The myth of moderating power

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By LUIS FELIPE MIGUEL*

A spurious interpretation of article 142 of the Federal Constitution

When a document was found on Colonel Mauro Cid's cell phone stating that the Armed Forces had the right to intervene in politics, Ives Gandra da Silva Martins rushed to say that this was not the case. But his long career as an enemy of democracy is well known.

Ives Gandra is often described as a “conservative jurist”. It is a mere euphemism. Spokesman for Opus Dei in Brazil, barely hiding his nostalgia for the military dictatorship (where, he wrote, there was “greater legal security”), faithful sidekick of Jair Bolsonaro, he is not conservative: he is a reactionary.

Through Jair Bolsonaro, he became the main sponsor of the thesis that the military exercise a “moderating power”: they have the final word when there is a conflict between the three constitutional powers. It is a spurious interpretation of Article 142 of the Federal Constitution, which echoes the justification that the military themselves give for their insubordination in relation to civil power.

It was the Brazilianist Alfred Stepan who spoke of the “moderator model” of political intervention by the military, inspired by the Moderator Power that the 1824 Constitution granted to the emperor – and which made imperial Brazil a constitutional monarchy with a strong absolutist stench.

In this model, the military would make specific interventions, to “correct” paths they considered wrong, instead of appropriating power. The dictatorship established after the 1964 coup would have been a break with the model. As João Quartim de Moraes wrote, it is more correct to speak of the “myth of moderating power” – the myth that military leaders have no side in political disputes.

The idea of ​​a “moderator model” is today claimed by the military themselves, as a way of legitimizing their tendency to meddle in civil affairs. Often, they present themselves as privileged interpreters of the popular will – which is quite curious, since their interventions generally aim to prevent or reverse the expression of this will through the means that are their own, such as the ballot box.

There remains the need to present an argument that affirms the constitutionality of military interference in politics. That's where Ives Gandra da Silva Martins comes in and his naughty interpretation of Article 142 of the Constitution.

He also relies on the idea of ​​“moderating power”, which he sees present in the Constitution. Article 142 is really bad. It is past time to amend it, eliminating ambiguities. But the reading of Ives Gandra da Silva Martins is not justified.

This is the main text of the article: “The Armed Forces, made up of the Navy, the Army and the Air Force, are permanent and regular national institutions, organized based on hierarchy and discipline, under the supreme authority of the President of the Republic, and are intended for the defense of the Fatherland, the guarantee of constitutional powers and, on the initiative of any of these, of law and order”. Is there moderating power there? Certainly not.

The thesis was of interest to Jair Bolsonaro, in the midst of clashes between the Executive and the other branches of government – ​​or just with the Judiciary, after the then president became, famously, the “tchutchuca do Centrão”. It meant that the solution to these disputes would be provided by the Armed Forces. Any questions about their side?

Ives Gandra has written articles and given interviews to support his argument. It was the voice that supported the crazy idea of ​​“constitutional military intervention”, which Bolsominions repeated through the streets of Brazil. It was one of these articles that inspired Mauro Cid and his group of officers to prepare the draft of the coup that the Federal Police found.

As the then factotum of Jair Bolsonaro, now in prison, wrote, reading Gandra paved the way for the Armed Forces to restore “constitutional harmony”. In other words: the “harmony” between the powers would come from the fact that everyone would submit to the will of the uniformed. (Actually, the logic of the separation of powers is that they control each other, to avoid tyranny, not that they are “harmonious”, as article 2 of the Constitution vainly says.)

Gandra says that he did not write the document cited by Cid after the elections. And truth. He wrote it in 2020, when tensions were mounting over the criminal management of the pandemic and Jair Bolsonaro was dating a coup.

The thesis raised then served to be applied in the new context. Ives Gandra placed himself in the position of legal mentor of the Bolsonarist coup. He may or may not have had a direct hand in the events leading up to January 8th, but his intellectual responsibility is undeniable.

Now you're scared. He says he was "misinterpreted". He called Mauro Cid's decree "stupidity" and "stupidity". On social networks, he and his daughter Angela – whom Jair Bolsonaro offered with a position in Damares’ ministry, by the way – released a pathetic video in which they claim that their coup is “the coup of love”. Huh?

But he continues to defend the idea that the Armed Forces have the prerogative to interfere in politics to regulate relations between powers. He continues to lend constitutional veneer to a possible coup. And today he will be at the Escola Superior de Guerra, to give a lecture on “the democratic rule of law”…

* Luis Felipe Miguel He is a professor at the Institute of Political Science at UnB. Author, among other books, of Democracy in the capitalist periphery: impasses in Brazil (authentic).

Originally published on GGN newspaper.


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