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Advocacy Brasil – Legal and Political Analysis of President Temer’s Implication in JBS Kickbacks

MJAB 03.11.17

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.

❖ 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.

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.