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Opinion: has the removal of the Supreme Court Justices from power already begun in Brazil?

(Opinion) “The Ministry of Defense is approved to be the agency that interprets the Constitution in Brazil.”

This headline from Brazil may sound harmless, even dull, but it harbors explosive force in light of the show-down between Jair Bolsonaro and the Brazilian Supreme Court in the decisive battle for power in the country.

The Official Gazette of the Union published the approval of the internal regulations of the Legal Consultancy to the Ministry of Defense.

Defense Minister Paulo Sérgio Nogueira de Oliveira. (Photo internet reproduction)
Defense Minister and Army general Paulo Sérgio Nogueira de Oliveira. (Photo internet reproduction)

From now on, the Ministry of Defense will officially exercise the function of interpreting the Constitution.

This privilege of interpreting the Constitution typically belongs to the Supreme Court.

It is Brazil’s highest court of law for constitutional issues, and its rulings cannot be appealed.

The normative order is signed by the Union’s attorney-general, Bruno Bianco.

Just yesterday, the Supreme Court warned what it would do should Jair Bolsonaro activate Article 142 and thus have the Armed Forces take power in Brazil. Read here.

With this new regulation, the Supreme Court can interpret whatever it wants, so it seems.

It can be overruled at any time by the Ministry of Defense, a loyal supporter of Bolsonaro.

And if the Ministry says the conditions for the activation of Article 142 are given, then so be it. Done.

Quite legally, may we add.

Here is the text of the publication:


Section I

Category and Competence

Art. 1º The Legal Counsel to the Ministry of Defense, an agency of the Office of the General Counsel to the Union, according to art. 2º, clause II, letter “b”, of the Complementary Law nº 73, of February 10th, 1993, is in charge of

I – to provide legal advice and consultancy within the scope of the Ministry of Defense;

II – to establish the interpretation of the Constitution, laws, treaties, and other normative acts, to be uniformly followed in the Ministry’s area of operation when there is no normative guidance from the Attorney-General of the Union”.

Read the complete ordinance here.

It will be interesting to see what kind of legal wrangling will be unleashed in Brazil.

And who will win in the end?

What is certain is that we have never seen the Brazilian Supreme Court in such a weak position.

And it looks like it could be beaten at its own game.

The law.

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