The Brazilian Constitution of 1988, the Armed Forces, and the Coup d’Etat

—Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, & Thomas da Rosa Bustamante, Federal University of Minas Gerais, Brazil, Faculty of Law.

On the 17^th of September 2017, Brazilian Army General Antonio Hamilton Martins Mourão, during a lecture for a Masonic Lodge in Brasília, advocated the possibility of an interference of the Armed Forces in Brazilian politics. He said that “the institutions [must] resolve the political crisis by judicial means, removing from public office all individuals involved in criminal offenses; for otherwise we [the Army] will have to impose this remedy.”[1] He added that such a solution would not be easy, generating problems, but that the members of the Armed Forces should meet their commitment to the Homeland, regardless of whether they are applauded or not. Finally, he said that they must have a clear conscience that they “did their best” [to find a solution], in the sense that “if it must happen, it will happen.”[2]

Instead of imposing disciplinary measures on Mourão, the Army Commander, General Eduardo Villas Bôas, gave a television interview in which he tried to justify the action of his subordinate, calling him a “good soldier” and claiming that his pronouncement was understood out of its context. He argued that the Armed Forces only act upon request of one of the constituted powers or on situations of imminent chaos.[3] The interview was broadcast right after the civilian Minister of Defense Raul Jungmann requested that something be done with the military public servant at issue.

To make things worse, after the interview, several reserve militaries publicly endorsed General Mourão’s pronouncements, including the ex-Commander of the troops sent to Haiti in the peace force of 2004, General Augusto Heleno.[4] Heleno said that Mourão merely explained “in a clear and honest way” the content of the provisions of the Constitution of 1988, and that although “the left,…panicking after its continuous failures, saw in it a threat of military intervention” the idea that the military could pose a threat to legality is “ridiculous”.[5]

These statements were loudly praised or criticized. Sérgio Abranches, a leading Brazilian political scientist, sharply opposed Villas Bôas’ assertion that Mourão was a “good soldier,” arguing that he was actually proposing a coup d’état. Indeed, the Army’s Disciplinary Statute, Decree 4.346/2002, in its Attachment I, number 57, explicitly proscribes active military figures from making public political or partisan speeches without their commander’s authorization. Abranches noted that the implications of that rule to the facts at issue was not straightforward, given that several members of the military organization either silently or openly supported Mourão. These facts would contribute to a political crisis similar to the one that Brazil confronted in 1954 and 1964. It is remarkable that Abranches is one the Brazilian analysts who has always called attention to the perils of the supposed absence of effective control by the civilians of the Armed Forces, even after the creation of the Ministry of Defense.[6]

There are other facts that should lead us to refrain from calling Mourão a “good soldier”. In 2015, as Commander of the forces in southern Brazil, he allowed another soldier to praise the honor of one of his colleagues, Colonel Brilhante Ustra, who had been accused by several political opponents and state institutions of commanding the torture center in the city of São Paulo known as DOI-CODI (which stands for “Department of Information Operations – Center for Internal Defense Operations”). Ustra was also convicted by a Brazilian court in a civil lawsuit for taking part in the torture of a whole family, the Teles.[7] Mourão, after the ceremony, was dismissed from the southern command and reassigned to a financial department without direct leadership over troops.[8]

Several of the controversies brought about by the declarations, beyond the fierce violation of the statutes that proscribe military public political manifestation, relied upon the text of article 142 of the Constitution of 1988. This provision stipulates that the Armed Forces are institutions subordinated to the President of the Republic, with the mission to defend the Homeland, guarantee the constituted powers and, upon request of those powers, law and order.[9]  Even Professor Vladimir Safatle, a left-wing political analyst from the University of São Paulo, has noted – while alerting against the danger of military political activity and the repressive past which surrounds it – that article 142 was a ticking time bomb implanted by the military during the National Assembly of 1987-1988. Under his interpretation, the constitutional text could be analogous to article 48 (which he quotes wrongly as article 41) of the Weimar Constitution and would “legalize coup d’états”.[10]

This reasoning appears to be a shot in one’s own foot. In fact, both readings of article 142 of the Brazilian Constitution are deceitful. The hereafter called Mourão reading, for its disingenuous intent; the Safatle reading, for adding to it so naively. Both of these interpretations ignore two important points: (a) what the Brazilian Constitution systematically provides; and (b) the constitutional context in which the Armed Forces engulfed themselves.

As for the first (a), it is not possible to read article 142 beyond its ordinary meaning and without systematic consideration of the provisions that surround it. Article 142 is located in Title V of the Constitution, which is entitled “Of the State and the Defense of Democratic Institutions.” Even if one is satisfied with its literal text, there is no expression in article 142 that supports Mourão’s view that the Armed Forces could act without the request of one of the constituted powers and without the authorization of the President of the Republic. The idea that a substitutive power could take over upon the failure of the other branches is a clear attempt to disrupt the constitutional order, or, plainly, to promote a coup. As two federal prosecutors recognized, a “military intervention” would sound like a clear configuration of what the same Constitution proscribes in its article 5, number XLIV, as a non-bailable and imprescriptible crime against the constitutional order and the democratic State.[11]

The Constitution authorizes the “employment” of the Armed Forces for public security purposes, in the terms determined by Complementary Law n. 97 of 1999, article 15 and paragraphs,[12] subordinating these forces to civilian control; terms like “military intervention” are therefore useless and nonsensical. The Constitution of 1988 subordinates the three Armed Forces (Army, Navy and Aviation) to a civilian authority directly appointed by the President of the Republic. Constitutional Amendment n. 23 of 1999 created, during the presidency of Fernando Henrique Cardoso, the Ministry of Defense in order to accomplish this civilian governance. Complementary Law n. 97 only allows for military action based on law and order if the purpose is related to public security and is subordinated to state public security officials (article 15). Any employment of military force based on a failure of political activity is prohibited by the Constitutional scheme.

One can also add that the Constitution has protected the political system against any political intervention that could arrive from forces traditionally and dangerously present in the political scene since, at least, the formation of the republic in Brazil in 1889. Article 14, paragraph 8 of the current text prohibits members of the military from serving as candidates for elected office or certain other political activities, unless the soldier at issue  withdraws or suspends his status, with further change to retirement after the electoral term starts.

As for the broader constitutional context, it is unthinkable that under a constitution like the Brazilian one that constructs a democratic State linked to a human rights system regulated both domestically and internationally, an institution like the Armed Forces could conduct politics in a legitimate fashion. During the work of the National Truth Commission, these authorities not only defied the organ but also refused to admit that well known gross violations of human rights happened in their barracks. They argued that no misuse of coercive powers or détournement du pouvoir happened in the Armed Forces’ buildings during the dictatorship. In other words, they claimed that their institutions, despite witnesses and documents proving the contrary, were not employed for the practice of crimes against humanity. How could the democratic project of the Constitution of 1988 charge these authorities with the ability to replace the constituted powers in making politics?[13]

In the end, it is clear that article 142 of the Brazilian Constitution of 1988 gives no room for either Mourão or Safatle’s interpretations, even if we remain bounded to its bare text, the initial (yet never sufficient) step of the constitutional interpretative endeavor.

Suggested citation: Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, & Thomas da Rosa Bustamante, The Brazilian Constitution of 1988, the Armed Forces, and the Coup d’Etat, Int’l J. Const. L. Blog, Oct. 2, 2017, at: http://www.iconnectblog.com/2017/10/the-brazilian-constitution-of-1988-the-armed-forces-and-the-coup-de-etat/

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[1] Tânia Monteiro, “General Fala em Possibilidade de Intervenção Militar e é Criticado por Comando das Forças”, O Estado de S. Paulo, http://politica.estadao.com.br/noticias/geral,general-fala-em-possibilidade-de-intervencao-militar-e-e-criticado-por-comando-das-forcas,70002005185, last visited 25 September 2017.

[2] Id.

[3] UOL, “Comandante diz que Exército Não Punirá General que Defendeu Intervenção Militar”, UOL Notícias, https://noticias.uol.com.br/politica/ultimas-noticias/2017/09/20/comandante-do-exercito-diz-que-nao-havera-punicao-a-general-por-defesa-de-intervencao-militar.htm?cmpid=copiaecola, last visited 25 September 2017.

[4] Tânia Monteiro, “Ex-comandante de tropas no Haiti sai em defesa de general Mourão”, O Estado de S. Paulo, http://politica.estadao.com.br/noticias/geral,ex-comandante-de-tropas-no-haiti-sai-em-defesa-de-general-mourao,70002008164, last visited 25 September 2017.

[5] On the 26 September 2017, the Army Commander, General Villas Bôas also gathered with several top ranking Armed Forces officials, in a extra official meeting, to purportedly show “cohesion”. See Rubens Valente, “Comandante do Exército reúne generais e fala em ‘coesão’”, Folha de S. Paulo, http://www1.folha.uol.com.br/poder/2017/09/1922005-comandante-do-exercito-reune-generais-e-fala-em-coesao.shtml, last visited 27 September 2017.

[6] Sérgio Abranches, “Sinais institucionais da gravidade da crise política”, http://sergioabranches.com.br/politica/185-sinais-de-crise-institucional, last visited 25 September 2017. See also Sérgio Abranches, “A crise militar do governo Dilma”, https://www.sul21.com.br/jornal/a-crise-militar-do-governo-dilma/, last visited 25 September 2017.

[7] Migalhas, “STJ Reconhece Responsabilidade de Ustra por Torturas Durante Ditadura”, http://www.migalhas.com.br/Quentes/17,MI212546,101048-STJ+reconhece+responsabilidade+de+Ustra+por+torturas+durante+ditadura, Migalhas, last visited 25 September 2017.

[8] Kennedy Alencar, “Ministro da Defesa Acerta ao Demitir Comandante Militar do Sul”, Blog do Kennedy, http://www.blogdokennedy.com.br/ministro-da-defesa-acerta-ao-demitir-comandante-militar-do-sul/, last visited 25 September 2017.

[9] “Article 142

The Armed Forces, made up of the Navy, Army and Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order” (Constitute Project, https://www.constituteproject.org/constitution/Brazil_2015?lang=en, last visited 25 September 2017).

[10] Vladimir Safatle, “As Forças Armadas Não Agem Contra o ‘Caos’, Mas São Parte Fundamental Dele”, Folha de S. Paulo, http://www1.folha.uol.com.br/colunas/vladimirsafatle/2017/09/1920752-as-forcas-armadas-nao-agem-contra-o-caos-mas-sao-parte-fundamental-dele.shtml, last visited 25 September 2017.

[11] Marlon Weichert and Deborah Duprat, “O Papel das Forças Armadas no Estado Democrático de Direito é Defender os Poderes Constituídos”, http://pfdc.pgr.mpf.mp.br/informativos/edicoes-2017/setembro/nota-publica-pfdc-201co-papel-das-forcas-armadas-no-estado-democratico-de-direito-e-defender-os-poderes-constituidos201d, last visited 25 September 2017.

[12] This statutory law is a specifying device demanded by article 142, first paragraph, of the Brazilian Constitution of 1988.

[13] For the project entailed by the Constitution of 1988 in a transitional perspective, see Meyer, Emilio Peluso Neder. “Criminal Responsibility in Brazilian Transitional Justice: A Constitutional Interpretative Process under the Paradigm of International Human Rights Law.” Indon. J. Int’l & Comp. L. 4, 2017, p. 41-61. Cattoni de Oliveira, Marcelo Andrade. “A Democracia sem Espera: Constitucionalização e Transição Política no Brasil”, Emilio Peluso Neder Meyer (ed.), Justiça de Transição em Perspectiva Transnacional, Belo Horizonte, CJT and Secretaria da RLAJT, 2017, p. 97-134.