Luiz Eduardo Fonseca

Country Expert:

Center for Global Health, Fiocruz

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Whose Jurisdiction? Law in Books and in Action

Edited by Sanaa Alimia and Gianluca Parolin. Working Paper Series for the Governance Programme at the Aga Khan University, Institute for the Study of Muslim Civilisations, London. 2020.

Submission Date: 15 May, 2020

Current Measures

What are the current public health measures in place in response to the pandemic?

The Ministry of Health is the main coordinator responding to the pandemic in terms of epidemiological surveillance and public health measures recommendations, but the implementation of those measures is decided by governors and/or mayors (depending the size of towns, yet the main COVID-19 focus points are the states). The recommendations are:

1) stay at home (in fact the rate of confinement is much less than 70% in average);
2) person to person distance;
3) use of masks;
4) shops closed, but drugstores and supermarkets allowed to open (this measure is relatively followed);
5) construction of campaign hospitals in the big cities (public/private initiative);
6) allowance of USD 120 per month to poor people.

*Update (1 July 2020): Since May 2020, the response to the pandemic is less coordinated in Brazil. While the COVID-19 number of cases and deaths in increasing in the in-land cities, other cities are reopening the economy. Some cities are experiencing a second wave of the cases and returning to confinement measures.


[1] Jairnilson Paim, Claudia Travassos, Celia Almeida, Ligia Bahia, James Macinko, ‘The Brazilian health system: history, advances, and challenges,’ The Lancet, Volume 377, Issue 9779, 2011, Pages 1778-1797, ISSN 0140-6736, ( )

Brazil is a country of continental dimensions with widespread regional and social inequalities. In this report, we examine the historical development and components of the Brazilian health system, focusing on the reform process during the past 40 years, including the creation of the Unified Health System. A defining characteristic of the contemporary health sector reform in Brazil is that it was driven by civil society rather than by governments, political parties, or international organisations. The advent of the Unified Health System increased access to health care for a substantial proportion of the Brazilian population, at a time when the system was becoming increasingly privatised. Much is still to be done if universal health care is to be achieved. Over the past 20 years, there have been other advances, including investments in human resources, science and technology, and primary care, and a substantial decentralisation process, widespread social participation, and growing public awareness of a right to health care. If the Brazilian health system is to overcome the challenges with which it is presently faced, strengthened political support is needed so that financing can be restructured and the roles of both the public and private sector can be redefined.

Question #2: Constitutional Setup

What is the body with jurisdiction over public health in the country according to its constitution?

Brazil is a federal system composed of: Union, states, the Federal District, and municipalities. The Brazilian Constitution of 1988 contains a wide array of provisions on health, recognizing it as a fundamental (social) right (art. 6). Under the section on social order (title VIII) a special section is even dedicated to health (art. 196-200). The Constitution also created the National Health System to guarantee the right to health assured by the Constitution. The NHS (SUS in Portuguese acronym) is universal, structured by levels of complexity and managed by municipal, state (provincial) and national level aiming to count with multilevel committees (Paim et al., 2011). In terms of jurisdiction over health matters, there are two relevant provisions. While the Constitution’s art. 23 provides that ‘the Union, the states, the Federal District and the municipalities, in common, have the power: [..] II – to provide for health and public assistance [..]’, its art. 24 stipulates that: ‘the Union, the states and the Federal District have the power to legislate concurrently on: [..] XII – social security, protection and defence of health [..]’. The constitution thus gives to states and cities guarantee of jurisdiction over public health. The main body to respond on case of epidemic or pandemic situation is in first place the Ministry of Health, federal level, but due to differences in the pandemic presentation the Constitution guarantee to state and local levels the power to decide.

Question #3: Debate over Measures?

Has there been any debate over the measures taken?

There is a lot of debate in Brazil. At the national level (in the discourse of the President of the Republic), the economy is emphasized more than public health for the contingency measures. The president already changed the Minister of Health (and is threatening to change again the current one), this clash is unbelievably bad to homogenize common sense in terms of the pandemic. If the President says it is just a little cold and suggest opening all commercial establishments people start to be confused.

Response to the COVID-19 pandemic has become a hotly debated political issue that covers the health issue and many institutions and civil society representatives have come to the communication means to participate in the debate. Since the beginning of the pandemic, the President of the Republic shows restriction to the lockdown recommendations and presses the Ministry of Health to be more flexible. This position many times contradicts governors and/or mayors’ decision on contingency creating discoordination and political dispute, once this year we will have elections to cities administration. In five months, Brazil had 3 Ministers of Health, and the present one is a military from the Arm. Unfortunately, in Brazil the pandemic is been used to mitigate political dispute (worth remembering that local elections are scheduled to be held in 2020).

Question #4: Conflicting Claims over Jurisdiction?

Has the pandemic generated any conflicting claims over jurisdiction on matters of public health?

Yes, conflicting claims over jurisdiction on matters of public health have arisen after the President disregarded the federal Ministry of Health recommendations, and so states and municipalities with high rate of positivity and deaths by COVID-19 have sought to implement different public health measures to safeguard their population. In cities as São Paulo, Rio de Janeiro, Fortaleza, Belem and Manaus the contingency measures are very restrict and some already declared the lockdown. This conflict was matter to the Brazilian Supreme Court that guaranteed the jurisdiction autonomy of states and cities.

Question #5: Overall Governance Debate

Has the pandemic generated a discussion over other governance arrangements in the country?

“The pandemic has brought to the general attention the direct political confrontation between the Brazilian President and other institutions like Congress or the Supreme Court.”

Yes. Unfortunately, this discussion did not involve all stakeholders in the same level. The pandemic has brought to the general attention the direct political confrontation between the Brazilian President and other institutions like Congress or the Supreme Court. While the President supports his political sympathizers to go to street to manifest against the Congress and the Supreme Court (defying the contingency norms), representatives of civil society demonstrate in favor of democracy and respect to people’s lives undersigning manifestos and participating in web events. Despite health authorities still keep their jurisdiction over public health monitoring and implementation, central government has shown an inclination to authoritarianism (changing Ministers of Health and changing epidemiological reports mechanisms) in a divided society. The media explore this conflict and indictments among the three government levels, but, in fact, during the pandemic, beyond the virtual means, there is few real space for a national open debate in public spaces.

Question #6: Further Comments

The Brazilian administration seems to have followed most of US administration position: criticism of the WHO (even not repassing money), defending the indiscriminate use of Chloroquine, and the importance of the market and the economy over people’s lives.

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