Symposium: COVID-19 in Brazil - The Main Political, Social and Legal Events

Marcelo Figueiredo

Pontifical Catholic University, São Paulo

This post outlines some of the current steps taken by the Brazilian federal government to alleviate the social and economic dimensions of the public health crisis induced by the global pandemic. It also reflects on the constitutionally sanctioned involvement of the private sector in healthcare, and highlights how a more effective formulation of a meaningful response has been hamstrung by the existing tensions at the vertical level between the federal and provincial governments, as well as horizontally between the coordinate branches of the executive, the legislature and the judiciary.

Measures Taken to Establish a Safety Net

The Federal Government sought to minimize the social impact of the COVID-19 epidemic by activating several social programs aimed at most vulnerable sections of the Brazilian population. The federal state itself opened several extraordinary credits to Ministries in order to send cost aid to self-employed professionals (R$ 600.00 per month, approximately U$D 113.00) for two or three months. The National Social Security Service (INSS) has anticipated the payment of several legal benefits normally paid (sick pay, retirement, 13th month salary, etc.). Several  states of the country and municipalities have adopted emergency measures to help the poorest sections of the population during the pandemic period. The measures range from exemption or discounts on water and electricity bills, to the suspension of service interruptions due to default.

A Provisional Measure of the Federal Government also exempts the poor from paying only the electricity bill if their monthly electricity consumption is less than or equal to 220 kilowatt-hours (KWh), until June of this year. The same has been happening in several states and municipalities in the country in relation to services of drinking water supply, energy and sanitary sewage. It is also commendable that the price of a series of medicines is frozen.

Enrolling the Private Sector

Healthcare in Brazil is mixed and has both a public and private component. Tts Unified Health System (SUS) was created by the Federal Constitution of 1988, and is based on the principles of universality, full coverage, and equity. The private sector in healthcare is meant to be organized in a manner complementary to the public sector. These are the complementary and supplementary components of health care in Brazil.

Complementary health care emerges out an obligation contained in Article 199 of the Federal Constitution vested upon the Unified Health System (SUS). Supplementary healthcare rests in hands of private providers – which are organized on the basis of contracts or agreements which are governed by public law. This is what is important for further examination - since supplementary health care is the legal regime which governs health care services provided by private entities through private law. This regime is supervised by the State, but with full managerial responsibility being vested in private entities.

An instance of supplementary healthcare is kind of services provided by private hospitals that also serve a quota of SUS. For example a private hospital may be obligated to cede a hospital wing to tend to SUS patients. In such cases, the private hospital would not charge the patient for the services they provide. The SUS patient receives the services free of charge due to the obligations created by the Brazilian Federal Constitution. In light of the COVID 19 pandemic, there has been an effort by important private companies to make large donations of health equipment. Furthermore, private health companies have dedicated parts of their establishments to the treatment of the pandemic, specifically intensive care units for the general public regardless of whether they have health insurance. The Justice Court of the State of São Paulo has also determined that health plan operators must pay for the medical treatment of beneficiaries in case of suspicion or confirmation of COVID-19, even if they have not met certain formal requirements under their respective insurance contracts. It clarified that non-compliance would result in a fine of R$ 50,000 (approximately U$D 12,000.00) for each patient who is refused coverage.

In order to aid the private sector, State has recommended that health plans under private insurance consider a series of measures such as the extension of coverage and reduction of grace periods. Furthermore, Congress is investigating possible measures such as a reduction of school fees during the pandemic – a move that has already led private schools to protest against such possible measures. A growing number of private banks are announcing the provisional suspension of payment of installments of credit to the final consumer for sixty days, but this measure would crucially be inapplicable to credit cards or special checks drawn under the overdraft facility.

Activating the Courts: The Pandemic and Inter-branch tension

Brazil is a federal republic with a complex, and heavily negotiated Constitution (1988), similar to India and South Africa. The power of judicial review in the constitution is very broad and comprehensive – indeed it is difficult to find a subject that cannot be taken to the judicial branch for resolution. It is common for a range of cases, including those which concern heavily contested political questions, to be taken to the Supreme Court (STF), the highest court in the country. This is part of a phenomenon which has been described as the judicialization of politics in Brazil.

The COVID 19 pandemic has only aggravated political tensions between the legislative and executive branches. The President of the Republic has persistently refused to negotiate with the Congress and seeks to argue with the press and the opposition, even going to the extent of saying that the epidemic "is no big deal and that people can go out on the streets and get on with life”. He has indeed been described as “perhaps the biggest threat to Brazil's COVID-19 response”. The President currently appears to be more concerned with the economy than the pandemic. One of central challenges of the President’s messaging is its dilution of public health advice, especially those relating the physical distancing, hygiene and social isolation in case of suspected infection. This all undermines an effective fight against the pandemic and causes political and economic instability as there is no single effective combat plan.

Further, there is a conflict between the federal and state responses to the pandemic, therefore there is no cohesion in the measures to combat the pandemic, which also causes political instability. The Brazil Constitution envisages the general competence of the Federal Government (general norms) and competing competences of the States and Municipalities. The Federal Government is tasked with the issuance of general norms, with the States and Municipalities needing to operationalize these norms or adapt them to local conditions through legislation and administrative orders.

In light of the turbulent political climate, the judicial branch becomes the natural outlet for conflicts that should, in principle, be resolved by political institutions. To get an idea of the problem, since the emergence of the pandemic, no less than 100 judicial measures were filed at the Supreme Court of Brazil involving different issues but focused on the competence of the authorities in the federal state. Overall, these cases can be classified under the following broad heads: 1) defining the precise responsibilities of the states and municipalities vis-à-vis the Federal government and its contours with respect to public health, 2) what is the course of action in case of overlapping and in some cases, conflicting jurisdiction and responsibilities of the Federal Government, the state governments and the municipalities (institutions of local government)?

Covid-19 Related Cases Before the Judiciary: Some instances

It is enough to point out that the Brazilian Constitution contemplates a cooperative federation with competing competencies in realm of public health care. Therefore, in principle, everyone can legislate and make regulations on public health issues. The majority of the cases in the Federal Supreme Court (STF) invoke the right to health, the right to life, equality, as well as the value of human dignity. While interpreting the law, the Court will also examine the constitutional purpose of building a just, egalitarian society, found in Articles 1, III, 3rd, 5th caput, 6th, 23, II, 24, XII, 194, 196, 197, 198, 199, 200, 227 and 230 of the Constitution. Of the many cases brought by a number of organizations that complain about insufficient measures by the Executive Branch, I highlight five which sought the following remedies:

a) that the Supreme Court (STF) authorize the compulsory requisition of private goods and services aimed at health by federal, state and municipal authorities to face the pandemic, in which the remedy sought was denied (ADPF 671-DF, Rapporteur Justice Ricardo Lewandowski, 04/03/2020);

b) an action filed by the Federal Council of the Brazilian Bar Association against the President of the Republic (ADPF 672/DF, Rapporteur Justice Alexandre de Moraes, 04/08/2020) that sought a declaration of the competing constitutional powers in the matter of public health, along with an assurance that the state and municipal governments would receive their fair share of fiscal attributions in their fight against the pandemic; without prejudice to the general competence of the Federal Government, in which the remedy was granted;

c) the Direct Unconstitutionality Action 6.341-DF (ADI 6341MC-DF, Rapporteur Justice Marco Aurélio, March 24, 2020), brought by the Democratic Labor Party against the President of the Republic to have the Provisional Measure 926/2020 declared unconstitutional. It argued that the Measure envisaged a redistribution of police powers that interfered with the cooperative regime between federal entities because it entrusted the federal government with the prerogatives of determining “isolation, quarantine, mobility restrictions, public services, essential activities, and circulation of goods”. The STF declared that the measures adopted by the federal government in the Provisional Measure did not rule out the concurrent competence or ability of the states, Federal District, and municipalities to adopt normative and administrative measures to confront COVID-19;

d) the Direct Unconstitutionality Action 6.357- DF (ADI 6357-MC-DF, Rapporteur Justice Alexandre de Moraes, 03/29/2020) in which the STF accepted a request by the President of the Republic to  remove the requirement to demonstrate budgetary adequacy and compensation during the public health emergency in relation to the creation and expansion of public programs to address the pandemic.

While these are the broad developments in relation to the legal-political scenario in Brazil, the courts are currently closed for routine operations, and therefore, it is difficult to achieve any meaningful results through the judicial branch. It is going to be of utmost importance in the coming days for the Brazilian polity to determine its priorities and engage with them constructively. Many of these have been addressed, such as schools providing online classes or building new hospitals or making campaign hospitals to be able to take care of the sick population. It should also be our endeavor to ensure that It should also be our priority that the politico-legal spectacle playing out does not hinder an effective fight against the pandemic while keeping in mind that political and economic instability usually go hand in hand.

Marcelo Figueiredo is a lawyer and legal adviser based in São Paulo (Brazil). He is an Associate Professor of Constitutional Law at the undergraduate and postgraduate courses at PUC-SP, where he was also Dean of the Law Course (2005-2009 / 2009-2013 terms).

Suggested Citation: Marcelo Figueiredo, “COVID-19 in Brazil: The Main Political, Social and Legal Events” IACL-AIDC Blog (2 June 2020) https://blog-iacl-aidc.org/social-rights/2020/6/2/covid-19-in-brazil-the-main-political-social-and-legal-events-9y39f