Time for some legal stuff

In a previous post, I told you that the police was on strike in São Paulo (see "Police War"). The strike came to an end recently, thanks to a Supreme Court decision stating that the policemen do not have a right to go on strike.

In my previous post, I said that the streets of São Paulo look pretty much the same as they did without the strike, and the same is true now: everything looks pretty much the same as it did during the previous 60 days before the end of the strike. But now I know the reason: the Supreme Court had issued an injunction, which was reversed this week, where it did authorize only 20% of the police force to go on strike (80% of the policemen were still working).

The newspaper that I read and often quote here (Folha de S. Paulo) devoted an entire page of today´s issue to the debate about the judicial decision, and I thought you might be interested in hearing the arguments on both sides.

The debate is whether police officers should have the right to go on strike (i.e. whether the case was rightly or wrongly decided).

Legal arguments against the right:

The Supreme Court´s decision seems to be based on a constitutional provision according to which the military forces cannot go on strike. Police forces are equivalent to military forces. Thus, they should be also subjected to the same restriction.

There seems to be at least two arguments to support the idea that police forces are equivalent to military forces. One is that they are both armed. Another argument is that society has a right to be protected and to ask the state to guarantee public order in the streets. Those who make a vow to protect these citizens cannot violate this right and cannot hinder the State´s ability to protect its own citizens. This would apply both to the military and the police.

Legal arguments in favor of the right:

The very first argument is that if there was any legislative intention to include the police force in the constitutional provision, they would have done so. Thus, the lack of any reference to the police in the constitution indicates that they should be entitled to the right to go on strike.

Another argument is that the military and the police are not comparable, because they perform different functions. The police protects citizens and their property, while the military should protect the nation. I am not even sure what follows from here (maybe it follows that we don´t care about the safety of our citizens anyway when they are threatened by other citizens, so you better buy a gun...). Anyway, you got the main idea: this argument shows they are not comparable, and therefore the constitutional restriction would not be applicable to police forces.

The third argument is that the services delivered by the police are considered as essential as services such as education and health care. And the professionals in these other areas have the right to go on strike. It is discrimination not to consider that policemen have the same right.

Notwithstanding the heated debate, everyone agrees in one point: we need a police force that is better paid, better trained, and better equipped.

What surprises me is the fact that nobody is discussing whether the right to go on strike could help us achieve these ends (i.e improve our police force in any way). It is as if we had to extract the meaning of the Constitution, its most pure essence, without looking at our reality. As if we could afford such a luxury...