STF concludes vote and decides that the Armed Forces are not a “moderating power”

The 11 ministers of the Federal Supreme Court (STF) concluded this Monday (8) that article 142 of the Constitution does not allow the Armed Forces to act as a “moderating Power” of the Three Powers of the Republic. The last to vote in the virtual plenary was minister Dias Toffoli who, like the other judges, followed rapporteur Luiz Fux’s understanding.

As a result, the decision was unanimous among the 11 magistrates, including the two appointed by former president Jair Bolsonaro (PL), André Mendonça and Nunes Marques, and the most recent appointed by president Luiz Inácio Lula da Silva (PT), Cristiano Zanin and Flavio Dino.

Toffoli followed the rapporteur’s vote and amended it, stating that the institutional mission of the Armed Forces “in the defense of the Homeland, in guaranteeing constitutional powers and in guaranteeing law and order does not accommodate the exercise of moderating power between the Executive, Legislative and Judiciary”.

“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”, scored (see in full).

Furthermore, Toffoli argued that, although the President of the Republic has the prerogative to authorize the use of the Armed Forces, the decision “cannot be exercised against the Powers themselves”.

Minister Dias Toffoli also highlighted, in the vote, that the use of the Armed Forces to “guarantee law and order” only occurs “in the exceptional confrontation of a serious and concrete violation of internal public security, on a subsidiary basis, after exhaustion of the ordinary and preferential mechanisms for preserving public order and the safety of people and property, through the collaborative action of state institutions and subject to permanent control by other powers, in accordance with the Constitution and the law”.

The virtual plenary trial has been on air since March 29th and ends this Monday (8).

The Direct Action of Unconstitutionality (ADI) was proposed by the PDT in 2020 and questioned interpretations of article 142 of the Federal Constitution that there was the possibility of a military intervention “within legality”. The rapporteur of the action, minister Luiz Fux, emphasized the importance of rejecting interpretations that threaten the Democratic Rule of Law.

According to Fux, “any institution that intends to take power, whatever the declared intention, outside of representative democracy or through its gradual internal dismantling, acts against the text and spirit of the Constitution”. The minister highlighted the urgency in curbing interpretations that could distort the constitutional text and its fundamental pillars.

Other ministers, such as Alexandre de Moraes, Gilmar Mendes, Cristiano Zanin and Flávio Dino, also voted against the interpretation of a “moderating power” of the Armed Forces. Moraes classified this interpretation as a “poor, absurd and anti-democratic coup interpretation”, highlighting that the president who calls on the Armed Forces to intervene in other Powers will be committing a crime of responsibility.

Dino highlighted that there is no “military power” in the Brazilian constitutional regime, emphasizing that power is civil and composed of three branches: Legislative, Executive and Judiciary. Gilmar Mendes linked the military’s claim to political protagonism with the attacks on the Three Powers, arguing that the interpretation of a “moderating power” gained strength after Bolsonaro’s election in 2018.

Cristiano Zanin classified as “totally unreasonable” the interpretation that the Armed Forces can intervene as a “moderating Power” during institutional crises, while Cármen Lúcia highlighted that this Power is not provided for in the Constitution and any interpretation in this sense is an “anti-legal delusion or anti-democratic madness.”