The Lava Jato investigation and the political instability in Latin America : toward a new pattern of the parliamentary control over the Presidents ?

Received: 11 Mar. 2020 Accepted: 11 May 2020 Published: 23 Dec. 2020 Abstract: Anti-corruption investigations have always been one of the main causes of political crises in Latin America. However, the last episodes of presidential removal have shown a new activism of the parliaments, which have re-interpreted the constitutional provisions on impeachment proceedings in order to legitimize a change in the governmental agenda. This practice affects the balance between the two representative powers, as it fails to observe the limits of the presidential accountability and paves the way to new instabilities.


Introduction: end of the "progressive cycle" in Latin America? 2
The government instability that has affected several Latin American countries in the past three years deserves particular attention as it shows similar origins and gave birth to the same strong tensions among constitutional powers. This trend began at the end of the "progressive cycle" -during which the izquierda parties have governed in almost all the countries -when the reduction of growth margins of the regional economies got worse.  Paffarini, Jacopo. 2020. L'inchiesta Lava Jato e l'instabilità governativa in America Latina. Verso una nuova frontiera del controllo parlamentare sui Presidenti? DPCE Online 41 (4): 2935-2951. http://www.dpceonline.it/index.php/dpceonline/article/view/843. 3 On November 22, 2015, Maurício Macri won the ballot against the Peronist Daniel Scioli, while in the country the climate of hostility towards the previous political class was growing after the publication of the contents of the investigation known as "Cuadernos de las coimas" ("Notebooks of bribes"). Macri was the first democratically elected President in Argentina belonging neither to the centrist party (Unión Cívica Radical) nor to the Partido Justicialista founded by Juan Domingo Perón. 4 For a critical analysis of recent government experiences in Latin America, see Somma (2018). 5 It is a reference to the conversations between the Public Prosecutor and the Judge of the case, Sergio Moro -later, the Ministry of Justice for Bolsonaro's government -which have been published by the website Intercept Brasil. The dialogues would show that Moro has constantly supervised and oriented the Prosecutor during the search for evidentiary materials, expressing a clear adversity toward some defendants. See the website's archive: https://theintercept.com/series/mensagens-lava-jato/. 6 For the Brazilian literature, see Juarez e Prado (2016), Martins, Martins e Valim (2017). For the Italian comparative law doctrine see Trapani (2017), Giannello (2018), Conci (2018) and Cammarosano (2018). 7 In this perspective, see the allusion to the «Enemy Constitutional Law» (Carducci 2018). On the same profile, for the brazilian legal doctrine, see Valim (2017). On the Peruvian context, see the thesis of the exceptional nature of the present constitutional contingency advanced by Eguiguren Praeli (2017). in the sector of energy and infrastructure have been blamed (Kerche and Feres Jr. 2018;Martins, Martins, and Valin 2019, 51-67).
The Lava Jato investigation is certainly the most interesting and emblematic case of this trend. The which we intend to draw attention are: first, a coordination between the accusations supported by the Congresses and the investigative acts of the judiciary; second, the breakdown of alliances or -as in the Peruvian case -the truce 8 In this sense, it is worth to remember the impeachment of the Brazilian President Collor in 1992, the conviction of Carlos Andrés Pérez by the Supreme Court of Venezuela in 1993 and the juicio político against the Colombian President Samper in 1998. On the Judiciary and public opinion's role in those episodes, see […] the press can investigate accusation of corruption or abuse of power, ultimately providing the reason to initiate an impeachment procedure, while social movements may activate popular mobilization, destabilize government, and ultimately force legislative action against the executive (Pérez-Liñán 2007, 63). 9 See the classification of Latin American presidential systems proposed by Carpizo (2000Carpizo ( , 2007. Among the multiple contributions on this debate, see: Santiago Nino (1994), Valadés (2008) and Enríquez Fuentes (2012). 10 For a comparative perspective see Cheibub, Elkinks, and Ginsburg (2011), Nohlen (2016). On the Brazilian experience, see Orrù (2008). between political forces that had inaugurated the presidential mandate, which are followed by the birth of new coalitions; finally, an interpretative evolution -in some cases, explicit infringement

Coalitional presidentialism and the peculiarities of the Latin American system of "checks and balances"
The democratic transitions which have marked the end of the last century gave birth to presidential systems with unique institutional balance, which performances has been strongly characterized by the recurrent use of the presidential legislative functions, as such as emergency decree and the power of initiative for constitution amendments. 10 So, the US prototype of separation of powers was reinterpreted to provide the supremacy of the Executive since the beginning of the Republican experiences. This process counted with the active contribution of two instability factors, which are typical of the Ibero-American region: a weak cohesion of political parties (Duverger 1980, 615-626) and the lack of homogeneity of the federalist model (Benito Sánchez 2017). 11 The economic situation, characterized by strong territorial asymmetries, and the traditional propensity for the division of offices have encouraged the spread of a "coalitional presidentialism", whose prototype has matured within the Brazilian democratic experience started under the 1988 Constituição Cidadã (Passarelli 2016). 12 The most recent example of this trend is The coalition has therefore become the center of gravity of government power in the Ibero-American region to the extent that the transition to democracy has progressively reduced the incidence of singleparty government or the hegemonic position of one party in the political system. However, this trend was considered anomalous because of a prejudice that sees coalitions as a factor of instability in those countries where the Head of State is elected. 14 Nonetheless, there have been completely opposite interpretations of the phenomenon which have recognized greater longevity of the coalitions in presidential government experiences rather than in parliamentary contexts (Cheibub 2017, 79). In all cases, however, the growing sharing of political functions between Presidents and legislative assemblies has produced an expansion of the control functions of the latter: a fact that makes Latin America a real "institutional laboratory" (Roca 2016).
The rationalization of the "frenos y contrapesos" has actually pursued the objective of reducing 11 See also the monographic section edited by Pavani and Cock (2018). 12 The concept of «presidencialismo de coalizão» was described for the first time by the Brazilian political scientist Abranches (1998). Among the most recent reflections, see Chaisty, Cheeseman, and Power (2018). 13 See the new Article 89, XVII, Of Mexican Constitution which explicitly mentions the "gobierno de coalición". The 2014 constitutional reform, in fact, formalizes a political practice implemented, more recently, by the former President Enrique Peña Nieto, who, in 2012, signed a pact with the leaders of three parties represented in the Congress. The text contained a government program resumed in 95 points divided into 5 articles. The Mexican constitutional doctrine, however, identified the main flaw of these informal agreements in the fact that they could only bind the signatory leaders and not the party-affiliated parliamentarians. For this reason, it was called «coalición imperfecta» and it become clear the need of a specific constitutional discipline. On this point, see D. Valadés Rios (2018). For Italian doctrine, see Tarchi (2017). 14 Among the numerous contributions, see Mainwaring, Shugart, and Lange (1997), Linz and Stepan (1996)

The Lava Jato investigation at the origin of Dilma Rousseff's impeachment in Brazil
The first case attributable to this trend is represented by the controversial impeachment process that led to the removal of Dilma Thus, in order to implement the Government agenda, it has been necessary to enlarge the Congress support base, which reached nine parties in the last two years of Dilma's Executive.
It has been observed that in these circumstances the performance of Brazilian presidentialism is comparable to the experiences of multiparty or multipolar parliamentarisms, in which the stability of the government is often ensured by the transfer of key executive roles to the allies in Parliament (Mainwaring 1997, 69-74). https://www.nytimes.com/roomfordebate/2016/04/18/in-brazil-a-house-cleaning-or-a-coup/the-ousting-of-brazilian-president-dilma-rousseff-constitutes-a-coup. 16 See also "Presidents in Brazil have tottered between the two poles; they dominate decision-making power, yet when their political base erodes, they cannot implement major reforms" (Mainwaring 1997, 106   Brazilian presidentialism seems to experience a "parliamentarian" turn due to the growing discretion with which Congress conducts the phases of the procedure and the evaluation of the 18 The term "fiscal pedaling" was coined to indicate an accounting expedient that consists in delaying the exit from the coffers of the National Treasury of funds intended to cover the sums advanced by public banks in execution of the State investment plans. This operation takes place at the same time as the presentation of the final balance sheet of the State, in which, therefore, the figures concerned still appear available to the Executive despite having already been spent. In the Brazilian case, the Senate commission which have analyzed the impeachment articles concluded that the operation allowed Rousseff to maintain social and economic spending programs without resorting to loans for which Congress's authorization would have been required. The accusers of Dilma Rousseff have therefore identified in this practice a plan to circumvent the control functions that belong to the Legislative. 19 On this point, see Tavares and Prado (2016, 56). Among the Brazilian constitutional lawyers which excluded the relevance of "not malicious fiscal pedaling" see Figueiredo (2016, 147): "Inoltre ci sarebbero problemi per determinare la responsabilità personale del presidente. Sarebbe necessario dimostrare, a mio parere, un intento deliberato di falsare il bilancio, la correttezza nella gestione delle risorse pubbliche, che finora non si è verificata, in questo senso. Inoltre si sostiene che la responsabilità per le cosiddette "pedaladas" (pedalate) sarebbe del Segretario del Tesoro e non del Presidente della Repubblica". 20 On the impeachment process against Rousseff, see Paffarini (2017)

The spread of Lava Jato investigations and the presidential crises of Peru and Ecuador
The plea bargain involving Odebrecht CEOs According to the art. 150 of the Constitution of Ecuador, "En caso de falta definitiva de la Vicepresidenta o Vicepresidente de la República, la Asamblea Nacional, con el voto conforme de la mayoría de sus integrantes, elegirá su reemplazo de una terna presentada por la Presidencia de la República. La persona elegida ejercerá sus funciones por el tiempo que falte para completar el período". 26 Specifically, the qualified majority of two thirds of the members of the Assembly required by art. 130 of the Constitution of Ecuador for the removal of the two top representatives of the executive. On the subject, see Oyarte Martínes (2005).   (2003). 34 It is worth to remind that the Inter-American Court of Human Rights declined the request for an advisory opinion on some profiles of the institute of Presidential impeachment forwarded by the Commission on 13 October 2017 -after the cases Zelaya (Honduras), Lugo (Paraguay) and Rousseff (Brazil). The refusal was motivated by the inopportuneness of a pronouncement "in abstract" on a topic about which the Court may have the opportunity to rule "in concrete" on a case-by-case basis. See: https://bit.ly/34Ntc2Z. 35 See the classification of Mattei (1997). Among the most recent writings that have returned to the topic, see Pegoraro (2017)  the return to popular sovereignty together with the guarantees of political pluralism (Gargarella 2014, 272). However, the Constitutionalism which spread in the region at that time has handed over the structure of powers to a "political variable": an asymmetric electoral systems which associate the direct and majority choice for the Executive with the search for proportional representativeness of congresses. Subsequently, the reforms that 36 For a detailed reconstruction of the Latin American events that led to an early end of presidencies, see, Pérez-Liñán (2007, 62-63). If we consider only the post-authoritarian period (from 1990 to today), there have been twenty-seven government crises, thirteen of which have led to the removal of the President. In seven cases, the parliaments have provided by means of the impeachment procedure or the declaration of incapacity to govern, in the remaining, Presidents have resigned before the vote. 37 On this subject, see Pereira and Mueller (2002) and Amorim Neto (2002) 38 For that opinion, see Valadés Rios (2018, 37) which described a "parlamentarization of the presidential form of government". gave continuity to the democratic transition are considered as the initial step towards the consolidation of a "two-speed constitutionalism": on the one hand, a vertical and concentrated pattern of powers is maintained, and in some cases strengthened with the expansion of the presidential prerogatives in legislative functions, on the other, the catalog of rights and the judicial remedies for their protection have been enlarged, as well as the institutional mechanisms for citizen participation in decision-making processes (Gargarella 2014, 285).
Finally, the concentration of powers at the highest level of the State -which many Authors have described -appears strongly linked to the specific weight of the presidential party in the coalition and in the Parliament. 37 If the leader is unable to keep the coalition united, the risk of "reversals" at the top of the State is higher, despite the recent introduction of rationalization mechanisms in the system of government, as the Cabinet's motion of no confidence.

The provisions which have institutionalized a mutual control between Presidents and Parliaments
were hailed as a late adaptation to the plural composition of the assemblies, to the extent that it enhances the representative effects of the electoral systems. 38 On the other hand, while the concentration of legislative and executive competences remains intact, it is clear that the political agenda still remains a prerogative of the President. Moreover, the organs representing the coalition -variously named, according to the country, "consejo de ministros", "consejo de gabinete" or "gabinete de ministros" -fail to guarantee the mediation and enlarged representation of the Parliament for which they were designed. Political crises still directly affect the government stability and the "replacement" of alliances at the helm of the Executive remains a frequent outcome in the South American context. Therefore, one of the main effects of the political polarization is the use of the constitutional guarantees as "weapons" for the political struggle, which has led to identify a "parlamentarian behavior" of the Latin American Presidentialisms.