HIPÓTESES INCONSTITUCIONAIS NA INCIDÊNCIA DE DIREITOS POLÍTICOS NEGATIVOS AOS MILITARES

Abstract

The present paper aims to analyze the treatment given by the Brazilian legal rule to members of the armed forces, both from the troops and from the officers, in an attempt to answer the following questions: are the provisions that regulate the political participation of the military unconstitutional? If so, at what points, and under what parameters? For that, a deductive methodology had been adopted. In view of the theme, the modalities of the incidence of negative political rights those that limit the exercise of political participation especially to the military will be established, as well as their respective characteristics, reasons and foundations. From these institutes, an assessment of their compatibility with the constitutional text will be carried out. It was consciously chosen to evaluate constitutionality through the positions consolidated by national jurisprudence and academia. Thus, it will not be verified the constitutional adequacy according to theories little received in the national scene, such as that of the unconstitutionality of a rule from the original constituent power. Thus, with the comparison of the established parameters, it concludes by the constitutionality of the impediment to the conscription of the conscript, of the sui generis regime in the candidacy of the officer and of the suspension of the political rights of the one who fails to perform alternative service to the mandatory military service. It concludes, in another round, by the unconstitutionality of prohibiting the conscript already listed from voting, of restricting the candidacy of the convict for military indignity, and of depriving of political rights the one who has not fulfilled alternative service and has exceeded forty-five years of age.