TITLE V. DEFENSE OF THE STATE AND DEMOCRATIC INSTITUTIONS
CHAPTER I. STATE OF DEFENSE AND STATE OF SIEGE
SECTION I. State of Defense
Article 136
After hearing from the Council of the Republic and the National Defense Council, the President of the Republic may decree a state of defense in specific restricted locations to preserve or promptly re-establish public order or social peace threatened by grave and imminent institutional instability or affected by large scale natural calamities.
- The decree instituting a state of defense shall determine the period of its duration, specify the areas affected and indicate, within the terms and limits of the law, which of the following coercive measures will be in force:
- restrictions on rights of:
- assembly, even when held within associations;
- secrecy of correspondence;
- secrecy of telegraph and telephone communication;
- occupation and temporary use of public property and services in the event of a public calamity, with the Union being liable for the resulting damages and costs.
- restrictions on rights of:
- The state of defense may not exceed thirty days, and it may be extended once for an identical period if the reasons justifying the respective decree persist.
- When a state of defense is in force:
- imprisonment for a crime against the State, determined by the party executing the measure, shall be communicated immediately by such party to the proper judge, who shall release the prisoner if the imprisonment is illegal; the prisoner may request examination of the corpus delicti from the police authority;
- the communication shall be accompanied by a statement by the authority as to the physical and mental state of the detainee at the time of arrest;
- no person shall be imprisoned or detained for more than ten days, unless authorized by the Judiciary;
- maintaining a prisoner incommunicado is prohibited.
- When a state of defense has been decreed or extended, the President of the Republic shall submit the act with its respective justification within twenty-four hours to the National Congress, which shall decide on it by absolute majority.
- If in recess, the National Congress shall be convoked extraordinarily within five days.
- The National Congress shall examine the decree within ten days of its receipt, and shall continue functioning while the state of defense is in force.
- If the decree is rejected, the state of defense shall cease immediately.
SECTION II. State of Siege
Article 137
After having heard from the Council of the Republic and the National Defense Council, the President of the Republic may request authorization from the National Congress to decree a state of siege in the event of:
- a serious disturbance with national effects or occurrence of events that show the ineffectiveness of a measure taken during the state of defense;
- declaration of state of war or response to foreign armed aggression.
Sole Paragraph
Upon requesting authorization to decree a state of siege or to extend it, the President of the Republic shall submit the reasons for such request, and the National Congress shall decide on it by absolute majority.
Article 138
The decree of a state of siege shall indicate the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended. After publication, the President of the Republic shall designate the executor of the specific measures and the affected areas.
- In the case of art. 137, I, a state of siege may not be decreed for more than thirty days, nor may each prolongation exceed a like period; in the case of subparagraph II, a state of siege may be decreed for the entire period of war or foreign aggression.
- If authorization to decree a state of siege is requested during a legislative recess, the President of the Federal Senate shall immediately convoke the National Congress to meet within five days in extraordinary session in order to consider the act.
- The National Congress shall remain in session until the end of the coercive measures.
Article 139
When a state of siege decreed under art. 137, I, is in effect, only the following measures may be taken against individuals:
- obligation to remain in a determined place;
- detention in a building not destined for persons accused or convicted of common crimes;
- restrictions regarding inviolability of correspondence, secrecy of communications, providing information and freedom of press, radio broadcasting and television, as provided by law;
- suspension of freedom of assembly;
- search and seizure in one’s domicile;
- intervention in public utility companies;
- requisitioning of property.
Sole Paragraph
Broadcasting pronouncements made by legislators in their Legislative Chambers, if authorized by the respective Executive Committee, is not included in the restrictions of subparagraph III.
SECTION III. General Provisions
Article 140
After hearing from party leaders, the Executive Committee of the National Congress shall designate a Committee composed of five of its members to monitor and supervise implementation of measures concerning a state of defense and state of siege.
Article 141
When the state of defense or state of siege ceases, its effects shall also cease, without prejudice to liability for unlawful acts committed by its executors or agents.
Sole Paragraph
As soon as the state of defense or state of siege ceases, the measures applied during the period it was in force shall be reported by the President of the Republic in a message to the National Congress, specifying and justifying the actions taken, listing the names of those affected and indicating the restrictions applied.
CHAPTER II. ARMED FORCES
Article 142
The Armed Forces, made up of the Navy, Army and Air Force, are permanent and regular national institutions, organized on the basis of hierarchy and discipline, under the supreme authority of the President of the Republic, and intended to defend the Nation, guarantee the constitutional branches of government and, on the initiative of any of these branches, law and order.
- A complementary law shall set out the general rules to be adopted for the organization, training and use of the Armed Forces.
- Habeas corpus does not lie for military disciplinary punishments.
- Members of the Armed Forces are called the military, applying to them, as well as what comes to be provided by law, the following provisions:
- ranks with the prerogatives, rights and duties inherent to them, are conferred by the President of the Republic and assured fully to active, reserve or retired officers, who shall have exclusive rights to military titles, posts, and jointly with other members, use of the uniforms of the Armed Forces;
- a member of the military in active service who accepts a permanent civil service position or employment, except for the possibility provided for in art. 37, subparagraph XVI, line “c”, shall be transferred to the reserves, as provided by law;
- a member of the military in active service who, as provided by law, assumes a temporary non-elective public office, employment, or position, even in the indirect administration, except for possibility provided for in art. 37, subparagraph XVI, line “c”, shall remain part of his respective staff. So long as he remains in this situation, he may be promoted only through seniority, and his period of service shall be counted only for that promotion and transfer to the reserves. After two years away from active service, whether continuous or not, he shall be transferred to the reserves, as provided by law;
- military servicemen are prohibited from forming unions and striking;
- while in active service, military servicemen may not be affiliated with political parties;
- an officer shall loose his position and rank only if adjudged unworthy or incompatible with being an officer, by a decision of a permanent military tribunal in peacetime or a special tribunal in wartime;
- an officer convicted in the ordinary or military courts and sentenced to imprisonment for more than two years by a final and non-appealable decision shall be submitted to the adjudication provided for in the preceding paragraph;
- the provisions of art. 7, subparagraphs VIII, XII, XVII, XVIII, XIX and XXV and of art. 37, subparagraphs XI, XIII, XIV and XV, apply to military servicemen, as provided by law, and with prevalence of military activity under art. 37, subparagraph XVI, line “c”;
- revoked;
- the law shall provide for entry into the Armed Services, age limits, tenure and other conditions for transfer of servicemen into inactivity, rights, responsibilities, compensation, prerogatives and other special situations of the military, considering the peculiarities of their activity, including those performed by force of international agreements and war.
Article 143
Military service is compulsory as provided by law.
- The Armed Forces shall have the power, as provided by law, to assign alternative service in peacetime to those who, after enlistment, allege that they are conscientious objectors, understood as having objections based on religious beliefs and philosophical or political convictions for exemption from activities of an essentially military character.
- Women and the clergy are exempt from compulsory military service in peacetime but are subject to other duties that may be assigned to them by law.
CHAPTER III. PUBLIC SECURITY
Article 144
Public security, the duty of the State and the right and responsibility of all, is exercised for preservation of public order and security of persons and property, by means of the following agencies:
- federal police;
- federal highway police;
- federal railway police;
- civilian police;
- military police and military fire brigades.
- The federal police, created by law as a permanent body, organized and maintained by the Union, structured into a career, is designed:
- to detect criminal offenses against the political and social order or detrimental to property, services and interests of the Union, its autarchies and its public enterprises, as well as other offenses with interstate or international repercussions, requiring uniform repression according to law;
- to prevent and repress illegal traffic in narcotics and similar drugs, contraband and smuggling, without prejudice to action by the treasury and other government agencies in their respective areas of jurisdiction;
- to perform the functions of maritime, airport and border police;
- to perform exclusively the functions of judicial police of the Union.
- The federal highway police is a permanent body, organized and maintained by the Union, structured into a career and designed to patrol the federal highways ostensively, as provided by law.
- The federal railway police, a permanent body, organized and maintained by the Union, structured into a career and designed to patrol the federal railways ostensively, as provided by law.
- Excluding the jurisdiction of the Union, the civil police, directed by career police chiefs, has the duty to act as judicial police and to investigate criminal offenses, with the exception of military offenses.
- The military police is responsible for ostensively policing and preserving public order; the military firemen, in addition to the duties defined by law, are responsible for carrying out activities of civil defense.
- The military police and firemen, auxiliary forces and the Army reserves, together with the civilian police, are under the control of the Governors of the State, Federal District and Territories.
- The law shall regulate the organization and operation of the agencies responsible for public security in such manner as to guarantee the efficiency of their activities.
- The Counties may organize county guards in order to protect county property, services and facilities, as provided by law.
- The remuneration of police civil servants that form part of the agencies set out in this article shall be fixed in accordance with § 4° of art. 39.
- Road security, exercised for the preservation of public order and the safety of persons and their patrimony on public roads:
- includes the instruction, engineering, and supervision of transit, along with other activities provided for by law, that assure to the citizen the right to efficient urban mobility; and
- in the ambit of the States, the Federal District, and the Counties, it is the responsibility of the respective organs or executive entities and their transit agents, structured in a Career, as provided by law.
