Brazil, Federal Supreme Court, 8 May 2020, ADPF 672 MC

Case overview

Country
Brazil
Case ID
ADPF 672 MC
Decision date
Deciding body (English)
Federal Supreme Court
Type of body
Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
Supreme court original and sole instance jurisdiction.
Area
Scope of powers of public authorities (legislative, executive etc.)
Further areas addressed
Multilevel government and allocation of powers
Outcome of the decision
Claim partially upheld
General Summary

The claimant has reported that the Law 13,979/2020 has provided for a series of sanitary measures such as to enforce the implementation of isolation measures , quarantine and restriction on some outdoor gatherings of people. The Law has also authorized , simplified and streamlined procedures for contracting goods, inputs and services to support and strengthen the functioning of the health system. It has been said that although the Federal Government has had instruments to react to the crisis, most of the measures adopted have not the health emergency. According to the petitioner, the actions taken so far have affected the country’s governance and endangered Brazilians’ life. For this reasons, the claimant has filed a Claim of Non-Compliance with a Fundamental Precept (ADPF, as in the Portuguese acronym) concerning the actions and omissions that the Federal government had been taking when managing the public health and economic crises due to the outbreak of the COVID-19 pandemic. The petitioner has emphasized that several states and municipalities have implemented measures to contain social agglomeration and reduce the number of people infected. While on the other hand, the President's acts have generated conflicts with governors and mayors who have relied on federal support in order to implement the necessary health policies.

Facts of the case

The actions of the Brazilian federal government (Presidency of the Republic) after the Covid-19 condition was declared a pandemic in March 2020 have been constantly submitted to political and judicial questioning. In this case, the Brazilian Bar Association has sought a judicial order assigned to the Presidency of the Republic, stipulating a prohibition to promote policies against the recommendations of the WHO, such as social distancing and use of face masks. The case has been firstly analyzed by the Supreme Court in May 2020 by a singular Justice who has decided the precautionary measure request. Based on a serious, imminent and undeniable threat to the functioning of all public policies aimed at protecting the life, health and well-being of the population, the precautionary measure has been partially granted, in order to determine that compliance with determinations of governors and mayor’s policies, as to the functioning of the economic activities and agglomeration rules

Type of measure challenged
Federal government measure
Measures, actions, remedies claimed
The petitioner has requested a measure to forbid the president from performing acts contrary to social isolation policies and to order the immediate implementation of economic measures to support the most affected sectors by the crisis.
Individual / collective enforcement
Action brought by a qualified entity in the interest of a specific group of claimants for the purpose of injunctive measures or other remedies, including the annulment of administrative decisions, for the protection of a more general collective interest.
Nature of the parties
  • Claimant(s)
    Private collective
  • Defendant(s)
    Public
Type of procedure
Urgency
Conclusions of the deciding body

The states and the Federal District have enjoyed concurrent power, while municipalities enjoy supplementary power within their respective territories to adopt restrictive measures during the pandemic. Therefore, complying with federalism and its constitutional rules on distribution of powers has implied respecting the decisions of governors and mayors regarding social distancing and quarantine, suspension of teaching and cultural activities, and trade restrictions.

The conclusion of the Court has been that the judiciary can not substitute the executive power in its jurisdiction to establish public policy. Therefore it can not prohibit the executive power to issue such norms. However, the Court has partially granted the claim when it has concluded that the federal government must respect the jurisdiction of states and municipalities in case they establish public policies under their jurisdiction.

Reasoning of the deciding body

The right to health has been a constitutional right and a duty of the State, which has entailed a universal and equal access to health actions and services. The severe outbreak of Covid-19 pandemic has required Brazilian authorities, at all levels of government, to implement public health protection measures on a specific basis and to adopt all the possible and technically sustainable initiatives to support the activities of the Public Health System. According to Federal principles, each State (as federal entities) enjoys autonomy from the Federal Government. This implies a distribution of legislative, administrative and fiscal powers. In relation to health and public assistance, including organization of food supplies, the Constitution has provided for common administrative competence among the Union, states, Federal District and municipalities. Likewise, the Federal Constitution has provided for concurrent power among the Union, the states and the Federal District to legislate on health protection and on defense.

Implementation of the ruling

The measure to acknowledge and ensure the concurrent power of the states and the Federal District has been partially granted. The Rapporteur has also recognized, within their territories, the supplementary competence of municipalities to adopt and maintain the restrictive measures allowed in quarantine, regardless of an overcoming federal act on the contrary. This decision has been endorsed then by the Supreme Court Panel of judges.

Fundamental Right(s) involved
  • Right to good administration
  • Right to health (inc. right to vaccination, right to access to reproductive health)
  • right to a federal government; right to life.
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Law 13979/2020;
  • Cooperative federalism (Articles 23, II, and 24, XII, of the Federal Constitution);
  • Right to health and Right to life (Articles 196 e 197 of the Federal Constitution).
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
  • Health v. economic freedoms
  • freedom of federalism performance
General principle applied
  • Non-discrimination
  • Proportionality
  • Reasonableness
  • State of emergency or necessity
  • Equality within powers and administration
Balancing techniques and principles (proportionality, reasonableness, others)

The techniques analyzed have aimed at evaluating the case in light of the principles of federalization and the presidential power, b alancing with the emergency of Covid-19 pandemic, as well as the constitutional rights.

Judicial dialogue

It refers to another decision reached by the Supreme Court: ADI 6343-MC-Ref., ADIs 6347, 6351, 6357

Impact on Legislation/Policy

Conferred constitutional interpretation to the Law 13,979 / 20 and effective compliance with articles 23, II and IX; 24, XII; 30, II, and 198, all of the Federal Constitution.

Other notes

Full decision available on stf.jus.br

Authors of the case note
  • Camilo Zufelato, Professor, Law School, São Paulo University
  • Fernanda Theodoro Gomes, Lawyer and Researcher, University College London