Put Christian Fernandes Gomes da Rosa – 01/06/2020

The fight against the health emergency caused by COVID-19 required efforts by the Union, States and Federal District, as well as Municipalities, following the guidance of the World Health Organization, of March 7, 2020, which attributed to social isolation a fundamental role in the efforts to slow the spread of COVID-19. In the Brazilian federative environment, the exercise of the respective powers was carried out, in a poorly coordinated manner, through health police acts. The question then arises as to the possibility of these limitations, which also imply restrictions on constitutional rights such as free enterprise and private property.

Following the WHO recommendation, the Federal Government forwarded to the National Congress the bill converted into Law No. 13,979/2020, which provides for the possibility of adopting isolation or quarantine measures for those contaminated people and goods and, with regard to the latter, for those suspected of being infected. The list of sanitary measures, as an example, conditioned that restrictions be adopted “based on scientific evidence and analyses of strategic health information and must be limited in time and space to the minimum necessary to promote and preserve public health”, according to §1º of article 3. Then came Ordinance No. 356 of the Ministry of Health, in short, urging local authorities to implement the pertinent measures, within the limits of their powers.

In the following weeks, dozens of acts were published. Examples include those of the Federal District (Decree No. 40,509), the State of São Paulo (Decree No. 64,881) and the Municipality of São Paulo (Decree No. 59,298), determining that “in-person customer service in commercial establishments of goods and merchandise, wholesalers, retailers and street vendors, and service providers operating in the Municipality of São Paulo” would be suspended. These are health police acts, exceptionally limiting the exercise of constitutional rights such as the right to free enterprise and of the Private propriety, guaranteed by articles 1 and 170 of the Constitution.

And there is no doubt that health promotion has a relevant place in Brazilian Law, especially from the Constitution, in which the right to health is listed as a social right, established in the caput of article 6. Social rights, intrinsically linked to the very notion of human dignity, trigger the State's related duty to promote their protection. And, in this case, there is no need to talk about the ruler's freedom to freely dispose of things, since it is an option of the Constituent Power itself in the sense that it will be up to the Union, States and Municipalities to provide reasonably available means of promoting health. Such acts constitute the exercise of the power of health police, characterized by their relative discretion, equipped with self-execution and inducing conduct (generally negative) from those administered, coercively. However, in view of the measures, doubts were raised about the constitutionality of their execution by States and Municipalities.

In this regard, articles 23, 196 and 198, item I, of the Constitution leave no doubt that the protection of the right to health, through the implementation of public policies, is an open field for the material, common action of all entities. So much so that all political entities are part of the Unified Health System (SUS).

Thus, although in theory lawful and necessary for the public interest, this exercise of health policy power has a direct negative impact on other rights, such as free enterprise and private property, which are also protected by the Constitution. While it is clear that the political agent has the duty to take the necessary measures to contain the epidemic, on the other hand, it is necessary to assess the possible financial liability of the States and Municipalities for the damages caused, which is done in light of article 37, §6, of the Constitution.

There is a broad debate in the doctrine regarding the grounds, limits and requirements for triggering the extra-contractual patrimonial liability of the State for damages caused to the administered. It is clear, by applying the constitutional text, that this is an objective liability, independent of fault and even the unlawfulness of the conduct. As an application of the Law to restore compliance with the Principle of Equality, patrimonial damages suffered in an unfair manner would be compensable. special and abnormal by some administrators, and the absence of liability exclusions is still necessary.

Thus, observing the constitutional parameters and other principles that should guide the conduct of the Public Power, such as reasonableness and legality, it is lawful for subnational entities – States, Federal District and Municipalities – to establish limitations on economic activity, as long as they are duly provided with reasons (scientific and public health), observing the means proportional to achieving the desired end, all in accordance with the Constitution and other applicable norms. This, however, does not imply that rights such as free enterprise and Private propriety, guaranteeing its social function, do not deserve eventual compensation, this hypothesis being well characterized when the damages suffered individually, in favor of a collective benefit, have been exceptionally onerous, which will demand its own assessment effort in each specific case.