Julio Guimaraes / REUTERS People attend a protest against Brazilian President Michel Temer in Rio de Janeiro, Brazil, May 2017. 

Brazil's Best Shot Against Corruption

Why It Should Have Faith in Its Constitutional System

In the late 1980s, Brazilians paid no small price for establishing democracy after a series of military dictatorships. Diretas Já! (Direct Elections, Now!), a civil unrest movement active between 1983 and 1984 that called for direct presidential elections and involved a broad spectrum of society, is probably the most emblematic episode of Brazil’s long fight for democracy. And now it has been resurrected as a new group of protesters demands direct elections to replace the current president, Michel Temer. In May of this year, Temer was accused of allegedly obstructing justice in a corruption investigation that had him as a possible suspect. The problem is that even if the accusations turn out to be true, the Brazilian constitution only allows for indirect elections to fill the presidency at this point, and only temporarily until the next regular elections happen at the end of 2018. Direct elections now, in other words, would be unconstitutional.

Temer was elected as the vice president to Dilma Rousseff in 2010. Rousseff was impeached at the end of 2016, making it possible for Temer to take over her seat as dictated by the Brazilian constitution. He likely would never have reached the presidency through a popular vote—one reason that the protestors demand elections now. Temer’s party, the PMDB (Brazilian Democratic Movement Party), is a centrist catchall party with the largest number of seats in congress but with no strong names to run for the presidency. This is why it made sense for Rousseff to align her leftist Workers’ Party (PT) with Temer’s, thus combining the popular appeal of the PT with the capillarity of the PMDB. But democracy always involves compromises, and what makes people embrace its bargaining game is the assurance of predictable rules that survive despite differences of opinion. That is what the population wanted when they called for the end of military rule just over three decades ago. It is thus misguided to want to change the rules of the game now.

THE CORRUPTION CONTINUES

The now famous Lava Jato (Car Wash) sting has uncovered corruption of astronomical magnitude involving the highest levels of the political and economic elites of Brazil. During its latest phase, it revealed recordings in which president Temer allegedly condones the paying of hush money to a jailed member of congress. The recordings came to light as part of a plea bargain between public prosecutors and Joesley Batista, who is one of the owners of JBS, the world’s largest meatpacker. This is the same company that is now suspected of growing through preferential treatment from the government after having paid kickbacks to political parties and individual politicians.

Once the contents of the recordings were revealed, the population immediately demanded that Temer step down, but he denied all allegations and vowed to remain in office. Shortly after, Temer’s defense attorneys called into question the validity of the recordings. Expert examiners found that they had been doctored. By this point, however, many in the public did not care and continued to press for elections.

If Brazil were a parliamentary system, there is no doubt that the parliament would have already called a vote of no confidence in Temer, thus bringing a new head of government to power. But Brazil has a presidential system where the constitution establishes clear rules for a transition of power, none of which permits the kind of immediate and direct action that the population is calling for. Congress did produce some accusatory statements against the president during plenary sessions immediately after the scandal broke out, but since almost all political parties have been implicated in the corruption scandals, their credibility has been lost with the population and their indignation completely disregarded. It soon returned to business as usual.

THE ENDGAME

There are currently four constitutional possibilities for removing Temer from office, all of which would result in indirect elections in which the bicameral national congress would decide the next Brazilian president. The constitution also dictates that after the vice president, the speaker of the lower house of congress is the first in line to become interim president, followed by the president of the senate, and finally by the president of the supreme court. Any of those figures would have 30 days to organize indirect elections to choose the new president who would stay in power until the end of the current president’s term.

The first possible scenario leading up to Temer’s removal would be his voluntary resignation. Multiple public figures including former Brazilian President Fernando Henrique Cardoso and former President of the Supreme Court Joaquim Barbosa have demanded such an action. This would certainly be the least painful option; its results would be felt immediately, thus appeasing the population, and the long trials where Temer would try to prove his innocence would be avoided. Unfortunately, Temer has already said this will not happen.

Brazilian President Michel Temer looks on during a meeting with representatives of the Brazilian Chamber of Construction Industry and businessmen at the Planalto Palace in Brasilia, Brazil, May 2017.

Brazilian President Michel Temer looks on during a meeting with representatives of the Brazilian Chamber of Construction Industry and businessmen at the Planalto Palace in Brasilia, Brazil, May 2017.

If the allegations about Temer taking bribes and condoning hush money are proved true, then it clears up the way to a second scenario in which congress can open an impeachment process. This option would take some time to be fully developed—the impeachment process for Rousseff took over eight months. This also means that by the time the elections happened, it would be almost time for the scheduled elections of 2018. Multiple impeachment requests have already been filed in congress, but the current speaker of the chamber of deputies (the lower house of congress) in charge of executing the process, Rodrigo Maia, is a Temer ally who has already indicated he will not entertain such requests for now. Even if he does accept to do it, after committee work, two-thirds of congress would still have to approve it. Since many congressmen fear they might be next in line to have their names involved in the scandal, it is not clear they would vote in favor of ousting a president who has not antagonized them so far.

In the third alternative, the supreme court could trigger a trial through an ordinary criminal process. This scenario would have similar timing considerations as the impeachment process. The supreme court is also a much more cautious body than congress, which means that they would avoid stepping in until they had no other option, thus giving Temer more time to prepare for the battle.

The last scenario does not depend on the corruption allegations involving the recordings produced by Batista. There is already an ongoing judicial process against Temer under the auspices of the electoral courts based on allegations of campaign financing using corruption money during the elections that brought the Rousseff-Temer ticket to power to begin with. The electoral justice, which is a distinct branch of the Brazilian judicial system with full responsibility over all electoral matters, is scheduled to hold its next meeting regarding this process on June 6. But even if the supreme electoral court (TSE) pursues the accusations against Rousseff and Temer, the president would still have the right to appeal the decision, a procedure that could take months. This, however, seems to be the most likely path since it involves fewer political costs to current allies of the president. Blame for corruption can be placed squarely on Rousseff, keeping congress out of the process.

Already anticipating the possibility of indirect elections, political parties have begun making their picks for potential candidates. There are obvious sensitivities involved in the process, since anyone making a bid for the presidency at this point would present a challenge to Temer’s claims of innocence. Since the president’s party coalition has a majority in congress, they would likely be able to choose the next president in an internal process.

THE CASE AGAINST DIRECT ELECTIONS

Despite all other options, direct elections remain the preferred path for 85 percent of the population—and the international media’s, too. For that to happen, congress would first need to approve an amendment to the constitution allowing for them. But that process would itself take months, and its approval would be unlikely. A majority of congress members have already openly said they are against direct elections, and it would make no logical sense for the current governing coalition, led by Temer’s PMDB along with Social Democrats and Democrats, to support this initiative and thus open the doors for the opposition, led by Rousseff’s PT, to take the presidency. Considering an amendment to the constitution requires at least 60 percent of support in both houses of congress, making minimal the chances of direct elections happening in Brazil.

Brazil has made the investigation process credible through the predictability of the democratic process already in place.

Setting aside the practical hurdles to direct elections, it is not clear that they would be a desirable option in any case. The success that Brazil has achieved in its fight against corruption has only been possible by promoting what can be called an obedient revolution. By making explicit use of all laws and procedures guaranteed by the constitution during the investigations conducted by the federal police and the judiciary, it has made the process credible through the predictability of the democratic process already in place.

The country has been going through the painful process of addressing corruption, which most Brazilians believe to be the country’s foremost problem. What is happening in Brazil today is truly revolutionary in the sense that it is accomplishing exactly what the Latin etymological roots of the word revolution mean: a turnaround. At no other time could Brazilians have imagined presidents and wealthy businessmen going to jail. But that is exactly what is happening today, and without the painful civil disorder that has characterized so many other nations’ histories.

If Brazil decides to change the rules of the democratic game while it is being played by allowing for direct elections, other corrupt figures could justify using the same tactics going forward. If it endures in its model of obedient revolution through the regular 2018 presidential elections, however, potential presidential candidates would have a predictable amount of time and process to make their cases to the Brazilian people. It is unlikely that Temer will still be president when elections come next year, regardless of which method is used to remove him from power. What is important is not to risk losing an entire battle against corruption in the name of a small win against a president with no political future during an assuredly painful process regardless of who is in power.

Related Articles

This site uses cookies to improve your user experience. Click here to learn more.

Continue

Close We are offering free and open access for a short period of time. Read more about why we are doing this.

Days
Hrs
Min
Sec