Brazil, Supreme Federal Court, 22 February 2022, ADI 6490

Case overview

Country
Brazil
Case ID
ADI 6490
Decision date
Deciding body (English)
Supreme Federal Court
Deciding body (Original)
Supremo Tribunal Federal
Type of body
Court
Type of Court (material scope)
Constitutional Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Federal Court
Instance
Constitutional Review
Area
Healthcare management (Covid related, excluding vaccination)
Further areas addressed
Education
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_PT available on www.conjur.com.br
General Summary

Through a constitutional action, the State of Piauí, Brazil, requested the use of public resources constitutionally destined for education to combat the COVID-19 crisis. The State Government had requested authorization to allocate 35% of the resources of the Fund for the Maintenance and Development of Basic Education, Fundeb.

The Court rejected the action, emphasizing that even though the pandemic has a severe and tragic effect on people, the economy, and public finances, the use of resources constitutionally linked to education for purposes other than those intended for them is not justified. For the Court, the pandemic also directly impacted education, so resources are necessary to enable the proper development of the right.

Facts of the case

The state government of Piaui had requested authorization to exceptionally allocate 35% of resources from the Fund for Maintenance and Development of Basic Education and Valorization of Education Professionals, Fundeb, from judicial execution of R$ 1.6 billion for actions to combat the COVID-19 pandemic in Piaui. The requested amount was approximately R$ 578 million in excess. The governor wanted the Court to allow its release and the flexibility of its use exclusively in actions and programs of health, social assistance, and generation of employment and income directly related to the pandemic and its socioeconomic effects on the state.

Type of measure challenged
Local government measure
Measures, actions, remedies claimed
  • Declare the constitutionality of the administrative decision
  • Allow the release and the flexibilization of a budget destined for education, actions and health programs
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)
    Public
  • Defendant(s)
    Public
Type of procedure
Ordinary procedures
Reasoning of the deciding body

First, the Court analyzed the constitutional provisions on the budget for education. It highlighted that, based on art. 212 of the Constitution, the Union must apply at least 18% . Moreover, the states allocate 25% of their budget derived from taxes to education development. On that reference, it also analyzed the Legislative Development on the funds to guarantee education.

The Court analyzed that the Government of Piauí sought an interpretation following other constitutional provisions to allow the use of education resources for actions to combat COVID-19. In this sense, the Court has insisted that the resources of the education funds cannot be used for expenses not related to the guarantee of this right.

It emphasized that the Governor does not seek an interpretation following the Constitution. On the contrary, it requires a temporary suspension of its effects to allow an action contrary to the constitutional norm. Finally, the Court analyzed the impact of the pandemic. It emphasized that, although it affects the development of all rights, this does not justify using constitutionally designated resources for other non-established purposes.

Conclusions of the deciding body

The pandemic resulting from COVID-19, as much as it affects severely and tragically people, the economy, and public finances, does not justify the use of funds constitutionally linked to education for purposes other than those for which it was intended. In these terms, the Court rejected the action of the state of Piauí to use resources from Fundeb to combat the COVID-19 crisis. According to the Court, the epidemic also directly impacts education, so resources will be needed to make, for example, online classes possible.

Fundamental Right(s) involved
  • Right to education
  • Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
  • Right to health, Art. 6, Brazilian Federal Constitution
  • Right to education, Art. 6, Brazilian Federal Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. right to education
Other notes

On "type of measure challenged": The Government's decision to allow the release and flexibilization of a budget destined for education, for actions and programs of health, social assistance, and generation of employment and income directly related to the pandemic and its socio-economic effects in the state.

On "type of procedure": "Ação Direta de Inconstitucionalidade" ("ADI") is a particular constitutional review. It is an action for the judicial review to combat Acts and federal or state normative acts that are, in general, contrary to the Constitution (Art. 102, §1 (a) Federal Constitution of 1988).

Author of the case note
William Ivan Gallo Aponte, Researcher, Externado University of Colombia; PUCPR, Brazil