The Armed Forces are back in power in Brazil. This time, differently from 1937 and 1964, it happened through elections. As one of the main supporting groups behind Jair Bolsonaro’s electoral victory in 2018, the military’s role in his government continued to grow. Today, the Armed Forces work as a de facto, nonofficial political party for Bolsonaro. This position has provided them with material gains and a privileged position to promote their imagery.
This imagery includes the idea that there was no corruption during the military regime, that the military personnel was better prepared to govern than the civilians, that the 1964 Coup was a revolution to be celebrated, and that the perpetrators of human rights violators were patriots protecting their country. Moreover, they disseminated a heterodox interpretation of their own powers in a troublesome reading of the constitution: they claim to have constitutional authorization to act as a “moderating power” in Brazilian politics.
As we will see below, while their interpretation is legally ungrounded and incompatible with democracy and the separation of powers, the current constitutional text is also problematic. It could be improved in this regard. In particular, I argue that, firstly, the text addressing the military functions in the Constitution of 1988 repeats the same mistakes made by past Brazilian constitutions; and secondly, that the South American countries’ constitutional framework points out attractive alternative constitutional design options on the topic.
The heterodox military interpretation of the Constitution of 1988 in the current context
Many provisions of the Brazilian Constitution interest the Armed Forces. That includes their role in internal conflicts; the ability of military officers to work in civil service and government positions; the powers of each constitutional branch in leading, appointing, promoting, and financing the military; their rights to unionize, strike, affiliate to political parties, run for elections, to vote, and so on. But, Article 142 has drawn most of their interpretive effort. This provision says the Armed Forces shall, among other things, “guarantee the constitutional branches of government and, on the initiative of any of these branches, law, and order.”
Whenever the debate appears, most constitutional scholars refute such ideas as nonsense. Nonetheless, the military and Bolsonaro insisted, turning this view of the military’s role in restoring order in Brazil into one of the marks of bolsonarismo. Bolsonaro’s supporters repeatedly display, online and on the streets, the words “Article 142” and “I authorize” to express their support for Bolsonaro using the Armed Forces to take power in the country. Whatever its legal merits, the military’s interpretation of Article 142 is essential to Bolsonaro’s attacks on democracy.
Brazilian Congress and the Brazilian Bar Association, among other public and civil society institutions, published memorandums to say the obvious: no democratic country in the world would give the military the last word on the constitution; the constitutional branches solve their conflicts by the checks and balances mechanisms; the constitution separates the civil and military powers and subordinates the latter to the former. The Supreme Court also clarified the meaning of Article 142 when the justices Barroso (ADI n. 6457) and Fux (MI n. 7311) argued in individual injunctions that the constitution does not allow for such military interventions.
As noted by Lynch, throughout Brazilian constitutional history, political factions with varying ideologies have advocated the need for an institution to moderate the constitutional branches. This is an old dispute over who would inherit the “Moderating Branch” idealized by Benjamin Constant and adapted by the Brazilian Monarchical Constitution of 1824 to give the Emperor the last word in constitutional politics. According to Lynch, militarism would be a leftover of that dispute.
The maintenance of a similar constitutional text regarding the military role throughout the history
Brazilian political and constitutional history on this topic is indeed less straightforward than constitutional scholars would seem to believe. Although there is no space for the Armed Forces’ heterodox interpretation, the current constitutional text does not adequately engage with their traditionally belligerent behavior towards politics throughout history.
As José Murilo de Carvalho notes, except for the Monarchical Constitution of 1824 and the Authoritarian Constitution of 1937, the other Brazilian constitutions gave the military some “political role” (understood as any provision providing the Armed Force’s responsibility towards the constitutional branches).
The Armed Forces greatly influenced the first Republican Constitution, enacted in 1891, since they were responsible for the coup that ended the Brazilian Monarchy. That constitution already established the military role to “maintain the laws in the interior” and “within the limits of the law (…)support the constitutional institutions” (Article 14). At that moment, the problem came from the excerpt “within the limits of the law.” The “Lieutenants Movement” (Tenentismo) interpreted it in the 20s to justify their uprisings by arguing that the government was crossing the legal limits.
Once the Armed Forces were decisive to Vargas’ rise to power in the 1930 Revolution, the military was again in a privileged position during the draft of the 1934 Constitution. The constitution changes the excerpt “support the constitutional institutions” to “guarantee the constitutional branches, order, and law” (Article 162). Thus, the guarantee of the order was added, and the Armed Forces started to not only support but guarantee the constitutional powers, suggesting the idea that the Armed Forces had more than auxiliary functions.
Ironically, when President Vargas established the Estado Novo dictatorship with the support of the military, the Authoritarian Constitution of 1937 restricted the Armed Forces’ role. The most important military leader and Vargas’ ally, Góis Monteiro, assured that all military involvement in politics would be under his control, preferring a depoliticized army under his command. That constitution said nothing about the Armed Forces “guaranteeing” constitutional branches.
In 1945, the military ended the Estado Novo dictatorship and removed Vargas from office, accusing him of wanting to start a populist regime like Peron in Argentina. The end of the dictatorship did not result in a different text structure since the Constitution of 1946 insisted on a similar formula to the one adopted in 1934: the Armed Forces should “guarantee the constitutional branches, law, and order” (Articles 176 and 177).
From 1946 to 1964, the military thought they would dominate politics. However, Vargas’ popularity and the consequent electoral success of his successors led to the Armed Forces candidates being defeated in several elections. Therefore, after several failed coup attempts, the military returned to power by force in 1964, with more power than ever. Still, the Constitution of 1967 did not make significant changes to what the Constitution of 1946 already established on the military’s role. It only substituted “the guarantee of constitutional branches” for “the guarantee of constituted branches,” – a change that, according to Carvalho, made sense in the context of a de facto government.
Perhaps the 1987 Constituent Assembly could not have achieved a different outcome in that tense political environment. Nonetheless, Brazilian experience with the military did not reflect significant changes in the constitutional text regarding the proximity of the Armed Forces and the constitutional branches in the constitutional description of the military’s role.
The alternative constitutional texts regarding the military role in South America
Multiple South American examples show where there would be room for improvement. First, only the Paraguayan Constitution (1992) sets the Armed Forces as close to the constitutional branches as the Brazilian constitution. It establishes (Article 173) the role of the Armed Forces to “(…) defend the legitimately constituted authorities.” The Bolivian (2009) and Colombian (1991) constitutions do not mention defending the constitutional or constituted branches or authorities as a role of the Armed Forces. However, they say the Armed Forces shall “assure the supremacy of the Constitution” (Bolivia, Article 244) and defend the “integrityof the constitutional order” (Colombia, Article 217).
Moreover, those three constitutions adopt precautionary standards on the role of the Armed Forces that also appear in other South American constitutions (though not in Brazil). The Armed Forces will be “professional,” “non-deliberative,” and “subordinated” to State Powers (Paraguay); the Armed Forces are not a “deliberative body” (Colombia and Bolivia)
Other constitutional formulas used to describe the role of the Armed Forces in Latin American Constitutions involve prohibiting the Armed Forces to be “at the service of any person or political partisanship,” as in Article 328 of the Venezuelan Constitution (1999); to “assemble except by order of the legitimate authority” as in Article 219 of the Colombian Constitution; to “stand for the people and to petition in their name” as in Article 45 of the Argentinean Constitution (as amended in 1994), and to “engage in acts of proselytism while they are on active duty” as in Article 34 of the Peruvian Constitution (1993).
An example of a text that clearly establishes the role of the Armed Forces to avoid any misunderstanding regarding the relationship between the Armed Forces and the constitutional branches was probably the recently rejected draft of the Chilean Constitution. It established no role for the military towards the constitutional branches. It was an exemplary long text binding the Armed Forces to principles such as hierarchy and discipline, the most common ones, but also professionalism, obedience, non-deliberation, probity, transparency, gender parity, and respect for human rights.
Anyone who looks closely at the recent history of those countries would note that they are far from being utterly harmonious with their military forces. Thus, an obvious objection to the comparative approach is that changing the constitutional text may not have the expected output. However, as long as the text is important, these considerations must be made. Concluding, the heterodox military interpretation must be refuted and fought in all possible ways considering the military role in Bolsonaro’s threats to Brazilian democracy. Still, one of the necessary measures to prevent similar situations in the future includes a debate on improving the constitutional text and investing in a different formula.
Süssekind, Evandro Proença: The Armed Forces and the Constitution in Brazil, VerfBlog, 2022/9/22, https://verfassungsblog.de/the-armed-forces-and-the-constitution-in-brazil/, DOI: 10.17176/20220922-230632-0.