state of exception

Article

July 6, 2022

State of exception (AO 1945: exception) is a situation opposite to the democratic rule of law in situations of suspension of rights caused by institutional lack of control.

Concept

It is characterized by the temporary suspension of constitutional rights and guarantees, which provide the necessary efficiency in decision-making for cases of State protection, since the speed in the process of deciding the measures to be taken is essential in emergency situations and, in this sense, , in democratic government regimes — in which power is divided and decisions depend on the approval of a plurality of agents — decision-making agility is compromised. The State of Exception is a situation of restriction of rights and concentration of powers that, during its validity, brings a State under a democratic regime closer to authoritarianism. In totalitarian States, the declaration of the State of Exception is less important and can be dispensed with, due to the natural concentration of powers inherent to them. In exceptional situations, the Executive Power may, provided that within the constitutional limits, take actions that limit the freedom of citizens, such as the obligation to reside in a specific location, search and seizure at home, suspension of freedom of assembly and association. and censorship of correspondence.

Species

State of defense or emergency

State of defense (provided for in article 136 of the Brazilian Constitution), or of emergency (dealed with in article 19 of the Portuguese Constitution), is the mildest type. It can be enacted to guarantee public order or social peace in restricted and determined places, threatened by serious and imminent institutional instability or major natural disasters. In Brazil, the State of Defense - whose name is criticized for not being a "State of Emergency", just to avoid links with dictatorial regimes - is decreed by the President of the Republic, who must submit the decree to the National Congress, which will within 24 hours. As a temporary measure, it will only be in force for up to 30 days, with an extension allowed for up to an equal period.

Site status

Extreme measure that, in Brazil, can be enacted in the following cases: Serious commotion of national repercussion; Ineffectiveness of a previously decreed state of defense; Declaration of State of War; Response to foreign armed aggression. The state of siege is a measure that lasts for up to 30 days, and can be extended for a period not exceeding (art. 138 § 1). Note that, according to art. 137, item I ("I - serious commotion of national repercussion or occurrence of facts that prove the ineffectiveness of the measure taken during the state of defense;") every 30 days there may be successive renewals of the siege decree. Another situation of successive maintenance is in case the country engages in a formally declared war, when such a state of exception can be maintained indefinitely, as long as necessary and as long as the war continues. In Brazil, only by decree of the President of the Republic can the state of siege be instituted or extended each time (art. 138, § 1), after it has received formal authorization from the National Congress (art. 137, CF), after being consulted the Council of the Republic and the Council of National Defense — which will offer a non-binding opinion. We can summarize it all by following the scheme below: State of defense (30 days, by decree, informing the National Congress of the measure) → renewal of the state of defense (for another 30 days) → state of siege (30 days/1st time, after receiving authorization from the National Congress) → renewal of the state of siege (every 30 days, by presidential decree, in the case of item I of article 137 or it may be decreed for as long as the war or foreign armed aggression continues