Minister Alexandre de Moraes decides that States and Municipalities have autonomy to adopt measures against the Coronavirus

Minister Alexandre de Moraes, in his decision, stressed the need “in times of severe crisis, the strengthening of the union and the expansion of cooperation between the three branches, within the scope of all federal entities”.

In the Statement of Non-Compliance with Fundamental Precept No. 672 / DF, Minister Alexandre de Moraes partially granted the precautionary measure, to determine compliance with constitutional provisions, which deal with the common competence of the Union, States, Federal District and Municipalities for health issues , public assistance and basic sanitation (art. 23, II and IX), competing competence of the Union, States and Federal District to legislate on protection and defense of health (art. 24, XII), competence of the Municipalities to supplement, as applicable , federal and state legislation (art. 30, II) and political-administrative decentralization of the health system (art. 198).

Accordingly, the decision recognized and ensured “the exercise of competing competence by state and district governments and supplementary by municipal governments, each in the exercise of its powers and within the scope of their respective territories, for the adoption or maintenance of legally permitted restrictive measures during the pandemic, such as the imposition of distancing / social isolation, quarantine, suspension of teaching activities, trade restrictions, cultural activities and the movement of people, among others; regardless of the supervenience of a federal act to the contrary, without prejudice to the general competence of the Union to establish restrictive measures throughout the national territory, if deemed necessary ”.

The ADPF was proposed by the Federal Council of the OAB (CFOAB) seeking a precautionary measure to order the President of the Republic to refrain from practicing acts contrary to the social isolation policies adopted by the States and Municipalities and the immediate implementation of economic measures to support the sectors hardest hit by the crisis. The CFOAB pointed out as fundamental violated precepts, the right to health and life; the federative principle; and the independence and harmony between the Powers; maintaining that social distance as a protocol for the prevention and containment of the scale of contagion of the pandemic is an indication based on scientific studies and the experience of countries with a more advanced stage of dissemination of COVID-19, so that the actions of States and Municipalities are it makes it even more decisive due to the conditions of making a diagnosis around the progress of the disease and the capacity of the health system to operate in each location, in contrast to the personal actions of the President of the Republic and the insufficiency of the measures adopted by the Federal Government in the economic area.

The Federal Attorney General’s Office argued that the requests were unfounded, stating that the Federal Government is taking all possible measures to combat the new Coronavirus, including the issue of 13 provisional measures, 17 decrees and 2 laws, along with projects and actions various Ministries and entities of the indirect Administration, which adjust, according to the AGU, with the policies adopted in the world and WHO recommendations, with the objectives of “guaranteeing the social isolation of the population to avoid the rapid spread of the Coronavirus and ensure employment and income for the population ”.

Minister Alexandre de Moraes, in his decision, highlighted the need “in times of severe crisis, the strengthening of the union and the expansion of cooperation between the three branches, within the scope of all federative entities”, recognizing the legal possibility of using the ADPF “With the objective of avoiding the conduct of the public authorities that are or could put at risk the fundamental precepts of the Republic, among them, the protection of health and the respect for federalism and its rules of distribution of competences”, so that it guided the analysis of the case “from the perspective of the effective application of the principles and rules of Separation of Powers and Federalism in the interpretation of Law 13,979 / 20, avoiding, preventively, unnecessary federative conflicts, which would only increase the severity of the crisis in the country” .

Thus, the Reporting Minister understood that “the rules for the allocation of administrative and legislative powers must be respected in the interpretation and application” of legislation related to the pandemic, such as, for example, Law No. 13,979 / 2020 (coping measures), Legislative Decree No. 6/2020 (state of public calamity), Decrees nº 10.282 / 2020 and 10.292 / 2020 (public services and essential activities), observing in the specific case “the unequivocal plausibility of eventual federative conflict and the evident social and public health risks with danger irreparable injury ”.

By: Wilson Sales Belchior