If you wish to deepen your studies in Constitutional Law, there is an indispensable topic for you to explore: the rules established in constitutional institutions for the defense of the Democratic Rule of Law.

Professors of Constitutional Law, in their textbooks, often refer to the subject as "Defense of the State and Democratic Institutions".

Our 1988 Constitution expressly provides for certain exceptional measures in the event of a constitutional crisis.

Thus, in the event of destabilization of the legal and political order, it will be possible to use the legal mechanisms of the State of Defense and the State of Siege, both provided for in Articles 136 and 137 of the Constitution.

The main characteristic of these institutions within the so-called "constitutional crisis system" is that both the State of Defense and the State of Siege are exceptional and temporary, allowing for the temporary suspension of fundamental rights and guarantees in order to restore constitutional order. 

Therefore, there are some requirements for a State of Defense and a State of Siege:

• the need for the measure; 

• her temporality; 

• Strict adherence to the constitutional text.

Well, to help you understand the constitutional institutions that defend democracy, it's time to analyze the two in more depth. 

State of Defense

Our Constitution states that the President of the Republic, after consulting the Council of the Republic and the National Defense Council, may declare a state of defense.

The purpose of a State of Defense is the preservation or restoration, in restricted and specific locations, of public order or social peace when threatened by:

• serious and imminent institutional instability;

• or large-scale natural disasters.

It is important to note that a State of Defense is a milder measure, meaning that its declaration does not require prior authorization from the National Congress, but only subsequent review (Article 136, § 4, of the Federal Constitution). 

However, prior approval from the Council of the Republic and National Defense is mandatory. If this requirement is not met, the decree establishing the State of Defense will be unconstitutional.

Because it is an exceptional measure, the State of Defense, as outlined in paragraph 2 of article 136 of the Constitution, will not have a duration exceeding thirty days.

Another important point is that this thirty-day period may be extended only once, for an equal period, if the reasons that justified its enactment persist.

Regarding the location where the State of Defense will be established, this will always be restricted and determined.

What rights are restricted under a State of Defense?

The Constitution, also addressing the State of Defense in Article 136, lists the fundamental rights that may be restricted for the duration of the State of Defense, including the right to: 

• meeting, even if held within associations; 

• confidentiality of correspondence; 

• secrecy of telegraphic and telephone communications; 

It is important to remember that the arrest or detention of any person during a State of Defense may not exceed ten days, except when authorized by the Judiciary, and the incommunicado detention of the prisoner is prohibited.

Understanding these topics is fundamental for practical action. This is because, if this measure is eventually adopted, you will know which rights may be restricted, and you will be able to act against illegality and abuse of power.

The Constitution also provides for the possibility of temporary occupation and use of public goods and services (i.e., those of other federative entities) in the event of a public calamity.

However, in the event of temporary occupation or use of public goods and services, the Federal Government will be liable for damages and costs arising from the State of Defense.

It is worth noting that the State's duty of responsibility is not excluded in the face of exceptional circumstances, and such a measure is only authorized in cases of large-scale public calamity.

Political and jurisdictional control in the State of Defense

In cases of a State of Defense, there are two types of control: political and jurisdictional.

Political control is exercised by the National Congress, in accordance with Article 136, § 4, and, if the State of Defense is rejected, it will cease immediately, as per § 7 of the same article.

Regarding the timeframe for the political review by the National Congress of the Presidential Decree establishing the State of Defense, this will take place within ten days.

Finally, judicial review in a State of Defense is a review of legality, and this occurs subsequently.

State of siege

At this moment, it is time for us to understand the State of Siege, as provided for in Article 137 of the Federal Constitution. 

The constitutional text expressly provides that the President of the Republic may, after consulting the Council of the Republic and the National Defense Council, request authorization from the National Congress to declare a state of siege.

Therefore, the President of the Republic will not immediately declare a State of Siege. First, he will request authorization from the National Congress, and subsequently, a decree will be issued establishing this defense mechanism. 

When will the state of siege be declared? 

The Constitution itself, in article 137, indicates that a State of Siege will be declared in cases of:

• Serious commotion with national repercussions;

• The occurrence of facts that prove the ineffectiveness of a measure taken during a state of defense; 

• Declaration of a state of war or response to foreign armed aggression. 

It is important to highlight that the actions of the Councils (Council of the Republic and National Defense Council) are advisory in nature. 

However, when it comes to the actions of the National Congress (CN), the decision is binding, since the CN needs to authorize the President of the Republic to declare a state of siege. 

Regarding the control exercised by the National Congress during a State of Siege, it is prior to the act, unlike a State of Defense, in which the National Congress has a period of 10 days to carry out the control. 

The decision of the National Congress must be made by an absolute majority quorum.

Deadline: there are two deadlines here, depending on the case.

The time periods for which a State of Siege is in effect 

As you may have noticed, the constitutional text presents two scenarios for declaring a State of Siege.

In the first instance (serious unrest or ineffectiveness of the state of defense), the duration of the exceptional measure will be up to 30 days, renewable successively (and not just once), but never for a period exceeding 30 days.

Regarding the second scenario (war or foreign armed aggression), the measure will last for the entire necessary period, and it is not possible to predetermine its duration.

As for the location where the State of Siege will be imposed, this will be specified after its declaration by the President of the Republic, as needed, since it is a situation of national scope. 

What rights are restricted under a State of Siege?

Finally, another important issue to be discussed is that during a State of Siege decreed under Article 137, I, of the Constitution, only the following measures may be taken against individuals:

• obligation to remain in a specific location;

• detention in a building not intended for those accused or convicted of common crimes;

• Restrictions relating to the inviolability of correspondence, the secrecy of communications, the provision of information, and the freedom of the press, radio broadcasting, and television, as provided by law (this does not include the dissemination of statements made by parliamentarians in their legislative chambers, provided that it is authorized by the respective presiding officer);

• Suspension of freedom of assembly;

• search and seizure at a residence;

• intervention in public service companies;

• requisition of goods.

It is worth mentioning that, regarding measures based on the second authorizing hypothesis, namely, a state of war or a response to armed aggression, the Constitution did not define the authorized measures.

This means that other measures, in addition to those described, if necessary and broader, may be adopted, provided there is justification for their adoption, they are approved by the National Congress, and are included in the State of Siege decree.

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References

Carnaúba, Aline Soares L. Constitutional Law. (Essential Method Collection). Available at: My Library, (2nd edition). GEN Group, 2022.

Martins, Flávio. Course on Constitutional Law. Available at: My Library, (6th edition). Saraiva Publishing House, 2022.

Moraes, Alexandre D. Constitutional Law. Available at: My Library, (38th edition). GEN Group, 2022.

Sarlet, Ingo, W. et al. Course on Constitutional Law. Available at: My Library, (11th edition). Saraiva Publishing House, 2022.