Last 15th, The Federal Supreme Court has unanimously referenced the injunction granted by minister Marco Aurélio Mello. The Supreme Court understands that competences granted to the National Health Surveillance Agency (ANVISA) by Provisional Measure 926/2020 cannot oppose to municipality and state decisions on public health. The MP changed legal devices on Law 13,979/20, that provides measures on public health emergency confrontation caused by the Covid-19 pandemic.
Thus, measures taken by governors are now, in theory, supported by the Court. Minister Gilmar Mendes, the decision “positively restores a governors’ policy, which now have a voice again, and this is constitutional.”
One of the standards discussed provides the adoption of “exceptional and temporary restriction” for authorities, as per technical recommendation supported by the National Health Surveillance Agency (ANVISA), for entering and exiting the country and international and intercity travel. In other words, theoretically, the restriction could only be adopted by state governments after recommendation from a regulation agency.
Bruno Zaroni, partner at Zaroni Advogados, comments that “the statement of the Supreme Court ends up leading, at least regarding this specific aspect, to a reformulation of the country’s federative pact, as it grants State autonomy, which is nonexistent in the Federal Constitution, leaving each local Governor responsible for decision making, oftentimes in conflict with the guidelines and strategies provided by the central government.”
Another sensitive subject, according to Zaroni, but refused to be faced by the Court, is the potential disparity in understanding that may take place between the guidelines established by a certain Governor and those established by Mayors from cities within said Governor’s State.
“In this case, the Supreme Court has not established which guidelines would take precedence, if either State or Municipal, which may lead to unnecessary misunderstandings, with strikingly different results and, thus, compromising the minimum unity required to confront the issue”, Zaroni concludes.