The sword and the shield

Fundamental rights and limitations in the Brazilian military police

Abstract

This paper investigates the fundamental rights of military police officers in Brazil in light of the 1988 Federal Constitution, an essential milestone for the redemocratization of the country and the consolidation of the Democratic Rule of Law. The central issue analyzed is the tension between the fundamental rights guaranteed to all citizens and the restrictions imposed on military police officers, resulting from the constitutional principles of hierarchy and discipline that govern the force. The hypothesis is that, although military police officers are entitled to fundamental rights, their enjoyment is mitigated due to institutional requirements aimed at preserving public order and national security. Thus, the main objective of the research is to examine the constitutional structure that regulates the Military Police, highlighting the interaction between the rights of its members and the limitations inherent to the function they perform. The relevance of the study is justified by the strategic role of the Military Police in maintaining public security, making it essential to understand the scope and restrictions of their rights to ensure both their well-being and the efficiency of the service provided to society. To develop this analysis, the paper begins by contextualizing the Military Police within the Brazilian constitutional system. It then presents a historical and theoretical approach to fundamental rights, and then examines those specific to military personnel, such as freedom of expression, labor rights, retirement, and due process, considering legal and case law restrictions, especially decisions of the Federal Supreme Court (STF). The research adopts Robert Alexy's theory of fundamental rights as a theoretical framework, with an emphasis on weighing principles to resolve conflicts between rights and restrictions. Finally, the conclusion emphasizes the necessary balance between guaranteeing the fundamental rights of military police officers and the effectiveness of security forces, highlighting the role of the STF in applying the principle of proportionality and "reserve of the possible" as instruments for harmonizing these demands.