Advocacy Brazil – Legal and Political Analysis of President Teme’s Implication in JBS Kickbacks

As widely reported, the CEO of Brazil’s giant food company JBS Wesley Batista delivered a recording to the Attorney General’s Office indicating that President Michel Temer would have given permission for kickback payments to the family of former Congressman and Speaker of the House Eduardo Cunha with the purpose of dissuading him from presenting a plea bargain. Such conduct of the President may be interpreted as an attempt to obstruct Justice, which is legally prohibited.

Given the importance of the disclosures, here follows a legal and political analysis of the matter.

Legal Analysis of possible constitutional unfolding:

❖ Resignation: an act of the President, it implies immediate withdrawal and vacancy of office.

❖ Impeachment: in case of “political responsibility” crime, the Senate will judge the President; in case of regular crime, the Federal Supreme Court (STF) will rule. In either case, processing depends on the admission of the prosecution by two thirds of the Chamber of Deputies. Today, there is no formal complaint against the President yet, but the STF authorized the Federal Police to investigate him.

❖ Nullification of the Dilma-Temer election: a lawsuit started in 2014 under the Superior Electoral Court (“TSE”) under the accusation of abuse of economic and political power during the electoral campaign. Trial is scheduled to resume on June 6.

If any of the above situations materializes, there shall be either direct or indirect elections to replace the President. In case of vacancy, direct elections should take place within 90 (ninety) days. If vacancy occurs within the last two years of office, there will be indirect elections.

In other words, according to the Constitution, if there is a vacancy (due to resignation, impeachment or removal from office for a regular), indirect elections must be held by Congress and carried out by secret ballot.

According to the Electoral Code as recently amended, direct elections would take place in case of annulment of the election by a ruling of the Electoral Court, if vacancy occurs more than 6 (six) months before the end of the mandate (which is the case). However, the constitutionality of this provision is debated and in case it is declared unconstitutional, indirect elections would apply.

Aside from this, any proposal for direct elections requires amending the Constitution, as suggests Constitutional Amendment Proposition No. 227/2016, by Rep. Miro Teixeira (Rede-RJ) currently under discussion at the House of Representatives.

In any of these cases, after vacancy and before the new President takes office, Interim President would be the Speaker of the House of Representatives, the Speaker of the Senate or the Chief Justice of the Supreme Court in this order. Accordingly, Rep. Rodrigo Maia (Speaker of the House) would be the first in line to exercise the Presidency.

It is also worth noting that, according to the Supreme Court decision in ADPF 402, one of the conditions to succeed the President is to be free of responding for criminal charges. As such, if any of the authorities in the succession line is charged for criminal offense, Presidency will be assigned to the next in line.

Political Analysis

In a public speech, President Temer ruled out the possibility of resigning. Such decision could however be reconsidered, depending on whether the recordings are perceived to incriminate him.

As in former President Dilma’s case, an impeachment process would require assessing regular procedural steps and possible interventions of the Supreme Court, with a special attention to the positioning of congressmen towards
the President. At this point, the role of the Speaker of the House in launching the impeachment process is highlighted and it is important to note his declared support for President Temer.

In any of the abovementioned cases, it is likely that the President will intensify his defense in the lawsuit in which the nullification of the election is discussed to force a separate trial with regards to former President Dilma. Undeniably, a favorable Electoral Court decision would strengthen him politically.

Above all, an important factor to be considered is the stance taken by the Parliament. Although Congress is highly composed of government supporters, an independent and unified position of the Legislative Branch should prevail.

There are rumors that a nonpartisan parliamentary group is under way dedicated to continuing the advancement of the government agenda and political and economic reforms.

At the same time, there are already some signs of allies distancing themselves from President Temer, for example with the resignation of the Minister Roberto Freire (PPS-SP); as well as with Senator Ronaldo Caiado (DEM-GO)’s statement advocating for new elections.

On this point, the nucleus next to Speaker Rodrigo Maia is aligned with the thesis of indirect elections, what could give birth to a process of nominations to dispute office.

The fact is that all these possibilities create instability in public activity, generating procedural discussions that consume time in the governmental agenda, besides generating insecurity in the progress of negotiations for the approval of legislative proposals. As an example, it is worth remembering that during the impeachment process of former President Dilma, the number of proposals appreciated in Congress reduced significantly, since congressmen were dedicated to the solution of the institutional crisis. Such behavior is also observed in other spheres of government, such as ministries and regulatory agencies, which seek to retain bold measures
precisely because of institutional instability.

A clear a sign of stagnation in parliamentary activity, Senator Ricardo Ferraço (PSDB-ES) suspended the calendar of discussions on the Labor Reform, of which he is Rapporteur. The same was done by Dep. Arthur Maia (PPS-BA), the Rapporteur of the Pension Reform.

On a different perspective, the political scenario may facilitate the Political Reform, which can be easily related to the recent accusation and needs to be approved in due time to dictate the rules for the 2018 elections.

M.J. Alves e Burle
Advocacy Brasil

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