State of exception consists of a temporary measure used in emergency situations by the government. In these cases, as a rule, some individual rights of citizens can be suppressed, aiming at establishing order and social peace.
The exception state represents the suspension of the rule of law through the law itself, that is, through constitutional laws that provide for this measure.
In short, the state of exception is valid in extreme cases, when citizens and institutions cannot depend on legislation to defend themselves. Among some of the rights that are usually suppressed by the authorities in these cases are:
- Restriction on the right of movement and residence;
- Curfews;
- Staple telephone communications;
- Limit the right to assemble and demonstrate;
- Make arrests without a court order.
Depending on the level of disorder or the type of problem faced by the nation, different types of state of exception may apply. In Brazil, for example, two stand out: State of Defense (or Emergency) and the State of siege.
The Federal Constitution of 1988 provides for the application of the state of exception in the articles 136 (State of Defense) and 137 (Site State):
Art. 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 promptly re-establish, in places restricted and determined, public order or social peace threatened by serious and imminent institutional instability or affected by major calamities in the nature.
Art. 137. The President of the Republic may, after hearing the Council of the Republic and the National Defense Council, request the National Congress authorization to decree a state of siege in cases of:
I - serious commotion of national repercussion or occurrence of facts that prove the ineffectiveness of the measure taken during the state of defense;
II - declaration of a state of war or response to foreign armed aggression.
Some people consider the state of exception an affront to the Democratic Rule of Law, and both situations are seen as antagonistic.
See also: meaning of the rule of law.