Military justice and democracy in Brazil

Professors Juliana Cesario Alvim Gomes and Andrés Del Río have written an informative and disturbing assessment of the use and misuse of military jurisdiction in Brazil for Open Democracy. They report:

Two of these laws are direct legacies of the dictatorship of 1964: the Military Penal Code and the Code of Military Criminal Procedure.

The former establishes, for example, that crimes committed by civilians "against military institutions" are to be considered "military crimes" and thus fall under the responsibility of military justice (not ordinary justice).

This original (authoritarian) flaw of military justice was never altered by the democratic order of 1988, either by legislative or judicial means. There was an appeal submitted in 2013 to the Supreme Federal Court however questioning the jurisdiction of military justice to prosecute civilians (ADP 289).

Other legal actions question the legislative innovations which have expanded the competency of military justice in recent years even further.

These actions are aimed at provisions such as that of Complementary Law n.117 of 2004, which expressly establishes that the use of the Armed Forces in guaranteeing law and order is to be considered military activity for the purposes of applying the jurisdiction of military justice, and that of the LC n.136 of 2010 which defines as a "military activity" the use of the Armed Forces in "subsidiary activities" such as actions "against cross-border and environmental crimes" and "repressing crimes that have a national and international impact".

Recently, the Supreme Federal Court began to consider a direct appeal of unconstitutionality (n.5032) aimed at removing the jurisdiction of military justice in these cases.

Minister Marco Aurelio, acting as rapporteur, indicated that the jurisdiction of military justice and the use of the Armed Forces in guaranteeing law and order and fighting crime is constitutional. Minister Fachin disagreed.

And the investigation into the matter was suspended at the request of Minister Luis Roberto Barroso. Until the question of the unconstitutionality of the legislation that supports it is definitively settled, the Supreme Court authorizes the expansive use of military justice.

The authors conclude:

The militarization of security is phenomenon on the rise in Brazil and Rio de Janeiro is only the first step, according to General Villas Boas.

It is also an ineffective move for achieving its alleged purposes and a dangerous one too, for it promotes increased violence, violence determined by race, class, and territory of course.

Together with the expansion of military justice, impunity consolidates violence when faced up against the silence of institutions like the Supreme Federal Court.

As we have seen, military justice, the competency of which has been expanded in recent years, is partial and onerous. Lacking independence and impartiality to deal with civilians, it is an open door that leaves us more vulnerable as a society.

The institutional protection of impunity and corporatism which military justice provides confronts us with a tragic outlook: that of increasing violence and authoritarianism combining with the erosion of democracy and the rule of law.