Brazil, Federal Supreme Court, 14 February 2022, Tutela Provisória na Reclamação Constitucional 51.644 Bahia
Case overview
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Link to the full text of the decision
General Summary
The Court analyzed a constitutional action ("Reclamação Constitucional (RCL)”) filed by the State of Bahia against a decision rendered by the Public Law Judge of the Court of Justice of the same state("Mandado de Segurança nº 8044358- 64.2021.8.05.0000"). The decision allowed an unvaccinated military policeman to work and receive his remuneration, contrary to a state decree that determined that public servants were to be vaccinated for Covid-19. According to the Court, the act/decision confronted the understanding from previous constitutional actions (ADI 6586 and 6587) where the mandatory vaccination against Covid-19 and its constitutionality was established. For the Court, the decision was against State Decree 20885/2021, which provided measures like removing public servants from their functions for violating the rights of public servants statutes and the Federal Act 13979/2020 about pandemic public management. The Court suspended the decision.
Facts of the case
In the context of the Covid-19 pandemic, a military policeman of the State of Bahia filed a "mandado de segurança" to suspend vaccination requirements against Covid-19, which would allow him to continue to exercise his work and receive remuneration. This requirement was contemplated by State Decree 20885/2021, which determined that the vaccination of state public servants, under penalty of administrative sanctions and access to the workplace, under the terms of Act 13979/2020 and the understanding of the Federal Supreme Court in the ADI's 6586 and 6587. In the first instance, the judge of the civil section of public law of the Court of Justice of the State of Bahia (TJ-BA) granted the claims. According to the decision, mandatory vaccination violated fundamental rights provided for in the Federal Constitution, such as the right to work and the principle of human dignity. Furthermore, it was determined that the citizen's decision to be vaccinated should be an individual choice ("Mandado de Segurança nº 8044358- 64.2021.8.05.0000"). The State Government determined that the decision went against what the Federal Supreme Court stipulated in ADI 6586 and 6587. Furthermore, it alleged the potential risk of an uncontrolled dissemination of the virus if the restrictive measures were not adopted. In this sense, it sought the suspension of the effects of the decision declared in the first instance.
Type of measure challenged
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Individual / collective enforcement
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Public
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Reasoning of the deciding body
The Court analyzed three points to support its decision. The first concerned mandatory vaccination. The Court noted that the decision of the Court of Justice of the State of Bahia contradicted the understanding of the Federal Supreme Court in ADI 6586 and 6587, where it recognized the constitutionality of mandatory vaccination through indirect restrictions, as long as the measures complied with the criteria established in Act 13979/2020, on measures to combat pandemics. Second, the Court determined that, despite the speed with which the vaccines were produced, they were approved by the National Health Surveillance Agency (Anvisa) and the World Health Organization (WHO), after numerous scientific studies that proved their efficacy and safety. Finally, regarding restrictive measures, the Court determined that the State Decree respected the criteria established in Act 13979/2020 and adopted reasonable and proportional measures that sought a constitutional balance between several rights, giving prevalence to public health.
Conclusions of the deciding body
The decision of the Court of Justice of Bahia (Mandado de Segurança nº 8044358- 64.2021.8.05.0000) did not record a pre-existing comorbidity of the military policeman that recommended he not be vaccinated. In this sense, the requirement did not threaten his physical or moral integrity. The Court admitted the claim to suspending the effects of the appealed decision. In addition, it considered the legal claim plausible, which consisted of the possible contradiction to what was decided by the Federal Supreme Court in ADI 6586 and 6587. The Court found there to be a danger of delay, considering the increase in the number of people infected by the new coronavirus.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Freedom to conduct a business
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- The right to health (Art. 6 Brazilian Federal Constitution of 1988)
- Right to life (Art. 5 Brazilian Federal Constitution of 1988)
- Freedom of movement of people, goods and capital (Art. 5 IX Brazilian Federal Constitution of 1988)
- Freedom to conduct a business (Art. 5 XIII Brazilian Federal Constitution of 1988)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
- Health (public) v. access to health services
- Health v. right to life
