CONSTITUTION OF BRAZIL
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TITLE V - THE DEFENSE OF THE STATE AND OF THE DEMOCRATIC
INSTITUTIONS
CHAPTER I - THE STATE OF DEFENSE AND THE STATE OF SIEGE
SECTION I - THE STATE OF DEFENSE
Article 136. The President of the Republic may, after hearing the
Council of the Republic and the National Defense Council, decree a state of
defense to preserve or to promptly re-establish, in specific and restricted
locations, the public order or the social peace threatened by serious and
imminent institutional instability or affected by major natural calamities.
Paragraph 1 - The decree instituting the state of defense shall determine the
period of its duration, shall specify the areas to be encompassed and shall
indicate, within the terms and limitations of the law, the coercive measures to
be in force from among the following:
I - restrictions to the rights of:
a) assembly, even if held within associations;
b) secrecy of correspondence;
c) secrecy of telegraph and telephone communication.
II - in the event of a public calamity, occupation and temporary use of public
property and services, the Union being liable for the resulting damages and C
osts
Paragraph 2 - The state of defense shall not exceed thirty days
and it may be extended once for an identical period if the reasons that
justified its decreeing persist.
Paragraph 3 - During the period in which the state of defense is in force:
I - arrest for a crime against the State, determined by the party executing
the measure, shall be immediately communicated by such party to the competent
judge, who shall remit it if it is illegal, it being the arrested person's
choice to request examination of corpus delicti from the police authority;
II - the communication shall be accompanied by a statement by the authority as
to the physical and mental state of the arrested person at the time of the
filing of the charges;
III - the imprisonment or detention of any person shall not exceed ten days,
unless authorized by the Judicial Power;
IV - incommunicability of the arrested person is forbidden.
Paragraph 4
- Upon decreeing a state of defense or extension thereof, the President of the
Republic shall, within twenty-four hours, submit the act with the respective
justification to the National Congress, which shall decide by absolute majority.
Paragraph 5 - If the National Congress is in recess, it shall be called
extraordinarily within five days.
Paragraph 6 - The National Congress shall examine the decree within ten days
as from receipt thereof, and shall remain in operation as long as the state of
defense is in force.
Paragraph 7 - If the decree is rejected, the state of defense shall cease
immediately.
SECTION II - THE STATE OF SIEGE
Article 137. The President of the Republic may, after hearing the
Council of the Republic and the National Defense Council request authorization
from the National Congress to decree the state of seize in the event of:
I - serious disturbance with nationwide effects or occurrence of facts that
evidence the ineffectiveness of a measure taken during the state of defense;
II - declaration of state of war or response to foreign armed aggression.
Sole paragraph - The President of the Republic shall, on requesting
authorization to decree the state of siege or to extend it, submit the reasons
that determine such request, and the National Congress shall decide by absolute
majority.
Article 138. The decree of the 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 it is published, the President of
the Republic shall designate the executor of the specific measures and the areas
encompassed.
Paragraph 1 - In the event of article 137, I, the state of siege may not be
decreed for more than thirty days nor may each extension exceed such period; in
the event of item II, it may be decreed for the entire period of the war or
foreign armed aggression.
Paragraph 2 - If authorization to decree the state of siege is requested
during parliamentary recess, the President of the Federal Senate shall
immediately summon an extraordinary session of the National Congress to convene
within five days in order to examine the act.
Paragraph 3 - The National Congress shall remain in session until the end of
the coercive measures.
Article 139. During the period in which the state of siege decreed
under article 137, I, is in force, only the following measures may be taken
against persons:
I - obligation to remain at a specific place;
II - detention in a building not intended for persons accused of or convicted
for common crimes;
III - restrictions regarding the inviolability of correspondence, the secrecy of
communications, the rendering of information and the freedom of press, radio
broadcasting and television, as established bv law;
IV - suspension of freedom of assembly;
V - home search and seizure;
VI - intervention in public utility companies;
VII - requisitioning of property.
Sole paragraph - The broadcasting of
speeches made by Congressmen in their Legislative Houses is not included in the
restrictions of item III, if authorized by the respective Directing Board.
SECTION III - GENERAL PROVISIONS
Article 140. The Directing Board of the National Congress shall, after
hearing the party leaders, designate a Committee comprised of five of its
members to monitor and supervise the implementation of the measures concerning
the state of defense and the state of siege.
Article 141. Once the state of defense or the state of siege ceases,
its effects shall also cease, without prejudice to liability for illicit acts
performed by the executors or agents thereof.
Sole paragraph - As soon as the state of defense or the state of siege
ceases, the measures applied during the period while it is in force shall be
reported by the President of the Republic in a message to the National Congress,
with specification and justification of the actions taken, with the listing of
the names af those affected and indication of the restrictions applied.
CHAPTER II - THE ARMED FORCES
Article 142. The Armed Forces, comprised 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, and are intended for the defense of the Country, for the
guarantee of the constitutional powers, and, on the initiative of any of these,
of law and order.
Paragraph 1 - A supplementary law shall establish the general rules to be
adopted in the organization, training and use of the Armed Forces.
Paragraph 2 - Habeas-corpus shall not apply to military disciplinary
punishments.
Paragraph 3 - The members of the Armed Forces are called military, and the following
provisions apply to them, in addition to other provisions that the law may establish:
I - the ranks, with the prerogatives, rights and duties inherent to them, are awarded by
the President of the Republic and are guaranteed in full to officers in active service, those
of the reserve or in retirement, and such officers have exclusive rights to military titles and
posts, and together with the other members, to the use of the uniforms of the Armed Forces;
II - a military in active service who takes office in a permanent civil public position or job
shall be transferred to the reserve, under the terms of the law;
III - a military in active service who, under the terms of the law, takes office in a non-elective,
temporary civil public position, job or function, even if in the indirect administration, shall be put
on leave and, as long as he remains in this situation he may only be promoted by seniority, and his period
of service shall be counted only for that promotion and for transfer to the reserve, and after two years,
whether continuous or not, away from active service, he shall be transferred to the reserve, under the
terms of the law;
IV - the military are forbidden to join unions and to strike;
V - while in actual service, the military are forbidden to belong to political parties;
VI - an officer shall only lose his post and rank if he is judged unworthy of or incompatible with the dignity of officership
by decision of a permanent military court, in times of peace, or of a special court, in times of war;
VII - an officer sentenced in a common or military court by means of an unappealable judgment to imprisonment for more than two
years shall be submitted to trial as provided in the preceding item;
VIII - the provisions of article 7, items VIII, XII, XVII, XVIII, XIX, and XXV, and of article 37, items XI, XIII, XIV and XV, apply
to the military;
IX - the provisions of article 40, paragraphs 4, 5, and 6 apply to the military and their pensioners;
X - the law shall provide for admission to the Armed Forces, age limits, tenure, and other conditions for a military to be retired,
the rights, duties, remuneration, prerogatives and other circumstances which are specific to the military, the special characteristics
of their activities being taken into account, including those carried our by virtue of international agreements and of war.
Article 143. Military service is compulsory as set forth by law.
Paragraph 1 - It is within the competence of the Armed Forces, according to
the law, to assign an alternative service to those who, in times of peace, after
being enlisted, claim imperative of conscience, which shall be understood as
originating in religious creed and philosophical or political belief, for
exemption from essentially military activities.
Paragraph 2 - Women and clergymen are exempt from compulsory military service
in times of peace, but are subject to other duties 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 to preserve public order and the safety of
persons and property, by means of the following agencies:
I - federal police;
II - federal highway police;
III - federal railway police;
IV - civil polices;
V - military polices and military fire brigades.
Paragraph 1 - The
federal police, instituted by law as a permanent body, organized and maintained by the Union and structured into a
career, have the following competences:
I - to investigate criminal offenses against the political and the social order
or to the detriment of property, services and interests of the Union and of
its autonomous government entities and public companies, as well as other
offenses with interstate or international effects and requiring uniform
repression as the law shall establish;
II - to prevent and repress the illegal traffic of narcotics and like drugs, as
well as smuggling, without prejudice to action by the treasury authorities and
other government agencies in their respective areas of competence;
III - to exercise the functions of maritime, airport and border police;
IV - to exercise, exclusively, the functions of criminal police of the Union.
Paragraph 2 - The federal highway police are a permanent body
structured into a career and intended, according to the law, to patrol
ostensibly the federal highways.
Paragraph 3 - The federal railway police are a permanent body, organized and maintained by the Union and structured into
a career and intended, according to the law, to patrol ostensibly the federal
railways.
Paragraph 4 - It is incumbent upon the civil police, directed by career
police comissioners and except for the competence of the Union, to exercise the
functions of criminal police and to investigate criminal offenses, with the
exception of the military ones.
Paragraph 5 - It is within the competence of the military polices the
ostensive policing and the maintenance of 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.
Paragraph 6 - The military polices and military fire brigades, ancillary
forces and reserve of the Army, are subject, together with the civil police, to
the Governors of the states, of the Federal District and of the territories.
Paragraph 7 - The law shall regulate the organization and operation of the
agencies responsible for public security in such a manner as to guarantee the
efficiency of their activities.
Paragraph 8 - The municipalities may organize municipal guards to protect
their property, services and facilities, as the law shall establish.
Paragraph 9. The remuneration of the policemen serving the bodies mentioned in this article shall be fixed in the way provided for in article 39, paragraph 4.
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