Demands from the left risk aggravating tension between the military and the government

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

A strain could occur later this week, if the STF upholds a 2013 action that seeks to transfer from Military Justice to Common Justice processes against members of the Armed Forces accused of committing crimes in Law and Order Guarantee operations. GLO calls are exceptional situations where the military is called in to assist with public safety.

This Thursday (15), the score was 5-2 due to the maintenance of the current rule, which reserves the judgment of their peers to military judges. With that, there was only one vote left to form a majority among the 11 ministers and give victory to the Armed Forces in the case.

Another potential source of friction arose in the PT, with the proposal already announced by some deputies to propose an amendment to the Constitution that would put an end to GLOs. Thus, the military would start to act only in civilian missions, such as, for example, in disaster relief actions. The proposal also says that any military personnel who assume public positions in the government machine would be retired and would prohibit them from using the military function for political actions.

Finally, the PSOL filed a new action with the STF to reject in advance a possible interpretation of article 142 of the Constitution, according to which the Armed Forces could intervene, albeit occasionally, in any of the powers that it may usurp the functions of another. This is a thesis already rejected by the STF, but which still enjoys sympathy among supporters of former President Jair Bolsonaro (PL), and among part of the reserve military.

The action in the STF to change the competence for judging crimes committed by military personnel goes against the leadership of the Armed Forces, because the officers consider that a civil court does not know the details of a military operation. The information was passed on to the report by two active and high-ranking military personnel who asked not to be identified.

They understand that soldiers assigned to GLO missions would not use force even in lawful and necessary situations, fearing punishment by a civil court. This would reduce the effectiveness of operations and put soldiers’ lives at risk on the ground.

Furthermore, when a military person is prosecuted in civil court, the action tends to unfold for many years – a period in which the military member is prevented from advancing in his career. In the case of compulsory military service soldiers, young people who joined one of the three forces to spend about a year leave the entity responding to processes that can unfold for a good part of their lives.

In recent years, during the course of the action in the STF, leftist entities and NGOs have pressured ministers to withdraw occurrences involving the military from the Military Justice. They claim that military institutions are corporatist and stifle human rights violations allegedly committed by soldiers in these missions.

The Armed Forces deny that Military Justice is corporatist. The military who spoke to the report said they considered that the abuses that had already occurred were isolated cases and that exceptions cannot lead to changes in the rule.

In 2020, the then head of the Military Public Ministry, Antônio Pereira Duarte, sent a statement to the STF to justify maintaining the competence of the Military Justice for crimes committed in security activities. In his text, he said that GLO actions are activities of a military nature and that Justice decisions regarding crimes committed in these activities directly affect military institutions and not just the soldiers involved. Therefore, they must be tried in the Military Court.

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

As for the PT’s PEC, the leadership of the Armed Forces understands that the withdrawal of the GLOs from their purview would represent a “direct attack” on the Army by the left. In 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 deputy José Genoino, who has long shown an interest in reducing the power of the military in the State.

At least since 2017, internal PT documents already projected that, in an eventual return of the party to power, a mass withdrawal of officials from the public machine; a “subordination” of the Armed Forces to the elected political power, in the form, for example, of the nomination 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 oppose supposed attempts by the United States to protect the continent. In addition to projects to strengthen the military industry and scientific and technological development, especially with products that have civilian use.

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

PSOL’s new action in the STF, in turn, to define the interpretation of article 142, is not new. In 2020, in the face of rumors that Bolsonaro would be tempted to enact a military intervention in the Court, due to decisions contrary to the Executive, the ministers issued decisions, in older actions, to declare the unconstitutionality of such a measure.

Luiz Fux and Luís Roberto Barroso issued monocratic decisions to refute the existence of an alleged Moderating Power and its responsibility to the Armed Forces.

“For the defense of one power over the others, the Constitution instituted the stony principle of the separation of powers […] which imposes restraint, self-limitation and defense against arbitrariness on each one of them, which can only be 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 your decision.

Observers and scholars of military history, however, perceive that, in a veiled way, the doctrine that the Armed Forces are still the Moderating Power still persists, especially in the reserve. It would be used, however, not to resolve circumstantial political conflicts between the Powers, but in an extreme situation, of exception and whose solution was not provided for in the Constitution, in which the Republic and democracy were at risk.