Defense of the State and of the Democratic Institutions

Title V Defense of the State and of the Democratic Institutions

Chapter I State of Defense and State of Siege

Section I State of Defense

Article 136: State of Defense

0. The President of the Republic may, after hearing the Council of the Republic and the Council of National Defense, decree a state of defense to preserve or to promptly re-establish, in certain and restricted locations, public order or social peace whenever threatened by serious and imminent institutional instability or affected by major natural calamities.

1. The decree instituting a state of defense determines the period of its duration, specifies the areas to be encompassed and indicates, within the terms and limitations of the law, the coercive measures to be put into force out of the following:
  • restrictions to the rights of:
  1. meeting, even within associations;
  2. secrecy of correspondence;
  3. secrecy of telegraph and telephone communication;
  • occupation and temporary use of public or private property, workforce, and services in the event of a public calamity, the Republic being liable for the resulting damages and costs.
2. A state of defense may not last for longer than thirty days and it may be extended once for an identical period if the reasons justifying the respective decree persist.

3. During the period in which a state of defense is in force:
  1. arrest for a crime against the State, determined by the party executing the measure, are immediately communicated by such party to the proper judge, who remits it if it is illegal, provided that the arrested person may request examination of corpus delict from the police authority;
  2. the communication has to be accompanied by a statement by the authority as to the physical and mental state of the arrested person at the time of his or her arrest;
  3. no person may be imprisoned or detained for more than ten days, unless authorized by the Judiciary branch;
  4. incommunicability of the arrested person is forbidden.
4. Upon decree of state of defense or extension thereof, the President of the Republic shall within twenty-four hours submit the act with the respective justification to Congress, which decides by absolute majority.

5. If Congress is in recess, it is called extraordinarily within five days.

6. Congress examines the decree within ten days as from receipt thereof, and remains in operation as long as the state of defense is in force.

7. If the decree is rejected, the state of defense ceases immediately.

Section II State of Siege

Article 137: Martial State

0. The President of the Republic may, after hearing the Council of the Republic and the Council of National Defense, request Congress to authorize a decree of state of siege in the event of:
  1. serious disturbance with national effects or occurrence of facts that evidence the ineffectiveness of a measure taken during the state of defense.
  2. declaration of state of war or reaction to foreign armed aggression.
1. The President of the Republic shall, on requesting authorization to decree a state of siege or extend it, submit the reasons for such request, and Congress shall decide by absolute majority.

Article 138: State of Siege Decree

0. The decree of a state of siege shall specify the period of its duration, the rules required to implement it and the constitutional guarantees that are to be suspended and, after publication, the President of the Republic designates the person who is to execute the specific measures and the areas encompassed.

1. In the event of Article 137 I, state of siege may not be decreed for more than thirty days and each extension may not exceed thirty days; in the event of Item II, it may be decreed for the entire period of the war or foreign aggression.

2. If authorization to decree a state of siege is requested during parliamentary recess, the President of the Federal Senate immediately calls Congress extraordinarily to convene within five days in order to examine the act.

3. Congress remains in operation until the end of the coercive measures.

Article 139: Restrictions

0. During the effectiveness of a state of siege decreed under Article 137 I, only the following measures may be taken against persons:
  1. obligation to remain in a given place;
  2. detention in a building not intended for persons accused of or convicted for common crimes;
  3. restrictions regarding the inviolability of correspondence, the secrecy of communications, the rendering of information, and freedom of press, radio broadcasting, and television, according to the law;
  4. suspension of freedom to meet;
  5. intervention in public utility companies;
  6. requisitioning of property.
1. Not included in the restrictions of Item III is the broadcasting of statements made by members of Parliament in their Legislative Houses, if authorized by the respective Presiding Board.

Section III General Provisions

Article 140: Special Standing Committee

The Presiding Board of Congress shall, after hearing the party leaders, designate a Committee made up of five of its members to monitor and supervise the implementation of measures of state of defense and state of siege.

Article 141: Termination

0. When the state of defense or state of siege ceases, its effects also cease, without prejudice to liability for unlawful acts performed by the executors or agents thereof.

1. As soon as the state of defense or state of siege ceases, the measures applied during the effectiveness thereof are reported by the President of the Republic in a message to Congress, specifying and justifying the action taken, listing the names of those affected and indicating the restrictions applied.

Chapter II Armed Forces

Article 142: The Armed Forces, Defence

0. The Armed Forces, made up of the Navy, the Army, and the 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. They are intended to defend the Nation, guarantee the constitutional branches, and, on the initiative of any of them, law and order.

1. A supplemental law establishes the general rules to be adopted for the organization, training, and employment of the Armed Forces.

2. Habeas corpus does not apply to military disciplinary punishments.

Article 143: Military Service

0. Military service is compulsory according to the law.

1. It is incumbent upon the Armed forces, according to the law, to assign an alternative service to those who, in times of peace, after being enlisted, allege reasons of conscience, which shall be understood as reasons based on religious creed and philosophical or political belief for exemption from essentially military activities.

2. Women and clergymen are exempted from compulsory military service in times of peace but are subject to other duties that may be attributed to them by law.

Chapter III Public Security

Article 144: Public Security

0. Public security, which is the duty of the State and the right and responsibility of all, is exercised to preserve public order and the invulnerability of persons and property, by means of the following bodies:
  1. federal police;
  2. federal highway police;
  3. federal railway police;
  4. state polices and military fire brigades.
1. The federal police, instituted by law as a permanent body and structured into a career, is intended:
  1. to determine criminal offenses against the political and social order or to the detriment of property, services, and interests of the Republic and of its autonomous government entities and state companies, as well as other offenses with interstate or international effects and requiring uniform repression according to the law;
  2. to hinder and repress illegal traffic of narcotics and like drugs, smuggling and contraband, without prejudice to action by the treasury and other government agencies in their respective jurisdiction;
  3. to exercise the functions of maritime, air and frontier police;
  4. to exercise, with exclusivity, the functions of judicial police of the Republic.
2. The federal highway police is a permanent body structured into a career and intended, according to the law, to ostensibly patrol the federal highways.

3. The federal railway police is a permanent body structured into a career and intended, according to the law, to ostensibly patrol the federal railways.

4. It is incumbent upon the civilian police, directed by career police officers and excepting the authority of the Republic, to exercise the functions of judicial police and to determine criminal offenses, except for military ones.

5. It is incumbent upon the state troops to carry out the functions of ostensive police and to preserve the public order; it is incumbent upon the military fire brigades, in addition to the duties defined by law, to carry out activities of civil defense.

6. The state troops and military fire brigades, ancillary forces, and reserve of the Army are subject, together within the civilian police, to the Governors of the State, of the Federal District and of the Territories.

7. The law regulates the organization and operation of the bodies responsible for public security in such a manner as to guarantee the efficiency of their activities.

8. The Municipalities may organize municipal guards to protect their property, services, and facilities, according to the law.