Produção Nacional
Revisado por pares
Decretação de lockdown pela via judicial: medida (des)necessária?
2020; Escola Nacional de Saúde Pública, Fundação Oswaldo Cruz; Volume: 36; Issue: 6 Linguagem: Inglês
10.1590/0102-311x00116020
ISSN1678-4464
AutoresSandra Mara Campos Alves, Edith María Barbosa Ramos, Maria Célia Delduque,
Tópico(s)Judicial and Constitutional Studies
ResumoThe Brazilian Constitutional definition of health as a social right makes the State the guarantor of this legally protected interest.The federalist system adopted in the 1988 Brazilian Federal Constitution determines that the Federal Government, states, and municipalities share the authority to care for health and the concurrent authority to legislate on health matters.This shared authority is based especially on the model of decentralization of public actions and services in health and the regional disparities across Brazil's territory.As Brazil has confronted the COVID-19 pandemic, this heterogeneity has intensified, allowing the Federative Units to adopt different measures that limit rights and public freedoms, depending on the pandemic's progression in the respective geographic area.The range of autonomy for these government entities was recently reaffirmed by the Brazilian Supreme Court (STF) with its ruling on Direct Unconstitutionality Suit n. 6,341/2020 1 .The Supreme Court's ruling reinforced the role of local health authorities and public administrators in the adoption of legislative and administrative measures against COVID-19.Each branch of government in Brazil performs its respective role.Since the COVID-19 public health emergency of national concern was declared by the Ministry of Health 2 , extensive legislation has been produced by the Federal Executive and Legislative Branches (Portal da Legislação.Legislação COVID-19.http://www4.planalto.gov.br/legislacao/portal-legis/legislacao-covid-19,accessed on 16/May/2020), not only in health, but also including economic and tax issues, social security, services provision, and individual rights and guarantees, among others.States and municipalities have also contributed to the creation of a new legal framework.The clash between fundamental rights, the exercise of public freedoms, and respect for restrictive rules and confinement, with the aim of drawing limits between the development of administrative rules, jurisprudence on the protection of (and guaranteed access to) health, and the possibility of exercising individual autonomy have been the object of analysis by the Brazilian academic community 3 .This scenario provides the backdrop for the first declaration of a lockdown in Brazil, in the cities of São Luís, São José de Ribamar, Paço do Lumiar, and Raposa, all located in the state of Maranhão, under a court order issued on April 30, 2020.The order responded to a claim filed by the local Public Prosecutor, based on the following factors 4 : total occupation of ICU beds dedicated exclusively to COVID-19 in the state public healthcare network; lack of transparency of this same information in the public networks in the above-mentioned cities; provision for lockdown in the Ministry of Health's
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