RIO DE JANEIRO, BRAZIL – In open conflict with the country’s Supreme Court and in the face of inquiries that target him and part of his most loyal militants, President Jair Bolsonaro, through his social media, has praised the possibility of a “punctual military intervention” into any of the three constitutional branches of government.
On Thursday afternoon, the President used social media to share an interview with the constitutional scholar Ives Gandra Martins, in which the 85-year-old jurist argued that Article 142 of the Constitution allows for intervention by the Armed Forces in other powers to guarantee law and order. “Live with Ives Gandra: The politicization in the STF and the punctual enforcement of 142,” wrote the President.
In that interview, the attorney said that in extreme cases, when a clash between branches of government arises, the military could exercise a “moderating power” and intervene in one of those branches. “Otherwise, we would have a superpower. There is a supreme power, the Judiciary, and there are lesser powers, sub-powers, which would be the Legislative and the Executive. And every time conflict would arise, even if part of the conflict was the Judiciary, it would be the Judiciary itself that would decide on its own cause”.
Ten jurists were consulted on the question by El Pais: three of them preferred to remain anonymous, and all unanimously agreed that there is no concept of “military intervention” other than a coup. Some of them even believe that the president, who had already been present at pro-coup rallies, has committed the crime of inciting a coup d’état.
In the morning, wearing a blue tie with pictures of little rifles in line, Bolsonaro had already demonstrated his disagreement with a Wednesday ruling by Federal Supreme Court (STF) Justice Alexandre de Moraes, as part of the controversial fake news inquiry. It was an order to seize computers, cell phones, and tablets from 29 Bolsonarists, in addition to lifting bank and tax confidentiality on four of them, as part of the investigation into a rumor-mongering network against the STF.
“Yesterday was the last day. I ask God to enlighten the few people who dare to consider themselves better and more powerful than others to take their rightful place, which we respect,” he said. He went on to say: “We cannot talk about democracy without an independent judiciary, without an independent legislature, so that they can make joint decisions at times, but the issues that matter to the people they must address in such a way that the collegiate is heard. It’s over, damn it”.
In an interview with Radio Bandeirantes, Deputy Eduardo Bolsonaro, the President’s son, spoke along the same lines. “I will cite again the words of Ives Gandra Martins: the moderating power to restore harmony among the Powers is not the STF, it’s the Armed Forces (…) They [the military] come, they smooth things over, they reset things, and then the democratic game returns. It’s just that”.
This takes place six days after the Minister of the Office of Institutional Security (GSI), General Augusto Heleno, issued a note to the public warning of the “unpredictable” consequences for “national stability” should the Supreme Court decide to order the seizure of the President’s cell phone in the course of an investigation against him, part of a petition under consideration at the Prosecutor General’s Office. The note was endorsed by the Minister of Defense, General Fernando Azevedo e Silva, in an uncommon involvement of the head of the Armed Forces in matters of domestic policy.
The President “conspires against democracy”
For Oscar Vilhena, a professor at FGV Law in São Paulo, Bolsonaro and his clan, when referring to Article 142 of the Constitution, use the “interpretation of those who conspire against democracy and are unable to interpret an article within the general framework of the Constitution. It is a biased interpretation that the Armed Forces, and not the Supreme Court, has the last word on defending the Constitution,” Vilhena says.
“He’s clearly encouraging a coup, he and his son [Eduardo],” said Marco Aurélio de Carvalho, an attorney specializing in public law. Cezar Britto, ex-president of the Brazilian Bar Association and a member of the Brazilian Commission for Justice and Peace, shares the same opinion. “Under no circumstances can the Armed Forces act at the request of the branches of government. They can act to ensure democracy, but never against democracy”.
Constitutional law scholar Guilherme Amorim Campos da Silva agrees that “there is no constitutional military intervention, as the President has preached. He believes that the President is incurring a [impeachable] crime of responsibility by breaking his oath to uphold the Constitution. “The Armed Forces take action at the request of any of the constituted powers, to ensure the country’s institutional structure, and not to act as an independent or sovereign power over the others”.
In the opinion of criminal lawyer José Carlos Abissamra Filho, director of the Institute for the Defense of the Right to Defense, the President has been left alone politically and has been trying to bind himself to institutions that enjoy social prestige, such as the Federal Police and the Armed Forces. “He has been asking for the Armed Forces’ support for some weeks now. This is another attempt. He’s waiting to see if the Armed Forces will give it. I don’t think it’s going to happen.”
Constitutional scholar Erick Pereira follows the same line. According to him, Bolsonaro has an “intimidating, but unenforceable” position. “There’s no constitutional room for that. Only if it is an act of dictatorial violence and that does not need the Constitution”. Another public law expert, Cristiano Vilela, says the President has been on the brink of encouraging a coup. “He’s been doing it regularly. He’s been making statements that imply this, but without literally stating it”.
Supreme Court and promise to Aras
Bolsonaro’s focus on maximum tension with the Supreme Court comes amid anticipation that the full eleven-member Court will judge the legality of the fake news inquiry – an inquiry launched by the Court itself and the subject of debate in the legal world. The rapporteur of the case, Justice Edson Fachin, asked for celerity in this review, since the Prosecutor General, Augusto Aras, petitioned for its suspension on Wednesday. Last year, Aras, appointed by Bolsonaro, considered that the STF investigation was legitimate, but has now changed his mind.
In his traditional Thursday Facebook live broadcast, where he allowed Jovem Pan radio commentators to ask him questions, Bolsonaro praised Aras. He said the Prosecutor General is doing an excellent job, particularly in the economic area, and that if he could appoint a third justice to the STF, it would be Aras. “If a third position arises, I hope that no one should be lost there, but Augusto Aras is strongly suited for that position”. Two Court justices will have to retire by reason of age: Celso de Mello in November this year, and Marco Aurélio Mello in 2021.
While attacking the Supreme Court on social media, the President welcomed Senate President Davi Alcolumbre, who is trying to act as a moderator in the crisis. In a briefing to senators, Alcolumbre said his goal is to ask the President for calm while the country faces the coronavirus pandemic.
The Senate president’s move is important, because Bolsonaro’s strategy seems to be to pour oil on troubled waters without losing his backing in Congress. To this end, he has forged an alliance with the Centrão, a group of center-right-wing parties that have agreed to support him in exchange for patronage positions and access to public funds, and with congressional party leaders.
Theoretically, with the agreements already in hand, Bolsonaro will succeed in preventing any impeachment proceedings or criminal charges in the Chamber; the Centrão parties have up to around 200 deputies, 28 more than the minimum required to block such attempts. “We did attend to some of these parties’ interests,” the President said of the Centrão on Thursday. During the electoral campaign, however, the then-candidate and his closest allies often proclaimed that the worst disease of Brazil was this party coalition, which embodied the corrupt “old politics”.
Because of his shielding in Congress, the opposition to Bolsonaro is using all available legal weapons against the president, and some say it is expected that any action against the government will come either from the Supreme Court or from a social protest in the second half of the year. “The pressure cooker will blow up after July when the economy collapses because of the pandemic,” said José Guimarães (PT-CE), a minority leader in the Chamber of Deputies.
Source: El País