In interrogation in the Federal Supreme Court of the coup plot, the former president () and his former ordeal of orders departed notions of legality to justify coup discussions that would aim to prevent the president’s inauguration (PT), experts heard by Sheet.
For them, Bolsonaro and Cid triggered an idea of ”instrumental legality” entrained in military culture that misrepresents the real concept of legality and affront to the Constitution.
An example of this is Bolsonaro’s speech in the interrogation on Tuesday (10), when the politician again said that he always acted within the limits of the Magna Carta. At the same time, he admitted to talking about “alternatives” and even mentioned the discussion of state of siege, in a legal context that did not justify the measures.
The state of defense, which restricts individual freedoms and is called to preserve public order or social peace threatened by serious crises. Even more extreme, the state of siege is foreseen in cases of nationally or war, for example. To be decreed, it needs authorization from.
Former President and Mauro Cid were heard at interrogations started on Monday (9) and completed on Tuesday with eight defendants from the so-called central core of the coup plot. They are accused of the crimes of coup d’état, attempted abolition of the Democratic Rule of Law, armed criminal association, damage qualified to public assets and deterioration of listed assets.
For Bolsonaro, who presented himself at the court as a reserve and not a politician, talking about acting within the Constitution and citing scammer conversations could not be contradictory because he uses an instrumental and misrepresentative concept of legality, focusing on the notion of hierarchy and chain of command overlapping the appreciation to constitutional values, experts say.
Similarly, Lieutenant Colonel Mauro Cid cited during his interrogation companions who would act “within the circle of legality of the Armed Forces” and that would hardly act without the authorization of superiors.
Cid said the military would not break a “link of legality”, no matter how suspicious of the electoral process.
“They would do nothing that broke a link of legality. For something to be done, it would have to have an order. This order had to come with the president, commander of the army and came the order for subordinate echelons,” he said, highlighting the importance of hierarchy and chain of command.
According to Danilo Pereira Lima, professor of constitutional law and coordinator of the Claretian Law course of Batatais, in addition to these notions of hierarchy and command structures, many military “buy” an idea of ”authoritarian and instrumental” legality.
“This instrumental legality can substantiate a coup, a dictatorship and opposes the notion of democratic constitutional legality. An instrumental legality allows the manipulation of the law according to the interests of those who hold power,” says Lima.
He evaluates that the notion of democratic constitutional legality, in turn, is the opposite of the military man mobilized. “And it is this notion that allows the construction, the consolidation of a Democratic Rule of Law. Now, instrumental legality serves as the interests of those who hold power. It will substantiate a coup, a dictatorship, the suspension of fundamental rights and guarantees,” says Lima, for whom this idea of legality of the military is not committed to the permanence and stability of democratic institutions.
He argues that if the military adopted the conception of a democratic constitutional legality, they would not be appropriate to follow a “clearly unconstitutional” order.
“Of course the president is the commander in chief of the Armed Forces, but he is also subordinate to the Constitution. So if he gives an unconstitutional order, the military, the commanders of the forces, cannot fulfill that order. Above all these agents is the Constitution,” he says.
Andrea Paula Kamensky, PhD in Economic History from USP and expert in history, military culture and dictatorship, agrees that military sectors use a misrepresentation of legality to justify their actions.
She states that “the history, culture and military education that still remain is authoritarian, omits or distorts historical facts and is based on a false discourse of legality.”
For Kamensky, this trend relates to the fact that the military forged, in the 1964 dictatorship, a series of authoritarian laws and institutional devices that were imposed on civil society to legitimize military presidents and censor, arrest and exterminate political opposition.
“Since all this is very recent, from a historical point of view, and successive post-redemocratization governments had no courage or political will to confront and reformulate military education, this authoritarian view remained disguised as something legal, that the Armed Forces can override constitutional and democratic powers, because they often consider themselves institutionally above them and superior to other republican institutions,” says Kamensky.
