Leftist demands in STF and Congress risk increasing tension between the military and the government

By Renan Ramalho

If the invasion of the headquarters of the Three Branches of Power helped to accentuate the distrust, never justified with evidence, of President Luiz Inácio Lula da Silva’s (PT) entourage towards the Armed Forces, demands from the left in the Federal Supreme Court (STF) and Congress may help to further sour the relationship between the military and the new government.

This week, there could be further erosion if the Supreme Court rules in favor of a 2013 lawsuit that seeks to transfer from the Military Justice System to the Common Justice System cases against members of the Armed Forces accused of committing crimes during Operations of Law and Order.

The so-called GLOs (Guarantee of Law and Order) are exceptional situations in which the military is called upon to assist in public security.

On Thursday (15), the score was 5 to 2 in favor of maintaining the current rule, which reserves for military judges the judgment of their peers.

With this, only one vote was needed to form a majority among the 11 Justices and give the Armed Forces victory in the case.

Another potential source of friction arose in the Workers’ Party (PT), with the proposal already announced by some parliamentarians to propose an amendment to the Constitution to end the GLOs.

In this way, the military would only act in civilian missions, such as disaster relief.

The proposal also says that any military personnel who assume public positions in the government machine would go to the reserve and prohibit them from using their military function for political actions.

Finally, the PSOL filed a new lawsuit with the STF to reject in advance a possible interpretation of Article 142 of the Constitution, according to which the Armed Forces could intervene, even if only punctually, in one of the branches of government that would usurp the functions of another.

This thesis has already been rejected by the STF but still enjoys sympathy among supporters of former president Jair Bolsonaro (PL) and among part of the reserve military.

The lawsuit in the STF to change the jurisdiction for judging crimes committed by military personnel is contrary to the leaders of the Armed Forces because the officers consider that a civilian court does not know the details of a military operation.

The information was passed on to us by two active duty and high-ranking military personnel who asked not to be identified.

They believe that soldiers assigned to GLO missions would not use force, even in lawful and necessary situations, for fear of punishment by a civilian court.

This would decrease the effectiveness of operations and put military lives at risk on the ground.

Moreover, when a military is sued in civilian court, the case tends to drag on for many years – during which time the military is prevented from advancing in his career.

In the case of soldiers in mandatory military service, young men who entered one of the three forces spend about a year leaving the entity answering lawsuits that can run for a good part of their lives.

In recent years, during the action in the STF, leftist entities and NGOs have been pressuring the Justices to remove occurrences involving the military from the Military Justice system.

They allege that the military institutions are corporativist and are trying to cover up human rights violations allegedly committed by soldiers in these missions.

The Armed Forces deny that the Military Justice system is corporative.

The military who spoke with us said they consider that the abuses that have already occurred were isolated cases and that exceptions cannot lead to changes in the rule.

In 2020, the then-head of the Military Prosecutor’s Office, Antonio Pereira Duarte, sent a statement to the STF to justify maintaining the jurisdiction of the military courts for crimes committed in security activities.

In his text, he said that the actions of GLO are activities of military nature and that decisions of Justice in relation to crimes committed in these activities directly affect the military institutions and not only the soldiers involved. Therefore, they should be judged by Military Justice.

He cited the Court’s 2004 decision, according to which only military judges should judge these crimes since their decisions should protect military values.

As for the PT’s PEC, the Armed Forces leaders believe that removing the GLOs from their jurisdiction would represent a “direct attack” by the left against the Army. I

n the view of the sources heard by the report, this is an idea spread by the most radical wing of the PT, such as former congressman José Genoino, who has long shown interest in reducing the power of the military in the state.

At least since 2017, internal PT documents have already projected, in an eventual return of the party to power, a mass withdrawal of officers from the public machine, a “subordination” of the Armed Forces to the elected political power, in the form, for example, of the appointment of a civilian as Minister of Defense – which has already materialized.

In the medium term, there are plans to resume the integration of Latin American countries, including collaboration in the military area, to counteract the alleged attempts by the United States to take over the continent, in addition to projects to strengthen the military industry and scientific and technological development, especially with civilian products.

“The big question is the political supremacy of the civilian power, which commands, directs, defines, regulates, and punishes. Even for the Armed Forces to receive the treatment for national defense. Because the military apparatus, which is essential for defense, has to be subordinated to the political direction,” said Genoino, in an interview given in November 2021 to the Opera Mundi website.

The PSOL’s new action in the STF, in turn, to define the interpretation of article 142, is nothing new.

In 2020, faced with rumors that Bolsonaro would be tempted to decree a military intervention in the Court due to decisions contrary to the Executive, the Justices issued decisions, in older actions, to declare the unconstitutionality of such a measure.

Luiz Fux and Luís Roberto Barroso handed down monocratic decisions to refute the existence of a purported Moderator Power and its incumbency in the Armed Forces.

“For the defense of one power over the others, the Constitution has instituted the principle of the separation of powers […] which imposes on each one of them restraint, self-limitation and defense against arbitrariness, which is only obtained from the interaction of one power with the others, through the institutional mechanisms of ‘checks and balances’ expressly provided for in the Constitution,” wrote Fux in his decision.

Observers and scholars of the history of the military, however, realize that, in a veiled way, the doctrine that the Armed Forces are still the Moderator Power persists, especially in reserve.

It would be employed, however, not to resolve circumstantial political conflicts between the Powers but in an extreme situation of exception and whose solution was not foreseen in the Constitution, in which the Republic and democracy were at risk.

With information from Gazeta do Povo