STF has 5 to 0 to say that the Constitution does not provide for ‘moderating power’ or military intervention | Policy

The Federal Supreme Court (STF) formed a score of 5 votes to 0 this Monday (1st) to clarify, in an action presented by the PDT, the limits for the actions of the Armed Forces.

Action rapporteur, Luiz Fux voted on Friday (29) to say that the Constitution does not allow “constitutional military intervention” nor encourages a democratic rupture (see more excerpts below). Minister Luís Roberto Barroso followed the vote.

This Sunday, Flávio Dino also voted to follow Fux’s position – but, unlike Barroso, he cast a written vote with more arguments.

This Monday, ministers Luiz Edson Fachin and André Mendonça also followed the rapporteur’s vote. Therefore, the score is 5-0.

The trial continues in the virtual plenary, with the ministers’ votes being presented in an electronic system, until the 8th. The votes of six ministers still need to be presented.

In the vote included this Sunday, Dino said that the trial takes place “on a date that refers to an abominable period in our Constitutional History: 60 years ago, in defiance of the norms enshrined in the 1946 Constitution, the Rule of Law was destroyed by the illegitimate use of strength”.

According to the minister, “such an institutional tragedy resulted in many losses to our Nation, much of it irreparable.”

“These are pages, to a large extent, surpassed in our history. However, there are still echoes of this past that insists on not passing, which proves that it is not as past as it appears to be,” she wrote.

Dino stated that it is necessary to eliminate “any theses that go beyond or defraud the real meaning of article 142 of the Federal Constitution, established in an imperative and unequivocal manner by this Supreme Court”.

“In fact, I remember that there is no ‘military power’ in our constitutional regime. Power is only civil, made up of three branches anointed by popular sovereignty, directly or indirectly. The military function is subordinate to such constitutional powers, as stated in article 142 of the Magna Carta”, stated Dino.

Article 142 of the Constitution cited by Dino says:

Art. 142. The Armed Forces, constituted by the Navy, the Army and the 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 are intended to defend the Homeland, to guarantee constitutional powers and, at the initiative of any of them, law and order.

Ministers judge a action that questions points of a 1999 law that deals with the actions of the Armed Forces.

The party contests three points of the law:

• hierarchy “under the supreme authority of the President of the Republic”;
• definition of actions for the allocation of the Armed Forces in accordance with the Constitution;
• attribution of the President of the Republic to decide on the request of the other Powers on the use of the Armed Forces.

In the first vote included in the trial, Fux highlighted that the Constitution does not authorize the President of the Republic to resort to the Armed Forces against Congress and the Federal Supreme Court, and that it also does not grant the military the role of moderators of possible conflicts between the three powers.

“Any institution that intends to take power, whatever the declared intention, outside of representative democracy or through its gradual internal undoing, acts against the text and spirit of the Constitution”, says Fux in the vote.

Now, in the vote, the minister defended that the Supreme Court establishes that:

1. the institutional mission of the Armed Forces in defending the Homeland, guaranteeing constitutional powers and guaranteeing law and order does not accommodate the exercise of moderating power between the Executive, Legislative and Judiciary powers;
2. the leadership of the Armed Forces is a limited power and cannot be used for undue interference in the independent functioning of other powers;
3. the prerogative of the President of the Republic to authorize the use of the Armed Forces, on his own initiative or through the presidents of the STF, the Senate or the Chamber of Deputies cannot be exercised against the powers themselves;
4. The use of the Armed Forces to “guarantee law and order” lends itself to exceptionally confronting serious and concrete violations of internal public security, on a subsidiary basis, after the exhaustion of ordinary and preferential mechanisms for preserving public order.

Fux says that the Armed Forces are not a ‘moderating power’ in any conflict between powers

For Fux, although the law mentions that the President of the Republic has “supreme authority” over the Armed Forces, this authority “does not override the separation and harmony between the powers”.

The minister highlighted that no authority is above others or beyond the reach of the Constitution, and this expression of supreme authority deals with “the relationship with all other military authorities, but, naturally, it is not in relation to the constitutional order”.

The rapporteur stated that for situations of serious institutional disruption, the Constitution provides for exceptional rules, subject to controls exercised by the Legislature or the Judiciary.

“In this way, considering the Armed Forces as a “moderating power” would mean considering the Executive Branch a superpower, above the others, which would empty article 85 of the Constitution and immunize the President of the Republic from crimes of responsibility”, wrote the minister.

“The exegesis of article 142 in question rejects the understanding of the use of the Armed Forces as an arbitrator authorized to intervene in matters of internal politics under the pretext of guaranteeing balance or resolving conflicts between powers, since its reading must be carried out in accordance with systematically with the national order, notably regarding the separation of powers, adopted by the 1988 Constitution itself, with no need to talk about the creation of a power with constitutional powers superior to others, nor with the power of moderation”, he added.

The minister stated that the Armed Forces are not a Power of the Republic, but an institution at the disposal of the constituted Powers so that, when called upon, they act instrumentally in defense of law and order.

“Any institution that intends to seize power, whatever the declared intention, outside of representative democracy or through its gradual internal dismantling, acts against the text and spirit of the Constitution,” he said.

“There is no space in the constitutionally foreseen framework for the thesis of military intervention, nor for moderating action by the Armed Forces, completely out of step with the institutional design established by the 1988 Constitution,” he said.