Jurist who dealt with the Moderating Power says it was misinterpreted

The majority of ministers of the Federal Supreme Court (STF) decided that the Constitution does not determine that the Armed Forces can assume the role of Moderating Power to resolve political conflicts between the three powers of the Republic. On Monday (1), when the decision was made, jurist Ives Gandra Martins, whose theory was used by defenders of this possibility, told the report that his thinking was misinterpreted by society.

Author of books on the Federal Constitution, Ives Gandra Martins denies that article 142 of the Federal Constitution gives the Armed Forces the power to carry out an institutional rupture in the event of a crisis between the Judiciary and Legislature. For Martins, his understanding of the regulations was distorted by members of the government of former president Jair Bolsonaro (PL).

Six of the Court’s eleven ministers voted against the Moderating Power, while another five have not yet registered their votes. But the issue had already been decided in practice by the Army High Command at the end of 2022.

At the time, the topic was discussed in the collegiate of generals and the then Army commander, Marco Antônio Freire Gomes decided that article 142 of the Constitution could not support a legal intervention by the Armed Forces in the result of the last elections. The Navy and Air Force do not have sufficient military resources to implement this type of decision.

The current STF vote takes place at a time when the 1964 coup, called the Revolution of 64 by society, turns 60 – a fact that gives a symbolic and political charge to the Supreme Court’s action. The STF’s understanding this week occurred because the Court decided to resume the trial of the Direct Action of Unconstitutionality (ADI 6457), filed by the PDT in 2020. It asks the Court to clarify the constitutional role of the Armed Forces and limit their powers.

The name of Ives Gandra Martins is generally evoked by defenders of the idea that article 142 would give rise to legitimate political intervention by the military. The idea motivated some of the people who set up camps in front of barracks and military bases in 2022 as a form of demonstration.

He told the reporter that “article 142 would never serve as an institutional rupture.” The device would only be used if there was a conflict between the Legislature and the Judiciary regarding a specific point, such as, for example, the constitutionality of a Legislative Decree Project (PDL).

“The Constitution cannot have useless words and article 49 says that it is up to the Legislature to ensure competence. How can he do this if there is interference from the Judiciary? If the Legislature needs to ensure its competence and the Judiciary invades, it will not be the one that will ensure the competence of the other branch”, said the jurist.

Because of this, for Martins, article 142 would be a solution to the dilemma by saying that it is up to the Armed Forces to guarantee constitutional powers. “If there is a conflict between the two, for a specific point of conflict, the Armed Forces could say who is responsible for the issue”, argued the jurist.

Ives says he was not consulted by the Bolsonaro government

Cited by the Federal Police as an alleged legal basis for the thesis of a coup d’état, according to investigations into the operation Tempus VeritatisIves Gandra Martins denies that he was consulted by the Bolsonaro government regarding an institutional rupture, nor about his interpretation of article 142.

“No one in the government has ever asked me to give my interpretation. They used my interpretation and didn’t consult me ​​because they knew my position. Since August 2022 I had been saying that the possibility of a coup in Brazil was zero multiplied by zero”, stated the jurist.

Martins also said that his understanding of the provision had already been known in the legal community since 1997, the date on which he published the first comments on article 142. “All my legal comments were sent to the STF ministers at the time. The publisher Saraiva sent all my volumes,” he said.

He added: “I taught my classes at the Army Command and General Staff School (ECEME) with this interpretation (about article 142). In November 2022, I published an article on Conjur [site voltado à área jurídica] saying that there was no possibility of 142 being used for any coup. The other day I gave a talk and the [ex-presidente] Michel Temer was there. He told me: his interpretation was completely distorted.”

Article 142 of the Constitution establishes the role of the Armed Forces

The article in question regulates the actions of the Army, Navy and Air Force, defining the three corporations as Armed Forces. Furthermore, the constitutional text establishes who they are subordinate to and what their functions are.

“The Armed Forces, made up of 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 for the defense of the Fatherland, the guarantee of constitutional powers and, on the initiative of any of them, of law and order”, says the Federal Constitution.

Interpreting the article, lawyer Felipe da Costa, from Wilton Gomes Advogados, explains that the rule does not give the Armed Forces the status of a moderating power, but highlights the “subaltern” position in relation to the other powers.

“The purpose of the norm is, in addition to making clear the subordinate position of the military in relation to the Constitutionally established Three Powers, to impose on them the duty, only under the order of one of them, to act in defense of order and the Democratic Rule of Law, This does not mean, therefore, that they have the legitimacy to act ex officio”, said the jurist.

He also stated that “any military intervention, as defended by a portion of the population, would constitute, in practice, a true subversion of the constitutionally established powers of the Armed Forces.”

Military intervention was seen as a measure to control abuses by the STF

The interpretation of the use of article 142 as a legal means for the Armed Forces to intervene in politics gained strength in 2020. A large portion of the population began to repudiate the great dysfunctionality and exacerbation of powers of the STF, which resulted in inquiries such as Fake News and Undemocratic Acts.

According to analysts interviewed in reports from the People’s Gazettethe investigations would be dysfunctional because they do not follow the legal system, for example placing the same person as victim and judge.

Another fact that contributed to the increase in dissatisfaction with the STF was the arrest of then deputy Daniel Silveira (PTB-RJ), in 2021. At the time, the parliamentarian was arrested in the act for criticizing the ministers of the Federal Supreme Court (STF). According to article 53 of the Constitution, parliamentarians “may not be arrested, except in the act of committing a non-bailable crime”.

Critics of the STF began to call for a Moderating Power because they believed that a rupture had already been promoted by the Supreme Court. The STF has been stating that its actions take place in the name of democracy.

So far, the STF is acting as a group to reject the Moderating Power thesis

The trial of the Direct Unconstitutionality Action on article 142 of the Constitution is taking place virtually and should only end next week, but it is no longer possible to reverse the result. This is because six ministers have already voted against the thesis and the other five, even if they were in favor, would not reach a majority.

Minister Flávio Dino decided to vote on March 31, the 60th anniversary of the 1964 coup. Minister Gilmar Mendes said that the decision is “reaffirming what should be obvious”, according to the state-owned communications agency Agência Brasil.

The rapporteur of the case, Luiz Fux, said in his vote that: “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 powers , Legislative and Judiciary”.

National Security Law has already been used to judge those who requested military intervention

Although the STF judgment only deals with constitutional aspects of article 142, the practice of requesting military intervention has already been interpreted as a crime within the new National Security Law. The text sanctioned by Bolsonaro in 2021, in its article 359-L, stipulates penalties for anyone who “attempts, through the use of violence or serious threats, to abolish the Democratic Rule of Law.”

The device was used in the trials of prisoners on January 8, 2023, the date on which the headquarters of the Three Powers, in Brasília, were invaded and vandalized. The Court also voted to convict those accused of a coup d’état for qualified damage and deterioration of listed property. Penalties vary between 14 and 17 years in prison.

For criminal lawyer, Adriano Soares da Costa, the investigations conducted by the Supreme Court and the trials of the January 8 protesters indicate that there is the possibility of an extension of the National Security Law to interventionists.

“Since the publication of Law 14,197/21, the STF has been carrying out investigations in an inquiry against undemocratic acts, with a series of measures against those being investigated, including those who would be in camps in front of Army buildings. In practice, today there is a fear of an interpretation that understands the simple public demonstration of asking for military intervention against the constituted Powers as an attempt to abolish the Democratic Rule of Law through a serious threat”, said the lawyer.

He also highlighted that, although political demonstrations are outside of article 359, “there are still risks for protesters who defend military intervention of being framed for this crime, not being covered by freedom of expression, as occurs in Western democratic countries.”