Many state governors’ actions related to quelling the COVID-19 in Brazil appear to neglect constitutional provisions. So much so that many states’ Governors of the Brazilian Federation decided to adopt lockdown, despite the fact that the World Health Organization itself has already concluded that lockdown is not the primary measure aimed at combating the terrible disease of COVID-19.
Indeed, David Nabarro, MS, MBBS, a medical doctor and Special Envoy on Covid-19 for the WHO, pointed out that “We in the World Health Organization do not advocate lockdowns as the primary means of control of this virus.”
However, there are even more arguments against the lockdowns decreed by state governors in Brazil.
The Brazilian Constitution does not allow lockdown to the extent intended by state governors.
In fact, if state decrees impose a curfew, preventing individuals from moving within cities and even arresting businessmen who wish to continue business and maintain jobs, the curfew is not a mere administrative action for the purpose of stopping the insidious virus. Instead, these are state initiatives that confront the Brazilian Constitution because the restricted measures are compatible with the state of siege, whose competence is exclusive to the President of the Republic.
By the way, article 137, item I, of the Brazilian Constitution provides that:
[T]he President of the Republic may, after hearing the Council of the Republic and the National Defense Council, ask Congress for authorization to decree a state of siege in cases of: I – serious commotion of national repercussion or occurrence of facts that prove the ineffectiveness of a measure taken during the state of defense.
As the President of the Republic of Brazil, Jair Bolsonaro, did not adopt the state of defense. It is evident that the restriction on the freedom of movement of individuals by the federal states is unconstitutional because there is an injury to individual freedom that could only be limited by the state of siege – a state not adopted by the President of the Republic of Brazil.
In addition, it is necessary to highlight that one of the economic principles provided in the Constitution is the freedom for economic initiative. This principle protects the fundamental right to act in the market and for the market. Therefore, the governors who decree lockdown and arrest innocent people are acting against the protection of individual rights that they swore to protect when they took office.
Unfortunately, the disrespect for constitutional provisions continues, which distances us from the desirable constitutional culture and brings us closer to arbitrariness and hypocrisy.
Manoel Jorge e Silva Neto is the Brazilian Deputy Attorney General of Labor and Deputy Director-General of the Superior School of Prosecutors. He is one of the greatest Constitutional Law thinkers in Brazil and a Professor at two important Brazilian law schools: Universidade Federal da Bahia and Universidade de Brasília. He is also the Visiting Professor at the University of Florida, Levin College of Law.
This piece was created in collaboration with the US Brazil Comparative Law Institute (USBCLI). You can find their website here or follow them on Twitter @USBCLI.
Suggested citation: Manoel Jorge e Silva Neto, Lockdown, The Coronavirus Pandemic, and the 1988 Brazilian Constitution, JURIST – Academic Commentary, March 29, 2021, https://www.jurist.org/commentary/2021/03/jorge-e-silva-neto-brazil-lockdowns/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org.
