Do processo de impeachment: responsabilização do chefe do executivo federal como garantia da ordem jurídica constitucional

Abstract

The Brazilian legal system based on the adoption of the republican, democratic and presidential system as a form of protection of the juridical and constitutional order joined the institute of impeachment, by adaptations related to the British and North American models. The process of remove agents who acted in disagreement with the precepts of the law and/or had no commitment to social welfare and public legal rights is guaranteed by the rule of law which certifies that no one occupies a position of immunity to the effects of the law. Such institute is therefore subsequent to these principles, and its presence in the country's legal system is a practical consequence of this. Besides its primary purpose of defense the legal constitutional order, it must expel those who attempt against such provisions, which shows its characteristic of legal institute. In the regard of the trial and the convictions of the judges, the political criterion is adopted by impeachment, which emphasizes the legal nature of both a political and juridical process simultaneously. It is true that the displacement of the executive chief in a republic like the brazilian one could only occur in this way, since the vote of distrust in presidentialism is out of order. Thus, it is essential to discuss the viability, the factual and juridical foundations that could serve as a basis for the removal of the president of the republic, in order that several theories appear to deal with the legal nature of the institute of impeachment, each on with its foundations and interpretations, even if those are in disagreement with the legal reality or the foundation that originated that institute. It was tried to present arguments that show the importance of this institute for the defense of the juridical and constitutional order, since it will allow the right punishment to the head of the executive who committed functional crimes. The aim is to analyze the institute of impeachment in the legal order of the country, considering its constitutional and legal basis, its foundation in brazilian and world history, and discussing about its legal nature, hypotheses of crimes, characteristics and peculiarities; taking in account the occurrence of two factual processes in brazilian legal history: Fernando Affonso Collor de Mello, in 1992 and Dilma Vana Rousseff, in 2016. Thereby, it is characteristic of the study of the legal institutes and essential element of the interpreter to extract the maximum of precision from the real intention of the legislator to predict them in the legal system, conceptualizing them according to their emergence throughout history, considering the modifications from the many different aspects. Likewise, this is the pretension into analyzing this instrument, considering its presence in modern codifications, since the Magna Carta from the king João Sem Terra, through the American Constitution of 1787 and reaching the Brazilian Constitutions, especially after adoption of the Republic and the redemocratization of Brazil. Reaching to limitate the action of the authorities, who previously acted without limits and according to their satisfactions, and actually, due to the advent of the Republic, has to be submitted to the legal dictates, when those are investiture in a public position or function.