AGU argues in the STF that the Armed Forces do not have moderating power

The Federal Attorney General’s Office (AGU) defended this Wednesday (4) in a statement sent to the Federal Supreme Court (STF) that the Armed Forces cannot “moderate or arbitrate conflicts between Powers”. The PDT asked the Supreme Court to clarify the military’s duties in the Direct Action of Unconstitutionality (ADI) 6457. The party questioned complementary law 97/1997, which deals with the use of the Armed Forces based on article 142 of the Constitution.

In June 2020, the action’s rapporteur, Minister Luiz Fux, partially granted an injunction requested by the party, reinforcing that the Constitution does not assign to the Armed Forces the role of being a moderating power between the Executive, Legislative and Judiciary. The AGU highlighted that the military cannot be used by the President of the Republic against other Powers and that their performance in guaranteeing law and order must be exceptional and subject to the control of the other Powers.

The AGU agreed with Fux’s understanding and asked for the partial merit of the action presented by the PDT. For the body, the “supreme authority of the President of the Republic over the Armed Forces can only be exercised within the constitutional framework, which, at the same time, gives the head of the federal Executive primacy in the management of this institution and stipulates the limits within which must be exercised.”

Therefore, according to the AGU, “any interpretation that goes beyond the founding principles of constitutional democracy, especially that of the separation of Powers, must be rejected, so that the command of the Armed Forces by the President of the Republic cannot result in the intervention of a Power over the other”. According to the opinion, “to think differently would be to admit the existence of a Moderating Power, which is not sustainable in light of the current constitutional framework”.

However, the AGU defended the dismissal of some points of the action. One of them is that the Armed Forces can only act in cases of federal intervention, state of defense and state of siege. The body emphasizes that the Constitution provides that the military can act in several other situations, such as defending borders and air and sea spaces.

“In the same way, points out the AGU, the request of the author of the action so that, in addition to the President of the Republic, the presidents of the Federal Senate, the Chamber of Deputies and the Federal Supreme Court (STF) can also be incompatible with the Constitution directly trigger the employment of the Armed Forces”, said the body, in a note.