O state of siege it is a bureaucratic and political instrument in which the head of state - who, in Brazil, is the (a) President — suspends for a temporary period the activities of the Legislative Powers (deputies and senators) and the Judiciary. It is an emergency resource that cannot be used for personal purposes or for power disputes, but just to streamline government actions in periods of great urgency and need for efficiency of the State.
The way state of siege works depends a lot on constitutional legislation that each country has. In Brazil and in most countries, the state of siege has a very limited duration — here, 30 days — and it can only be extended in cases of war, lasting as long as this lasts or is fully maintained active. At federal Constitution (CF), the functioning of the state of siege is based on articles 137 to 141.
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What does the Federal Constitution say?
To better understand how the state of siege in Brazil, let's follow an excerpt from the FC in one of the articles mentioned above:
Art. 137 – The President of the Republic may, after hearing the Council of the Republic and the Council of National Defense, request authorization from the National Congress 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.
Single paragraph. The President of the Republic, when requesting authorization to decree a state of siege or its extension, will report the determining reasons for the request, and the National Congress shall decide for absolute majority.
We can see that decreeing a state of siege in Brazil is not simple. First, the Council of the Republic and the National Defense Council need to be consulted – although do not specify that they must approve the measure, although we imagine that this is highly recommended. Second, the National Congress must approve this action by an absolute majority. Even so, this should only be done on occasions when the defense state it proves to be ineffective, when there is great repercussion in the country or other related cases, in addition to the state of war.
How can the state of side affect individual rights?
In addition to all these reservations, it should be noted that the head of state will not enjoy complete freedom to take any action against the citizens of your country. Thus, only a few actions can be taken on individual rights, such as:
- obligation to remain in a given place; detention in buildings not intended for this purpose;
- restrictions on rights such as inviolability of correspondence and others;
- suspension of freedom of assembly;
- right of search and seizure, by the State, in households;
- intervention of public services in private companies and the requisition of individual goods by the State.
All this is defined in Art.139 of the CF, which allows, however, more severe measures against citizens in cases of war.
When the exception state when it comes to an end, all its effects are also cancelled. In the meantime, the head of state will also have the duty to report, in a message to the National Congress, all measures taken during the state of siege, in addition to presenting the justifications, the list of the names of the affected individuals and the respective restrictions adopted. All of this is guaranteed by law to ensure that abuses of power are not committed or, if committed, are properly investigated and prosecuted.
Another action dictated by the Federal Constitution to guarantee the best execution of the state of siege is the indication, by the Bureau of National Congress, of a commission made up of five names to oversee the actions taken by the head of state during the period in question. Prior to the nomination, the aforementioned Bureau must hear all party leaders beforehand.
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State of siege in Brazil
In Brazil, in the year of 1922 — long before, therefore, the promulgation of the CF and the validity of the terms above —, O president Arthur Bernardes declared a state of siege in the country. This declaration was given in the context of political crisis, with the communist movement of About Column, you lieutenant uprisings and the threat of a separatist Civil War in Rio Grande do Sul.
In many cases, the expression state of siege is used figuratively and critically, in the sense that the individual rights are not fully guaranteed in practice, whether by State action or other institutions. However, it is worth remembering that, from a legal point of view, the state of siege can only be requested by the Presidency of the Republic.
By Me. Rodolfo Alves Pena
