Brazil: Daring to Look at Succession Scenarios

By Silvio Levcovitz*

Lava Jato

Photo Credits: Instituto Liberal (Brasil) and Brasil 247 / Google Images / Labeled for noncommercial reuse

Brazil’s snowballing scandals are generating a high level of uncertainty regarding the country’s political future.  “Operation Car Wash”—a two-year investigation by a task force of the Federal Police and the Federal Prosecutors—has already led to the conviction and 20-year imprisonment of several senior officials from Petrobras and prominent construction companies, and others are likely to follow.  In Brazil, congressmen, cabinet ministers, and the President can be criminally charged only by the Supreme Court, through a long, difficult process called “privileged forum.”  On March 17, former President Lula, under investigation for allegedly receiving two properties as a bribe from construction companies, was designated a Minister of State in President Dilma Rousseff’s administration, an appointment that would have afforded him that protection.  The judge pursuing him released a recording of a call from Dilma offering him immunity as well as Lula’s calls on family and other private matters.  Many in the Brazilian legal community have disapproved of the judge’s disclosure of the calls as disrespecting the rule of law and the right to privacy, but the damage to Dilma and Lula was done.

Calls for the President’s impeachment are surging—and she repeatedly rejects the pressure to resign.  On Sunday, March 13, a half-million people protested in São Paulo, and the press estimates that another 1-2 million demonstrated elsewhere around the country.  (Demonstrations supporting Dilma have attracted 100,000 citizens in São Paulo.)  The PMDB, party of Vice-President Michel Temer and President of the House Eduardo Cunha, is officially quitting the government this week, and other minor parties appear likely to do the same, definitely cracking the presidential support.  The impeachment process in Brazil has two steps.  In the House, two-thirds of its 513 members (342 votes) are required for “admission” or approval, in which case the Senate can decide by majority vote to take up the charges, resulting in the President being suspended for up to 180 days.  Conviction requires the votes of two thirds of the 81 senators.  Although press reports indicate the mood is for the impeachment, the government is offering positions and funds individually to Congressmen and in hopes of achieving a low turnout to stop the process in the House.

Predicting the outcome of such a volatile situation is inherently risky, but discussion of post-Dilma scenarios is growing increasingly common.  Should she step down or be removed from office, Vice-President Michel Temer would be her constitutional successor.  Like Dilma, however, Temer is being charged by the Superior Electoral Court on suspicion of illegal campaign financing and, if convicted, would not be allowed to take office.  The next two in line to succeed her—President of the House Eduardo Cunha and President of the Senate Renan Calheiros—have been snagged by Operation Car Wash and face charges by the Supreme Court, suggesting that they too could be disqualified.  (The Federal Attorney General has already asked the Supreme Court to issue a preventive order to remove Cunha because of evidence that he has received US$5 million in secret Swiss bank accounts, without any justification.)  That leaves Supreme Court President Ricardo Lewandowski as a possible successor for a maximum period of 90 days, at which point elections would be called.  As Brazil faces crisis after crisis, the press have taken to commenting that the country’s fast-paced, dramatic events make the American series House of Cards look slow and boring. 

March 30, 2016

* Silvio Levcovitz is a CLALS Fellow and political science PhD candidate at the Universidade Estadual de Campinas, São Paulo.  He has been a public lawyer in Brazil and is researching criminal cases of corruption and civil claims of administrative misconduct from 1991 to 2014.

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1 Comment

  1. I have remained a reluctant supporter of Brazilian President Dilma Rousseff, although many friends and colleagues call for impeachment. The reason: Short-term and long-term governability considerations lead to different preferences. The temptation is to push her out immediately, by any means necessary. Rousseff has been an increasingly incompetent leader, with a tin ear for the give and take of democratic politics, along with rigidly statist and cumulatively disastrous national economic management, resulting in almost 4 percent GDP shrinkage in 2015 and over 5 percent contraction in the first quarter of this year. Moreover, the supposedly mature and economically-centrist Congressional opposition led by the PSDB, party of former President Fernando Henrique Cardoso (January 1995- December 2002), behaved quite irresponsibly throughout 2015, blocking every reasonable economic initiative proposed by President Dilma’s new and orthodox Finance Minister Joaquim Levy (January 2015- December 2015). Sadly, the opposition prioritized weakening Dilma and the PT over governing Brazil. Perhaps its leaders will rediscover their integrity if given a new opportunity to govern. These factors suggest that Brazil would be happier were the president to fall on her sword–and just go!

    However, the medium to long-term imperative must be to maintain the rule of law and strengthen democratic institutions. One should not bend the rules to push out duly-elected presidents simply because their street credibility has crashed into the single digits. Nor is a (plausible) accusation that budget numbers were massaged by an incumbent administration’s accounting tricks, nor a claim that tainted campaign funds were (unknowingly) accepted in the 2014 presidential election, sufficient evidence of criminal wrong-doing. Despite enormous efforts to tar her, we as yet lack good evidence that the president received, covered up, or was aware of bribes or other corruption. Some have suggested that Rousseff’s recent move to appoint former President Lula da Silva to her Cabinet, apparently in order to shield him from prosecution for corruption, may be such a legitimately ‘criminal’ offense. The Brazilian Lawyers’ Association (OAB) has just (March 28) presented a new impeachment petition claiming that President Rousseff in fact obstructed the Lava Jato corruption investigation, which if true also would meet the standard for initiating impeachment. However, in the absence of a legally sound process, the likely damage to Brazilian democratic institutions from railroading the incumbent remains too large to risk—despite the enormous short-term benefit to governance that might result.

    Leslie Elliott Armijo
    School of International Studies, Simon Fraser University, Vancouver, BC
    Non-resident Fellow, CLALS, American University


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