MP-AP calls for unconstitutionality of Amendment that allows squares to assume ranks of superior officers in CBM and PM – News of Brazil

Paulo Silva
Policy Editor

The Public Ministry of Amapá (MP-AP) filed a Direct Action of Unconstitutionality (ADI) at the Court of Justice (Tjap) asking for the declaration of formal and material unconstitutionality of Constitutional Amendment 066, of December 20, 2022, which amends article 68 of the Constitution of Amapá, part that deals with the statute of the military, law of basic organization of the Military Police of Amapá and law of organization of the Military Fire Brigade of Amapá.

It also requires the modulation of the effects of the decision so that the military squares improperly promoted since the year 2014, remain with the current graduation rank, being the unconstitutionality declared only of the future promotions to the transit in rem judicata of the decision. The action is signed by the Attorney General Paulo Celso Ramos dos Santos, and is dated May 29.

According to the Public Prosecutor’s Office, the unconstitutionality lies in the parts that provide for the possibility of soldiers coming from the enlisted career to achieve the ranks of superior officer (major, lieutenant colonel and colonel) in dissonance with what happens in the Armed Forces and subverting the notion of constitutionally foreseen hierarchy and obligatory reproduction.

The MP maintains that it is up to the state to legislate only on special norms regarding the military forces, provided that such norms do not contradict what has already emanated from the Union, leaving it to the state law to create, within the scope of the military forces, a hierarchical structure divergent from the general constitutional norm, applied even in the Armed Forces, ensuring that the career of the Military Police and the Fire Department is based on hierarchy and discipline, set out in Article 42 of the Federal Constitution.

“A point of fundamental importance for the present declaratory action of unconstitutionality is that, in view of the existing hierarchy in Military Law, a military officer of a lower rank or rank cannot exercise a command function, and, even less, be equal to his superior”quotes an excerpt from the action.

The Public Ministry states that Constitutional Amendment 66/2022 of Amapá suffers from formal unconstitutionality, embodied in a defect regarding the initiative, because the legal regime of members of the Armed Forces, police officers and military firefighters is a discipline reserved for the Chief Executive. Therefore, at the state level, the legislative initiative belongs to the governor and not to the state legislator, as happened with State Constitutional Amendment 66/2022 and the state of the Military of Amapá. The author of the amendment is deputy R.Nelson Vieira Pimentel (PL), who is a reserve military firefighter.

For the MP, the norms inserted in the State Constitution by constitutional amendment should not deal with matters of private initiative of the Executive Power, under penalty of allowing the Legislative Power, in practice, to legislate on any topic, ignoring the separation of powers in a State Democratic Law. Therefore, the request contained in the constitutional action must be upheld.

In addition, the warred constitutional amendment also failed to observe the need to estimate its budgetary and financial impact on public coffers provided for in the Temporary Constitutional Disposition Acts (ADCTs).

MODULATION OF EFFECTS

In the action of unconstitutionality, the Public Prosecutor’s Office reports that the Statute of the Military of the State of Amapá was edited and entered into force in 2014 and since then there has been the possibility of military members belonging to the Official Administration Staff and the Staff of Official Musicians, both of the Military Police and the Fire Department, unduly earn the rank of major.

It is true that an unconstitutional act is void, from its origin, but in this specific case, considering that the military promoted in this way were due to an error by the Public Administration and are in good faith, their promotion must be maintained. Thus, the Public Prosecutor’s Office of Amapá pleads that the enlisted soldiers already unduly promoted to the rank of superior officer, be considered as such, with the action declaring unconstitutionality effective only after the final and unappealable decision.

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