O direito de greve dos servidores públicos militares sob a análise dos movimentos paredistas e das possibilidades de modificação do texto constitucional

Abstract

The right to strike of the military, despite being hampered by express constitutional prohibition (art. 142, § 3, IV), has been gaining strength in the Brazilian legal scenario. This is due primarily to movements occurring with increasing frequency in the country in 2012, there have been several demonstrations led by strikers military servers, which brought up the discussion about the validity of the Constitution with regard to the restriction certain social rights to the workers of the Armed Forces and Reserve Forces. The justifications for the sustenance of the sealing exercise military strike to show up quite fragile at the change in the paradigms of composition corporations. The rigid hierarchy and excessive preoccupation with national security are the most obvious arguments that support the ban. However, it is clear that with the renewal that comes from entering new military class within these workers began to question, so most emblematic work in the structures that are inserted in order to demonstrate the lack of incentive to the Directors State security sector. Due to the emergence of the need to express their demands, the military eventually forming associations, which would make the true role of unions, since the category is also prohibited the formation of unions. Interestingly, a similar discussion was fought when the legitimacy of the right to strike for civil servants in view the legislative inertia to elaborate a legally binding instrument to regulate, in fact, that right. However, just as the military, civil servants eventually force the realization guarantee striker by performing movements of strike. This situation ended up being partially resolved by the Supreme Court which, in 2006, decided by the subsidiary application of the Law n. 7.783/89 to the civilian public. From all this impasse, it is necessary to search for ways to accomplish the right to strike to the military in order to prevent further social confrontations that only tend to hurt the population. Meanwhile, emerges as a legal possibility (remote, say), the control of constitutionality of constitutional rule originally, based on the theory advocated by Otto Bachof. Moreover, it should be noted that, in the legislative branch, as there Proposed Amendment to the Constitution (PEC n. 186/2012) that aims to change the constitution in order to allow both unionization as the military strike. Anyway, what is sought is the regulation's own right of resistance of these workers who currently find themselves hampered in their agendas claiming the situation which, before a state of guarantism, demonstrates the incoherence of the constitutional provision against the real wishes of population, the text contrasting the real sense with that should guide the norm, namely social justice.