Los estados excepcionales en las constituciones de los estados de El Salvador y Brasil: consecuencias de la adopción y la limitación de derechos fundamentales

Abstract

The purpose of this work is to analyze the exceptional states in the constitutions of El Salvador (Exceptional Regime) and Brazil (State of Defense and State of Siege), in order to demonstrate how their implementation causes limitations and suspension of fundamental rights and guarantees for the citizens of both countries. The exceptional states are analyzed from the jurisprudential doctrine, the history of the military governments and the implementation of exceptional states, and the transition to democratic states of each country. Moreover, one investigates the modern regulation for the exceptional states and whether exceptional states could be applied in cases of public security crisis. Furthermore, this research also attempts to explore some considerations about origins, development and the current situation of public security crisis in El Salvador caused by the “maras” and the involvement of army forces to combat them. This research adopts a deductive approach, from the general context of exceptional states and their relations with fundamental rights to the interpretation and comprehension of legislations in force in Brazil and El Salvador constitutional systems and for that, one made use of bibliographical, historical and normative sources. In the conclusion, it has been mentioned the dilemma that exceptional states face in order to ensure public order and respect to fundamental rights and guarantees; and it has also been examined the way the Salvadorian Government has implemented an emergency legislation instead of an Exceptional Regime, and how this regime has passed from being temporary to being permanent.