By Octávio Luiz Motta Ferraz
There has been no doubt fierce disagreement across the world’s democracies on how to fight the pandemic, i.e.: on how to protect public health while respecting civil liberties; on how to minimize the damage to jobs and businesses; on how strictly to enforce public health measures. Yet nowhere has a democratic country witnessed such frontal and public quarrel within its own government as in Brazil.
Not even in the U.S. have things gone that far in the delicate relationship between Trump and Dr. Fauci, the director of the National Institute of Allergy and Infectious Diseases (NIAID). No other country seems to have had as many challenges in the courts related to the response to the crisis, either.
On April 16th, in the middle of this crisis, Brazilian president Jair Bolsonaro sacked his health secretary, doctor Luiz Henrique Mandetta, due to disagreements about the response to COVID-19.
For Bolsonaro, the disease is no more than a “little flu” and does not justify the public health measures recommended by the WHO and adopted by most countries around the world. Mandetta disagreed, and was replaced by Nelson Teich, an unknown doctor-businessman from the private health sector who, despite having expressly approved comprehensive social distancing measures in social media posts, stated in his inauguration speech to be totally aligned with the President.
At present, fatalities of COVID-19 in Brazil have surpassed 11,000, having climbed quickly from the 11 of the first day of registered deaths, March 20th, 2020. Given the political turmoil at the top of government, many are justifiably worried that the situation is going to get much worse. The hope is that the social distancing measures adopted by states and municipalities across Brazil against Bolsonaro’s wishes and with backing from a large majority of the population, most members of Congress, and the Supreme Federal Tribunal will remain in place for as long as necessary.
A health emergency was declared by the (now fired) health secretary rather early, on February 3rd, 2020, within 72 hours of the declaration by the WHO, three weeks before the first confirmed case of coronavirus in Brazilian territory (imported from Italy), and six weeks before the first death in the state of Sao Paulo.
The initial legal response to the crisis also came swiftly, only a few days later,on February 7th, 2020, through Federal Law 13.979, of 6.2.2020 (“The Quarantine Act”), which sailed through the Brazilian Congress in less than 48 hours.
As Brazil is a federal state and health is a concurrent responsibility of all levels of government (federal, state, and municipal), the Quarantine Act simply established the basic legal framework for the future adoption of the necessary measures by each of these governmental entities as required.
Within another six weeks, all of Brazil’s twenty-six states plus the federal district (Brasília) had adopted executive orders and legislation, often declaring a state of public calamity and adopting comprehensive social distancing measures such as the closure of schools, shops, beaches, and parks, restrictions on public transport, and recommending that people stay at home. At the time of writing, there were almost 400 state and almost 5,000 municipal normative acts issued to address the COVID-19 crisis in Brazil.
Bolsonaro is doing his best to disrupt these measures, having breached them himself in visits to bakeries, walks among crowds, constant impromptu speeches calling the pandemic a little flu, and an infamous televised national address where he boasted that, due to his athletic constitution, he would not even notice should he catch COVID-19. His attitude has certainly had a pernicious influence on adherence levels by the population to the public health measures.
But his threat to issue a presidential decree to impose on states and municipalities across the country the end of quarantine has, so far, not been fulfilled — in part because there is not sufficient public support for such measure, and in part because the Supreme Federal Tribunal (“STF”) has already made clear, twice, that he has no such power given the federalist system in Brazil gives autonomy to states and municipalities to implement public health emergency measures.
The STF has blocked Bolsonaro’s strategy to derail the quarantine also in another case, suspending a piece of publicity commissioned by the federal government with the slogan “Brazil cannot stop,” which called citizens to go back to work. Regarding the rule of law more broadly, the STF has also rejected the federal government’s attempt to weaken Congress’ oversight of executive provisional decrees (“medidas provisórias”) and institute a compulsory transfer of individuals’ private data by private telecommunications’ companies.
A further important challenge in the fight against the coronavirus in Brazil is its extreme levels of socio-economic inequality. There is a perverse feedback loop between pandemics and inequalities. The poorest are disadvantaged on multiple dimensions, being more susceptible to infection, more vulnerable to the disease, and less capable of accessing treatment. They are also more likely to transmit it because of their greater difficulty to follow social distancing measures such as isolation – due to overcrowded living conditions – and working from home – as a large part of the population make a living as street vendors, domestic servants, porters and in low paid jobs in essential services, such as supermarkets, pharmacies, hospitals, public transport, and rubbish collection.
As much as Bolsonaro’s irresponsible conduct can be countered by decisions of the Supreme Court and action in states and municipalities, Brazil’s perverse levels of inequality will not magically disappear during the pandemic.
Some measures can minimize the direst consequences of the crisis, such as the existence of a reasonably well-organized (though underfunded) universal public health system (created by the Constitution of 1988) and the conditional cash transfer programmes such as the Bolsa Familia, extended and made more flexible on April 2nd to help curb the economic impact of the pandemic.
They will not be sufficient, sadly, to stop the most vulnerable from contracting, passing and dying from the disease in much higher numbers than those who are able to self-isolate in comfortable and well-stocked homes for as long as the crisis lasts. The millions living in Brazil’s infamous favelas (shanty-towns), overcrowded and lacking basic services such as sanitation and water supply will sadly suffer the most, as seems to be already happening although undercounts of infection and death rates are likely to mask the magnitude of the disaster.
While many world governments are being praised for taking decisive action early (e.g., New Zealand, South Korea) or chastened for moving too slowly (U.S., U.K., Italy), Brazil’s president is still denying the need to do anything about what he calls a “little flu.” In the meantime, most local governments struggle to implement the necessary measures, which, given Brazil’s historical underinvestment in public health services and extreme levels of socio-economic inequality, will likely only minimize the worst effects of the crisis.
Octávio Luiz Motta Ferraz is a reader in transnational law at the Transnational Law Institute, King’s College London and Senior Global Fellow, Fundação Getúlio Vargas (São Paulo).