ICONnect The Brazilian Constitution of 1988, the Armed Forces, and the Coup dEtat 03/10/17 11'57

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On the 17th of September 2017, Brazilian Army General Antonio

Hamilton Martins Mouro, during a lecture for a Masonic Lodge in
Braslia, advocated the possibility of an interference of the Armed Subscribe to ICONnect
Forces in Brazilian politics. He said that the institutions [must]
resolve the political crisis by judicial means, removing from public Enter your email address:
office all individuals involved in criminal offenses; for otherwise we
[the Army] will have to impose this remedy.[1] (#_edn1) He added
that such a solution would not be easy, generating problems, but Subscribe
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] (#_edn2) (http://www.iconnectblog.com/feed/rss2/
Instead of imposing disciplinary measures on Mouro, the Army
Commander, General Eduardo Villas Bas, gave a television
(https://twitter.com/iconnect_blog)
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] (#_edn3) The interview was
EJIL: Talk!
broadcast right after the civilian Minister of Defense Raul Jungmann Extradition: English Court
requested that something be done with the military public servant
at issue. refuses to extradite alleged
gnocidaires to Rwandawill a
To make things worse, after the interview, several reserve militaries
domestic prosecution follow?
publicly endorsed General Mouros pronouncements, including the
ex-Commander of the troops sent to Haiti in the peace force of October 2, 2017 Emilie Pottle
2004, General Augusto Heleno.[4] (#_edn4) Heleno said that Announcements: Oxford Global
Mouro merely explained in a clear and honest way the content of Justice Lecture; CfP Ethiopian
the provisions of the Constitution of 1988, and that although the
Yearbook of International Law;
left,panicking after its continuous failures, saw in it a threat of
military intervention the idea that the military could pose a threat Who Makes International Law?
to legality is ridiculous.[5] (#_edn5) October 1, 2017 Mary Guest
These statements were loudly praised or criticized. Srgio The scope of ICC jurisdiction
Abranches, a leading Brazilian political scientist, sharply opposed over the crime of aggression: a
Villas Bas assertion that Mouro was a good soldier, arguing that different perspective September
he was actually proposing a coup dtat. Indeed, the Armys 29, 2017 Stefan Barriga

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ICONnect The Brazilian Constitution of 1988, the Armed Forces, and the Coup dEtat 03/10/17 11'57

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 commanders
authorization. Abranches noted that the implications of that rule to Recent Comments
the facts at issue was not straightforward, given that several
members of the military organization either silently or openly Where is the Pulse of Europe
supported Mouro. These facts would contribute to a political crisis when its needed? |
similar to the one that Brazil confronted in 1954 and 1964. It is Verfassungsblog on Indias
remarkable that Abranches is one the Brazilian analysts who has Supreme Court Expands
always called attention to the perils of the supposed absence of
Freedom
effective control by the civilians of the Armed Forces, even after the
creation of the Ministry of Defense.[6] (#_edn6) Menaka on Indias Supreme
Court Expands Freedom
There are other facts that should lead us to refrain from calling
Mouro a good soldier. In 2015, as Commander of the forces in Mangesh Patwardhan on Indias
southern Brazil, he allowed another soldier to praise the honor of Supreme Court Expands
one of his colleagues, Colonel Brilhante Ustra, who had been Freedom
accused by several political opponents and state institutions of The Party of the Extreme Normal
commanding the torture center in the city of So Paulo known as
DOI-CODI (which stands for Department of Information Operations | Verfassungsblog on Abes
Center for Internal Defense Operations). Ustra was also convicted JapanAnother Case of Abusive
by a Brazilian court in a civil lawsuit for taking part in the torture of Constitutionalism
a whole family, the Teles.[7] (#_edn7) Mouro, after the ceremony, Patrick Baud on 150 Years On:
was dismissed from the southern command and reassigned to a
What is the Constitution of
financial department without direct leadership over troops.[8]
(#_edn8) Canada?Part 1 of 3The
Problem of Identification
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 Archives
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] October 2017
(#_edn9) Even Professor Vladimir Safatle, a left-wing political September 2017
analyst from the University of So Paulo, has noted while alerting August 2017
against the danger of military political activity and the repressive
past which surrounds it that article 142 was a ticking time bomb More Archives (#more-
implanted by the military during the National Assembly of 1987- archives)
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 dtats.[10]
(#_edn10)
This reasoning appears to be a shot in ones own foot. In fact, both
readings of article 142 of the Brazilian Constitution are deceitful.
The hereafter called Mouro 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 Mouros 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

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ICONnect The Brazilian Constitution of 1988, the Armed Forces, and the Coup dEtat 03/10/17 11'57

proscribes in its article 5, number XLIV, as a non-bailable and

imprescriptible crime against the constitutional order and the
democratic State.[11] (#_edn11)
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]
(#_edn12) 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 Collor, 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 dtournement 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] (#_edn13)
In the end, it is clear that article 142 of the Brazilian Constitution of
1988 gives no room for either Mouro or Safatles 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 dEtat, Intl 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/

[1] (#_ednref1) Tnia Monteiro, General Fala em Possibilidade de

Interveno Militar e Criticado por Comando das Foras, 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

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(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] (#_ednref2) Id.
[3] (#_ednref3) UOL, Comandante diz que Exrcito No Punir
General que Defendeu Interveno Militar, UOL Notcias,
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 (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] (#_ednref4) Tnia Monteiro, Ex-comandante de tropas no Haiti
sai em defesa de general Mouro, 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
(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] (#_ednref5) On the 26 September 2017, the Army Commander,
General Villas Bas also gathered with several top ranking Armed
Forces officials, in a extra official meeting, to purportedly show
cohesion. See Rubens Valente, Comandante do Exrcito rene
generais e fala em coeso, Folha de S. Paulo,
http://www1.folha.uol.com.br/poder/2017/09/1922005-
comandante-do-exercito-reune-generais-e-fala-em-coesao.shtml
(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] (#_ednref6) Srgio Abranches, Sinais institucionais da
gravidade da crise poltica,
http://sergioabranches.com.br/politica/185-sinais-de-crise-
institucional (http://sergioabranches.com.br/politica/185-sinais-de-
crise-institucional), last visited 25 September 2017. See also Srgio
Abranches, A crise militar do governo Dilma,
https://www.sul21.com.br/jornal/a-crise-militar-do-governo-dilma/
(https://www.sul21.com.br/jornal/a-crise-militar-do-governo-
dilma/), last visited 25 September 2017.
[7] (#_ednref7) 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
(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] (#_ednref8) 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/
(http://www.blogdokennedy.com.br/ministro-da-defesa-acerta-ao-
demitir-comandante-militar-do-sul/), last visited 25 September
2017.
[9] (#_ednref9) Article 142

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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
(https://www.constituteproject.org/constitution/Brazil_2015?
lang=en), last visited 25 September 2017).

[10] (#_ednref10) Vladimir Safatle, As Foras Armadas No Agem

Contra o Caos, Mas So 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
(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] (#_ednref11) Marlon Weichert and Deborah Duprat, O Papel
das Foras Armadas no Estado Democrtico de Direito Defender
os Poderes Constitudos,
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 (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] (#_ednref12) This statutory law is a specifying device
demanded by article 142, sole paragraph, of the Brazilian
Constitution of 1988.
[13] (#_ednref13) 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. Intl & Comp. L. 4,
2017, p. 41-61. Cattoni de Oliveira, Marcelo Andrade. A
Democracia sem Espera: Constitucionalizao e Transio Poltica no
Brasil, Emilio Peluso Neder Meyer (ed.), Justia de Transio em
Perspectiva Transnacional, Belo Horizonte, CJT and Secretaria da
RLAJT, 2017, p. 97-134.
Published on October 3, 2017
Author: Emilio Peluso Neder Meyer, Marcelo Andrade Cattoni de Oliveira, and
Thomas da Rosa Bustamante Filed under: Developments

Tags: Brazil, military, military coup, separation of powers

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