Ives Gandra is wrong: article 142 does not allow military intervention!

I prefer to err on the side of caution. Especially since there's always an article circulating on social media (as always) from O Globo in 2018 (hereIn which General Mourão, our vice-president, spoke about the ill-fated article 142 of the Constitution. And he gives article 142 of the Constitution the interpretation that the esteemed professor Ives Gandra has been giving.

Therefore, exercising my epistemic pedantry and democratic zeal, I return to the subject. For the fourth time. I also revisit the topic because journalists, news vendors, jurists, and military personnel seem to have no idea what legal interpretation is.

There are limits to interpretation. In law, we cannot act like the character Humpty Dumpty (image above the cover of the book Alice Through the Looking Glass) and say: “— I give article 142 of the Constitution the meaning I want.".

The jurist Michael Stolleis reminds us that, when the Nuremberg Laws were enacted in 1935, the Nazis used the legal system precisely as a tool of power, turning it into nothing more than an instrument of their will. Leader and its objectives. They instrumentalize the laws and the Constitution. Applying the law to the regime's objectives. What's the point? Exactly the expression used by Michael Stolleis.1He does so by referring to the work of Bernd Rüthers to define what occurred during that period: the interpretation of law was not constrained (limited). And he cites Rüthers' book, aptly titled... Die unbegrenzte Auslegung — an unconstrained interpretation.2 In Brazil, this could fit dangerously like a glove.

Therefore, I insist: the interpretation given by Ives Gandra to article 142 of the Federal Constitution here at Conjur (There is also a video circulating on social media) is, to be somewhat euphemistic and generous with the esteemed professor from São Paulo, extremely dangerous. According to him, the armed forces could intervene to restore democratic order. However, what does article 142 say?

The Armed Forces, consisting of the Navy, the Army, and the Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and are intended for the defense of the Nation, the guarantee of constitutional powers and, at the initiative of any of these, of law and order.

I didn't find what Gandra wanted to show. In fact, the article smelled of a threat to the Supreme Court, something like "be careful with your decisions, because this could cause problems." I allow myself to say, with all due respect: this is not appropriate in academic terms.

The worst part is having to insist on the fact that the interpretation of law does not allow for relativism. If article 142 could be read in that way, Democracy would be at risk with every decision of the Supreme Federal Court, and it would only take one act of disobedience from one of the other branches of government. Democracy would depend on the military, not on civilian power. It would be institutional self-destruction.

In other words, simplistic and distorted interpretations of article 142 must be rejected. ab eggArticle 142 does not allow military intervention. Any constitutional law textbook teaches what the principle of the unity of the Constitution is. Why would the constituent assembly say that all power emanates from the people, with all the guarantees of suffrage, etc., and then suddenly say: "Ah, but the armed forces can intervene at any time, as a kind of 'moderating power'"?

How does this Federal Constitutional Unit work? Simple. Article 142 states that the Armed Forces, under the supreme authority of the President of the Republic, are intended for the defense of the Nation, the guarantee of the constitutional powers and, at the initiative of any of these, of law and order.

Well then. The provision simply addresses the exception in the mission of the Armed Forces, that is, they—the armed forces—can also be used in public security. Nothing more than that!

And there's one more thing: for the Armed Forces to be used in public security, several requirements must be met. This is clear from articles 34, III, 136, and 137 of the Federal Constitution. In fact, this "intervention of the Armed Forces" is already regulated by the GLO (Guarantee of Law and Order), which is precisely named after the Guarantee of Law and Order, as stated in article 142 (just look at Complementary Law 97/99 and Decree 3.897). It's that simple. Furthermore, there is always the possibility of rigorous and broad legislative and judicial control. Just read the provisions with a good eye. Therefore, it is not enough to simply "call in the Armed Forces" to intervene, as Ives Gandra, Mourão, and some other politicians and people in the legal field would like to suggest.

Therefore, let's be very careful when interpreting the Constitution. When Humpty Dumpty told Alice that she could have "364 unbirthdays" instead of one birthday and thus receive 364 presents instead of just one, Alice replied: It can't be like this. And he must have brandished the kingdom's Constitution right in Humpty Dumpty's face. The "Constitution" of Alice's kingdom stated that each inhabitant only has one birthday a year.

Recovering the original meaning of Alice's dialogue with Humpty Dumpty:

“— When I use a word — said Humpty Dumpty in a scornful tone — it means exactly what I want it to mean... neither more nor less.”
"The question," Alice pondered, "is whether you can make words say different things."

Here in Brazil, we have to repeat that x is x. Why? Because part of the legal community thinks that words can be given any meaning one wants.

1 STOLLEIS, Michael. The Law Under the Swastika: Studies on Legal History in Nazi Germany. Chicago: University of Chicago Press, 1998, p. 8.

2 See my Dictionary of Hermeneutics, entry Epistemological Constraint.