versão impressa ISSN 0102-6909
Rev. bras. ciênc. soc. vol.5 no.se São Paulo 2010
The Armed Forces in Brazilian's Constitutions1
Autonomia na lei: as forças armadas nas constituições nacionais
Autonomie dans la loi: l'armée dans les constitutions nationales
Suzeley Mathias; Andre Guzzi
Translated by André Cavaller Guzzi
Translation from Rev. bras. Ci. Soc., vol.25 no.73, São Paulo, June 2010.
This article discusses the differences between the function, the mission and the role of the Armed Forces across the different Brazilian Constitutions: from the "Imperial Constitution" of 1824 to the so-called "Citizen Constitution" of 1988. The hypothesis presented here is that military autonomy has been maintained by law, which makes it difficult to promote the military subordination necessary to consolidate Brazil's democratic regime.
Keywords: Brazil, Legislation, Armed Forces, Constitution, Autonomy, Democracy.
O objetivo do presente trabalho é analisar as diferenças entre função, missão e papel das Forças Armadas nas Cartas Constitucionais brasileiras, de 1824 a 1988. A hipótese discutida é que a disjunção consagrada constitucionalmente entre Lei e Ordem consolida uma limitação à democracia ao autorizar intervenções das Forças Armadas para além da Lei. Argumentamos que a autonomia militar, garantida pelas Cartas, dificulta sobremaneira a subordinação militar em relação ao poder civil, necessária à consolidação do regime democrático.
Palavras-chave: Legislação; Forças Armadas; Constituição; Autonomia; Democracia.
L'objectif de ce travail est d'analyser les différences entre la fonction, la mission et le rôle de l'Armée dans les constitutions brésiliennes, de 1824 à 1988. L'hypothèse en discussion est que la disjonction consacrée constitutionnellement entre la Loi et l'Ordre consolide une limitation à la démocratie en autorisant des interventions dans l'Armée qui vont au-delà de la Loi. Nous défendons que l'autonomie militaire, garantie par les constitutions, rend très difficile la subordination militaire par rapport au pouvoir civil, car cette subordination est nécessaire à la consolidation du régime démocratique.
Mots-clés: Législation; Armée; Constitution; Autonomie; Démocratie.
The participation of the Armed Forces in the Brazilian political process is a phenomenon that was born along with the country. Even before independence from Portugal, military leaders had significant participation and influence in Brazilian politics. According to Oliveiros Ferreira (2000, p. 48-9), on June, 5th, 1821, when the Emperor D. Pedro confronted the troop commander, Jorge de Avilez, law was opposed to arms, and arms determined the future of law. Civil authority ceded to the military forces when the former, influenced by the latter, forced Conde de Arcos to resign and named Judge Álvares Diniz, suggested by a commander, to replace him. This is one of many episodes of the Brazilian history that illustrates the influence of the military forces in politics and their interest in articulating what they understood as moral and legitimate within the legal system of a certain time.
Along with the discussion between the legal power of the state, embodied in Don Pedro I, and the power of the Armed Forces, represented by the military that apparently aimed at changing the government and imposing its own political alternative, there is the construction of a personality trait, a tradition of the Brazilian Armed Forces that greatly differs from its counterparts, from the oldest Armed Forces to the ones that are formed in similar historic and regional conditions. In other words: while in other places, the law is suspended or overreached by military influences in politics, in Brazil military intervention is followed by its institutionalization by legal means, creating a framework in which the Armed Forces are specific means, the organized force of the state. However, if there is an attentive look to this situation and, specially, if it is compared to the Armed Forces of Brazil's neighbors, it is possible to see that by legalizing its intervention in politics, the Brazilian Armed Forces are overreaching the fine line between forces and law. Our hypothesis, therefore, is that the Brazilian Armed Forces construct themselves as forces autonomous from the state, rather than as the state's means of legitimate force, widening their autonomy vis-à-vis the authority of the state and introducing their own vision about themselves in the Constitutions.
To readers who are not familiar with the Brazilian history, it may seem that we are confusing the establishment of legal force - the state's mechanism to maintain order - and the constitution of military autonomy, as military intervention in politics, which is common throughout the Latin American history, has never been made according to legal order, but against it. In some specific situations, the Armed Forces agreed to share power with other national elites; however, this attitude was never legally regulated or determined in the national Constitutions.2 In Brazil, as opposed to the other countries in Latin America, the Armed Forces acts under the shadow of the Law. One example of this is that soon after March 31st, 1964, the Armed Forces did not enforce the suspension of the 1946 Constitution. Instead, they published Institutional Acts and, through them, the Armed Forces made the Senate elect Marshall Castelo Branco as the President of the Republic.3
Using these Constitutional Charters as sources for analysis - throughout 180 years of history, Brazil has had eight Constitutions - this paper shows that there is a parallel between the construction and evolution of the Brazilian state and the autonomy of the military. Even today, the military is not completely subordinated to the civilian government, and it mitigates the consolidation of democracy in the country (O'Donnell, 1999). In the same way that democracy is a political regime that is constructed by actors through a non-linear process, the evolution of the Brazilian Constitutions does not follow a universal process. Rather, their evolution is a social construction that represents the ever-changing relations between different actors and reflects the search for both the military's and the nation's identities (Coelho, 1976).
In more specific terms, the Constitution reflects a social reality and is the product of the hegemonic strengths of a society. Therefore, the legal system of a state is never neutral, as it reflects the ideological patterns of the hegemonic strengths of a society during the moment at which the system is being defined. The definition of the military functions in each Constitution is a political definition because politics are the basis of the law, while the law builds the state.
As a body of principles that organizes a state, a Constitutional Charter can be understood in different ways. Firstly, a Constitution can be understood as the creation of an apparatus that legitimizes the organization of the state, as can be exemplified with the Constitution of 1824. Secondly, a Constitution can represent the aims of a society, portraying its main ideals, as it can be observed with the Constitution of 1934 (Ferreira, 1986). Thirdly, a Constitution can illustrate at the same time the existent organization of a state and the aims that the society intends to achieve. A possible example of this Constitution is the Constitution of 1988 - also called "Citizen Constitution" - as its main idea is to achieve changes within the established organization, but it also denounces the inequalities and injustices of Brazil. Although the elaboration process of the Constitution is the same for the three mentioned kinds of Constitution, the results are different, oscillating between a conservative and a changing aspect.
The paper is divided into three parts. The first part is an analysis of Articles related to the Armed Forces in the different Brazilian Constitutions, from the Constitution of 1824 to the constitution of 1967. Both the formal aspects (how the Constitutions were written) and the substantive aspects (what was written) will be taken into consideration in this part. The second part is an analysis of the current Constitution of 1988, in which legislators created a new governmental structure in order to mediate the relations between civil society and the Armed Forces. Finally, the third part is an analysis of the current character of the legal military aspect.
1. The Armed Forces in Constitutions before 1988
The Constitution of 1824
The first Brazilian constitution, Political Constitution of the Brazilian Empire, promulgated in 1824, was composed by a set of 179 articles divided into eight titles. Even though the terminology "Armed Forces" was not common at that period, Article 102 of the Constitution mentions the state's inherent exercise of coercive power. The same article also attributed the following to the Executive branch: to name the commanders of the Army and Navy Forces, to force them to resign whenever they consider it necessary and to declare war and make peace. Articles 145 to 150 of the Constitution describe the organization of the Army and Navy Forces and determine that all citizens are obliged to defend the independence and the integrity of the Empire while the Executive branch has the sole responsibility to decide whether or not to use its Forces. Therefore, it was established that the Military Forces were essentially obedient, as they could not even gather together without authorization from a legitimate authority, which, in this case, was the Executive branch (Article 147).
In 1824, there was not a distinction between internal and external enemy and the Brazilian citizens were responsible for the internal and external defense of the Empire. However, at that time, as the Empire had a very large territory without well-defined borders and its emancipation from the Portuguese Monarchy was not consensual (it is important to remember that there were many revolutions against its emancipation, especially in the North and South of the Empire), the use of the Forces meant the protection of the newly created country.
Regarding the exercise of authority, and preceding the articles related to the organizations of the branches of power (Executive, Legislative, Judiciary and Moderating) and the Military Force, Article 98 determined that the Moderating Branch (Portuguese: Poder Moderador) was the central pillar of the political organization and was delegated exclusively to the Emperor, whose person, according to Article 99, was sacred and, therefore, was not subject to any responsibility.
In this sense, two aspects should be highlighted as they reflect the role of the Military Forces during the Empire: First, Article 98 was the cause of many discussions and debates in the Parliament of the Empire. Second, there is no mention of the Military Forces, and as they are subordinated by the Executive branch, the use of force is the responsibility of the Ministers, who are responsible for the exercise of the Executive branch. Therefore, the Military Forces, as they were completely subordinated by the Executive branch of the Empire, did not have any legal possibility to participate in the politics of the Empire, and, as we will show in this paper, this is a particularity of this Constitution, as all other Brazilian Constitutions allowed such participation.
In conclusion, at that time there was no "Military Power". Actually, the Military Force consisted of an intermittent set of men who were "essentially obedient" to the Executive branch. Regarding the Emperor, he was not responsible for the military forces, but he could recruit the Military Forces through its Ministers, who were responsible for the exercise of the Executive branch.
The Constitution of 1891
The Brazilian constitution of 1891, promulgated three years after the Proclamation of the Republic, in 1889, was very different from the previous Constitution as far as the Armed Forces were concerned. Regarding the mention of the military in the Constitution, the Military Forces are mentioned only at the end of the Constitution of 1824; in 1891 this content is mentioned from the introductory articles on. Article 14 (Title I) mentioned that:
"The Army and the Navy are national and permanent institutions and their aims are to defend the country internationally and to maintain the laws internally. The Armed Forces are essentially obedient, within the limits of the Law, to their hierarchic superiors and support the constitutional institutions".
Other points related to the formal aspects of the Constitution are that the noun "armed forces" is used, unlike in the Constitution of 1824. However, "armed forces" is not capitalized and the concept and definition of armed forces are mentioned before the explanation of the organization of the state, as if the importance of defining the role of the military forces precedes the conceptualization of the state, which the military forces are part of.
In order to understand the difference between the two Constitutions, it is important to first see how the Republic of Brazil was constructed: the ideal of the nation was built under manu militare. In other words, the Proclamation of the Republic was a consequence of a military coup d'etat. The civilians, nevertheless, had a great responsibility for the construction of society; as they could not or did not realize which Forces were willing to cede, they let a small group -- the same one that supported Benjamin Constant, who had Republican views -- assume command of the military and, consequently, the government. Echoing the possibility of the dissolution of the Empire, with the consequent division of the territory, the military corporation consolidated around a republican ideal.
Due to the advantages provided by the circumstances, a small group conquered the Military, and then made the military a "new partisan corporation" led by its own political party. This is the best explanation to understand the permanent character attributed to the armed forces in the Constitution of 1891. Making the Armed Forces a permanent institution permitted the corporation to quickly become autonomous in regards to civil power and to equalize armed forces with the state in terms of power.
The only institution that is also characterized as permanent is the State itself, in which the Armed Forces and the civil bureaucracy are, or should be, instruments to guarantee and legitimize its power. In other words, political regimes and governments can change, as well as the structure of the State, but the State will permanently continue to hold political power. To rephrase Max Weber, the State is the only entity that, within limits of its territory, has a monopoly over legitimate violence.
Another contribution provided by the constituent to military autonomy was to designate the Armed Forces a national entity which could conflict with the federal government, as the Armed Forces represented the unitary and unifying aspect of the country. With national and permanent characteristics, the Armed Forces became a mediating power among regional groups that wished to represent the nation; but, due to their origins in remote regions of the Brazilian territory, they only represented local and temporary interests of a small and regional area of the nation and therefore were relatively disadvantaged when compared to the national influence of the Armed Forces.
It is also important to mention a paradox found in the established function of the Armed Forces in 1891: the Armed Forces would be responsible for both enforcing and complying with the law that limited their power. According to Article 14, mentioned above, the Armed Forces had to enforce the laws related to the institution and, at the same time, obey their superiors in the government as outlined "within the limits of the law".
Unlike the Constitution of 1824, the Constitution of 1891 did not provide a clear explanation regarding military obedience and could not answer the following questions: Which superiors were the Armed Forces supposed to obey when there was no consensus among their superiors? Would they obey the immediate superior or would they obey the highest superior in the hierarchy? If the immediate superior is coup-minded whereas the highest superior is a legalist, how will they be able to resolve the equation between obedience, legality and hierarchy?
Another inaccurate aspect of the Constitution of 1891 regarding the Armed Forces was the "enforcement of the law within the Brazilian territory", which was a responsibility of the Armed Forces. In an exceptional situation, who would define the "enforcement of the law"? Brazilian historiography frequently describes the election system of the First Republic as quite fraudulent. Therefore, how would the enforcement of the law be defined in this situation? What would the role of the Armed Forces be in this case?
The Constitution of 1891 did not act only in favor of the autonomy of the Armed Forces. As a result of the diffidence of civilians towards the military, the Constitution was silent regarding the organization of regional military services, and it did not dissolve the National Guard (Guarda Nacional), which was not demobilized until the 1920s. Despite some weaknesses, the existence of the regional military services and the National Guard favored a federal offsetting, as they served as a counterbalance to the power exercised by the Armed Forces. One clear example was the Sao Paulo Public Force (Força Pública de Sao Paulo) that was trained by a French mission right after World War I; while the National Armed Forces promoted a similar initiative of contracting a foreign mission for the first time only ten years later.4
According to Carl Schmitt, sovereignty belongs to the one who makes decisions during states of exception. Based on this idea, it is important to point out which internal actor made decisions in situations of legal uncertainty throughout the First Republic in Brazil. Due to the organization of the elites, it is possible to affirm that this power was far from the military's scope; however, the military was gradually constructing the foundations to make decisions in periods of exceptionality.
While the Constitution of 1891 presented great changes related to the military bureaucracy, the next Constitution, of 1934, brought more substantive changes related to the search for autonomy. The main aspects of the Constitution of 1934 were the introduction of the concept of "national security", the creation of the Military Justice and the increase in military function through the division of law and order.
The Constitution of 1934
The main particularity of the Constitution of 1934 was its very short duration, as it lasted only one year. From 1935 to 1937, the Constitution was replaced by the "National Security" Law, and in 1937 a new Constitution was enforced (Pandolfi, 1989).
The Constitution of 1934 was a direct consequence of the Revolution of 1932 and gave legality to the Revolution of 1930. According to its Preamble, this Constitution reflected the desire to construct a democratic and inclusive political regime. The inclusive character of this Constitution expanded the military functions.
The sector of the Constitution of 1934 titled "On National Security" scrutinized military functions and created the High Council of National Security (Conselho Superior de Segurança Nacional) - Article 159 - which would be responsible for all issues related to national security. However, there is no explanation regarding what national security is (Decreto nº 7, de 03/08/1934).
Article 162 determines the military functions: "The Armed Forces are national permanent institutions and essentially obedient to its hierarchic superiors. Their main goal is to defend the national territory and to protect the constitutional power, law and order." The definition of the Armed Forces is a mere repetition of the previous Constitution. However, while the functions of the Armed Forces are expanded, they are characterized by ambiguity. In addition to the lack of an explanation regarding national security, law and order are considered distinct and independent from each other, and order reaches beyond the law that constitutes the State.
In this sense, if order can be beyond what is established through law, how could order be defined? Who could define order, its limits and its breadth? According to the Constitution of 1934, it is the Armed Forces' responsibility to maintain the domestic order. Therefore, what are the main functions of this institution: to do what is stated in the Constitution or to defend what they understand as order? As the Armed Forces are essentially obedient, who would define what order is? In this case, would it be the self-perception of high-ranking officials, such as commanders and admirals, which determines when order has been broken and what should be done to stabilize and normalize the situation?
When opposing law and order, at the same time that it gave responsibility for guaranteeing internal order in the country to the military, the constitution allowed the Armed Forces, in order to maintain order and the fulfillment of its constitutional functions, to ignore the law and impose its own order. For this reason, in order to participate in political issues, the Armed Forces just needed to respect the Constitution and try to establish order. This fact gave legitimacy to the Armed Forces' actions.
The Constitution of 1934 also created the "military judiciary," whose aim was to judge military and civilians in special circumstances. According to Article 84 "the military will have special jurisdiction in case of military offenses. This tribunal could be extended to civilians in case of crimes against external security or against military institutions."5 It is important to mention that the creation of the military judiciary represented an advance in trials of crimes related to military aspects, and also meant a way to embrace and take care of all issues related to security, including public security. Finally, the Constitution of 1934 extended the right to vote to all literate citizens over 18 years old, including "sergeants of the Army and of the Navy, auxiliary forces of the Army, students of military academies and subordinate officers" (Article 108). As a result of this, both low-ranking officers and sergeants established partisan groups, making the Armed Forces a partisan institution.6
Therefore, in comparing the Constitution of 1934 to the speeches of the military commanders, it appears that the Constitution gave the Armed Forces the ability to become a political party, as this institution had a project for the nation, which included the industrial and technological modernization of the country. However, as the Constitution lasted a very short period of time, it was not possible, at least during this period of history, to actually change the role of the Armed Forces into a political party.
The Constitution of 1937
Before analyzing the Constitution of 1937, it is necessary to clarify the difference between the role, the function and the mission of the Armed Forces. As defined by sociology, a role is a social attribution. Using the analogy of a theatre, roles are the scripts that each specific actor must represent in a play. In the particular case of the Armed Forces, the role of the military is determined by society, regardless of the norms and values held by the military.
Also as defined by sociology, a function is an internal attribute of a specific actor within an organism or structure. In other words, a function is a legally prescribed order for a determined social status (Merton, 1992; 1979). In this case, the function of the Armed Force is to be an instrument of the State when it affirms that action is necessary.7
The term mission, different from role and function, does not have its roots in sociology. A mission is the incumbency or task attributed to a specific actor who must execute it when it is required. For instance, commanders may give soldiers the mission to vaccinate the population in order to protect them against an epidemic of disease. Even though this mission is unrelated to the main function of the Armed Forces (the soldiers are not trained to work as paramedics), this same mission can be seen as an accomplishment of the role of the Armed Forces in a specific situation, for example, during a peace keeping operation.
As far as the Constitution of 1937 is concerned, the first important characteristic of this document is, according to Alfonso Arinos de Frank Melo (1985), its "imperfect character". This means that it was created without the intention of putting it into practice; in other words, the main intention of this document was to legalize Getulio Vargas' dictatorship, leaving the central government free to do whatever it believed necessary in order to develop' Brazil. It is important to remember that the Armed Forces supported Vargas' dictatorship.
In order to establish the dictatorship, the Constitution of 1937 empowered the Executive branch of the central government, concentrating all authority of the government on the president of the Republic.
In regards to the Armed Forces, Article 161 explained that they "are a permanent national institution, organized under a hierarchical discipline and under the full obedience to the President of the Republic."8 When establishing that the Armed Forces were under the control of the President of the Republic, there was a retrocession in the movement of military autonomy, as, according to the Constitution of 1937, this institution became the armed branch of the government, just as it was during the Empire.
The conversion of the Armed Forces to professionalization is mentioned in the Article 166, according to which the Defense of the State is exclusively subordinated by the President of the Republic, as he was responsible for determining when the internal order is in danger, decreeing a state of emergency or war, and using the Armed Forces, internally or externally, in order to reestablish order. The importance of the process of subordination to the Presidency arose with much more vigor when it was realized that Congress was no longer able to contradict a president's decision or order (Article 167).
As an echo of the revolutions of 1935 and in order to limit the interference of the military in national politics and to bar the presence of ideological movements in the barracks, the Constitution forbade actively-employed members of the military to vote or to be eligible to be voted for (Article 117 b). However, the military's interest in participating in the political decisions of the country led to the modification of this article in 1945, so that "actively-employed members of the military, except for the commanders, cannot vote" (Constitutional Law nº 9, of 02/28/1945, emphasis added). In this sense, the civil power yields to the military's autonomy in a juridical way.
In sum, as the Constitution of 1937 legalized a dictatorship that had a strong military basis, it hindered the prerogatives of the Armed Forces legalized in the Constitutions of 1934 and of 1891, making it similar to the Constitution of the Empire (1824). In other words, through the Constitution of 1937, the Armed Forces were made subordinate to the Executive branch of the central government with subtle changes; the 1937 constituent contributed to the professionalization of the Armed Forces, as this institution was organized as a bureaucracy, which was neither autonomous nor fragmented, and did not support the creation of partisan factions within the corporation.
The concentration of power in the dictator's hands did not eliminate the contradictions that characterized the end of the 1930s, which engendered, in the international arena, the greatest worldwide conflict, World War II. The Brazilian government, trying to take advantage of the conjuncture of the beginning of the 1940s, characterized by intense insecurity, adopted an ambiguous position in regards to WWII: sometimes leaning towards the Axis and sometimes leaning towards the Allies. In 1944 Getulio Vargas, finally convinced that the support of the Allies -- especially to the United States -- would be more beneficial to Brazil, organized the Brazilian Expeditionary Forces (FEB, in Portuguese) to fight in Italy against the Axis.
Vargas' decision to support the Allies completely changed the outcome of its dictatorial regime, as well as the interests of the Armed Forces. After the experience of the FEB in Italy and their closer relationship with the United States, the Armed Forces were interested in developing the political ideas of modern capitalism within the institution. For this reason, the Armed Forces actively participated in the movement that required the end of "the New State" (Estado Novo), as its system was incompatible with the new capitalist tendencies of the Western world.
Having in mind this new conjuncture, the New State came to an end and, in 1946, one year after the end of Getulio Vargas' mandate, the fourth constitution of the Republic of Brazil was promulgated.
The Constitution of 1946
The Constitution of 1946 is seen as the most democratic constitution of Brazil, with the exception of the Constitution of 1988. With regards to the military sector, though, it follows in the footsteps of the 1934 Charter, guaranteeing more autonomy to the Armed Forces. Therefore, this Constitution states that:
Article 176 - The Armed Forces, constituted essentially by the Army, the Navy and the Air Force, are permanent national institutions, are organized with a basis on discipline and hierarchy, under the supreme authority of the President of the Republic and within the limits of the Law.
This Charter is the first one to present a division between the Army, the Navy and the Air Forces, while all of the previous Constitutions mentioned the "Armed Forces" in a general sense, distinguishing only between "land" and "sea". It also institutionalized the creation of the Air Forces, accepting the division adopted by the United States of America, one of the few countries to adopt this ternary division.
Military aviation was created in Brazil in 1920, as part of the Army. After a short period of time, "Navy aviation" was organized and remained in existence until 1941. In this year, perhaps as a way to demonstrate its good will to the North Americans, President Getulio Vargas created the Air Force Ministry, which started to focus on the responsibility for the Armed Forces after the extinction of the Army and the Navy aviation divisions.
The post-1946 legal reality did not alter the military Ministry structure, accepting the one that was inherited from the dictatorial regime. Therefore, the existence of a new Force, if tending to raise internal tensions against the military environment, supplied more relative power to the regime in the interior of the State, because of the increase in numbers for the Armed Forces in decision-making organisms.
Article 176 reflects the Forces' organizational intentions by informing, in an improvement of the text from 1937, that they are "organized with a basis on discipline and hierarchy". However, they did not remove the influence of politics from the military sector because, as opposed to the 1937 Constitution, they limit obedience to the Law, so they were organized "under the supreme authority of the President of the Republic and within the limits of Law" which, at that time, served more to weaken civil power from the government.
With regards to other aspects, the new reality keeps the same previous pattern, conserving the National Security Council - which gains specificity with the replacement of the "special organs" (as they were in 1934 and 1937) by the "armed forces special organs" (Article 179) - the military compulsory service (Article 181) and the Military Justice (Articles 106-08). In the way that it was organized, even if it intended to rely upon the professional Armed Forces, the Law actually contributed to an increase in armed interventions in politics, which culminated in the Military Revolution of March 31st, 1964.
The Constitution of 1967
Members of the military took power in 1964. In order to avoid opposition in the Congress, the military used Institutional Acts to amend the Constitution. Three years later, in 1967, the military created a new constitution to aggregate all the Institutional Acts.
The Constitution of 1967, regarding the organization of the Armed Forces, presents few changes compared to the previous Constitutions. Article 92 of the Constitution of 1967 defined the Armed Forces:
The Armed Forces, constituted by the Navy of War, the Army and the Military Air Forces, are national, permanent and regular institutions. They are organized through hierarchy and discipline and they are under the authority of the President of the Republic and within the limits of the Law.
§1º - the Armed Forces have to defend the Country and to guarantee the Power, the Law and the order.
There are two new aspects of the Constitution's composition: Firstly, the Armed Forces have a regular character, which makes them different from any possible military organized groups which are not under the government command, such as the paramilitary groups. The highest precision that was intended to provide to the identity of the Armed Forces can be seen when the adjectives "of war" and "military" are used to define, respectively, the Navy and the Air Forces. Secondly, in this constitution the expression "constituted power" substitutes the expression "constitutional power".
Although the first change might be considered more significant, as it better describes the military profession, it is the second change that illustrates how the members of the military understood their responsibility, as they needed to zeal for the established power, regardless whether the power was legal (as regulated by the Constitution) or not.
This Constitution, on the other hand, continues separating the ideas of law and order, repeating, once again, the same problem that happened in the previous Constitutions. As, at this moment, there was a military government, the internal problems of the military corporation, which were previously disregarded, echoed in a very strongly way. In addition to this, the corporation had a hierarchical organization based on the discipline of their members; therefore, the internal disparities could not be presented very clearly. However, due to functions that could not be incorporated into the regularization (as the ones related to parallel activities of the responsible for the internal security, especially related to the SNI), the organization of the political regime after the coup of 1964 had quotidian implications in the barracks. Because of this, Institutional Act nº 17 (also called AI 17), of 10/14/1969 was created. According to AI-17, the President of the Republic could temporarily remove "the members of the military who had tried or would potentially try to act against the cohesion of the Armed Forces" (1st Article). This removal could become definitive depending on the decision of the High Military Command (3rd Article).
Despite the mentioned changes, the biggest innovation in the Constitution of 1967 is not in the treatment of the Armed Forces, but in the way that the precept of national security is incorporated into the Constitution, transforming it into the motto of the collective existence of Brazil. In this sense, all of the citizens (even adolescents and native inhabitants) were responsible for national security (Article 89), even though they did not participate in the formulation of the national security, which was an exclusive function of the National Security Council.
The Constitution of 1967 expanded the responsibilities of the President of the Republic, incorporating legislative precepts, and expanded the functions of the Armed Forces. The Constitutional Amendment nº 1, of October 17th, 1969 - considered by many as a new Constitution due to the great quantity of registered changes - distinguished the Armed Forces from the other governmental institutions even more, giving the Armed Forces a fundamental political role. The conceptualization of the Armed Forces is the same in the Constitution of 1967 and in the Amendment of 1969, as is evident when we compare Article 90 of the Amendment to the Article 92 of the Constitution of 1967. However, as the Amendment gives the Armed Forces more functions, it is also evident that there is an increase of actions for the Armed Forces, in accordance to the law.
The Amendment of 1969 also brings some changes to the National Security Council, as it has the "highest level of the direct advisory councils to the President of the Republic". The functions of this Council are regulated by the National Security Doctrine, as, according to Article 89 of the Amendment of 1969, this Council has to "establish the permanent national objectives and the basis of the national politics". This extract repeats ipsis literis the manuals published by the Army War College (Escola Superior de Guerra, ESG).
According to the Manual of the national War College, published in 1975, the permanent national objectives can be analyzed through the expression "Security and Development", in which "security" represents the maintenance of the traditional values of the nation (p.35), while "development" represents the necessity to modernize and renew those values, generating "improvement and progress of the nation" (p. 36).
The Constitution of 1967 was modified through Amendment n. 1 of 1969, which was formulated when there was a Military Junta (derived from a Spanish word which can be translated as "conference" or "board") under the command of Alm. Augusto Rademaker (Navy), Brig. Márcio Melo (Air Forces) and Gen. Aurélio Lyra Tavares (Army).
According to the Amendment of 1969, the motto "Security and Development" became a legal act. In this sense, Article 8 of the constitution of 1946, which explained the function of the country as to "organize the Armed Forces, the security of the borders and the external defense" was substituted, in the Constitution of 1967, by "organize the Armed Forces, and plan and guarantee national security". In 1969, it was substituted by: "plan and promote national development and security." Therefore, the Amendment:
[...] emphasizes the preoccupation with the defense of the state [...] and turned the principle of national security a fundamental norm of the current constitutional system. It was a kind of principle of necessity, superimposing the efficacy of almost all of the constitutional norms. In addition to this, the concept of "national security", through which the constitution created many restrictive dispositions, [ ] was not defined in the text of the Constitution" (Velasco e Cruz & Martins, 1984: 38).
The Amendment enforces the importance of security to national development. In other words, both the Constitution of 1967 and the Amendment of 1969 highlight the importance of the National Security Doctrine as a basis to the development of the country. In this sense, they transform the state and the society into military institutions and they transform the Armed Forces into the protectors of the nation that is, in accordance with the institution, threatened as its citizens could not know how to defend the Nation against external and internal threats
The Constitution of 1967, amended, shredded and condemned, determined the outcomes of Brazil for 21 years. This Constitution was substituted by the "Citizen Constitution" of October 5th, 1988, which was born, according to Faoro, "not as a rupture of the constituent power, in order to legitimate its content. It is the legitimacy in decomposition, intensified by the inefficiency, which arouses the constituent power of the persons" (1985: 55).
2. The Armed Forces into Constitution of 1988
The process that resulted in the current Constitution shows that a substantive review of the role and the mission of the Armed Forces could not be expected. The way this Constitution was prepared, precisely the one that (re)established democracy in the country after a long period in which legitimacy was based on bayonets, wasn't even independent: instead of a Constitutional Convention, Brazil formed a Constituent Congress, and, worse, it reflected an electoral process in which many citizens weren't even aware of the fact that they were electing those who would represent them at the opening of a new legal order in the country.
As the 1988 Constitution is a result of a "transition through transaction", as Share and Mainwaring (1986) determined, the Armed Forces and its roles were practically the same as defined in the Constitution of 1967. Thus, it can be read in Article 142: "The Armed Forces, constituted by the Navy, Army and Air Forces, are permanent and ordinary national institutions, organized by hierarchy and discipline, under the President's supreme authority". However, it is written in a new way, even if ambiguous, which starts to constitute these Forces' roles. In the same Article, it is asserted that the Armed Forces "aim for the country's defense, the guarantee of constitutional power and, by initiative of either one of these elements, law and order", determining that a supplementary law would rule this function. This law was released only in 1991, three years after the promulgation of the Constitution.
In a nutshell, both the definition and the roles assigned to the Armed Forces represented a compromise among the different authors, especially constituents and the members of the military. According to the settlement, the members of the military continued as guardians of national values while the civilians could continue with their democratic project.
Immediately, there are two problems with this compromise. Regarding the first problem, succumbing their permanent character to the militaries - a quality that not even the Sovereign State has-9 those responsible for the Law forgot a golden rule, recently recalled by the former Spanish defense minister Narcís Serra:
[...] The militaries who believe they are creating permanent values are a real threat to the democracy, since the distance between permanent and superior values is no longer than a step, and the militaries who believe having them consider themselves guarantors of these values, making them substantial to the nation. (2008: 77).
Our constitution framers were beyond what Serra states, because they didn't make the Armed Forces representatives of permanent values, but made them part of these values, or, more accurately, one value. Therefore, they are above their own nationality.
Concerning the second issue, which reinforces the first one, the problem is to institute the national character as an attribute of the same Armed Forces, that is, as the only professional institution to which all nation representation is assigned, which no other organization can demand. When defining them as "national and permanent", they legally made the Armed Forces an entity superior to the legitimate people's representatives regarding democracy and perhaps superior to the people themselves.
Therefore, based only on the Armed Forces definition, its independence is legally guaranteed. Notwithstanding the constitution framers went beyond this: when defining their roles, they kept the military responsibility over law and order, and, trying to subordinate such prerogative to the civil government, created an ambiguous situation that, it is not wrong to say, is only similar to the notorious AI-5,10 which was exactly the instrument of military government that founded the open dictatorship.
Another topic to be highlighted in Article 142 is the focus on removing the possibility of the Forces to act in defense of the "constituted powers", replaced by the "defense of constitutional powers", adding "by initiative" of the same powers, subordinating military action to civilian authority. However, hierarchy among authorities is not defined by opening the possibility of, at least, three problems, all of them leading to questions without satisfactory answers.
The first problem concerns the internal nature of the Forces, because it is about the disruption of the hierarchy principle. Notice that the way of exercising power in Brazil, along with the concentration of authority in the Executive branch, is not far from generating a conflict among the branches. If, hypothetically, military intervention against the Executive branch is demanded by either Legislative or Judicial initiative, and given the fact that the President is the Forces commander-in-chief, it can be said that they are in a "legal" situation of insubordination!
The second problem, or a consequence of the first one, could happen when there is no agreement among the branches regarding an Armed Forces action. In that case, to which branch should they report? To the first one who reacts? Depending on the branch they report to, there will be a problem, but when they choose, the main consequence will be presented: its autonomy to decide what is its mission, which is far from any subordination in democracy.
The third problem concerns which level of authority would reserve the right to decide about the application of military force. Could one of the governors or trial court judges summon the Armed Forces, or is such decision up to the national power? It didn't take long to define this difficult situation. A little more than a month after the Constitution took effect, at the end of 1988, the Army was called by a local judge to control a strike organized by at the steelworks in Volta Redonda (RJ), which resulted in the death of three workers. Since then, the Forces themselves started to resist more to participate in actions to control law and order.
These problems were solved only on July 30th 1991, by Supplementary Law n. 69, which ruled the application of the Armed Forces under the President's authority.
Article 8 - The application of the Armed Forces in the country's defense, of constitutional powers, of law and order, is the President's responsibility, which will determine him to the respective Military Ministers.
§ 1 - The decision of the application of the Armed Forces is the President's responsibility, by his own initiative or as a request from any of the constitutional powers, through the Supreme Federal Court President or the Federal Senate President or the Chamber of Deputies President, to the extent of their respective areas.
§ 2º - The Armed Forces operation will take place according to the President's guidelines, after they are out of all the instruments destined to the preservation of public order and patrimony and people's safety listed in the Article 144 of the Federal Constitution.
With this law, the legislature solved the subordination issue, but did not affect either the autonomy or the concentration of power in the Executive, jeopardizing democracy, since the Supplementary Law does not mention anything about the necessity of establishing the State of Defense (Article 136) or the State of Siege (Articles 137-139). This fact moved away participation of the Congress on the application of military forces according to the circumstances, which would be common in any democracy.
With respect to Military Service and to Military Justice, the Constitution of 1988 repeated the previous Constitutions, when the enforcement of the first (Article 143) and the ambiguity of the second was kept, which just states that the trial of military crimes corresponds to that court's responsibility (Article 124), failing to state whether civilians could be subject to it.
As previously mentioned, the Constitution of 1988 sought to eliminate any term contained in its former system. That is why the expression "national security" that remained in the 1967 Constitution is not mentioned, being substituted either by "state security" or "national defense". The National Security Council is substituted by the National Defense Council (Article 91), being careful enough to make it a consultancy organ. However, when not creating the ministry of Defense, maintaining three military ministries, besides the Armed Forces General Staff and "Casa Militar" (a ministry worked to link political parties and Republic President), the number of men in military uniforms remained untouched, proving once more the compromise of the Brazilian transition.
3. Permanent autonomy
As recently (re)built democracies show, pushing the military force , whose main role is national territory defense, away from the activities related to public security is an important condition for military subordination to the civil leadership and, therefore, to the generation of a democratic system. On the other hand, the Brazilian government, perhaps because of its incapacity to ensure its citizens' security, have been using the Armed Forces to solve matters of public security, having created a brigade for mission training in order to "ensure law and order" (GLO).
After the shock caused by the Army operation in Volta Redonda (1988), which limited the use of military to keep the public order, the global meeting organized in 1992, in Rio de Janeiro, was the most important event in which a security plan covered by the three Forces was used. According to the UN evaluation:
The Conference in Rio was the first global reunion after the end of the Cold War, and there were questions of whether new politics could be manipulated around a common global future. It was also the biggest and the most attended conference worldwide promoted by the UN up to that time, having 178 states represented in the negotiations and 118 heads of state attending "Cúpula da Terra" (http://www.universia.com.br/materia.jsp?id=4054).
The Armed Forces application in this case, even not being the most correct one, could be understood as a relevant operation, as if they were "out of all instruments destined to the preservation of public order", since Brazil does not hold a national police that could operate in such an important situation as the ECO-92.
Because of the Rio-92 Operation's success, the use of the Armed Forces in matters of public security started being accepted by the population as part of their natural mission, especially the Army's, known for being present in such situations. Thus, mistrustfulness that could remain with the population around the bureaucratic-authoritative system was overcome. This is one of the explanations for the growing demand of the Armed Forces in maintaining public order.
Parallel to the growth of GLO operations, the government sought the regulation of the application of the Forces, as well as deepened military preparation. The first action taken was the publication, in 1996, of a document about national defense. In this document, in the guidelines to be used, there is no mention of subsidiary activities, even though it states that it is part of the armed forces' responsibility to contribute to national development. This way, it is entitled to what should be taken as national defense.
Fulfilling his campaign promise, President Fernando Henrique Cardoso created the Ministry of Defense on July 1999,11 at the same time that he sanctioned Supplementary Law 97 that would substitute Supplementary Law 69, with changes related to the new ministry. To the 1999 law, it was added in 2004, through Supplementary Law 117, more accurate definitions to the understanding of military missions in public order, such as the one which refers to when it should be determined that the Armed Forces must interfere.
Article 15, § 3 states: "It is considered to be out of the instruments related in Article 144 of Federal Constitution when [...] they are formally acknowledged by their respective Chief of Federal or State Executive Branch as unavailable, non-existent or insufficient to the regular performance of its constitutional mission."
Even with all the legal regulation for its application and maintenance of law and order, important military sectors continued resisting police tasks, understanding that the training is not specific and that operations like the one demanded by public security threaten the military ethos. Even so, they continued being widely applied in GLO operations, as in the following examples: the Rio Operation, carried out in Rio de Janeiro at the end of 1994, whose goal was to stop drug traffic; in 1995, the Armed Forces were called to contain the oil tanker staff strike, which happened again in 2001 in the police officers' strike. In the same year, in perhaps the most prosaic example, a mobilization of 250 Army soldiers took place at President Fernando Henrique Cardoso's farm, which was threatened by the Landless Workers' Movement (Movimento dos Sem Terra - MST).12
The consequence of all of these examples was the vulgarization of the use of forces in the country's defense, highlighting the government's inability to comprehend the inadequacy of the forces applied, with non-important and momentary results to public security, when it was not clearly illegal, standing the Armed Forces' lack of preparation in dealing with police tasks. More important, if, in all of the examples provided the result was not greater tragedies, the most recent operation clearly shows not only the lack of preparation, but also the intensity in which the Army has incorporated police practice, the same that justified the GLO operations.
As Martins Filho summarizes (2008), in Luis Inácio Lula da Silva's government "there was not the use of the Armed Forces in order to control social movements not even once in five years. Now, he ended up ordering the Army [...] that a very risky mission was carried out for political/electoral reasons [...]", creating an indelible stain in the Armed Forces reputation. This happened when this government requested a military grouping action in Morro da Previdência, a slum (favela) in Rio de Janeiro taken by drug dealers,13 which resulted in the death of three minors who didn't have any criminal records, all of them assigned to the group formed by 11 militaries taking over in Providência on June 14, 2008.
On the other hand, and despite the Armed Forces legislation and even after their mission was formalized through a legal ruling and the creation of parameters for the Defense, they kept asking for definitions and charging politicians for what they call incapacity of defining what they want from the Armed Forces. Thus, after two documents to the national defense politics, it remains the historical lack of definition relative to the priorities, and in which scale they should be handled by the military forces, which is acknowledged by the civil leadership:
Civil Power, which succeeded the military dictatorship, identified, as an ideal, the Defense topics with political repression. For that reason, the topic was vulgarized in the Constituent Assembly (1987-1988). Emerging leaderships didn't want to touch anything that could link them to the previous system
[...] as a necessary consequence, the Defense topics were out of the national agenda. Executive and Legislative started considering them an exclusive military agenda [...] in the academic area, a similar process was developed [...] in other countries, such topics are the subject of deep intellectual interest. There is plentiful work when it comes to studies in the civil institutions area. The interchange between civilians and militaries provides the State better conditions to decide, and better control for the society [...] (Jobin, 2008).
It is important to highlight that during the process of the constituent assembly and the complementary legislation, as well as the creation of the Defense Law, the military presence and orientation was a reality that many analysts called the "powerful military lobby" (Oliveira, 1994) or to mention the military authorship in the documents of defense and in the budgets for the area (Mathias, 2005). It allowed the Armed Forces to preserve an autonomy from the civil power. This autonomy is not only portrayed in the Article 142 of the 1988 Constitution, but also in the discourse of the parlamentarians who claim that it is a duty of the Armed Forces to decide how to use the budget, the legal mantainance of the division of civil and military education14, the lack of a judicial court to judge military personnal envolved with GLO operations (Operations to Guarantee Law and Order)15, etc.
However, highlighting the political society's lack of knowledge relatively to the military world, as well as society's lack of participation in the process of the Constitution creation, and having as background the type of transition from bureaucratic-authoritative government to civil, the Basic Law hardly presented advances regarding the definitions of military roles, which were reflected in continued military autonomy and Armed Forces participation, even meaning institutionally less, in positions that required decisions from the democratic government (Mathias, 2004).
The military resistance to enforcing public security and its difficulty in convincing the government of its lack of usefulness for such activity may indicate that military subordination is part of today's reality. However, the way the transition from the bureaucratic-authoritative systems was held must be considered. This transition allowed the Armed Forces themselves, as previously mentioned, to demand that the Constitution assured them the responsibility for the guarantee of Law and Order, which permitted them to reach all of their goals when the distension was initiated to keep for themselves the prerogatives to actively participate in the government without being confounded with political power.
Nevertheless, something went wrong, that is, the costs to keep themselves in the government were much higher than initially expected. However, many military personnel defend the idea that the maintenance of Law and Order represent a way of keeping the Forces close to the citizens and guarantee continued investment, resulting in the improvement of the Forces. Thus, using a purely logical reasoning, the Armed Forces would benefit if they operated as sponsors of internal security.16
In 2008, the Citizen's Constitution celebrated its twentieth anniversary, being the eighth constitution in over 180 years of independent history. It carries more details than the others - it is represented by 250 Articles that have been through 60 amendments (Villa, 2008) - but perhaps for this same reason it is not so functional and it is often disrespected. This does not mean that its role is not being fulfilled; on the contrary, it has promoted the consolidation of institutions, a condition that is vital to the development of a democratic system.
However, as discussed in this article, the Brazilian Constitutions gradually legalized military autonomy, and at the same time civilians grew distant from subjects related to defense and military organization. A good example was and still is the way academics who insist on working on these topics diminish the significance of the work performed by the military institution.17
On the other hand, it would be naive to assume a constitutional reality can convert such a long process as the construction of military autonomy. It is also certain that a Constitution does not avoid military interventions or coups. However, law enforcement is a necessary condition to consolidate democracy. At least as a suggestion, the law points out values that should permeate the society it regulates. If the law represents the permanence of military autonomy, how can the consolidation of democracy be achieved?
Coelho, E. C. (1976). Em busca de identidade: o Exército e a política na sociedade brasileira. R.J., Forense Universitária.
Faoro, R. (1985). Assembléia Constituinte: a legitimidade recuperada. S.P., Brasiliense, 3ª Ed.
Ferreira, O. S. (2000). Vida e morte do partido fardado. S.P., Ed. SENAC.
______. (1986). Uma Constituição para a mudança. S.P., Duas Cidades Ed.
Forjas, M.C.S. (1977). Tenentismo e Política. R.J., Paz e Terra.
Franco, A.A.M. (1985). Brasil, sociedade democrática. R.J., José Olympio ed.
Gaspari, E. (2002). A ditadura envergonhada. S.P., Cia das Letras ed.
Jobin, N. (2008) A defesa na agenda nacional. O plano estratégico de defesa. Interesse Nacional, Brasília, junho.
Martins Filho, J. R. (2008). Entrevista concedida a Mônica Manir. O Estado de S. Paulo, 22/06/2008, caderno Aliás.
Mathias, S.K. (1995). Distensão no Brasil: o projeto militar. Campinas, Papirus.
______. (2003). A militarização da burocracia. A participação militar na administração federal das Comunicações e da Educação, 1963-1990. S.P., Ed. UNESP/FAPESP.
Merton, R. K. (1992) Teoria y estructura sociales. Cid. México, Fondo de Cultura Econômica.
______. (1979) A ambivalência sociológica, R.J., Zahar ed.
O'Donnell, G. (1999) "Teoria democrática e política comparada", Dados, v. 42, n. 4, pp. 655-690.
Pandolfi, D. et. al.(1989). O Golpe Silencioso: As Origens do Estado Corporativo. R.J., Rio Fundo.
Rouquié, Alain (coord.). Os partidos militares no Brasil. S.P., ed. Record, s/d.
Share, D. & Mainwaring, S. Transição pela transação: democratização no Brasil e na Espanha. Dados (29): 2. R.J., IUPERJ.
Serra, Narcís (2008). La transición militar. Reflexiones em torno a la reforma democrática de las fuerzas armadas. Barcelona, Ed. Debate (Random House Mondadori).
SOARES, S. A. (2006). Controles e autonomias: as Forças Armadas e sistema político brasileiro (1974-1999). S.P., Editora da UNESP.
Velasco e Cruz, Sebastião C. e Martins, Carlos E. (1984). De Castelo a Figueiredo: uma incursão na pré-história da abertura'. In Almeida, Maria Hermínia T. e Sorj, Bernardo (orgs.) Sociedade e Política no Brasil pós-64. S.P., Brasiliense, 2ª. Ed.
Villa, Marco Antonio. "Cornucópia Constituinte". In O Estado de S. Paulo, 29/08/2008, p. J-5.
1 A primary version of this paper was published in 1991 in a no-longer-existent Brazilian journal called Política e Estratégia (Politics and Strategy).
2 Here are some examples of these relation between Armed Forces and national elites: "Pacto del Punto Fijo", power division agreed between political parties "Democratic Action" and "Independent Electoral Organization Committee" in Venezuela from 1958 until 1988; and the "Frente Liberal" in Colombia from 1958 until 1974. In both cases, there was a distribution of power among the involved parties, leaving defense and security matters as subject to the Armed Forces scope. In neither case, however, were these agreements formalized.
3 In order to mention some examples of the last cycle of military coups in South America, in Argentina (1966 and 1973), in Uruguay (1973), and in Chile (1973), one of their initial measures was to suspend the Constitution. For a more detiled explanation of these measures, see O'Donnell, Guillermo (1990). Análise do Autoritarismo Burocrático. Rio de Janeiro, Paz e Terra.
4 At the first decade of the Republic (especially in 1906, 1908 and 1910), some officers were sent to Germany in order to study the German military system and, afterwards, to implement some aspects of elements of the system and modernize the Brazilian Armed Forces. When they returned to Brazil, they funded a journal called "National Defense" (A Defesa Nacional) to present what they had learned in Germany. However, the "Turkish Youth", as these officers were called, could not implement the necessary changes for the professionalization of the Armed Forces. The disparities between the Turkish Youth and other officers who did not have the same experience were one of the main reasons that led to the "lieutenantism" conflicts that happened from 1922 to 1924. Cf. Forjas, M.C.S. Tenentismo e Política. R.J.: Paz e Terra, 1977.
5 Article 77 of the Constitution of 1891determined that the military would have a special forum in order to judge military crimes. However, this forum was never created. The Constitution of 1934, on the other hand, in addition to creating the military judiciary, it also established a labor and an electoral judiciaries.
6 We use the same definition of military political party as Alain Rouquié, for whom "[...] the military parties could be real parties funded by officers in order to play a role in the civil society or they could be the cristalization of tendencies that struggle for power in the military institution scope and in military political structures Rouquié, A. "Os processos políticos nos partidos militares do Brasil". In Rouquié, A. (coord.) Os partidos militares no Brasil. S.P.: ed. Record, s/d., p. 13.
7 As Merton's theory asserts, instead of using the terms "role" and "function", it is possible to use the terms: "latent function" (which are not necessary and, sometimes, they are considered undesirable by the agent) and "manifest function" (consequence of an action or behavior expected by the agent). However, we use the terms role, function and mission to better demonstrate the differences between role - meaning what the officers do not expect to do, but the society expects them to do -; function - meaning what the officers expect to do as part of their profession -; and mission - meaning what the government imposes upon the officers. The basis for this classification is: Merton, R. K. Teoria y estructura sociales. Cid. México, Fondo de Cultura Econômica, 1992. More specifically, there is ambivalence in the social role, as a specific social position can represent more than one role, depending on the relation between position and norm. Merton, R. K. A ambivalência sociológica, R.J. Zahar ed., 1979, pp. 19 ss.
8 It is interesting to observe that the way of writing the word "president" changed from the previous constitutions, in which this word was not capitalized, to the Constitution of 1937, in which this word was always capitalized.
9 We owe this observation to Oliveiros S. Ferreira.
10 On December 13th 1968, under General Costa e Silva's government, Institutional Act n. 5 was edited, which, according to then vice-president Pedro Aleixo, founded the open dictatorship in Brazil, since it gave every judge the prerogative of arresting people, without evidence and basic individual guarantees, which was abolished by such Act.
11 This is not the place to develop an analysis related to the generation of the Ministry of Defense, but it is important to register this generation was possible by the intervention of an organ over the three military ministries, keeping the Forces Commanders the same former prerogatives. A detailed essay about it is Fucille, Luis A. (2006). Democracia e questão militar: a criação do Ministério da Defesa no Brasil. Doctoral Dissertation in Social Sciences under Eliézer Rizzo de Oliveira's orientation. Campinas, IFCH-UNICAMP, digit.
12 Justice sentenced the president to pay back all the expenses with the militaries to the public treasury. O Estado de S. Paulo, 12/07/2001. Weeks before, there was a similar threat regarding the property of Ambassador Flecha de Lima, but in that case, the Armed Forces were not summoned.
13 As acknowledged by authorities, the Army was positioned in Providência in December/2007, when the security of the project entitled "Cimento Social" was assigned to them, sponsored by the Ministry of Cities [Ministério das Cidades], that promoted a deal with the Ministry of Defense, mediated by senator Marcelo Crivela, local politician. It is known that the different slums in this city are controlled by groups of drug dealers. In Providência, it is said the place is under Comando Vermelho's protection, while its neighbor Morro da Mineira would be under control of the group "Amigo dos Amigos", known as the former's rival. According to formal complaints, on 14/06/2008, 11 militaries were in Providência to handle security under a lieutenant's command, who would have arrested three young kids and took them to the Army command, that would have released them after a discomposure. Not satisfied with the result, the lieutenant requested that the three of them were taken to Morro da Mineira, after having negotiated that with the criminal group. The result was their torture and death, all minors and without criminal records. See details in Folha de S. Paulo, June 17 and 30, 2008.
14 According to Law of Diretrizes and Bases of the National Education: Art. 83. The military education is regulamented in specific law, em lei específica, according to the fixed norms by education systems. Brazil: MEC (Ministry of Education) - Law 9394/98.
15 Although, as indicated, the GLO operations have been regulamented, a reform in the Military Justice or in the legislation of the Military Process has not been done so far. In the same way, the use of the Armed Forces in GLO operations continues to be based on alliances among the administrative bodies envolved, without a clear autohority that can be responsible for the use of force.
16 This is the opinion, for instance, of some generals, as the ones from Guararapes, that gather militaries for a long time and defend the ideas of not only keeping but also increasing the political participation of their peers: Cf. http://www.fortalweb.com.br/grupoguararapes/
17 It is true that in the last few years this position, at least concerning the government, has been different, with several initiative projects destined to studies in the defense area and armed forces. Nevertheless, it is common the academic society still considers such studies as non-scientific or tendentious. It can be affirmed, therefore, the statement pronounced by José Genuíno, old PT partisan and politician, prevails: worrying about the Armed Forces and its duties is a topic that "does not result in vote in democracy and it results in jail in dictatorship".