Against Covid, the most restrictive measure is not always constitutional

Against Covid, the most restrictive measure is not always constitutional
Against Covid, the most restrictive measure is not always constitutional
The correct recognition that states and municipalities can adopt restrictive measures to combat the pandemic, based on the judgment of ADI 6,341 by the STF, does not necessarily mean that more restrictive measures must always prevail before others.

Indeed, in view of the scale of the public health crisis and in view of the complexity of the constitutional issues involved, it has become very common to use the argument that the most restrictive and, therefore, more interventionist measure should be applied, as a meta-guideline. -normative for judicial decisions in matters related to the determination of public policies and the competences of federative entities.

It starts from the premise that the most restrictive measures are more effective in containing the coronavirus, in a kind of theoretical-legal-pandemic common sense, in the Waratian sense, as an incognito voice of interpretation[1] in defense of a utilitarian point of view.

Thus, if there is a divergence between a federal, state or municipal normative act, for example, regarding the definition of essential service or even the imposition or not of a “curfew”, the jurisprudential tendency seems to be to endorse and adopt the measure that is more restrictive.

However, a more in-depth reflection on the topic is needed, not only because it has been very difficult to measure the effectiveness of more restrictive measures, that is, if they are really the best actions in guaranteeing the right to health, but especially because the topic it is sensitive, with borderline interpretations and not always constitutionally adequate.

Taking as a premise that the normative acts published in the governmental sphere are able to impose restrictions on fundamental rights (a controversial issue that will not be addressed here), the solution in case of any regulatory conflict should consider the competence of each federative unit and the consecrated principles constitutional aspects of the prohibition against insufficient protection and the prohibition of excess. Certainly, the restrictive measure issued by the competent body and which does not violate the aforementioned principles should be preferred.

Regarding the competence of Federation entities, I have already noted in a previous column that the competence to establish public policies to combat the pandemic is of a common nature (article 23, II) or even competing (article 24, XII), and the Union is responsible Federal to coordinate the other subnational entities, in a great national consultation. This perspective was enshrined in the judgment of ADI 6,341 and 6,343 by the STF.

However, this consultation did not take place in Brazil. Political interests and personal disputes reduced federative relations to a sad tangle of subjective, isolated, contradictory and predatory decisions, making due planning and serious combating of Covid 19 impossible.

In the absence of the necessary joint political action, it was up to the Judiciary to resolve the demands that are proposed to it. In this regard, in the absence of an explicit constitutional rule, the predominant interest to be verified in each specific case must prevail. It does not seem to me, for example, that a municipality without the capacity to bear alone the cost of ICUs and of adequate medical care for its citizens can disobey state normative act, since it is not the only, exclusive or even predominant local interest.

Having overcome the analysis of competence, it is necessary to remember that all legal intervention is essentially a form of violence in the lives of citizens. No wonder, since classical antiquity, the law is related to the idea of ​​pharmakon that should be applied in the right measure. The law, like a drug, can become poison when in excess and can be useless when it does not sufficiently protect the legal good it seeks to protect. Here is the ambivalence well diagnosed by Eligio Resta:

The pharmakon was exactly this game of oscillation that indicated at the same time poison and its antidote, the cure and the disease, but also the victim and his executioner. The poison taken in a fair dose turned into an antidote, but at the same time it continued to belong to the nature of poison: what the disease was became the cure, if it reversed a moment later in the cure that turned into disease. One was not dissociated from the other. Violence is the cure for violence. Thus, the law should threaten and use violence to combat violence; whoever used violence was liable to another violence, so the executioner becomes a victim[2].

It is also noted that the excessive intervention of the law can become poison and cause more injustices and losses to the constitutional order, to the legitimacy of the Judiciary and to society itself, if these determinations violate fundamental rights without having actually been proven to be effective. necessity.

In this context, any judicial intervention, no matter how imperative, must pass through the sieve of the principle of prohibition of excess and the principle of prohibition of insufficient protection, understood as a double face of the guiding principle of proportionality. In the didactic explanation of Ingo Sarlet and Tiago Fensterseifer:

… the state entity cannot act in an excessive way, intervening in the sphere of protection of fundamental rights to the point of disregarding the criteria of proportionality or even to the point of violating the essential nucleus of the fundamental right in question, it is also certain that the State , by virtue of the duties of protection to which it is bound, it cannot omit or act in an insufficient way in the promotion and protection of such right, penalty of incurring a violation of the legal-constitutional order.[3]

Our doctrine and jurisprudence has long recognized that the principle of proportionality in its double dimension is structural in the constitutional order and has binding regulatory force in the judicial decision, with the judging body having the argumentative burden.

In this perspective, the motivation that underlies the decision must explain the fulfillment of the fundamental requirements in the application of the principle of reasonableness and proportionality, preserving the logical consistency and material coherence in the realization of the law.

This time, once it has been established that the right to health in the event of a pandemic must be realized to the greatest extent possible, it is up to the judiciary to determine that a more restrictive measure is obeyed to the detriment of a more lenient one only when it is possible to demonstrate full compliance with the following requirements: i) adequacy (the measure is adequate for the intended purpose and is also compatible with the Constitution); ii) necessity (the measure is necessary because without it, the objectives pursued will not be achieved, there being no other alternative that produces less interference in the sphere of citizens’ rights) and iii) proportionality in the strict sense (when comparing rights, priority must be given to priority) the restrictive measure that causes less damage to the constitutional order, in a cost-benefit relation, as has been taught by the constitutionalist doctrine[4]).

In other words: although at first glance the most restrictive measure may seem more effective in the realization of the right to health, it is not constitutionally correct to adopt without criticism the meta-normative argument that the most restrictive measure is the best and should always be applied. Each case deserves due analysis and, more often than not, a more restrictive measure may not have a better result in order to guarantee citizens’ right to health, even if it promotes forceful limitations on the enjoyment of other fundamental rights by citizens.

In the current state of the art of Brazilian constitutionalism, material and substantial solutions are allowed in the application of the Constitution. However, they must observe due parsimony in the face of the fact that the Judiciary performs countermajoritarian functions in a constitutional democracy where political issues must be resolved by political powers (Executive and Legislative).

In the inoperability or inertia of political powers, judicial protagonism must be exercised in a contained manner (self-restraint) and exceptionally, since the management of public policies is not the responsibility of the Judiciary. In addition, it must observe the technical and analytical rigor coupled with robust foundation with normative and constitutional basis, avoiding arguments of a political-literary nature, under the risk of falling into excessive and undemocratic activism that will certainly undermine the very legitimacy of the Judiciary and democratic institutions in general.

In the end, it is concluded that a more restrictive measure can only be preferred / prioritized if it is issued by the competent federative entity and goes through the sieve of the principles of insufficient protection and prohibition of excess, with the due demonstration of its effectiveness in the implementation fundamental right to health. All arbitrariness must be rejected, as it is never too much to remember that modern constitutionalism does not allow concentration of power, nor sovereigns, since no power of the Republic is above the Constitution.

[1] WARAT, Luiz Alberto. General introduction to law. vol. I, Porto Alegre: Sergio Antonio Fabris editor, 1994.

[2] STAY, Eligio. The fraternal law. Rome-Bari: Laterza, 2006, p. 100.

[3] SARLET, Ingo Wolfgang. FENSTERSEIFER, Tiago. Prohibition of insufficient protection and the right to a balanced environment. Electronic Magazine Legal Consultant, 08/14/2020. Available at: https://www.conjur.com.br/2020-ago-14/direitos-fundamental-proibicao-protecao-insuficiente-meio-ambiente-equilibrado. Access: 04/04/2021.

[4] For all: CANOTILHO, José Joaquim Gomes. Constitutional law and theory of the Constitution. 7th ed. Coimbra: Almedina, 2003.

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