The former president’s admission () that he discussed the state of siege with the military in 2022 undermines his defense in a process involving the coup plot, in the interpretation of experts heard by the Sheet.
On November 21st, the investigation into an attempted coup. According to the police report, he planned, acted and “directly and effectively controlled the enforcement acts” against democracy.
A week after the indictment, during an interview with Oeste magazine, he discussed the state of siege and the state of defense with the military after the 2022 elections. “I discussed it, yes, I talked, it wasn’t a heated discussion”, he stated, citing that one of the topics discussed was article 142 of the , which addresses the responsibilities of the .
He had already spoken about the topic on other occasions, such as in , when he indicated that he knew of the existence of draft decrees to annul the election of the president ().
Despite the admission, the former president denies having participated in a coup plot. According to him, the discussions he had were supported by the Constitution, which is refuted by experts interviewed by the Sheet.
According to Danilo Pereira Lima, professor of constitutional law at Centro Universitário Claretiano and doctor in public law from Unisinos (University of Vale do Rio dos Sinos), Bolsonaro’s statements about the discussion with the military indicate his coup intent and confirm the body of evidence regarding the plot presented by the PF.
Lima states that the former president uses a “completely erroneous reading” of article 142 of the Constitution, which says that the Armed Forces “are intended to defend the Fatherland, guarantee constitutional powers and, on the initiative of any of these, the law and order”.
In the distorted interpretation that is usually propagated by a wing of Bolsonarism, the Forces would have a moderating power, that is, they could interfere in situations of conflict between the Executive, the Legislative and the Judiciary.
“But the Armed Forces are not a constituted power. They make up a bureaucratic body of the State”, says Lima. “In any situation of crisis between the Powers, the tension has to be resolved by civilian agents. In the democratic constitutional regime, military power is always subordinate to civil power.”
The expert states that at the time there were no plausible justifications for triggering a state of defense or siege, which is the “most bitter medicine that the Constitution offers to resolve a very serious crisis in the country”.
The state of defense restricts individual freedoms and is activated to preserve public order or social peace threatened by serious crises. Even more extreme, a state of siege is foreseen in cases of commotion with national repercussions or war, for example. To be decreed, it needs authorization from the .
For Adriana Cecilio, master in constitutional law and professor at Universidade Nove de Julho, Bolsonaro incriminated himself by admitting to having talked about the state of siege.
She states that the former agent, upon becoming aware of a discussion on the topic without reasonable justification under the law, had the duty to act against the action. This is because he was, as president, supreme head of the Armed Forces and, therefore, was responsible for the institution’s actions.
The professor also points out a distortion of article 142 of the Magna Carta to give the coup an appearance of legality.
According to her, the analysis of the annals of the 1988 Constituent Assembly points out that, contrary to the interpretation used by Bolsonarists, parliamentarians at the time wrote the text to “close the doors” to the alleged moderating power of the Armed Forces.
“It is possible to infer from the debates, without any shadow of a doubt, that the text was approved precisely with the terms ‘constitutional powers’ with the aim of establishing that the Armed Forces are subject to the three Powers, to the control of the civil power”, wrote the teacher in an article on the topic.
“The theory of ‘military guardianship’, of the conception of the Armed Forces as a moderating Power, as we have seen, was the subject of debate and this possibility was ruled out by the original constituent. The Constitution does not grant such power to the Armed Forces”, he continued.
In 2020, the Chamber of Deputies issued an opinion stating that article 142 does not authorize military intervention to “restore order” and mediate conflicts between the Powers. , the House called the interpretation a “true fraud on the constitutional text”. The STF (Supreme Federal Court) in April 2024.
For criminal lawyer Ana Carolina Barranquera, a specialist in criminal law and procedure, Bolsonaro’s admission of conversations regarding the state of siege and the state of defense makes the former president’s situation difficult.
She remembers that these statements were not isolated. On the contrary, they are in the context of “a series of public and notorious acts” in which the politician inflamed society’s distrust of the electoral process.
After the police report was released, however, lawyer Paulo Cunha Bueno, who defends Bolsonaro, gave an interview on the 29th to GloboNews stating that the former president would not benefit from a possible coup d’état. “Who would be the biggest beneficiary? According to General Mario Fernandes’ plan, a junta would be created.”
According to Juliana Izar Segalla, PhD in constitutional law from PUC-SP and professor at Uenp (State University of Northern Paraná), Bolsonaro’s admission has political implications.
“It seems much more like an attempt to move a nucleus of disinformation to give an appearance of legality and minimize an attempted coup, even instructed by a legal group”, he states.
This attempt to give one to the case is alarming, in the expert’s opinion, which justifies the concern with a sentence by lawyer Lenio Luiz Streck on the subject: “If today in law there are people who relativize a coup d’état, it is because, paradoxically, the coup was successful”, he says.
