STF approved the 1964 coup before friction with the military – 03/28/2024 – Power

In the early hours of April 2, 1964, the then president of the Federal Supreme Court, Álvaro Moutinho Ribeiro da Costa, was woken up by a phone call to appear before the Chamber of Deputies.

He was told that the reason was to make him aware of political facts that he later described as “supernatural”.

From the Chamber, he went to the Palácio do Planalto and participated in the ceremony in which the then president of the Senate, Auro de Moura Andrade, declared the position of president of the Republic vacant and swore in Ranieri Mazzilli, the president of the Chamber, until the indirect election of the general White Castle.

Ribeiro da Costa’s decision to participate in this ceremony helped give the coup a veneer of legality. The episode violated the Constitution in force at the time, from 1946, according to legal scholars and historians.

The Constitution stipulated that a President of the Republic could only be removed by resignation, impeachment or absence from the country without authorization from Congress – and, at the time, João Goulart was in Porto Alegre.

The Supreme Court’s initial stance, of collusion with the coup movement, was transformed after a series of frictions with the military regime. In 1965, the dictatorship increased the number of ministers that made up the court from 11 to 16.

In 1969, after AI-5 (Institutional Act nº 5), three ministers were compulsorily retired, and two others resigned from their positions, in solidarity.

At the time the Presidency was declared vacant, Ribeiro da Costa stated that it was “in an extreme and decisive situation”.

Ignoring that Goulart was in Brazil, the then president of the court said that the country would expose itself to “uncertainties irreconcilable with the legal order” if the position of president of the Republic “was not, from the outset, occupied by its constitutional holder”.

“I am certain that the political alternative required the immediate carrying out of that act that came to provide constitutional, legitimate and indisputable stability, offering the opportunity, in a peaceful environment, to choose the successor of President João Goulart, who had surprisingly abandoned the high position escaping from national territory”, he stated.

After the edition of the first Institutional Act, Castello Branco, recently sworn in, visited the STF on April 17th. In addition to speaking with the president of the court, he also spoke with ministers considered to be on the left, such as Evandro Lins e Silva – later, one of those compulsorily retired by the dictatorship.

“In this first moment of the coup, there was no reaction from the STF. On the contrary. The STF welcomed and approved the coup d’état”, says Mateus Gamba Torres, professor in the Department of History at UnB (University of Brasília).

“Lins e Silva is a great jurist, but at that moment he made a mistake that a STF minister cannot make. His great fear was that he would be impeached”, says Torres.

“At this meeting, Castello Branco’s first official visit to the STF, the concern was how he [Castello] would treat you [Lins e Silva]. Afterwards, he calmed down and sailed the boat.”

For Álvaro Palma Jorge, professor at FGV Direito Rio, there was a dynamic process in the relationship between the Judiciary and the other Powers at the time and “it cannot be said that the Supreme Court, in the distance it had with the change of regime, was alone in Brazil “.

“But it can be said that the participation of the President of the Supreme Court in the declaration of vacancy and the inauguration of the President of the Chamber were a historic error because the inauguration clearly contradicted the current constitutional text”, he states.

The regime’s friction with the court began, especially when there were consecutive grants of habeas corpus to political opponents of the military regime.

The STF gave this type of decision, for example, to the then governor of Goiás, Mauro Borges, and the governor of Pernambuco, Miguel Arraes. In the case of Goiás, the Executive initiated federal intervention in the state shortly after the granting of habeas corpus.

At the time, a discussion began regarding the possibility of increasing the number of Supreme Court ministers, and the court reacted by understanding that the change could not happen on the initiative of other Powers. The legal provision during the period was that the change in the number of court members had to be proposed by the STF itself.

On October 20, 1965, Ribeiro da Costa published in Sheet a text in which he criticized the possibility of changing the Supreme Court, stating that this would be an imposition that would bring “useless and incalculable expense”.

In response, General Costa e Silva, then Minister of War and future president, said in a speech in Itapeva (SP) that a “historical aggression” had just “been directed at the Brazilian military by the president of the Federal Supreme Court”.

On October 27, Institutional Act No. 2 was published, which increased the number of Supreme Court ministers from 11 to 16, and is considered the dictatorship’s biggest intervention in the Judiciary so far. The military used the growing number of demands at the court as a justification for creating new vacancies.

After the decree of AI-5, which inaugurated the strictest period of the military dictatorship, three ministers were compulsorily retired in January 1969: Victor Nunes Leal, Hermes Lima and Evandro Lins e Silva. In solidarity, the then president of the court, Gonçalves de Oliveira, and the dean, Lafayette de Andrada, resigned.

“From the end of 1968 onwards, it no longer makes any difference. It only makes sense to discuss independence of Powers and democracy in a regime that is not one of absolute dictatorship”, states Álvaro Jorge.

Law professor at UFPR (Federal University of Paraná) Heloisa Câmara states, however, that until then, there is no way to state that the STF was subservient to the dictatorship nor a focus of resistance.

“Initially, it’s a coexistence relationship. Then there will be a certain amount of friction”, he says. “It is not possible to tell the history of the institution by treating the STF as the great hero nor as the great omission [no início da ditadura].”