Fux says the Constitution does not allow military intervention

Minister Luiz Fux, of the Federal Supreme Court (STF), rapporteur of the action that deals with the constitutional limits of the Armed Forces and their hierarchy in relation to other powers, voted this Friday (29) for the understanding that the Federal Constitution does not allows “constitutional military intervention”.

The action under analysis, in the virtual plenary of the STF, was filed by the PDT in 2020 and questions the use of the Armed Forces by the President of the Republic, based on article 142 of the Federal Constitution.

The text of the article establishes that the Armed Forces, in addition to acting in the defense of the homeland, can be called upon, at the initiative of the powers of the Republic, to guarantee “law and order”.

In his vote, Fuz highlighted that “there is no space in the constitutionally foreseen framework for the thesis of military intervention, nor for moderating action by the Armed Forces, in complete disagreement with the institutional design established by the 1988 Constitution”. He also mentioned that the text Constitution does not provide space for the exercise of a “moderating power” of the Armed Forces.

“The institutional mission of the Armed Forces in defending the Homeland, guaranteeing constitutional powers and guaranteeing law and order does not accommodate the exercise of moderating power between the Executive, Legislative and Judiciary powers”, highlights Fux.

The rapporteur also considered that the command of the Forces is a “limited power” and spoke out against what he called “intrusions” by the Armed Forces in the Legislative, Executive and Judiciary Powers.

“The leadership of the Armed Forces is a limited power, excluding any interpretation that allows its use for undue interference in the independent functioning of the other Powers, relating authority over the Armed Forces to the material powers attributed by the Constitution to the President of the Republic”, he writes.

Fux also pointed out that “the prerogative of the President of the Republic to authorize the use of the Armed Forces cannot be exercised against the Powers themselves”.

“The use of the Armed Forces to ‘guarantee law and order’, although not limited to the hypotheses of federal intervention, defense states and siege states, lends itself to the exceptional confrontation of serious and concrete violations of public security internally, on a subsidiary basis, after the exhaustion of the ordinary and preferential mechanisms for preserving public order”, he reinforced in the vote.

The trial on the actions of the Armed Forces began this Friday (29) and will continue until April 8 in the virtual plenary. If a minister presents a request to be seen or highlighted, the discussion goes to a face-to-face debate.