—Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development;Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development
Jair Bolsonaro was recently elected in an election tainted, particularly, by his long-held defense of the Brazilian dictatorship of 1964-1985. Once he took office, despite the large number of former military officers in his cabinet, some argued that he would inevitably be tamed by reality and would act as a statesman. However, in addition to his many mistakes in political coordination and nominations for high positions, Bolsonaro seems unwilling to abandon the ideological discourse of his campaign, even while his government proves to be very erratic. As if we were back in the 1960s, the strategy is to stress polarization between the left-wing (or communists, as he prefers) and right-wing in all areas, from education to international relations. As he said in his U.S. visit, “We have to deconstruct, undo many things before we can even start.”
In recent weeks, however, such polarization reached new highs. March 31, 2019 marked 55 years since the coup d’état of 1964 that inaugurated the Brazilian civil-military dictatorship. According to Bolsonaro, the date of the coup d’etat should be celebrated. Presidential spokesman General Otávio Barros said that Bolsonaro does not consider 1964 a coup and ordered the Ministry of Defense to make the “due commemorations.” On a TV show, Bolsonaro delivered an interview where he criticized the role of Brazilian Truth Commission and argued that “only a few problems” happened during the dictatorship, that the military are the true guarantors of democracy, and that the decrees of that era were better than democratically-approved legislation. The presidential order and further declarations sparked negative reactions from civil society groups, but also of the Federal Prosecutors’ Office, which sent recommendations in 19 states to military officials declaring the unconstitutionality and illegality of any celebration. Still, invitations to authorities were sent alluding to the commemoration of the 55 year anniversary of the “democratic revolution” of 1964. Also, a video in which an actor says the military saved Brazil was shared by the president’s office on March 31, 2019. Brazilian courts refused to stop the government propaganda and the presidency defended the argument denying the coup per an United Nations expert on truth and memory.
Bolsonaro’s view does not stand up to even the most basic scrutiny. There are very well-documented examples of atrocities committed by the dictatorial government. One such example is the case of Ana Rosa Kucinski da Silva, a chemist with a PhD in Philosophy and a Professor at the University of São Paulo, who was married to Wilson Gomes, a physicist who worked for a private company. Both were militants for the National Libertarian Action (Ação Libertadora Nacional or ALN), a leftist movement that defied the Brazilian civil-military dictatorship (1964-1985). They were arrested in April 22, 1974. In a book published in 2012, former inspector Cláudio Guerra stated that their corpses were delivered to him by a military agent named Freddie Perdigão (a well-known torturer) to be incinerated in the oven of a sugar cane plant. The Cambahyba plant belonged to Heli Gomes, who, between 1967 and 1971, was the Vice-Governor of Rio de Janeiro state. Cláudio Guerra also testified to the Brazilian National Truth Commission that Ana Kucinski’s body showed signs of gross sexual violence.
On institutional grounds, evidence of the repressive apparatus are multiple. In 2003, Elio Gaspari, a famous Italian-Brazilian journalist, published a large and ambitious series of books on the dictatorship. In one of the volumes, he depicts a conversation between the Brazilian future President Ernesto Geisel and his future Army Minister, Dale Coutinho, just one month before taking office. While thinking of strategies to combat the so-called “subversion,” Coutinho mentioned that from 1969 on, “(…) things really got better. Yet they got better – just between the two of us -. when we started to kill. We started to kill.” To which Geisel replied: “Because in the old days you used to arrest the guy and the guy got free. (…) Coutinho, this thing of killing is a monstrosity, but I think it has to be.” When, in 2018, the researcher and professor Matias Spektor found a memo signed by William Colby, former director of the CIA, where he narrated a meeting between Geisel, future president João Figueiredo and two generals debating the killing of 104 insurgents and the need to continue operations, this was a huge discovery for the general public, but not for experts dedicated to researching those times. For sure it was very important data. However, the institutional repression of the Brazilian dictatorship had already been evident for a long time.
The document did not cause a serious impact on Jair Bolsonaro, a former military officer, during his presidential campaign. On the contrary, following the recent economic and political crises, the call for an unconstitutional “military intervention” seduced a great number of electors. Additionally, angry manifestations during the political campaign helped spread the narrative that the people were better off during the dictatorship.
From the perspective of the Brazilian Constitution of 1988, Bolsonaro’s calling to celebrate a coup d’état is a flagrant aggression. In its bill of rights, the Constitution defines as non-bailable offenses, not subject to the statute of limitations, activity of armed groups (either civilian or military) against the constitutional order and democratic state (Article 5, XLIV). In various provisions, the principle of a constitutional democratic state and the prevalence of human rights are invoked as the basis of the constitutional order (Article 1, for instance). From a constitutionally transitional point of view, the Constitution grants amnesty not only to those who supported the regime’s human rights violations, but also to those who were affected by the “institutional and complementary acts,” the same acts that aimed to provide the dictatorship with a post facto legitimation. This last provision is the clearest constitutional provision indicating that the 1964-1985 dictatorship was a repressive and violent regime. It forecloses any interpretation that would read the historical period as legitimate governance.
To position oneself against the authoritarian past is one of the key aspects of the institutional reform inherent to transitional justice and transitional constitutionalism. The Brazilian Constitution of 1988 embraces this effort when it provides that the president is subject to the impeachment process if he or she attacks the free agency of the other branches of power. Law nº 1.079/1950 is even more specific, stating that to spur the militaries to disobedience to law and disciplinary statutes and to provoke animosity between the armed forces or against civilian authorities are impeachable offenses (article 7, VI and VII). Of course, it is too early to frame the constitutional debate in terms of impeachment, especially considering the problematic recent impeachment of President Dilma Rousseff and the approximately one hundred days of the current government. But the damage is already noticeable.
The Inter-American Court of Human Rights, in both the Gomes Lund and Herzog cases, the Brazilian Federal Prosecutor’s Office, the Brazilian National Truth Commission, and the Brazilian Amnesty Commission (a reparations commission) have all recognized that the crimes committed by the dictatorship’s agents were gross violations of human rights and crimes against humanity. Brazilian federal judges and courts, as well as the Brazilian Supreme Court, have kept arguing that the interpretation of the 1979 Amnesty Law that granted amnesty to public agents fits within the constitutional system of 1988. It does not. If Brazilian courts had another point of view, the historic narrative that depicts those years of state violence in false terms would convince fewer people. The Brazilian armed forces, which have a high degree of popularity, should grab the opportunity to defend the constitutional order and to frame accountability for human rights violations as an institutional gain, not a loss. But while Bolsonaro is in the presidential office, the odds are that not only will this opportunity be lost, but also that the very authoritarian mindset that has historically accompanied the military will gain new adherents.
Suggested citation: Emilio Peluso Neder Meyer and Juliano Zaiden Benvindo, Bolsonaro’s Unconstitutional Support for the Brazilian Civil-Military Dictatorship of 1964-1985, Int’l J. Const. L. Blog, Apr. 12, 2019, at: http://www.iconnectblog.com/2019/04/bolsonaros-unconstitutional-support-for-the-brazilian-civil-military-dictatorship-of-1964-1985/
 Cláudio Guerra (2012) Memórias de uma Guerra Suja. Rio de Janeiro: TopBooks, p. 55.
 Comissão Nacional da Verdade (2014). Relatório Final. Volume I. Brasília: Comissão Nacional da Verdade, p. 860.
 The original conversation in Portuguese goes like this:
Coutinho: “(…) Ah, o negócio melhorou muito. Agora, melhorou, aqui entre nós, foi quando nós começamos a matar. Começamos a matar”.
Geisel: “Porque antigamente você prendia o sujeito e o sujeito ia lá para fora. (…) Ó Coutinho, esse troço de matar é uma barbaridade, mas eu acho que tem que ser” (Elio Gaspari (2003) A Ditadura Derrotada. São Paulo: Companhia das Letras, p. 324.
 See Karen Stenner (2005) The Authoritarian Dynamic. Cambridge: Cambridge University Press, p. 186; Emilio Meyer (2018) “Brazil’s Authoritarianism Anteroom: A Meeting Between Judges and Military”, IACL Blog, https://blog-iacl-aidc.org/blog/2018/11/6/brazils-authoritarianism-anteroom-a-meeting-between-judges-and-military.