2017 Predictions: What happens if (or when) Temer falls?

Sputnik Brazil - The end of 2016 is approaching, and with it, the deadline stipulated in the Constitution for calling direct elections in the event of a vacancy in the offices of president and vice-president: Congress would indirectly elect the new head of state. However, if the ticket elected in 2014 is annulled, the Electoral Code would guarantee a direct vote. So, what can we expect for 2017?

What does the Constitution say?

According to Article 81 of the Federal Constitution, if both incumbents leave office within the first two years of their term, a new direct election is called. If the vacancy occurs in the final two years, the law would require Congress to choose the new successor through indirect elections.

In this last case, however, a primary problem immediately arises: in the explosive moment the country is going through, would a president chosen indirectly, by a Congress highly dominated by corruption scandals, be able to have the strength and popular legitimacy to serve as a stopgap until 2018?

Potential candidates

For the PT (Workers' Party) and much of the opposition, the answer is no. The party of former president Dilma Rousseff, removed from power without evidence of any crime of responsibility, advocates for direct presidential elections as early as 2017. Encouraged by the latest polls, which show former president Lula in first place in voting intentions in a hypothetical presidential election scenario, the party is internally discussing the possibility of launching Lula's candidacy as early as next year, according to Senator Lindbergh Farias (PT-RJ), who spoke to Poder360: 

"And it wouldn't be for a temporary term. Lula could come to assume the full term," said Lindbergh.

In a Datafolha poll released on December 12th, the former president appeared with 25% of voting intentions – a ten-point lead over the second-placed candidate, Marina Silva (Rede), and 14 points ahead of the third-placed candidate, Aécio Neves (PSDB).

Former president Fernando Henrique Cardoso (PSDB), one of the most quoted names to assume the highest office of the Republic if the election is decided by Congress in 2017, also said in an interview with Globonews on December 1st that he would prefer to try to keep Temer in office until the end of his term, but that, if that were not possible, the best thing would be to call direct elections to choose a replacement.

"We are crossing a rickety bridge. I will do everything possible to strengthen the Temer government. But if the bridge collapses, an amendment will be needed in Congress to hold direct elections," FHC said in the interview.

However, according to Ciro Gomes (PDT), a pre-candidate for the Presidency in 2018, FHC is "lying, as he usually does." According to the politician from Ceará, the former president is "preparing to assume power in the indirect elections," and with that, he would try to avoid holding elections in 2018.

 

Ciro believes it is necessary to defend the constitutional procedures to avoid further worsening of the institutional crisis that has shaken the country since Dilma's illegitimate removal. Direct elections would be ideal, he says, but unfeasible due to the current configuration of Congress, which is taken over by "crooks" who would never approve such a possibility.

Former minister Nelson Jobim, a member of the Constituent Assembly, leader of the PMDB party, and Minister of Justice and Defense in the PSDB and PT governments, is another name being considered in the corridors of Congress to assume the interim mandate. He also recently became a member of the Board of Directors of BTG Pactual bank, whose former president, André Esteves, was arrested in connection with the Lava Jato corruption scandal.

Jobim, who dined with Temer at the Jaburu Palace on December 6th, is reportedly banking on his close ties with both Lula and FHC to secure his nomination by Congress next year.

Temer's bleak future.

Regardless, Temer's downfall, whether through resignation or removal from office, is an increasingly likely possibility amidst the mounting accusations against the PMDB politician, as well as the freefall in his popularity ratings, which not even Santa Claus seems able to mitigate.

Two of the 77 plea bargains agreed upon between the Federal Public Prosecutor's Office and Odebrecht have already had their contents leaked. The first, from former Odebrecht Institutional Relations Director Cláudio Melo Filho, who was allegedly responsible for the construction company's relationship with the National Congress, mentions the names of 51 politicians from 11 parties who allegedly received bribes from the company, including Temer. 

On Monday, Márcio Faria, who served as president of Odebrecht Engenharia Industrial, says that the PMDB member participated in a meeting in 2010 to discuss "donations" to the PMDB's electoral campaign that year, promising to facilitate the construction company's work on Petrobras projects. In other words, Temer allegedly asked for a bribe.

There is still no concrete evidence, beyond the leaked testimonies, to legally support the removal of Temer in an impeachment process. Furthermore, some points in the testimonies refer to events prior to his presidency. However, these are only 2 of the 77 potentially disastrous testimonies for the government's base, and many more bombshells could explode in the coming days. 

And regardless of whether an eventual impeachment process against the PMDB member succeeds or not based on the accusations, Temer's political decline is evident.

What if the Dilma-Temer ticket is annulled?

In addition to all this, the Superior Electoral Court (TSE) is currently analyzing a request to annul the presidential ticket of Dilma-Temer, which won the 2014 elections. The action was filed by the PSDB party shortly after the announcement of the defeat of its candidate, Senator Aécio Neves.

The Electoral Public Prosecutor's Office (MPE) says it has found "strong evidence of fraud and misappropriation of funds" in its analysis of data collected from the lifting of bank secrecy of the printing companies Red Seg Gráfica, Focal, and Gráfica VTPB, companies contracted by the Dilma-Temer ticket, which allegedly failed to provide proof of services rendered. Furthermore, the PSDB accuses the winning ticket of raising donations that, in reality, were derived from funds diverted from Petrobras.

Temer's defense is trying to convince the TSE (Superior Electoral Court) that his client's campaign accounts were separate from Dilma's, hoping that any eventual annulment of the ticket will only affect the former president.

The reporting judge for the case, Luís Roberto Barroso, has already released the case, and now only a decision from the president of the Supreme Federal Court (STF), Carmen Lúcia, is needed for the Court to analyze the issue – which can only happen after February, when the STF recess ends. When the case is ready to be judged, it will be up to the STF minister and current president of the Superior Electoral Court (TSE), Gilmar Mendes, to include or not the matter on the agenda of the TSE plenary session. 

It is worth noting that the minister, like Carmen Lúcia, is also being considered for the presidency in the event of indirect elections by Congress, and that on December 15th, he was received by Temer for lunch at the Planalto Palace.

The implications of the action filed in the TSE (Superior Electoral Court) could lead to the calling of direct presidential elections, even if the vacancy occurs after two years of the elected ticket's term. This is because a provision of the Electoral Code, approved by Congress itself in 2015, establishes that, if there is a disqualification by the Electoral Court at least six months before the end of the term, the election must be direct.

However, if Temer is removed from office by the TSE (Superior Electoral Court), it would be necessary to approve a proposed constitutional amendment (PEC) to guarantee direct elections in the country, in order to resolve the interpretative conflict between the Electoral Code and Article 81 of the Constitution. Temer's base, however, has blocked this discussion in Congress.

PEC 227

This proposed constitutional amendment, which alters Article 81 of the Federal Constitution, already exists. Presented by Congressman Miro Teixeira (Rede-RJ), it "provides for direct elections in the event of a vacancy in the Presidency of the Republic, except in the last six months of the term," because then there would not be enough time to organize the election.

The proposal aims precisely, according to the text, to avoid "the emergence of interpretative conflicts in the event of a possible presidential succession resulting from the annulment of the diplomas of the President of the Republic and Vice-President of the Republic, elected in 2014".

The interpretative conflict, as summarized by the authors, lies in the following question: if the ticket elected in 2014 is indeed annulled, would the elections for president and vice-president be held "by direct vote, as provided for in the Electoral Code, or would the provisions of Article 81 of the Constitution prevail, making Deputies and Senators the only voters in such an election?"

"Amid such uncertainty, the authors argue that the National Congress must 'return to the people, under any circumstances, the right to choose the President of the Republic,'" the report states.

The main argument in favor of the new provision in the Electoral Code is that it creates a distinction between situations where positions become vacant due to a decision by the Electoral Court and situations where there is removal due to impeachment, death, or illness. In the first case, the difference is that the annulment of the ticket by the TSE (Superior Electoral Court) would mean that the election was invalid and that, ultimately, the right to vote, a fundamental clause of the Constitution, was not properly respected, which would require new direct elections. 

However, PEC 227 remains stalled in the Constitution and Justice Committee (CCJ) of the Chamber of Deputies, despite the favorable opinion of the rapporteur, Esperidião Amin (PP-SC). In a statement to Poder360, the president of the CCJ, Deputy Osmar Serraglio (PMDB-PR), an ally of Temer, said he did not proceed with the proposal because he did not find it "opportune".

And what do the people say?

According to a recent Datafolha poll, 63% of Brazilians want Temer to resign this year so that direct elections can be held before 2018. However, if the president survives 2016, the approval of a constitutional amendment and the organization of a direct election could take more than 6 months, deepening the political crisis in the country.

Despite everything, Temer's downfall seems to be one of the most accurate prophecies for the year that is beginning. Direct elections or not, Brazil will most likely have new elections in 2017.

“It’s the best way to overcome the crisis. The risk of electing a fundamentalist outsider is much lower than that represented by the continuation of a spurious, criminogenic, and disastrous government,” summarized Adriano Pilatti, professor of Constitutional Law at PUC-Rio, to Sputnik.