Military Dictatorship Created a Mirage of Separation of Powers

Regime kept National Congress and Federal Supreme Court open and tolerated opposition, but banned deputies and magistrates

São Paulo

The political machine that sustained the Brazilian dictatorship was not only authoritarian and repressive. It was also disguised.

During its 21 years, the military regime cultivated a democratic mirage.

Unlike Chile, it did not concentrate power in a single general. Instead, it divided it between five presidents (in addition to a brief military junta).

Unlike Argentina, it kept Congress open for almost the entire period and tolerated the existence of formal opposition.

"It was a condominium dictatorship. But it was a dictatorship in the same way," said historian Boris Fausto, a scholar specializing in the military period.

"There was never an election. The Army High Command argued, fought, and voted. It acted as a people," he continued.

In theory, there was respect for one of the basic principles of democracy — the separation of powers. But it was only a varnish, said the professor, because the Executive was an armed Power, and therefore, superior to the others.

"There was a separation of powers with subordination to the Executive. Strong subordination."

There were many times between 1964 and 1985 when the Executive implemented its primus inter pares condition.

Its primary instrument was the Institutional Acts (AIs), giving legal format to the regime. There were 17.

Interference with the Legislature began on the tenth day of the coup, April 9, 1964, with the AI-1, which removed 41 deputies.

Then it passed the AI-5, from 1968, which consolidated the castration of Congress and arrived at the April Package, from 1977, with the nomination of "bionic" senators, chosen in an electoral college controlled by the Executive.

One of the institutional acts that had the most lasting consequences for the political framework was nº 2, of October 1965, which instituted bipartisanship, establishing the National Renewal Alliance (Arena) as a government representative and confining opposition to the Brazilian Democratic Movement (MDB).

"Initially, the military's assumption was that establishing a consented opposition, without more radical elements like the Communists, would make it more malleable and controllable. At least, in the beginning, this environment generated a certain positive image abroad, which interested the new regime," said Fausto.

But the maneuver would become a shot in the foot from the mid-1970s when the MDB grew and consolidated itself as an opposing force.

Golbery do Couto e Silva (Foto: Folhapress) - Folhapress

Prominent figures of the regime, such as General Golbery do Couto e Silva, thought the bipartisanship was a mistake.

"The two-party model unified the opposition, there were liberals and conservatives," said the historian.

This led the regime to authorize new political parties, including the Worker's Party, in the late 1970s, as a strategy to try to fragment the opposition.

Pedro Simon, State deputy and senator for the MDB of Rio Grande do Sul during the dictatorship, said that his party "had everything." "There were even fake people, a guy who was close to the dictatorship."

He recalls that there were hard and frequent discussions about at what length one should participate in the political game under such ridiculous conditions. "Was it worth it? It was the question the people asked us," he said.

According to Simon, the way to demonstrate opposition divided the most. "Armed struggle, most were against it, not only because they were afraid, but because there was no chance of success. Everything in the country was from the Arena. The church, the political authorities, everything."

Simon preferred to take advantage of his limited position to pressure the regime to give into four fundamental points: direct elections, Constituent Assembly, end of torture, and freedom of the press. "I defended this until the last available window," he said.

By working inside of the regime, Ulysses Guimarães, the leading exponent of the MDB, grew his influence during the entire authoritarian period.

"Ulysses was a great personality in the history of Brazil at that time. He hit the table, resisted. His only mistake was not having assumed the Presidency with the death of Tancredo [Neves] and leaving it to [José] Sarney. I should have assumed and called for direct elections."

Simon's arrival in the Senate in 1978, democratically elected, occurred almost simultaneously with the appointment of his bionic colleagues.

"The April Package was the last breath of the dictatorship. It was a disgrace. But the people reacted on our side; it was fantastic," he recalled.

The Judiciary suffered no less, especially the Supreme Court.

The same AI-2 that instituted bipartisanship inflated the STF from 11 to 16 members, with the regime's 5 extras handpicked. The idea was to dilute opposing voices.

Not satisfied, the military, already anabolized by the AI-5, dismissed three justices in 1969, whom they considered leftist: Vitor Nunes Leal, Hermes Lima, and Evandro Lins e Silva.

Two others, in protest, left on their own: Gonçalves de Oliveira and Lafayette de Andrada.

With the court already "sanitized" in the eyes of the regime, the five open positions were not filled, and the number of 11 justices was reinstated, a size that remains today.

As an instance of constitutional control of a system that did not respect fundamental rights, and with the threat of impeachment of justices always close by, the Supreme Court played a secondary role during the dictatorship, very far from the stardom of today.

This generated great frustration among the most independent members of the court, as was evident in a theatrical episode in 1971.

Unhappy with the Supreme Court's decision to consider prior restraint constitutional, Justice Adauto Lúcio Cardoso, who had been a losing vote, stood up in the middle of the session, hung his robe on the chair and left the court's plenary. Then he applied for his retirement.

The gesture caused a commotion in the press, something unusual for a court that had discretion as a mark.

"At that time, power was really concentrated in the military government. The Supreme Court had its competences totally pruned. It was an embarrassing situation, rather than conflict," said ex-STF justice Francisco Rezek, who was twice appointed to the court, the first time in the regime's final stretch, in 1983.

According to Rezek, the Judiciary only had some degree of independence between 1964 and 1968 and after the end of AI-5 in 1979.

"Above the Constitution, the AI-5 rode. With the edition of this act, Brazil started to live with a parallel institutional order, which completely neutralized individual guarantees", he said.

The act closed Congress for almost a year, revoked authorities, toughened censorship, opened the door to violent repression, and suspended habeas corpus for political charges.

Everything, recalls the former justice, was viewed from the perspective of national security, which significantly limited individual rights.

"The theme of national security was interpreted as extensively as possible by the regime. This led Aliomar Baleeiro [president of the STF between 1971 and 1973] to say that he could no longer breathe in the face of the superinflation of the concept", said Rezek.

In a famous speech, Baleeiro complained that even a girl's lipstick and marijuana cigarette were "national security."

The 1969 constitutional superemend, so broad that many consider it a new constitution, incorporated the principles of AI-5 into the Charter that had existed since 1967.

A quick look at its chapter on individual rights and guarantees shows how such concepts, in reality, did not mean much in practice.

For example, article 153 of the Charter made a lengthy case for the free expression of thought and political or philosophical conviction but included a caveat that nullified everything in practice. "Subversion of the order and publications and expressions contrary to morals and good customs will not be tolerated," said the text.

The next article, 154, was even more direct. "The abuse of individual or political rights, to subvert the democratic regime or of corruption, will imply the suspension of those rights from two to ten years".

With the end of AI-5, said Rezek, the Supreme Court had more freedom to judge and became a haven for opponents who wanted to challenge points in the regime.

"The opposition noticed this new moment and started to revere the STF. They resorted with some frequency, much as they do today."

The complete reestablishment of the system of checks and balances represented by the separation of Powers came only with the end of the dictatorship in 1985, which was consolidated by the 1988 Constitution.

Only then was the democratic foundation redone, despite what the apologists of that period are trying to believe.


From April 9, 1964, it institutionalized the coup and created an electoral college to choose the president; generated the first wave of impeachment and suspension of political rights


From October 27, 1965, it established bipartisanship and inflated the STF, which went from 11 to 16 justices


From December 13, 1968, the regime hardened, with the closing of Congress, censorship, revocation of mandates and restriction of habeas corpus.

The legal instruments of the regime

National Security Act

It had several versions, between 1967 and 1983 (the latter, in force until today); with generic formulation, empowered the State to act against citizens who threaten order, sovereignty, and institutions

1967 Constitution

It came into force on March 15. 1967 and consolidated the entire legal framework of the coup, including institutional acts and decree-laws

1969 Constitutional Amendment

So comprehensive that it is considered by many to be a new constitution, it hardened the regime in the light of the AI-5 and further centralized power in the Executive

Amnesty Law

Sanctioned on 28. Aug.1979 after intense popular pressure, it has given amnesty to political crimes committed by the regime and its opponents since 1961, which contributed to making the democratic transition possible but gave rise to a feeling of impunity that remains today