected to be the Prosecutor General by the Congress, not the president.10

From the moment he was chosen to be the Prosecutor General. Escovar Salom proceeded

with great enthusiasm to prosecute the corrupt. In so Going, he spent no effort to spare the

OTThe Public Ministry’s Annual Reports since Escovar Salom took office stress the Ministry's activities
related to controlling corruption.

00 Coppedge's description of Escovar Salom as ‘‘nominally independent jurist, diplomat, and pundit"
(1994: 180) depicts the political savvy o f Escovar Salom. who was loosely identified with AD but was
named to be a cabinet minister during the second Caldera administration.

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government, as he harshly criticized widespread corruption in government. He was one of the

strongest voices pressuring the Court to recommend the trial of the president and urging it to

find the president guilty of corruption.

Although it is possible that the Prosecutor General was genuinely concerned with the high

level o f corruption in the public sector, his pursuit o f the case of the president is difficult to

conceive of as a genuine effort to curb corruption. Escovar Salom's choice of the day to present

his accusation, i.e.. to make it coincide with the president’ s annual address, was seen by his

critics as motivated by his presidential ambitions.'1 Even if this criticism is not true, what is true

is that his move to prosecute the president was rewarded by a high position in the cabinet in the

next administration: he was appointed to be the Minister of Interior by President Caldera.

While Escovar Salom successfully pushed through the accusation against CAP which led

to the Supreme Court's indictment in 1993. his successor. Ivan Dario Badell. was charged with

the difficult task of proving that the accusation was actually supported by enough evidence to

convict the ex-president. Prosecutor Badell's argument that the private benefits were "spiritual''

suggests the difficulty with which the Public Ministry sought to validate the accusation

presented by the preceding Prosecutor General.

An interesting fact about Prosecutor Badell is that, although he was selected to be

Prosecutor General by a Congress whose majority was composed of political forces that

strongly advocated CAP's ouster. Badell was also considered to be connected to a group of

jurists who were identified with AD. the party that CAP belonged to.1" It is possible that this

complex relationship between the Prosecutor General and the political parties and other jurists

91 The Economist March 20. 1993. p. 4S.

92 About the relationship between Badell and the so-called judicial tribe of ex-Senator from AD. David
Morales Bello, see Ojeda (1995). p.l 17.

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affected his investigative performance, keeping him from vigorously seeking more information

on the alleged secret bank accounts of the former president and at the same time maintaining the

accusation against him. However, his resort to the "spiritual benefits" argument indicates his

willingness to accuse the ex-president using every possible (although not necessarily

convincing) means. If the Public Ministry was successful in obtaining physical evidence of

embezzlement, therefore, the Prosecutor General would have used it to substantiate the

accusation of embezzlement.

In sum. both Prosecutor Generals were appointed by the Congress that had an anti-Perez

majority, and both performed their task of investigating and accusing CAP in accordance with

the interests of the legislative majority. In the case of Prosecutor General Escovar Salom.

fighting corruption was one of his personal goals as the Prosecutor General, as evidenced in the

annual reports of the Public Ministry. His antipathy towards the Perez administration was

demonstrated from the early days of his performance as the Prosecutor General in his repeated

criticisms of corruption in government, as well as in his choice of the day to present his

accusation against the president to the Supreme Court. Unlike congressional investigative

committees, where the accusatory report must be approved by a majority of committee

members, the Prosecutor General’ s report could be presented whenever he saw fit. The

one-man decision made it possible for the Prosecutor to present an accusatory report that lacked

physical evidence without any criticism or attempt to change its content,

b. Supreme Court Magistrates

When the Prosecutor General brought his accusation to the Supreme Court, the magistrates

were under pressure from many fronts. Public opinion had become critical of the Court. The

two failed coups heightened the political instability and the coup leaders publicly demanded the

trial o f the president. Some magistrates' career ambitions also came into play. Politicians and

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political appointees to judicial or semi-judicial offices openly demanded the Court to “ go along

with the popular demand.”

The first source o f pressure was public opinion that grew increasingly critical of the

judiciary. By the late 1970s the vast majority of magistrates were identified as either AD or

COPEI sympathizer, and seemed to prefer shielding politicians o f both parties from trials, as

Coppedge ( 1994a) argues.'” What Coppedge ( 1994a:47) calls "a climate of impunity" did not.

however, last forever. The Supreme Court came under heavy criticism for its ineffectiveness

and corruption about a year before the scandal involving CAP erupted. As a result, the

composition of the Court was significantly changed in 1992. and it is also likely that those who

did not resign felt strong pressure to respond to public opinion demanding punishment of

corrupt politicians.

Public discontent with the Supreme Court stemmed from the Court's inaction on the

request to open a trial against ex-president Jaime Lusinchi.’4 On February 24 of 1992. Arturo

Uslar Pietri. a celebrated political commentator, submitted a petition to the Supreme Court.

Signed by 5.000 citizens, the petition demanded that the entire court resign, for its failure to act

in response to government corruption. On February 26. one of the magistrates resigned in

protest against the court's preliminary decision to drop the corruption charges against

Lusinchi.’5 Five other magistrates subsequently resigned. The newly selected magistrates were

only "relatively" independent of the parties, since, according to a COPEI congressman, it is

difficult to be completely independent of parties in Venezuela. ’6 It does seem, however, that the

1,3 Coppedge ( 1994a). p.47.

94 The request was made in August 1991. but the court did not acknowledge it immediately.

"5 Notisur. March 11.1992.

96 Ellner. ibid.. p. 14. Notisur. March 11. 1992.

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newly appointed magistrates as a group were quite different from the old ones.97 Five of the six

new magistrates voted in favor of opening a trial against CAP.

The second source of pressure was the political instability at the time and threats of

violence. At the time when the accusation was formed by the Prosecutor General, the country

had experienced two coup attempts, and there was a rumor o f a third. The fear that there might

be another riot like the one in 1989 was prevailing. Opposition politicians as well as Chavez,

the coup leader, had called for the Court to decide to grant the trial of the president, arguing (or

threatening) that a decision to the contrary would lead to further social instability and damage

the Court’ s reputation as an independent body. Under this strong pressure, it is not hard to

imagine that some magistrates may have voted in favor of the trial to avoid another coup or a

riot that would result in many deaths.

The third factor is the judicial politics within the Supreme Court. When a magistrate made

a decision, the expected reaction from her fellow magistrates to her decision had. in Venezuela

in 1993. a significant weight. A ll the internal administrative decisions such as the selection o f

the president of the Court or the decision on the amount of pension for a retiring magistrate were

made inside the Court, by the magistrates themselves.98 The Chief Justice administered the

Court's finances, decided who would be assigned to which case as the presenter (ponente). and

managed the personnel o f the Court.99 Thus, contradicting the opinion of fellow magistrates.

97 According to ex-president CAP. he did not try to influence the choice of magistrates unlike in the past,
svhich might have contributed to the choice of magistrates not close to him. Interview with CAP.
December 20. 1999.

98 When a judge wished to retire earlier than the law dictated, whether to grant the retirement was also a
decision made within the Court.

99 The president of the Court was also authorized to take whatever case she deemed fit into her own hands,
assigning herself as the presenter of the case.

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and especially that o f the Chief Justice, could be costly, if a magistrate wanted to advance their

judicial career or to retire with a handsome pay.100

The then-Chief Justice of the Supreme Court. Gonzalo Rodriguez Corro. was known to be

a COPEI sympathizer, and a close friend of an ex-president of COPEI.101 He used all the

powers available to him as the Chief Justice: Corro made himself in charge o f the report on

whether to recommend the trial, and instructed the presentation of the arrest order. During the

same period, in a newspaper article he appears acknowledging his aspiration to become the next

Prosecutor General.102 He had retired by the time the final sentence was given, but remained

influential among jurists and magistrates.103 The new Chief Justice was reportedly under his

wing, and a COPEI sympathizer: the magistrate who wrote the arrest order, as well as the

magistrate who wrote the final sentence, were also reportedly in the group of judges close to

Rodriguez Corro.1IW Even after his retirement, he made comments in newspapers about how the

Court should decide on CAP’ s case.105

Fourth, politicians with high profile, as well as political appointees to judicial posts such as

Prosecutor General, exercised pressure by issuing public comments about the case. Perhaps the

100 The Chief Justice is not always the most powerful, however: since it takes a majority of the magistrates
to approve any decision, including the election of the Chief Justice and his or her terms for retirement,
even the Chief Justice might make decisions against their initial preferences. This idea emerged out of an
interview with Dr. Rogelio Perez Perdomo on February 5. 1997.

101 Ojeda (1995). p.96.

102 El Universal January 13. 1994.

103 Corro's retirement attracted media attention because of the significant sum of money he allocated to
his pension.

1,14 Ojeda (1995). p. 127. Even though his report seems exagerated at many points, it is true that powerful
ex-magistrates and magistrates have formed followings o f magistrates and lawyers. Interview with Dr.
Rev. November 15. 1999.

105 See. for example. E l N acion al June 1995. and D ia rio de Caracas June 1995. cited in Perez Perdomo
(1995). pp.22-23.

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most prominent example is ex-president Rafael Caldera. He was quick to call for CAP’s

resignation after the first coup attempt, and issued a comment praising the Supreme Court

magistrates for their indictment o f CAP. The Final verdict against CAP was delivered while

Caldera was president, and some argue that his Comments preceding the sentence made some

magistrates vote in favor of conviction.106 Another COPEI politician, who was later appointed

to be the Attorney General by Caldera. also wrote opinion pieces in newspapers in March 1993

arguing that the Supreme Court should recommend the trial at all costs, "even if it means

breaking the law."107 As noted earlier, the Prosecutor General Escovar Salom also made many

public comments urging the Court to indict the president.108

In sum. institutionally, the president had no power over the Supreme Court magistrates.

The Congress, on the other hand, had some effective tools to influence a Supreme Court

magistrate’s career, as did the fellow magistrates of the Supreme Court. Voting for trial could

be costly for the magistrates if the congressional majority and/or the majority of magistrates did

not want the impeachment o f the president. In the case at hand, however, the House of

Representatives and the Senate consisted o f a majority controlled by the opposition. The Chief

Justice o f the Supreme Court at the time o f indictment, as well as the Chief Justice at the time of

the arrest order, were said to be more sympathetic to the president's rival party than to his party.

Therefore, the pressure was not to save the president but to impeach and remove the president.

It is possible that some o f the magistrates did believe that the president had committed a

crime. However, given the problems with the accusation and the lack of evidence to support it.

106 Interview with Dr. Rogelio Perez Perdomo. February 5. 1997. and comments by CAP in various
newspaper articles on the day after the verdict.

10' Jesus Petit da Costa. “Lo que nunca habia ocurrido." El Universal March 27. 1993. Quoted in Rev
(1998). 132.

108 Apparently, he was highly regarded by the media, as his opinion about the case was sought by the
media even after he left the office o f Prosecutor General.

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the decisions by the majority of magistrates to accuse and condemn the president are best

explained as their responses to the strong pressure to do so.109 As Ellner (1993:16) says, the

statements made by diverse sectors, including the former Prosecutor General and the Chief

Justice, the military officers who took part in the coup attempts, and by powerful politicians,

"strengthen the view that the judges were swayed by political considerations."

c. Legislative Majority

In analyzing legislators’ decisions, it is useful to distinguish legislators from the

president's party and those from other parties. Given the strong party discipline, unlike in

Brazil and Colombia, legislators behaved as partisan units in Venezuela. Thus. I focus on how

the president's party and the opposition parties calculated their costs and benefits from

supporting (or opposing) impeachment. For opposition parties, it was in their best interest to

oust the president, for the following reasons. First of all. the president was very unpopular, and

thus they had no risk of electoral disapproval for removing him. Rather, the opposition parties

expected to be rewarded by voters for their decisions to impeach and remove the president.

Secondly, the opposition parties had nothing to lose from the fall of the president.

Although COPEI supported the Perez administration briefly after the February coup of 1992. by

sending two of its members to the cabinet in response to the president's request, by the end of

the year it no longer supported the administration.110 The economic crisis caused a huge drop in

the government's ability to pay for patronage and pork, and CAP’ s economic reforms had

largely eliminated what was still left of the government's leverage. While president Samper

loq Ellner (1993:16) says that one of the nine magistrates who voted for indictment admitted that “he and
his eight colleagues were responding not only to legal arguments against Perez but also to the general
chorus—70% of the population, according to surveys—favoring the president's exit from power."

110 According to Rev (1993: 100). the party ordered the two militants to resign because their cabinet
participation did not change CAP's policies at all.

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could try (and succeed) to buy the support of legislators, president Perez had left very little room

for himself to maneuver such bargaining with the legislature.

Third, at the time, the threat of another coup seemed highly credible. The leader of the

failed coup. Hugo Chavez, had issued threatening comments to the Supreme Court, exerting

pressure to indict the president. The fear of another coup is reflected in the speeches delivered

by Senators before the voting on impeachment. Faced with a possible coup that could do away

even with democratic rule itself, the Senators may well have been willing to overlook the flaw in

the accusation, that there was no physical evidence that the president benefited privately from

the secret funds. They may not have been even aware of the flaw, for it is doubtful that any

Senator had read through the Court documents before the impeachment vote. In short, the

congressional majority was interested in removing the president as soon as possible, not in

judging the validity of the indictment or the constitutionality of declaring the absolute vacancy

of the presidency.

The president's party may not always support the president, if deep internal division exists

within the party, or where backing the president may be too costly to the party. The costs are

most likely electoral (i.e.. loss of seats in legislative bodies or o f executive positions at the

subnational levels), but it is possible that the antagonism against the president becomes so

extreme that the party's unity may be threatened. We have seen that AD has indeed suffered

from sharp internal divisions that resulted in departure of a large number of party members.

Already before the “ 250 million bolivars" scandal erupted. CAP and the former president

Lusinchi competed with each other. Some argue that information on CAP's corruption was

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provided by the Lusinchi faction, in retaliation to CAP’ s confidants' leaking o f Lusinchi's

corruption in 1989.111

CAP was unpopular even among his own party members for two reasons. One is that his

neoliberal economic policy was contrary to the party's conventional policy preference. To

make matters worse. CAP did not consult with the party leaders in planning his economic policy

prior to his inauguration. 112 Not only ideologically inconsistent with the party, the

implementation of neoliberalism was very unpopular among the populace, pushing the

president's approval rate down to the 10 °!c level. The Caracazo damaged not only the

president's image but also the party's. AD suffered electoral losses in regional elections as

CAP’s popularity began to decline. Secondly. CAP was not on good terms with the party

hierarchy from the beginning of his second term. He criticized Lusinchi government for

economic failure and corruption. Lusinchi and other party leaders preferred another adeco as

the presidential candidate, but CAP defeated him in the party's internal primary. CAP also did

not try hard to secure support for his administration from AD politicians through cabinet

appointments. Less than half the cabinet members were considered political appointees, and for

a large majority this was the first time they served in government." ' Some of his advisors were

even considered anti-AD.114 Thus AD's leaders were not particularly enthusiastic in supporting

the unpopular president.115

111 Alexis Rosas. "Las Vueitas de un mundo de 250 millones." Zetu no.947. p.22. Cited in Steve Ellner.
“A Tolerance Worn Thin" NA CLA Report on the Americas March/April 1994. p. 15.

112 Interview with Dr. Juan Carlos Rev. November 15. 1999.

Naim (1993). pp.47-48. Amorim Neto (1998). p. 141.

114 Interview with Dr. Juan Carlos Rey. November 15. 1999.

115 Nevertheless, the party never failed to support legislative programs the president proposed.

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As the accusation of corruption was made by the Prosecutor General and the possibility of

impeachment trial began to loom large, the question over supporting the president started to

produce a sharp division within the party. Just before the Supreme Court declared that there was

enough evidence to merit a trial o f the president, the party's Secretary General (who had the

support of the overwhelming majority of AD's national directory council) sought to restore

discipline in the party by forcing Humberto Celli. the president of the party, to resign, after Celli

publicly recommended that CAP resign if the Court found enough merit for his trial. Celli.

however, went on making public comments criticizing the president for corruption and for

inviting a crisis with his economic programs.11(1 The internal division was present also when

the Congress decided to declare the absolute absence of the president on August 31. 1993.

Three o f AD's leaders were conspicuously absent from the floor, thus indirectly dissenting from

the party's statement which opposed the declaration of absolute absence.11

The removal of the president put a hold on further division within AD over whether it

should support CAP or not. When his house arrest ended, some AD members congratulated him

with cheers, while others remained silent. It was clear that the return o f CAP to the party would

rekindle the tension between the supporters and critics o f the ex president within the party. The

party had experienced similarly bitter and detrimental divisions in the past, as reviewed above.

It was perhaps the fear of yet another division that motivated the party leaders to permanently

expel CAP from the party and to punish the party members who expressed their support for

CAP.

116 El Universal. May 18 and May 20. 1993.

11' These three were Carlos Canache Mata. Oscar Celli Gerbasi and Humberto Celli Gerbasi. Gaceta del
Congreso p.488. August 31. 1993.

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Would a united AD have been able to shield the president from impeachment? As we

already saw, given that it only takes an absolute majority of the Senate to impeach, and that the

AD did not have a majority, the party would not have been able to block impeachment. Even if

the AD held a majority in the Senate, it is doubtful that the party would have chosen to block the

impeachment process. The hatred against the president was so intense and widespread at the

time that it is believed that there would have been another (and likely to be successful) coup if

the AD had managed to spare the president.118

Under the disturbingly credible threat to democracy, the AD opted to support the Supreme

Court's indictment instead o f criticizing it. In a way. the Supreme Court's decision provided a

convenient justification for the party in deciding to go along with the majority to impeach the

president. Whether the party leaders foresaw the permanent removal of the president at the time

of impeachment is not clear. The official statement of the party was against the permanent

removal, but there were strong voices within the party that favored the president's departure.

The party might have managed to discipline its members, but it would have been a futile effort.

Given the simple majority rule, there was nothing the party could do to stop the removal.

3. Majoritarian Impeachment Processes and Information Control

As we look back on the development of this case, its similarity with the Colombian case in

the majoritarian tendencies is striking. The difference is that while in Colombia the president's

allies (and especially the committee chair) were able to control both the inflow and outflow of

information, in Venezuela the sympathizers of the opposition party COPEI (such as the

Prosecutor General and the Supreme Court Chief Justice) controlled information flow. A

minority president in a judiciary-dominant majoritarian system is even worse o ff than a

118 Interview with Dr. Juan Carlos Rev. November 15. 1999.

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minority president in a legislature-dominant majoritarian system for one important reason.

While in legislature-dominant systems an accused president can take his complaints about the

process to judicial authorities, in a judiciary-dominant system an accused president has nowhere

to turn to when he has complaints about the process, for it is the judiciary itself that handles the

investigation. Once it makes the decision that the trial should proceed, it is highly unlikely that

the Supreme Court reverses its course. This disadvantage was clearly demonstrated in the case

of President Perez: even though no physical proof existed, the Court accepted the charge of

embezzlement, issued an arrest order based on the charge, and recognized the charge's

invalidity only in the final sentence.

In terms of informational control, majoritarianism can lead to monopoly of information

either by the president's supporters (Colombia), or by his opponents (Venezuela). In Colombia

the investigative committee chair aimed at sheltering the president from impeachment. To this

end. the committee chair practically nominated himself as the principal investigator, with

monopoly over informational flow into and out of the committee. He dismissed some highly

credible testimonies suggesting the president's guilt as not credible, and conducted a scripted

inquiry with the president. Except for occasional complaints that the committee chair was

exclusionary in the investigation, opposition members of the committee could provide no

information to the media about the investigation.

In contrast, in Venezuela the investigator, that is. the Prosecutor General, aimed at

prosecuting the president, and the Supreme Court magistrates were pressured to vote in favor of

opening a trial. The Chief Justice, with closer ties to the opposition party than the president's,

named himself to be the presenter of the case and recommended a trial, despite weak evidence

o f a crime that was solely based on testimony by a known critic o f the president. The Court

would only acknowledge the flaws in the accusation in the final sentence, long after the

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presidential term for President Perez was over. If a serious study was conducted when the

accusation was presented, it would have been clear that the accusation lacked substantiating

evidence o f a crime committed by the president. Just as Colombia’ s committee chair controlled

information flow so as to prevent incriminating information from surfacing and being

disseminated. Venezuelan judiciary controlled information flow so as to prevent information

that might question the validity of the criminal charges from reaching legislators and the public.

D. Conclusion: the Case of CAP and Corruption in Venezuela

CAP’ s critics often accused him of being "corrupt" in the sense that he formed ties with

actors in the private sector, receiving money or other material favors from them in exchange for

the political influence he exercised, such as granting o f government contracts. However, he was

not punished for any proven corrupt act but for a poorly proven charge of mismanagement of the

secret fund. By confusing the political justice that the voters may exercise with their ballot with

the judicial justice that is administered by the judicial system, the impeachment process and its

outcome had negative impact on Venezuela in two ways.

First, the impeachment process reduced the credibility of the Supreme Court in the long

run. True, the Court's popularity increased when it decided that a trial should be merited,

despite lack of evidence. The public opinion at that time was that the Court (after many years of

inaction) proved to be an institution that punished corruption by politicians. However, as the

public’s enthusiasm about the case declined, and as lawyers and scholars expressed their doubts

about the trial, the public perception of the case and of the ex-president changed. In March

1993. the anti-Perez sentiment was so strong that, according to an American reporter, he was

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being blamed for “ everything from traffic jams to endemic corruption.’’119 By 1996. the opinion

changed so much that a Venezuelan columnist predicted demonstrations of "popular joy” had

CAP been absolved.120 That the ex-president was the only highly visible politician who had

been convicted of alleged corruption, although many had been accused, made the conviction

appear all the more politically motivated. Many were troubled by the fact that the ex-president

was being punished for sending troops to protect a newly, democratically elected president of

Nicaragua.121 In sum. the removal o f the president, while successful in averting another coup or

riot, did not contribute to solving the country’s real problems of corruption and disillusionment

with politicians, political parties, and the judiciary.

Secondly, the way the case evolved was detrimental to the credibility of the fight against

corruption in Venezuela. The case would have been a good example o f correction of type 1error

if. especially after rigorous investigation, the accusers provided evidence of corruption. This

was the way the investigation by the congressional committee in Brazil evolved, and the

investigation by the Prosecutor General's office in Colombia evolved. Instead, in Venezuela’ s

case, it became increasingly clear that the charges, especially that of embezzlement, were not

substantiated with physical evidence. Coupled with the fact that no other high-level politician

has been punished for corruption despite many charges leveled against them, the case of CAP

demonstrated that the fight against corruption was more likely to be used for rhetoric than as a

serious measure to right the country's course.

119 Andres Oppenheimer. “Venezuela chief drawing wrath of countrymen" Miami Herald March 22.
1993.

120 Corradi (1996). op.cit.. p.238.

121 Even a journalist who had been very critical of CAP voiced his doubts about the merit of the case, and
a list of citizens petitioning the Court not to convict CAP for helping Nicaragua appeared in newspapers.
See Martin (1996). p. 114 and p.185.

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Should the impeachment process have been blocked? Given the high instability at the

time, it is difficult to argue that it should have been. What is clear, however, is that the

conclusion o f this impeachment process did not improve the country's situation in terms of

controlling corruption. More importantly, this case clearly demonstrates the type II danger,

especially for minority presidents, in a majoritarian impeachment process. Majoritarianism

may not be a problem if judgment o f guilt were made by an independent judiciary. The

impeachment and removal of President Perez demonstrates that in the absence o f an

independent judiciary, the judiciary-dominant impeachment process can be equally, if not more,

problematic than legislature-dominant majoritarian process.

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V I. CONCLUSION: IN FO R M A TIO N CONTROL AND IM PEAC HM EN T

A. Assessment of the Informational Theory of Impeachment

In the previous three chapters. I explained the outcome of the impeachment process based

on the informational theory. The informational theory predicts that the more credible the

information incriminating the president, the more likely he is to be impeached, other things

being equal. The theory’ s assumption is that the credibility and availability of incriminating

information depends on the degree and the nature o f information control in the investigative

body. That is. how much control is exercised, and who controls information, determine what

information is transmitted to the legislators and the voters, and whether or not they believe it.

The degree and the nature of information control vary depending principally on the

structure of the investigative body. By structure. I mean the composition o f the investigative

body (which is determined by the selection rules and the party system under which the selection

rules are applied), the power balance between the head of the body and the principal

investigator, the concentration (or diffusion) of investigative authority, and the decision-making

mechanism within the investigative body. Investigative bodies have varying degrees of

majoritarianism. An investigative body is majoritarian if the investigative powers are

concentrated in a single individual, i.e.. the principal investigator, especially if he is selected by

a single-party majority, and if the head o f the investigative body can make decisions without

consulting the other members of the body.

While majoritarianism measures the degree o f information control, whether this majority

consists o f the president’ s supporters or of opponents determines the nature of information

control. When the president's supporters are in control, incriminating information is likely to be

filtered out o f the official channel o f information even when it contains physical evidence of

236

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crime. When the president's opponents are in control, information that suggests the president's

innocence is likely to be filtered out. while incriminating information of doubtful validity is

incorporated, or authenticated, to be a part of the official investigative report.

Using the above definition of committee structure. I identified Brazil’ s investigative

committee as non-majoritarian. and Colombia's investigative committee as majoritarian. The

nature, or direction, of informational control depends on whether the president comes from the

majority party. In the case analyzed in Chapter Four, the president was from the majority party,

and thus the information control was toward filtering out incriminating information. In

Venezuela. I identified the Prosecutor General's Office (the Public Ministry) as extremely

majoritarian. for the Prosecutor General is in exclusive control of the investigation. The

Supreme Court, which is supposed to filter out frivolous charges, is also highly majoritarian.

The case studies confirm the predictions made about the outcome of the impeachment

process based on the informational theory. In Brazil, where information is not tightly controlled

by either the president's allies or opponents, the president’s opponents were able to gather

enough incriminating information to substantiate their demand for impeachment. Because

every member in the investigative committee had the right to participate in investigation, that is.

because the president’ s allies also had opportunities to provide information (but were

unsuccessful in counter-proving the president's innocence), the committee's report was

regarded as highly credible. I have detailed how support for impeachment began to grow, both

in public opinion and among legislators, only after the committee provided evidence that

suggested that the president had benefited from his friend's extortion schemes.

In Colombia, the investigative committee was headed by a supporter of the president, who

also became the principal investigator. Given the majoritarian committee structure, it was

predictable that the committee’s report would recommend closing the case. The Prosecutor

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General's presentation of the accusation, with substantiating evidence, could have increased the

level o f credible information available to the legislators and the voters, were it not for the strict

control of information by the committee chair/principal investigator. Even though the majority

o f Colombians believed the president was guilty, and did not give any credibility to the

committee's report, the majority in the House of Representatives, ostensibly trusting the

report's credibility, voted to close the case against the president.

In Venezuela, the Prosecutor General, a known critic of the government and the president

in particular at the time, accused the president based on very weak indication of wrongdoing.

The only evidence of possible wrongdoing was that a portion of the secret defense funds was

handled by a ministry that had no legal authority to handle it. Although there was no evidence

that substantiated the charge that the president embezzled the secret defense funds, the

Prosecutor General accused the president of misuse and embezzlement. Nevertheless, the

Supreme Court decided to recommend a trial for both charges. The Senate duly authorized the

trial, ostensibly trusting the Supreme Court magistrates' judgment.

Figures 6.1 through 6.3 show how the information control, or lack of it. affected the

decisions made by the legislators. Figure 6.1 depicts the Brazilian House of Deputies at the

time of the impeachment process. Because only the small leftist parties are disciplined, the line

is flat only at the left end. reflecting the vote share of these parties at the time (10.8%).

Legislators who do not belong to the leftist parties are positioned on the slope.1 In the case

analyzed in Chapter Three, the initial level of incriminating information, i. was obviously too

low to form a majority in favor o f impeachment. The president's brother's accusations were

grave, but he did not provide physical evidence of wrongdoing. As more information became

1This is an admittedly extreme simplification, but creating small flat planes on the line would not affect
the explanatory power of the informational theory.

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available through the committee, however, more legislators began to support impeachment. If

the level of information the committee provided reached j. impeachment would pass.

The president tried to bargain with the undecided legislators. The dotted arrow pointing up

to V ’ depicts the president's bargaining with the legislator V. V would be voting for

impeachment if information at the level j was available, without the president's influence. The

president would try to change V ’ s vote by offering public funds and government positions. V

might still vote for impeachment if overwhelming information proved the president's guilt, but

the president's influence could push up the level o f information V would require to vote in favor

of impeachment, to the level k.' The CPI of PC Farias was gradually succeeding in convincing

legislators that impeachment was necessary.

In the case of President Collor. this bargaining was largely unsuccessful because legislators

feared negative reaction from voters.3 The legislators' constituents exercised pressure to

impeach the president, and some legislators who would not have voted for impeachment

without this pressure voted for it. We can see how the constituent pressure might work on

legislator N. N. a supporter of the president, would not be voting for impeachment unless the

level o f available, credible information of crime exceeds the level k, if his constituents were

indifferent about the impeachment of the president. In the case of the CPI of PC Farias,

however, the constituents did not stay indifferent. The investigative committee skillfully

transmitted incriminating information to the general public using mass media. Many voters

grew angry at the president, and demanded that their legislator vote for impeachment. This

2 The distance between j and k depends on the president's bargaining resources. In the figure it is
arbitrary, since I am not comparing different presidents' bargaining resources.

' Recall that the municipal elections were fast approaching, and that the Supreme Court upheld the House
Speaker's decision to take roll-call instead of secret voting.

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pressure lowered N’ s requirement for incriminating information from level k to level j. This is

why the impeachment was approved by such a wide margin in Brazil.

The Colombian House of Representatives is represented in Figure 6.2. Like most political

parties in Brazil. Colombia’s two largest parties, which together held over 90% of the seats (139

out of 154) at the time o f voting on impeachment, lack discipline.4 The remaining fifteen seats

were held by a total of eleven parties and an independent. Even if they were all disciplined, the

small parties constitute such a small share o f the votes with such a wide range o f labels that the

figure does not pick up the possible effect of discipline on the legislators from small parties.

Thus, the entire figure is a curve, depicting the lack of the effect of party discipline. As I pointed

out in Chapter Four, a large majority of the legislators from the Liberal Party had publicly stated

their support for the president prior to the vote. This is not surprising, given that a large majority

of legislators from the president’ s party had received campaign funds from the president's

campaign. Even some legislators from the Conservative Party, whose leaders had announced

the party’ s position in favor of impeachment, expressed their support for the president while the

investigation was going on.

The high level of support for the president is expressed as a high level of information

required for impeachment in Figure 6.2. Legislator M. who casts the pivotal vote (without

which impeachment does not pass), requires a very high level of information, k, in order for him

to decide to vote for impeachment. At the start of the scandal, the available information, i.

lacked credibility because it was presented by the losing presidential candidate, and the

audiotapes did not reveal whether Samper had known about the campaign donation. The

confession by Botero and Izquierdo increased the credibility of the charge that the president

4 Some legislators were under arrest, or were disqualified to vote, so the total of legislators with votes was
154. The small parties and independents held only 15 of the votes.

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knowingly received a drug cartel’ s donation. The Prosecutor General's presentation of

accusation was the high point in the impeachment process in terms of the credibility of

incriminating information, depicted at k. Unfortunately, the information was not accessible to

the public until the congressional committee (CoLA) presented its report.

Instead of following up on the evidence provided by the Prosecutor General and

transmitting it to the legislators and the voters, the CoIA sought to discredit the incriminating

evidence and testimonies. The committee report was prepared almost exclusively by the

principal investigator, who had received Samper's campaign funds. Not surprisingly, the report

filtered out the incriminating information as lacking credibility, and concluded that the

president was innocent. An opposition member of the committee prepared an alternative report,

however, and presented it on the floor. Some legislators studied the principal investigator's

report and attached documents carefully and concluded that the president was guilty. Thus,

although the principal investigator's report tried to discredit the accusations, his attempt only

managed to reduce the credibility of incriminating information from k to j.

Unlike Brazil, where the investigative committee's transmission of information through

the media prompted demonstrations in favor o f impeachment, in Colombia the committee did

not disclose any information until the final report. Constituent pressure for impeachment,

therefore, was never as strong as it was in Brazil. Given the lowered level o f information (at j)

and lack of constituent pressure, impeachment was bound to fail.

In Venezuela, the informational control worked in the opposite direction. Venezuela's

Senate, which voted on authorization of the trial against CAP. consisted of two large parties.

AD and COPEI. which together held over 90% of seats, and smaller parties on the left. The

president’ s party had 22 seats out of 46. two seats short o f a majority. The Venezuelan parties.

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unlike in the other two countries, were strongly disciplined. Therefore, in Figure 6.3, the

legislators are lined up accordingly, on flat lines at different values on the y axis.

For the legislators of the leftist parties, who had been demanding the president's

resignation, information at the / level, i.e.. the journalists' allegations that the president had

taken the secret funds into his pockets, were enough to vote for impeachment. Given the high

trust the media enjoys, especially in comparison with politicians, it was understandable that no

legislator publicly questioned the allegations for their lack o f substantial evidence.

The Prosecutor General's accusation further authenticated the allegations, despite the lack

of evidence. The Prosecutor General was a harsh critic of the Perez administration, and the

investigation was carried out under his direct control. Given the majoritarian nature of the

investigation and the anti-president tendency of the investigator (i.e.. the Prosecutor General),

information was bound to be controlled to facilitate impeachment. Indeed, the accusation of

embezzlement was based solely on the speculative and opinionated "testimony'' by one

journalist. Since the content of the accusation was kept under secrecy, the flaws of the

accusation could not be pointed out by the president's supporters to strengthen their argument

that the president was innocent.

The Senators awaited the Supreme Court's ruling on whether there were sufficient grounds

for a trial, for without this ruling the Senate could not vote to authorize the trial, by which the

president would be impeached and temporarily removed. Both the president and his party seem

to have believed that the Court would rule against opening the trial. This was a logical

expectation, for there was no physical evidence of wrongdoing by the president. However, to

their surprise, the Supreme Court magistrates voted in favor of a trial on charges of

mismanagement and embezzlement of the secret funds. Neither the president nor the party

could backtrack on their earlier promise to respect the Supreme Court's ruling. In a way. then.

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the Supreme Court's ruling artificially raised the credibility o f information to level k, where

even the president’s party would vote for impeachment.

The Court’ s final judgment on the president’ s guilt was that he was not guilty of

embezzlement, although the Court convicted him o f mismanagement, for apparently the secret

funds were handled by a ministry that should not. The sentence reveals that the credibility o f the

accusation was indeed inflated by the Supreme Court’s ruling at the time of the vote on

impeachment. Nothing changed between the time of the accusation and the time of sentence in

terms o f the lack of evidence of embezzlement. If the Court had dropped the charge of

embezzlement in its decision to merit a trial, the president may not have been impeached, for it

is doubtful that the mismanagement, as described above, would have been accepted as grave

enough a charge to initiate a trial of a president while he is in office.

The above analysis shows how information control affected the impeachment process in

the three countries. As I acknowledge in each case study, informational control is not the only

determinant o f the impeachment processes. Nevertheless, the informational theory enables us

to explain the variation in the outcome o f the three very different impeachment processes in a

systematic way. Its predictions were confirmed in all of the three cases. Three is admittedly a

small number o f cases, however, to claim generalizability of the theory. In the next section. I

w ill demonstrate that other cases of impeachment (or lack of it. as was the case in Colombia)

may also be explained using the informational theory.

B. The Applicability of the Informational Theory to Other Cases

Since the early 1990s. many more presidents have been impeached and/or removed than all

the cases put together before the 1990s. Many o f the removals were based on charges of

corruption. Table 6.1 lists some o f the cases o f impeachment processes according to the type of

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impeachment process (judiciary-dominant, judiciary-participant. and legislature-dominant), the

informational variable (majoritarian versus non-majoritarian investigative body), whether

super-majority was required for impeachment, whether the legislative majority supported the

president at the time, and the outcome of the impeachment process.

The table illustrates that the legislative majority's support at the beginning of the

impeachment process does not guarantee that the president would be saved from impeachment

and removal. President Nixon resigned as the House was preparing to impeach him after the

congressional investigation convinced even his fellow Republicans that the president had

committed serious crimes.5 Similarly. Brazil’ s President Collor was impeached after the

congressional investigation provided substantiating evidence of wrongdoing. The Philippines'

President Estrada was removed, albeit extraconstitutionally. after the Senate's investigation

began to produce credible information about the president's corrupt practices.

These three cases share the non-majoritarian characteristics in their respective

investigative bodies. In none of the three cases was a single individual in charge of the

investigation. In the Philippines, an attempt to control the informational flow into the

investigative committee backfired. The extraconstitutional removal was prompted by the

decision in the Senate not to summon witnesses that were considered crucial in establishing the

president's guilt (or innocence). Angered by this decision, people took to the streets, in a

resemblance of the ouster of the dictator Marcos.

Needless to say. the non-majoritarian investigative bodies do not always lead to

impeachment. Impeachment does not happen if the investigative body cannot find enough

information, either because the charges were actually baseless, or either because the committee

5 The committee was set up in the Senate. I place this case as non-majoritarian because o f the committee
had a minority counsel, in addition to the counsel appointed by the majority (i.e.. Democrats), to assist the
Senators with legal expertise.

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fails to coordinate its members and dedicate energy to the investigation. Brazil's investigative

committee (CPI) that investigated President Samey's administration illustrates this point. The

committee's report did produce the level of credible information about the president's

wrongdoing to generate support for impeachment. There was only one opposition Senator's

request for impeachment. The Speaker of the House decided not to put this request on the

legislative agenda, but there was no public outrage over the decision. In contrast, after the CPI

of PC Farias finished its report, it was taken for granted that the Speaker would put the request

for impeachment on the agenda. Dismissing the request was simply unthinkable after the clear

sign o f public support for impeachment.

When the investigative body is majoritarian. the outcome o f the impeachment process is

more predictable. The president is unlikely to be impeached under unified government, while

he is likely to be impeached under divided government. The cases of Colombia in 1996 and the

United States in 1999 illustrates this point. Neither are famed for disciplined parties, but their

majoritarian investigative bodies produced the reports that the legislative majority desired. The

report provided a basis on which the legislators would make their judgment about the president.

Although the credibility of the report was not high in terms of its impartiality (because of

majoritarianism). it was a credible source of information for the legislative majority. Naturally,

the legislative majority supported the findings of the report, leading to impeachment in the US

and acquittal in Colombia. The Colombian legislature went even further to assure that the

legislative majority's victory would have an ever-lasting effect, by prohibiting any future

investigation on the same charges against the president.

The predictability of outcome is lower in a judiciary-dominant process, because the

judiciary can block an impeachment process before impeachment can be voted in the

legislature. The Venezuelan case in 1979-1980 is not exactly an impeachment case, since the

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246

accusations against Carlos Andres Perez were made after he left office. However, if convicted,

he would have been banned from running for presidential office in the future. The charges had

to do with actions he took as the country’ s president, about the purchase of an overpriced ship

with refrigerated interior. The president allegedly purchased the ship without necessary

consultation, and received a kickback from the ship's owner. The president's party. AD.

conducted its own investigation and concluded that the president was morally and

administratively responsible for the problematic purchase. The Congress also conducted

investigation. Upon recommendation by a special committee in the House, the House voted on

whether the ex-president should be condemned for the corrupt purchase.6

Although the ex-president's opponents held the majority in the House, the vote was tied

and the ex-president suffered no legal consequences. The vote failed because some legislators,

including Rafael Caldera. were absent, and others, including Jose Vicente Rangel, abstained.

The House was scheduled to have another vote, but the judiciary intervened. The Prosecutor

General's office issued its ruling that the ex-president was innocent, preventing the House from

further action against CAP.

This case is an interesting, almost ironic, contrast to the impeachment case in 1993. They

both illustrate the problem of involvement o f the politicized judiciary in impeachment and other

types o f removal process. By getting itself involved in a political conflict between the executive

(or former executive) and the legislature, the judiciary is inevitably politicized. If it is already

politicized before the executive-legislative conflict begins, its involvement strengthens the

majoritarian tendency in the impeachment process, as I explained in Chapter Five. I w ill return

to the problem o f judicial involvement in the next section.

6 For more detail of this case, see Capriles (1989). pp. 263-85.

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The impeachment processes initiated against the presidents in Madagascar and Russia

resemble that initiated against President Andrew Johnson in the United States, the first case of

the impeachment of a president.' In all three cases, the legislative majority moved toward

impeachment o f the president after he had dismissed a high-ranking government official (the

Prime Minister in the two recent cases, and the Secretary o f War in the Johnson case). The

motion for impeachment was based on the removal of these officials, over objection of the

legislative majority. In other words, the information on which the legislators would make their

decision on impeachment required no further clarification. The fact was there, in front of

everyone's eyes. No investigation was necessary. The work o f the investigative bodies (located

within the legislature in all the cases) focused instead on explaining why the dismissal

constituted a serious crime that merited impeachment and removal.

The outcome of these three cases depended more on the partisan composition of the

legislature and the impeachment threshold than the informational control. The attempt to

impeach Johnson succeeded, given that it required only a simple majority, and the president's

party was in minority. He was not removed, however, because enough Senators from the

president's rival party voted against it to reject his removal. In Madagascar, the president was

not as fortunate. The motion to impeach passed, despite the requirement of a two-thirds

majority, and the Supreme Court upheld the legislative decision. In Russia, the communist

majority in the lower chamber was large enough to pass the motion to request impeachment

(245 seats out o f 450 were in communists' hands), but not enough to actually impeach the

president. The communists, with some others, were only 17 votes short of two-third majority

requirement on one of the articles of impeachment.

7 The Johnson case has been studied extensively by legal scholars. See. for example. Trefoursse 11975).
Gerhardt( 1996). and Berger (1973).

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The above analysis, albeit cursory, lends support to my argument that informational theory

can explain the difference in the outcome of impeachment processes. It also identifies under

what conditions the informational theory cannot explain the outcome of impeachment

processes. These conditions have to do with whether the information about the president’s

wrongdoing is already available to all the legislators prior to the impeachment process. For

cases where there is a lack o f information at the beginning of the impeachment process,

however, the informational theory offers a consistent explanation based on the nature of the

investigative body.

C. Institutional Engineering for Reducing Informational Monopoly

As I argued in Chapter Two. the informational theory can offer some guidelines for making

the impeachment process more credible and effective. Drawing on the lessons learned from the

case studies. I offer some suggestions for institutional engineering.

• Decrease majoritarianism.

The clearest message from the case studies is that information produced by a majoritarian

investigative body tends to be problematic. When the accused president has the majority's

support, the probability of type I error is high. When he does not. the probability of type II error

is high. The more decentralized, or non-majoritarian. investigative bodies have their own

problems, primarily in coordination among participants in the investigation. Compared to the

problems of biased information in the majoritarian investigation, however, the coordination

problems are insignificant. Furthermore, the coordination problems are less likely to be present

when the investigation involves an important politician. By contrast, the type I and type II

problems in the majoritarian investigation are likely to be the most severe when the

investigation involves an important politician.

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The first recommendation for institutional engineering, therefore, is to reduce the

majoritarian tendencies in the investigative bodies. One way to reduce the majoritarianism is

the decentralization of the investigative authority. This is easier in a legislature-dominant

system than in a judiciary-dominant system, because of the hierarchical structure in the latter.

That is. when the Prosecutor's Office conducts an investigation, the Prosecutor General is the

ultimate decision-maker. He assigns assistants to specific works, and he alone can choose

which of the evidence they collect should be incorporated into his report. When a legislator or a

group of legislators jointly investigate, individual legislators with differing political motivations

engage in investigation. Although the principal investigator writes the report, the report can be

voted down by the majority o f the committee members.

The second way to reduce majoritarianism is to require an extraordinary majority or

unanimity in decision-making. The argument for it is that it can prevent poorly prepared or

politically motivated reports from being approved. A credible investigative report would have

no difficulty in getting the approval from the full, or close to full, committee. The argument

against requiring a larger majority for decision-making is that it may turn into a tyranny by the

minority. If. for example, the unanimity rule was employed, it only takes one staunch supporter

o f the president to prevent the impeachment process from moving forward.

An alternative to changing the decision-making rules is to change the selection rules.

That is. to change the rules so that the supporters and the opponents of the accused have the

same number of participants in the investigative body. The drawback of this change is the

possibility of deadlock. However, if the accused is indeed guilty of high crimes, and if the

investigative body succeeds in obtaining credible evidence, one o f the supporters of the accused

might change sides. Another problem with this arrangement arises when the investigative body

is in the legislature, if the investigative committee's composition does not reflect that of the

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250

legislature. Which is more important, to respect the composition of the legislature (which

reflects the electoral preferences of the voters), or to seek impartiality of the committee? The

answer to this question would depend on what the legislative majority seeks. In fact, none o f the

reform options discussed above can become reality without the support of the legislative

majority. How to build a majority in support o f reforming the impeachment process is

discussed in the last section o f this chapter.

• Reduce direct judicial involvement.

The second lesson from the case studies is that the judiciary-dominant process is not

necessarily better at producing an impartial investigative report. As I discussed extensively in

Chapter Five, the judiciary-dominant process is likely to produce credible information only if

the judiciary is independent of politics and politicians. Without the independence, it could be

the worst process of all. The investigation conducted by the judiciary has the highest level of

control of information. Information is kept confidential because it is illegal to disclose

information on an on-going judicial case, and the chief investigator, usually the Prosecutor

General, directs the investigation as he sees fit.

The attraction of the participation of the judiciary is that the investigation is kept away

from politicians. An alternative to judicial investigation in this respect is to establish an agency

exclusively dedicated to investigating corruption by politicians. To assure the independence of

the agency, rules on its budget, personnel, and prohibition of participation in political activities

might be necessary.8

One serious problem with the judiciary-dominant and judiciary-participant impeachment

processes is the dual role of the judiciary in the executive-legislative conflict that arises during

and after the impeachment process. While the judiciary in the legislature-dominant

8 Thailand already has such an agency.

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impeachment process can perform the task of conflict-resolution between the other two

branches without its having an impact on the judiciary itself, in a judiciary-dominant process,

the Supreme Court is faced with the difficult task of taking a part in the impeachment process

and at the same time make judgment on the constitutionality of decisions made during this

process. If there was a Constitutional Court, completely separated from the Supreme Court, that

made judgments on constitutionality, the problem would not be as severe. Absent the

Constitutional Court, the role of the Supreme Court both as the judge of the president and the

judge o f the judgment process against the president is likely to be problematic.

The problem with the dual roles of the Supreme Court was demonstrated in the

impeachment process against President Perez in Venezuela. The Congress declared the

absolute vacancy o f the presidency, after 90 days had passed since his trial begun.'1 Just as

President Collor took his case to the Brazilian Supreme Court. President Perez appealed to the

Venezuelan Supreme Court immediately after the declaration of absolute vacancy. While

Brazilian Supreme Court duly announced its judgment on the impeachment process, the

Venezuelan Supreme Court failed even to decide whether to acknowledge the appeal.

In recent years, similar cases of transition o f presidency by Congressional declaration have

taken place in other countries, including Ecuador, the Philippines, and Indonesia. In all three of

these cases, the Supreme Court became involved by issuing statements as to the

constitutionality o f the transition. One may be wary of politicization of the judiciary, but when

questions of constitutionality are raised, the Supreme Court cannot help but make decisions. As

it often happens when constitutionality o f a law is challenged, the Court could reject to hear a

case on the grounds o f the political nature of the question. It could, alternatively, rule on the

9 As pointed out in Chapter Five, the 1961 Constitution limited the temporary absence of the president to
be up to 90 days.

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constitutionality, as the Supreme Court in the above three countries did. Either way. the

important thing is that the Court responds, for it is the only institution to which the question of

constitutionality can be brought up. By avoiding any decision, the Venezuelan Supreme Court

failed to perform its one of the most important roles as the highest court.

D. Impeachment Processes and the Fight against Corruption

Some scholars o f corruption suggest that in order to curb corruption, not only should the

opportunity for corruption be reduced but also the risks or costs from engaging in corruption

must be raised.10 By this logic, punishing a high-ranking official for corruption serves as a

warning signal for potential (or actual) participants in corruption and thus is beneficial."

Impeachment and removal o f an allegedly corrupt president can be one such warning signals, if

the president is indeed proven to be corrupt. Since the presidency is the highest public office,

punishing the president for corruption can be the most powerful signal corruption fighters can

send out to warn the corrupt bureaucrats and politicians.

Unfortunately, however, a false alarm, especially if repeatedly sounded, can reduce the

credibility of the warning signals that the corruption fighters are trying to send out. If an attempt

to punish a corrupt president fails and he remains in office, the signal is that the

corruption-fighters are not powerful enough to punish corruption, and thus the costs of engaging

in corruption are low. If. on the other hand, a president is “ punished” for corruption despite

scant evidence, the incentives to be honest are reduced. A president, or any public official

subject to impeachment and removal, would think: “ Why be honest if honesty does not save me

10 See. for example, Klitgaard ( I98S) and Ocampo (1993).

11 Klitgaard (1988). His work's Spanish version is even titled “El Principio de Pez Gordo", or 'The
Principle of Fat Fish."

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253

from impeachment? I might as well collect as much private gain as I can before they kick me

out of office.”

The first kind o f false alarm is exemplified in the case of President Samper: an initial alarm

sounded, in the form of the Prosecutor General's accusation, but the Congress turned it off.

sending a signal that, instead of warning the corrupt politicians, assured them that they would

not be caught and punished. The second kind of false alarm is exemplified in the case of

President Perez: all the alarms warned that the president had taken public money for private

consumption, and the president was "punished.” but no one could present any physical evidence

o f embezzlement.

The institutional engineering discussed in the preceding section is one way to reduce the

possibility of false alarms. Another way is through a perhaps slower but more fundamental

change in values o f the society in which corruption is widespread. As I pointed out in Chapter

One. corruption politicians w ill continue to be elected and reelected if their constituents do not

care whether their representatives are corrupt. They w ill begin to care about their

representatives' honesty only when they recognize that corruption is indeed harmful to their

country and themselves.

It is encouraging to know that in all three countries where presidential corruption became a

subject o f official investigation, citizens' groups are beginning to raise public awareness about

the negative effects of corruption, mainly through educational activities. In Brazil, a group

based at the Federal University in Brasilia founded Transparency. Consciousness and

Citizenship (TCC-Brasil) in 1996. TCC has been compiling a database o f corruption cases, and

the findings are published in its quarterly newsletter.12 In Colombia, a group of researchers

have launched Congreso Visible, a project to familiarize voters with legislative activities (and

12 Fleischer (2001). 3. Author interview in Brasilia. June 9.2000.

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254

inactivity), in 1998. In addition to its newsletters, one of its activities is to follow the campaign

finances of congressional candidates.13 A somewhat different approach is taken by the Pro

Calidad de Vida (For Quality o f Life) in Venezuela. Founded in 1990. its main anti-corruption

activities are seminars and workshops, often held for the youth, to talk about corruption's

negative effects.14

As these groups gradually change the people's attitude toward corruption, there w ill be

more support for making the corruption control mechanisms work more efficiently. As one of

the potential accountability mechanisms, demands would grow for making the impeachment

processes more credible. It is hoped that this research can contribute to the debates and

proposals about how to (and how not to) change the impeachment processes toward this end.

13 Author interview with Elizabeth Ungar. October 8.2001.

14 For more detail, see Kada (1999).

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255

Information

2/3 legislators

Figure 6.1 House of Deputies in Brazil, 1992

Information

1/2 legislators

Figure 6.2 House of Representatives in Colombia, 1996

Information
AD
k
*

COPF.I

1/2 legislators

Figure 6J The Senate in Venezuela, 1993

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256

Table 6.1 Impeachment processes and outcomes from selected cases

. . . i i. - .u notes on the
majontanan super- legislative was the
. . • . • . .. outcome or
investigative majority ■ majority president
body? required? supports impeached? 1 e Process
president?
legislature-dominant

Colombia Y N Y N future investigation


prohibited
(1996)

USA N/R N N Y removal did not pass


the Senate
(1867)

USA N N N N/R president resigned


before impeachment
(1974)
1

•< 1

......... i ......... 1...........1


I
|
!
:

|
i

Brazil Y N Speaker rejects


z

opening the process


1

(1988)
1
!

i
I
|
i

*<

Brazil Y Y
Z

(1992)
!
|

Philippines Y Y President removed


Z

extra-constitutionally
(2000/01)

judiciary-participant

USA Y N N Y removal did not pass


the Senate
(1999)

Madagascar N/R Y N Y
(1996)

Russia N/R Y N N
(1998/99)

Venezuela N N N N Prosecutor General


stops the process
(1979/80)

Venezuela Y N N Y Removed for


"absolute absence"
(1993)

Y= Yes N= No N/R= Not Relevant

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Appendix 1 Corruption Literature Review

Up until the 1990s. the literature on corruption focused more on bureaucratic or


administrative corruption than on political corruption. Its three main themes have
been the definition o f corruption, the costs and benefits of corruption, and the origins
and remedy for corruption.

A. On the definition of corruption

The broadest definition o f corruption would be "any act undertaken with the deliberate
intent o f deriving or extracting monetary or other benefits by encouraging or conniving at
illegal activities!, or 1 by harassing innocent people through the abuse o f power or authority.”
1 By this definition corruption can take place without involving public services or public
authority. It also ignores the distinction between political and administrative corruption, or
high-level and low-level corruption.- Most studies, however, explicitly limit the use o f the
word to activities involving government. Among them, three major categories are identified:
act-centered definitions, consequences-centered definitions, and cause-centered definitions.^
It should be remembered that in practice many scholars combine more than one categories in
establishing their definitions.

1. Act-centered definitions
The simplest definition in this category is "the sale by government officials of
government property for personal gain.""* However, this definition does not cover an
important aspect of the act of corruption, namely, its illegality. Most scholars that take this
type of definition defines corruption as an act by an individual or a group of public officer(s)
that deviate from the norms governing the society. The problem here is which norms should
be applied to identify corruption: is an act defined as corruption if it deviates from the formal
rules of the country, whatever the rules are. or should a scholar regard the Western standard
rules as the norms from which acts are judged? Scholars in the 1960s seem to justify their use
of Western standards to conduct comparative study. For example. Joseph Nye and David
Bayley. both studying the effect of corruption in developing nations, chose to define
corruption as deviation from the subject country's formal rules that are commonly observed in

1 Harendra Kanti Dev, op.cit.

2 For these distinctions, see James Scott,1972, Comparative Political Corruption.

3 The idea of three main approaches to corruption was first developed by Arnold J.
Heidenheimer in his edited volume. Political Corruption: Readings in Comparative Analysis, 1970.
The original three categories were market-centered, public-interest-centered, and public-
office-centered, which more or less correspond to cause-centered, consequence-centered, and
act-centered, respectively. I renamed the three categories to make the differences clearer, and
also because principal-agent model does not exactly fit the name "market-centered."

4 Shleifer and Vishny, "Corruption" Quarterly [oumal of Economics, August 1993.

257

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258

the Western industrialized countries.3 On the other hand, some scholars such as Ranee Lee
o f Hong Kong think corruption rises where formal rules and traditional norms o f the society
are incongruent.^ Thus not only legal norms but also more cultural and historical aspects of
the society need to be incorporated into the examination o f rules and norms. However, this
argument has the danger of confusing the definition of causes of corruption and that o f acts
themselves. Still, the message that corruption may be more likely with the incongruence of
formal and informal rules is important, especially since the major cause-centered definitions,
as we w ill see below, do not take the legal aspect into account.

2. Consequences-centered definitions
A World Bank document adds the dimension o f who suffers the consequences:
"Corruption takes place in a public organization when an official or civil servant, in defiance
of prescribed norms, breaks the rules to advance his personal interest at the expense of the
public interest he has been entrusted to guard and promote.” ^ However, as Nye argues,
making the victim of corruption into a part of definition of corruption may obscure the
relationship between corruption as a causal variable and consequences o f corruption as the
dependent variable. In addition, as Lee correctly points out. what can be treated as “ public
interest” is not clear. 8 Moreover, the damage of corruption is not limited to the specific
public interest for which the authority was created, but also the functioning of government in
general. Unfortunately, many studies focus on either explaining the causes or describing
actual cases o f corruption and do not pay enough attention to the consequences. They at best
address briefly the reduction of welfare of the nation as a whole, and corruption’ s impact on
govemability is too often neglected.

3. Cause-centered definitions
This type of definitions focuses on the mechanism o f corruption, which is lacking in the
above two types of definitions. The above two categories emphasize the act of government
officials and thus do not capture the demand side, that is. those individuals or firms who pay
bribes to government officials, or those politicians who pressure officials to take acts of
favoritism for their constituency. In contrast. Nathaniel L e ff s definition of corruption is "an
extra-legal institution used by individuals or groups to gain influence over the actions o f the

5 Joseph Nye, "Corruption and Political Development: A Cost-Benefit Analysis" American


Political Science Review, 61(2), 1967. David H. Bavley, "The Effects of Corruption in a
Developing Nation," Western Political Quarterly, 19(4), 1966.

6 Ranee P.L. Lee, " Bureaucratic Corruption in Asia: the Problem of Incongruence between
Legal Norms and Folk Norms" in Ledivina V. Carino, ed.. Bureaucratic Corruption In Asia:
Causes, Consequences, and Controls 1986.

7 David J. Gould and Jose A. Amaro-Reyes, 1983, "The Effects of Corruption on


Administrative Performance: Illustrations from Developing Countries" World Bank Staff
Working Papers # 580.

8 Ranee P.L. Lee, op.cit.

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259

bureaucracy.” 9 By this definition, the focus shifts from government officials to "individuals
and groups" in the society seeking to influence the officials. This shift, in turn, leads one to
take a closer look at the causation of corruption, rather than the facts about corruption.
While L e ff s definition emphasizes the interaction between demand side and supply side.
Klitgaard and many other economists see the problem of corruption as that o f principal-agent.
In this view, corruption happens when the principal's interests does not coincide with agent's
and when agents seek personal enrichment. One question raised against this approach is
where to draw the line between corruption and other types o f divergence of interest that are
still within the laws governing the society. As mentioned regarding act-centered definitions,
which rules and norms should be the standards of corruption remains a controversial issue.
Another question is. who is the principal? O f course, in government works, the superiors are
principals. But superiors do not necessarily have the same interests as the general public,
who is presumably the ultimate principal. While many studies limit their discussion to
corruption at the lower level, it is often the case that corruption is systematized into higher
levels, as Wade shows in his study o f Indian bureaucracy. Therefore, a clear definition of
principal is necessary for a rigorous study of corruption.

B. Costs and benefits of corruption

Normative judgment on corruption has not been at the center of the debate on
consequences of corruption. * * The most common way of judgment is cost-benefit analysis of
some sort, pioneered by Joseph Nye.*- He lists as possible benefits of corruption economic
development through capital formation, cutting red tape, and fostering entrepreneurship and
incentives; national integration through integration of power-elite and wealth-elite or
integration of non-elites into governing structure; and improvement in governmental capacity
by providing material incentives. The possible costs of corruption are waste o f resources due
to capital outflow (often deposited in Swiss banks), investment distortions, or waste of skills
either by engaging in or fighting against corruption; political instability caused by either
social revolution, military takeovers, or upsetting ethnic balances; and reduction of
government capacity, either in administrative capacity or in legitimacy of the government. He
then calculates the probability of benefits outweighing costs based on three conditions: a
corruption-tolerant culture and dominant groups, the degree of elites' (perceived) security of
being in power, and the existence of societal and institutional checks and restraints on corrupt
behavior. His conclusion is that in general the costs exceed the benefits.
While commonsense also tells that corruption is harmful, some scholars have come to the
contrary conclusion. These scholars start from the assumption that government activity is by
nature inefficient compared to the market mechanism. They then proceed by arguing that

9 Leff, "Economic Development Through Bureaucratic Corruption" The American Behavioral


Scientist, November 1964.
10 Robert Wade, op.cit.

n However, moral discussion of corruption has been continued in legal studies. One of the
most recent and excellent work is Thompson, Dennis F., Ethics in Congress: From Individual to
Institutional Corruption . Washington, D.C.; The Brookings Institution, 1995.

12 Nye, op.cit.

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260

corruption introduces market mechanism by motivating government officials to work more


efficiently to collect more bribes, and by determining who gets the government services or
recognition by its authority, such as social benefits and licenses, according to who pays most
to get them. Therefore, based on their belief in market mechanisms, government becomes
more efficient by corruption.
There are some problems with this argument. The most fundamental criticism is against
the assumption that government activity is by nature inefficient. This is not necessarily true,
as can be sensed from the fact that the debate over the role of government in economic
activities is still going on. Furthermore, this assumption de-emphasizes the existence of
market-failure. Government is supposedly supplying what the market would be unable to or
fail to supply. Secondly, beneficiaries o f corruption are not necessarily the economically
efficient. This is especially so in less developed countries where clientelism based on family
and friend ties is pervasive. Thirdly, corruption, because of its illegality, has the costs of
secrecy. That is. resources are spent on preventing corruption from being noticed or accused.
For example, while smuggling less fuel-consuming machines might be claimed to be more
"efficient” for a country’s production than obeying the laws that prohibit its import, it is
more costly to smuggle, using bribes, than to import under free-trade regime.
However, it is also true that some countries in which corruption is pervasive have
enjoyed economic growth. Joseph Nye himself says that both American and Russian
economic development benefited from corruption. ^ Among developing countries. China is
growing rapidly while its corruption is widely known. On the other hand, it is often argued
that countries such as Philippines. India, and many o f Latin American states, would have
grown much faster if they didn't suffer from corruption. How can we explain these
differences? The existing literature has been silent on this matter until recently when
economists started to explore government institutions.
Shleifer and Vishny make an interesting point that the total bribe that a buyer o f public
services or goods have to pay is higher when each governmental office or agency related to
the service or good independently collects bribes than when corruption is hierarchically
organized. This is because in the former case each agency w ill try to maximize the amount
of bribe by limiting supply. Absence of price control also makes the service or good too
costly for some buyers. On the other hand, in the latter a central agency, or in some cases the
ruling elites, controls the price to maximize the total collection of bribe. In addition to this
demand-supply logic, the fact that corruption is hierarchically organized means that the top-
level officials and politicians do not have the incentives to control corruption. Thus
corruption seems more likely to be stabilized and continue where it is hierarchically
organized. This type of corruption is seen as most detrimental to development by many
authors.
The existing literature often makes the point that corruption is more wide spread in
developing countries than in developed ones.^ The explanation for this, however, is
unsatisfactory. Income inequality, limited access to wealth and thus importance o f public
office as the means to this access, the weakness o f social and governmental monitoring and

13 Nye. "Corruption and Political Development: a Cost-Benefit Analysis " APSR 61 (2). 1967.

14 Shleifer and Vishny, op.cit.

l5See. for example.

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261

sanctioning mechanisms, high degree of government involvement in economic activities, and


cultural factors are all said to play some role. Effort needs to be made to integrate these
factors in an explanation if one is to account for the different degree of corruption across time
and countries.
Political factors tend to be downplayed in the explanation for occurrence of
corruption in developing countries. When political factors are considered, the
discussion is limited to the ideology or culture that sees corruption as an acceptable
means o f creating wealth. Even when attention is paid to what motivates politicians
to control or not to control corruption, it does not go further to take closer look at
political institutions that shape politicians' motives, such as party strength or
constitutional design of government (i.e.. federalism or centralization, presidentialism
or parliamentarism).

C. Motivation for and against controlling administrative corruption

From the point of view of special interests, they try to allocate their resources for
influence activity in the most efficient way. that is. to get a policy outcome that they prefer
with the least resources. If administrative corruption is pervasive, interests (either individual
or a firm) w ill need to allocate at least some resources to make bureaucrats behave or make
decisions in their favor. This in turn means that relatively less resources are devoted to
political influence activity, that is. a smaller amount of political contributions. Therefore,
politicians should have incentives to control corruption at the enforcement and
implementation levels so that societal interests would devote their resources to political
contributions in the hope of influencing politicians' actions and decisions. This is not the
case, however, if politicians receive a portion of gains from bureaucratic corruption, as is the
case in India (cf. Wade: Indian bureaucrats' promotion is dependent on whether they collect
enough bribes, a portion o f which is given to local politicians who influence decisions on
promotion). O f course, politicians would prefer having all the gains from influence activities
o f societal interests, excluding bureaucrats. But where this is not possible or too costly to try
in the eyes of individual politicians, administrative corruption continues to exist with
politicians as intermediary.
Why would a reform or setting up checks on bureaucracy be too costly for individual
politicians? Conversely, what would make reduction of administrative corruption a viable
strategy? Several factors seem to affect the calculation o f politicians. First, in order for a
political system that centers around law-making process to function, it is necessary that
societal interests that offer politicians their votes are well organized, and those interests which
offer monetary and other material resources are either organized or are individually able to
offer a large amount o f resources. This is so because politicians' time is limited and thus they
can attend only a limited number o f claims, so they want to maximize the gains in terms of
votes or resources from each claim. If societal interests are not organized or not able to offer
a large sum o f resources at once, politicians see no benefit in trying to switch from
clientelistic bargaining to bargaining at the law-making stage, because the former type of
bargaining offers as much or more gains from influence activities of societal interests.
Secondly, it is also necessary that politicians have a long time horizon for their career. If
they see serving in legislature as a short term career, they w ill not be interested in shifting
influence activities from administrative stage to law-making stage, because they are not afraid
o f the damaging consequences o f corruption for the country's socioeconomic and political
development. The same logic may be applied to explain why some presidents have been

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262

notorious for their grafts: one-and-final term presidents, with no interest or stake in the future
of the nation’ s economic development or reputation of himself or of his party, have no
incentive to constrain themselves from emptying the nation's coffer.
Thirdly, legislation need to be “ sticky." that is, legislators in ruling coalition have to
have some ways to make legislation costly for the future ruling coalition to change. This is
necessary to assure the societal interests that they w ill not be exploited or taken away their
privileges by administrators or future ruling coalitions. If politicians cannot make this
assurance to the interests, they have nothing to gain from engaging in law-making. However,
there is a trade-off between making legislation with detailed procedural rules to tie
bureaucrats' hands and to make it harder to change, on the one hand, and delegating decisions
to administrators.^ Delegation is preferred when politicians want to leave some room for
adjustment to the changes in the interests of their constituency, and when rules can be so
easily reversed that making effort to pass a law is not rewarding. Tight control is preferred
when administrators w ill be insulated from political pressure in the future, and when
politicians are certain that their future constituency's preferences w ill be unchanged. In other
words, when conflict o f interests of constituency makes law-making costly for legislatures, or
when laws are easily reversed, politicians do not find it worthwhile to shift the bargaining
arena for influence activities from implementation to law-making stage. These conditions are
largely influenced by party systems and the power of president in law-making.
Fourth, voters have to be more policy-oriented than patronage-oriented in their decision
for vote. If voters are more interested in patronage and can vote accordingly, politicians
would have absolutely no interest in reforming bureaucracy and putting energy in law­
making. While voters expectations are difficult to change in a short time, changes in electoral
rules can help direct voters to employ more policy-oriented criteria in their voting. However,
politicians w ill not be interested in changing electoral rules unless their constituents are well
organized or can offer substantial sum of material resources. Thus an important question is
how and when this happens, and who. if anybody in particular, would lead this organization
or interests.
Modernization literature and some scholars of corruption suggest that as economy
develops, society w ill also develop (get organized) and pressure government to reduce
corruption. The pressure may generate from a scandal, or from general anger against corrupt
government. Pressure from populace w ill then be translated into policies. However, such
optimistic prediction does not seem to hold true at least for political corruption, since we still
observe corruption cases in economically advanced societies such as Japanese one.
There is. however, another way in which politicians may be interested in controlling
corruption. It has to do with the excess o f corruption. That is. when a party or a faction
exceeds what the society or the other political parties / factions perceive as acceptable or
necessary evil, the anti-corruption feelings may become strong enough to push law-makers to
implement some measures of control or cap on corruption. These “ reforms" are not likely to
have fundamental impact on the political system though, unless the anti-corruption forces are
strong enough to transform voters expectations from politicians and get new types of
politicians elected in office. Whether these "new” politicians can enact reforms to make
corruption more costly than law-making depends on how well the societal support for reform
is organized as political force that can provide necessary resources for the reformers. Short of
such support, even those who come in as reformers w ill fall into the same fate of old. corrupt
types.

l6Hom, ibid.

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263

Reform can be also initiated as efforts of politicians to control monetary


influence on politics, as Chilean politicians seem to be trying to do. However, what
politicians claim to aim at is not necessarily what motivates them. It may well be that
the governing forces want to reduce the sources of monetary support that the
oppositional forces have relied on. To find out requires careful reading o f the plan of
changes on campaign contribution.

D. The Deficiencies of the pre-1990s Literature on Corruption and the New


Directions of the Literature since the 1990s

The existing literature on corruption has focused more on bureaucratic or


administrative corruption than on political corruption. The bulk of the literature is
case studies that describe rather than explain corruption. Even where attempts are
made to theorize, these are mostly aimed at explanation of administrative corruption
that only look at bureaucrats' incentives and ignore the fact that these incentives are
largely shaped by rules set by politicians. Conversely, political corruption has been
given too little attention compared to its impact and importance in today's world.
Although not reviewed in the previous sections, the bulk of literature consists of
case studies that speak of specific case of corruption in a country. ^ While these may
be helpful to grasp the situation around the world, these case studies mostly describe
the situation and speculate how corruption have affected or w ill affect the country,
and do not offer insights into why the governing politicians do not intend to curb
corruption. Rarely the cases are compared on a theoretical ground. *8
The second, and more important point of criticism is that although the literature
has made some suggestions to reduce bureaucratic corruption which, if implemented,
w ill have positive impact, it has neglected the fact that whether these strategies are
seriously implemented or not depends on the will of politicians in power. ^
Politicians' w ill can vary according to numerous factors, public pressure being an
important one. Whether public opinion matters or not in changing policy, to a great
degree, is a function o f political institutions that transmit these voices to politicians.
Institutions such as electoral rules and party codes also influence politicians'
incentives to engage in bureaucracy reform. Thus, the real question is not which sort
of reform should be chosen, although such choice does have impact on the results of
reform, but rather what are the political conditions under which anti-administrative
corruption policy is enacted effectively.

l~See. for example. Anonymous editor. E l Principio del Pez Gordo Planeta Colombiana Editorial.
1993; Ledivina V. Carino. ed.. op.cit.; David Gould and Jose A Amaro-Reyes. "The Effects of
Corruption on Administrative Performance: Illustrations from Developing Countries” World Bank Staff
Working Papers #580. 1983.

l8Theobald’s is one of those few attempts. See Theobald. Robin .Corruption. Development and
Underdevelopment. 1990.

19That politicians in power design bureaucracy in a way that maximize policy benefits to their
constituency and that the choice of the design depends on the nature of policy and organizational level
of constituency are explored in depth in Horn. Murray J.. The Political Economy o f Public
Administration. Cambridge: Cambridge University Press. 1995.

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264

Thirdly, equally important, the literature has not given enough attention to
political corruption, while in today's world stories of presidential and ministerial
corruption abound. Although scholars such as Rose-Ackerman have started to call
attention to political corruption, studies especially on political corruption in
developing countries are scarce and tend to be description rather than analysis.
The lack of attention is a serious problem because developing democracies are
precisely the ones that are more likely to be damaged in their political development
than developed democracies are. Most of democracies in the developing world have
no or disrupted experience of democratic rule, and the organization o f the society and
politicians are not solid. On the other hand, whether developed or developing,
politicians in today’ s democracies spend a huge sum of money for elections and thus
are always in want of money. Even in countries like the US where civil organizations
are well established, the influence o f money in policy-making is often perceived to be
having detrimental impact on the society. In countries where civil associations are
not well established and yet elections cost money, the influence of money contributed
by special interests is even stronger. Thus unconsolidated democracy, though it is
supposed to be the rule by vote, is susceptible to become the rule by money before the
society becomes organized and acquire monitoring capacity necessary to make
politicians accountable to the voters. Low accountability o f governing politicians in
turn reduces the legitimacy of the regime, thus further damaging the foundation of
democratic rule. While literature on democratic consolidation talks much about
strengthening of civil society, the fact that the organizing forces of civil society w ill
face a competition with influence by money does not seem to have been given enough
attention.
With this criticism in mind, this research analyzes how a publicly known scandal
is managed by politicians and courts. That is. it analyzes what institutions are in
place and how they are used in the process o f accusation, trial, and punishment of
corruption. The underlying hypothesis is that the difference in scandal management
and the institutions governing the corruption management process reflect the interests
of politicians in power, whose incentives are. as has been argued above, subject to the
political institutions in place.
This line of inquiry has become more common in the last decade in the study of
corruption, as it has increasingly been linked to the discussion o f governance and
accountability. The line of inquiry usually taken in the study of accountability is to
analyze the relationship between electoral systems and electoral accountability.
Przeworski. Stokes, and Manin. eds. (1999) is one excellent volume on this subject.
In a similar line of inquiry. Persson. Tabellini. and Trebbi (2000) argue that
proportional representation (PR) increases the level of corruption. Their argument,
however, has many problems, mainly stemming from the way they view political
institutions, but also from the reliance on the subjective assessment o f corruption.
Their argument that PR systems produce more corruption is based on a correlation
between proportional representation and the level of corruption measured by the
Transparency International’ s Corruption Perception Index (CPI). The CPI is the most
comprehensive measurement o f the perception of corruption, but not the level of
corruption itself, and the data has been compiled less than ten years. It is possible
that events in the early 1990s shaped people's perception about their country’ s
corruption level, which may have very little to do with the absolute level of
corruption compared to other countries. Persson et.al. argue that PR systems reduce

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265

the accountability of individual politicians and therefore are more likely to let corrupt
politicians return to office. As I argue in my Introduction, however, it is not
necessarily the case that voters would want to oust corrupt politicians. In addition,
some PR systems, namely, open-list. does let voters express their personal
preferences over individual candidates.
Unfortunately, they do not take into account the difference between open-list PR
and closed-Iist PR: they group them together. This is highly questionable, for open-
list PR is considered to be prone to corruption due to intra-party competition. The
fact that the least corrupt countries (measured by the CPI) have PR systems makes
one wonder about the validity of their claim that PR systems are associated with
higher levels o f corruption.
Shugart et.al. (2000) takes the debate on accountability in a new direction by
bringing in non-elected branches that oversee the public administration. Their
analysis o f the judicial branch and the Public Ministry (which usually means the
Prosecutor General’ s Office), in terms of who the justices and the prosecutors are
accountable to. and what range of powers are given to these offices, is a good starting
point for anyone interested in studying the accountability of public officials, both
elected and non-elected. My research therefore takes into account these offices where
they play an important role in the impeachment processes.

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Appendix 2. The Problems in the Accusation, Investigation and the T rial in Venezuela

A. The Fiscal General’s Accusation

The Fiscal General Ramon Escovar Salom actively promoted fight against corruption as
his office’ s mission since 1989.' For him, therefore, the accusation he prepared and presented
to the Supreme Court was one of the high points in his career as Fiscal General. The evidence
for the charges, however, was scarce. First, while the officials and bank staff involved in the
transfer of money acknowledged that such transfer took place, the precise characterization of
transfer was never clear. That is. since the laws do not prohibit that the money be used by
other institutions than the Ministry of Interior as long as the use of the money is defined by the
Minister beforehand, the flow o f money by itself did not prove that there was mismanagement.
Second, since there is no document produced regarding the management of secret fund,
(for the very nature of the secret fund) there is no proof that the 250 millions allegedly
transferred to the Ministry o f Secretariat of Presidency were really used for the mission to
Nicaragua. Furthermore, the Central Bank provided information that the transfer was
identified as a mistake and was later nullified. The Fiscal General did not consider this
information in his accusation, however.
Third, although it might seem unethical to some, the Venezuelan laws at the time gave a
wide discretionary power to the president in defining what constituted security issues, and the
Congress had never tried to reduce this discretion. To be sure, in 1992 the secret nature of the
security funds facilitated the speculation and suspicion that the funds were being used for
private purposes, but the secrecy itself was legally granted, or even required. That is. the
secrecy with which the funds were managed was not a legally valid gound for accusing the
president of embezzlement.
Fourth, the charge o f embezzlement the Fiscal General formed was based exclusively on
the “ testimony” of Rangel, but this testimony was problematic because he never made it clear
from which sources he collected information, arguing that he needed to protect the
confidentiality of the sources. No document provided proof that the secret funds were indeed
used for private purposes.

B. The Supreme Court’s Decision on the M erit of A Trial

Despite these apparent problems in the charges and evidences, the Supreme Court Chief
Justice, acting as the presenter of the case, argued that the charges, both o f mismanagement and
of embezzlement o f secret funds, merited a trial. His argument was supported by eight other
magistrates, while six abstained.
The Chief Justice was identified as a COPEI sympathizer, and was also known to be a
close friend o f an ex-president o f COPEI. Luis Herrera Campfns.2 Given his known strong ties
to the opposition party and given his disproportionate power compared to other magistrates, as
discussed in section 1 o f chapter 5. assigning himself to be the presenter clearly indicated that

1The Public Ministry's Annual Reports, which contain many photographs o f Fiscal General Escovar
Salom. treat combating corruption as one of major objectives of his term, and list the activities undertaken
in this area.

2 Ojeda (1995). p.96.

266

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267

he wanted to make sure a trial against the president would be held, even though the charges
were based on rather weak, if any. evidence o f crime.
The president was never informed o f the proceedings in the Court before the final decision
was made.3 His defense team’ s request to see the court documents on the case, including the
Fiscal General’ s charge, was refused by the Court on the ground that the procedural rules
require this phase of the trial to remain in secrecy. The documents became available only after
the Court made the decision that there were sufficient grounds for a trial.4

C. The Senate’s Decision to Impeach

The Court’ s decision was made on May 20.1993. and the Senate voted unanimously to
authorize the trial the next day. May 21. That is. the Senate voted without studying the charges
nor the magistrates' opinions.5 The sentence of the Court, which arrived at the Congress only
hours before the session began, was read aloud in the Senate. The Senatorial debate lasted
only for little more than three hours. Even this short debate was sidetracked, shifting the focus
from the trial of the president to the nature of the interim administration, even before the
senators voted on lifting CAP's immunity. Rafael Caldera took the debate toward this
direction, even though the agreement among major parties over the trial of the president
explicitly said that the succession problem would not be discussed in this session.6
One may explain this surprisingly speedy decision as the sign of confidence in the
Supreme Court’ s capacities and respect for its decisions. Indeed, the AD’s leader in the Senate
explained his party's vote in favor of opening the trial as such. The speech also carefully
pointed out that the opening of a trial does not make the president guilty o f any crime. The
record of the session suggests an alternative explanation for the speedy decision, however: the
majority in the Senate (that is. all the parties except AD) wanted to remove the president
anyhow, regardless of the credibility of the charges. Since AD was a minority party, its
resistance to the trial would not have produced any difference in the final outcome. The record
shows that when the removal o f the president was mentioned, members o f the two largest
opposition parties. MAS and COPEI. applauded.3 The debate centered not on the presumed
guilt of the president according to the Court's report, but was rather a string o f criticism of the
president for not resigning.
It is true that it is beyond the Senate's duties to evaluate judicial decisions. On the other
hand, however, the Constitution gave the Congress the power to decide whether the Supreme

3 Information obtained through interview with Dr. Rafael Perez Perdomo. the chief defense attorney.
February 4. 1997. and with Dra. Hildegard Rondon de Sanso. one of the Supreme Court magistrates who
handled the case, on February 6.1997.

4 Interview with Dr. Hector Perez Mora, the co-chief defense attorney for CAP. November 12. 1999.

5 According to CAP. this is the first and the only time that the Congress approved impeachment without
setting up a committee to study it. See E l Universal May 31. 1996. interview with the ex-president.

6 See E l Universal. May 22. 1993.

7 The party had no choice, however: it had already made a public statement that it would respect the
Court’s decision on May 6th. and thus could not backtrack without negative publicity.

s Diario de Debates. Senate Session on May 21. 1993. p.697.

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268

Court’ s recommendation o f a trial should be granted or not, and this decision, for its potential
impact on national politics, should be made with the maximum care. Especially in this case, it
does not require legal expertise to notice the lack o f evidence of embezzlement. The minority
opinion o f the Court indeed mentioned this lack. However, a Senate majority whose interest
was in removing the president, in the name of the popular will, opted not to discuss the charges
but to proceed rapidly to impeach the president.

D. The Trial in the Supreme Court

There are three problems with the trial phase of the impeachment process. One is the
arrest order, and the second is the Court’ s silence on the Congress’ s declaration o f absolute
vacancy of presidency, and the third is the ruling itself. The arrest order is problematic in that
the magistrate-presenter charged the ex-president of embezzlement even though the Court had
not accepted any physical evidence of it. Following the Congress’ s decision to permanently
remove the president. President Perez sought to challenge the decision in the Supreme Court,
but the Court never ruled on it. The problem with the ruling is its reliance on what appears to
be opinion of non-experts, as well as the political pressure publicly placed on the magistrates
by the country's political elite.
The problem with the arrest order is that it was based on the charges of mismanagement
and embezzlement of the secret funds designated for use for national security matters, even
though the Court had not obtained evidence that the ex-president actually benefited privately
from the alleged transfer o f the secret funds. As already pointed out. Rangel only presented
proofs related to the transfer of the funds from the Ministry of Interior to the Ministry of
Presidential Secretariat. Even though an opposition politician presented some alleged evidence
of embezzlement (photocopies of bank transactions) to the Fiscal General and the Supreme
Court in July 1993. this did not lead the Public Ministry to any new findings related to the
alleged embezzlement by President Perez, nor was it incorporated as proof in the arrest order.9
Nevertheless, the arrest order still listed embezzlement as one o f the charges. The prosecutor,
the Fiscal General Badell. made clear, perhaps unintentionally, that there was no physical proof
o f embezzlement, when he declared that the ex-president was guilty o f spiritual
embezzlement.10
The weakness o f this charge was acknowledged only in the final sentence, where
embezzlement was finally dropped. There still remains a question, however, of why the
Supreme Court magistrates decided to drop the charge of embezzlement only in the final
sentence, given that there had not been any physical proof accepted by the Court all the way
through the trial process.
Under the 1961 Constitution, the Congress was given the authority to declare, by a simple
majority vote in a joint session, absolute vacancy of presidency. Therefore, the fact that the
Congress made this declaration itself is not a judicial probiem. However, if left without any
constraints, the Congress could virtually declare permanent vacancy without establishing the
fact, solely for the congressional majority’ s convenience. The only institution that the 1961
Constitution granted power to constrain this possible abuse o f power by the Congress was the
Supreme Court, through its judgment on constitutionality. Just as President Collor o f Brazil

9 About the alleged evidence o f embezzlement, see Ellner (1993). p. 14.

10 The Fiscal’s comment was issued on October 26. 1995. months after the arrest order was approved.
Fiscal General Badell was nominated by the new Congress elected in 1993. replacing Escovar Salom.

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269

took his case to the Supreme Court. President Perez thus took his case to Venezuelan Supreme
Court immediately after the declaration of absolute vacancy. While Brazilian Supreme Court
duly announced its judgment on the impeachment process, the Venezuelan Supreme Court
failed even to decide whether to take up the case. This is rather unfortunate, for the Congress’s
declaration o f permanent vacancy is based on an interpretation o f the 1961 Constitution that
had never been confirmed by the Court (for there was no case o f impeachment under the 1961
Constitution before the case o f CAP). While Article 150 (8) says the impeached president
remains suspended. Article 188 says that the Congress can decide whether the presidency has
been permanently vacated after 90 days of temporary absence has lapsed. Does suspension
equal temporary absence? This is the question that was never answered by the Court. By not
making any judgment on this question, the Court let the Congressional declaration stand, but
the decision’ s constitutionality was never clarified.
In recent years, similar cases o f transition o f presidency by Congressional declaration has
taken place in other countries, including Ecuador, the Philippines, and Indonesia. In all three
of these cases, the Supreme Court became involved by issuing statements as to the
constitutionality of the transition. One may be wary of politicization of the judiciary, but when
questions of constitutionality are raised, the Supreme Court cannot help but make decisions.
As it often happens when constitutionality of a law is challenged, the Court could reject to hear
a case on the grounds o f the political nature of the question. It could, alternatively, rule on the
constitutionality, as the Supreme Court in the above three countries did. Either way. the
important thing is that the Court responds, for it is the only institution to which the question of
constitutionality can be brought up. By avoiding any decision, the Venezuelan Supreme Court
failed to perform its one o f the most important roles as the highest court.
The problem with the final ruling, that it unjustifiably ignores expert testimony, can be
easily identified by reading through the sentence. For example, in deciding the nature of the
mission to Nicaragua, the Court asked the soldiers who were sent to Nicaragua in the mission
whether they thought the mission had to do with Venezuela's security, rather than asking
opinion from experts in foreign affairs.11 As for the alleged illegal transfer o f the secret funds,
the check that the Fiscal General presented, which was provided by Rangel, had been
cancelled, and thus its credibility as proof that the alleged transfer indeed took place was
questioned by the defense team. The ruling, however, used the check as the proof without
discussing its credibility. According to one magistrate who participated in the trial, the expert
evidence, especially from the defense side, was ignored by the Court because, in its majority's
view, it was “ irrelevant.” 1’
The ruling was viewed as unsatisfactory from the critics of the ex-president, his defense
team, and the less passionate observers. For the enemies o f the ex-president, the ruling was too
soft on the ex-president. For the defense team, the ruling should have been absolution o f the
defendant, since, in its view, no crime had been proven. The less passionate observers
lamented that the trial did not lead to thorough investigation into the use o f the secret funds,
nor did it produce a convincing legal argument for convicting the ex-president of
mismanagement of funds.1" According to Ray (1993). if the argument used by the Supreme

11 Interview with Dr. Perez Mora. See also the dissenting opinion by magistrates Sanso and Duchame
Alonso in the final sentence.

12 Interview with Dra. Sanso.

13 See. for example, Bermudez (1996) and Corradi (1996).

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270

Court in convicting CAP was applied to all the public servants, the “ immense majority" would
have to be charged with the same crime.u After reviewing the process carefully, it is hard to
believe that some called it “ the trial of the century.” for it was by no means an example o f an
independent judiciary performing at its best.

14 Ray (1993). p.112.

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