Articles, sections, “recitals”, mentions of the Constitution and use of terms such as “legality” and “Rule of Law”.
The legal language of the draft decrees found in the investigation targeting the coup plot to keep Jair Bolsonaro (PL) in power brought to light similarities with the legal arguments used to justify the 1964 military coup.
The outcome, as we know, is different. 60 years ago, João Goulart was deposed and replaced by an unelected government. In 2022, the president chosen at the polls was certified.
But in both cases a common strategy was used, say scholars of the period: the attempt to give the appearance of legality to a breach of the constitutional order.
The maneuver was not completely covert in any of the episodes. Both Institutional Act No. 1, of April 1964, and the state of siege draft found with Lieutenant Colonel Mauro Cid, Bolsonaro’s former aide-de-camp, recognize a contradiction with legal rites.
“The constitutional processes did not work to dismiss the government, which was deliberately willing to Bolshevize the country”, says the preamble of AI-1, echoing the military’s speech of inserting Goulart’s deposition in the context of the fight against communism.
“We must consider that legality is not always sufficient: sometimes the legal rule or court decision is legal, but illegitimate because it proves to be unfair in practice”, states the draft state of siege decree found by the Federal Police in the search against Cid .
With this point in common, both try to justify the use of the law against the Rule of Law itself.
The draft created by Bolsonarism states that decisions of the STF (Supreme Federal Court) conflict with the principle of morality, also provided for in the Constitution — therefore, an action against members of the court would be legitimate.
The first institutional act of the dictatorship, in turn, says that constituent power “is manifested through popular election or revolution.” Revolution was the term the military used to call the coup d’état against Goulart.
“This is the most expressive and most radical form of Constituent Power. Thus, the victorious revolution, as a Constituent Power, legitimizes itself”, says the text.
The AI-1 was written by Carlos Medeiros Silva and Francisco Campos.
Author of the Constitution of another dictatorship, that of the Estado Novo, Campos was recognized both for his connection with authoritarianism and for what he saw as erudition, to the point of earning him the nickname Chico Ciência.
The group called by the Federal Police as the “legal nucleus” to keep Bolsonaro in power did not have a name with the same reputation.
According to the PF, it was made up of Anderson Torres, then Minister of Justice, Filipe Martins, special advisor to the president, lawyer Amauri Feres Saad and priest José Eduardo de Oliveira e Silva, in addition to Cid.
For Vera Chueiri, professor of constitutional law at UFPR (Federal University of Paraná), like Campos in 1964, Bolsonaro’s group also tried to “give a legal basis to a coup, but with less sophistication”.
She refers both to the draft state of siege decree and to the one, found with Torres, which provided for the decree of a state of defense in the TSE (Superior Electoral Court) to reverse the results of the elections.
Torres himself, who denies authorship of the text, called it “poorly written” and a “legal aberration”.
Although with rudimentary writing and argumentation, the minutes found with Bolsonarism reveal a strategy that appears to be thought out, says the UFPR professor.
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They appropriate an important argument from constitutional theory, the importance of legitimacy and not just legality, to use it in a distorted way.
“If there is a legal decision that does not meet justice criteria, it can provoke those who make the decision to rethink it”, he says.
Of course, those who feel wronged will not always win, says the professor, since there are different understandings of legality and legitimacy. But a minimum moral and social agreement must be respected, she says: “it is never acceptable to use the Constitution against itself.”
Author of the book “Legality and Authoritarianism: the Role of Jurists in the Consolidation of the 1964 Military Dictatorship” (Juspodivm, 2018), Danilo Pereira Lima assesses that the collaboration of legal professionals was fundamental to the consolidation of the military dictatorship throughout its 21 years in duration.
This same cooperation did not happen in the case of Bolsonaro, he notes. While in 1964 the coup had the support of important figures in the legal community, many of whom would later turn against the regime, in 2022 support was much more restricted.
For Lima, the difference is explained by differences in the international scenario, before the Cold War and, in 2022, with powers like the United States opposed to a rupture in the democratic order.
Historian and professor at UFRJ (Federal University of Rio de Janeiro), Carlos Fico links the legal veneer of coups and attempts in the country to another historical aspect.
“In Brazil, authoritarian interventions were all military in nature, and the military attaches great importance to manuals and rules”, he states. “That’s why there are always jurists behind it.”
Their task, in fact, is not always easy to understand. The institutional pirouettes to give the appearance of legitimacy to the dictatorial regime did not escape even Magalhães Pinto, the governor of Minas Gerais who opened the state to the coup troops in 1964.
“Since March 31st we have seen that we have been experiencing some confusion. Initially, we restored the Constitution [de 1946]then we made another Constitution [a de 1967] and we talk sometimes about legality, sometimes about revolution”, he said in 1968 during a meeting of the National Security Council, according to a report in the reissue of “A Ditadura Embarada” (Intrínseca, 2014), by the journalist and columnist of Sheet Elio Gaspari.
In the case of Bolsonaro, the Federal Police is still investigating whether or not there is illegality and the former president’s involvement in coup articulations in Planalto, and how much they are linked to the January 8 attacks.
Target of measures such as passport withdrawal, in addition to search and seizure, Bolsonaro denies having committed a crime and has repeated his speech of acting “within the four lines of the Constitution”.
“Now the coup is because there is a draft state of defense decree,” the former president told supporters on Avenida Paulista, in São Paulo, at the end of February. “Coup using the Constitution? Be patient,” he declared.
JURISTS LINKED TO THE MILITARY DICTATORSHIP
Francisco Campos (1891-1968)
Lawyer, professor and conservative politician. Responsible for drafting the Brazilian Constitution of 1937 and the preamble of AI-1 of the 1964 coup
Carlos Medeiros Silva (1907-1983)
Lawyer linked to Francisco Campos, he wrote the AI-1 and was the main author of the project that resulted in the 1967 Constitution. Appointed minister of the STF by Castelo Branco, he was later his Minister of Justice
Luís Antônio da Gama e Silva (1913-1979)
Professor at the Faculty of Law at USP, he was rector of the university and later Costa e Silva’s Minister of Justice. He wrote AI-5, which revoked fundamental rights and further closed the military regime
