Brazil is today one of the worst affected countries from the COVID-19 pandemic, second only to the United States of America.

Politically, the country has seen two health ministers leave the post, Minister Luiz Mandetta was sacked by Bolsonaro, on 16th April, after disagreements on isolation measures.  His replacement, Nelson Teich, suddenly resigned a month later.  The reasons for his departure were understood to be similar to his predecessor, in addition to his disagreement of Bolsonaro’s claims of chloroquine being an effective treatment for the disease.

The real question, however, is how has all of this affected the rule of law in Brazil?

Emergency Legislation

In Brazil, municipal, state and federal governments issued some emergency measures in response to the COVID-19 pandemic. The municipal and state executives are responsible for regulating issues of local and regional interest and there was disagreement on whether it is best for municipalities to exercise local control or federal government to impose country wide measures. The issue was ventilated in the Supreme Federal Court of Brazil (STF) which found, in the first instance, that local measures should be applied by municipalities. Failing that, further measures could be implemented by state or federal government.

In principle, emergency legislation and its restrictions have been in line with the Siracusa Principles and/or the United Nations Universal Declaration of Human Rights and other international State obligations. The measures have created an exceptional system of restriction on the freedom of movement and exercise of economic activities, resulting from social lockdown.  Essential activities have been prioritised and systems for entering public and private establishments have been introduced, as well as the use of face masks and social distancing measures.

There have been clear time limits attached to emergency legislation.  However, such time limits are subject to regular reviews by the imposing authorities, municipal, state and federal legislature and judiciaries, which has led to the extension of those limits on several occasions.

Law 13,979 specifically addresses a situation of pandemic in the country. In Brazil, it is the role of parliament to police the abuse of power of the Union (federal government), and the role of the judiciary to stop and/or remedy abuses already committed. There have been no “exceptional powers” exercised and ‚Äč‚Äčthere was no enactment of emergency decrees authorising a state of emergency or a state of siege justifying federal intervention by the Union.

What has been seen in practice are exaggerated or ineffective measures sought to be introduced by the Union.  In some cases, they have disregarded procedures established by constitutional and parliamentary laws, in a bid to try to curb the spread of the disease.  However, these acts of the executive are subject to control both by the legislature and judiciary, as explained above, as well as bodies such as the Public Ministry and the Court for Public Accounts.  These safeguards have proven effective.

It is helpful to explain at this juncture that the Brazilian Public Ministry is a prosecuting body which exists at both state and federal levels.  In Brazil, the federal Public Ministry is regarded as a fourth power, together with the executive, legislature and judiciary. Its function is to independently and autonomously investigate breaches of law, in the public interest, and prosecute perpetrators, whether they are private or state entities or the executive itself.

There is no evidence of the government using the pandemic to pass emergency legislation as a pretext to weaken the rule of law in Brazil.  There is no evidence available of legislation or acts at any level of government eroding other powers.  Any measures the executive has sought to pass, have been related to socio-economic restrictions rather than interference with the fundamental institutions or constitutional law. These have, in any event, been on the whole unsuccessful.

Access to justice

The information in this section relates to the state of Rio de Janeiro. However, it is indicative of the situation in the rest of Brazil, to a large extent. 

Law firms continue working remotely where possible. Legal services are on the list of essential activities permitted to continue with their activities.  Lawyers can freely consult with their clients on account of their essential function and the Brazilian Bar Association (OAB) advises that they do so, preferably adopting safe measures where possible. There are restrictions only in relation to lawyers over 60 years of age and pregnant lawyers accessing prisoners, according to resolution No. 803/2020 of the Secretariat for Penitentiary Administration (SEAP).

There has been no financial assistance provided by the government to lawyers in Brazil.  Organisations such as the Caixa de Assistência de Advogados and other private initiatives, such as the “Pelo Coletivo” campaign, carried out by private law firms, have provided assistance through provisions of food and basic supplies to those in need of it.

A protocol was also created which restricts the number of people in parliament and the mandatory use of masks, gloves and alcohol gel.  Every lawyer must carry and use these items. Lawyers also enjoy freedom of movement and there have been appropriate provisions put in place to allow lawyers to consult with their clients, maintaining client confidentiality in prisons and during criminal proceedings, in line with resolution No. 803/2020 of SEAP.

Preliminary procedures such as bail hearings have been suspended by the National Council for Justice (CNJ) following research that they undertook, which found that bail hearings are only effective if they are conducted in person. The research concluded that hearings conducted by means of videoconferencing allow prisoners to be coerced, preventing prisoners from disclosing police violence, for example. Thus, bail hearings have been suspended since in person hearings would pose a health risk to the prisoners, lawyers and members of the judiciary.

Courts are functioning through videoconferencing, but lawyers find it difficult to contact civil servants and magistrates, in addition to the longstanding problem with judicial delays which pre-dated the pandemic and have endured during its course. All communication is currently conducted through telephone and email, however, such means are not effective.  Often there are delays, with some courts completely unresponsive.

Initially, urgent matters were filed to an extraordinary court, and limited to urgent issues without any review of other relevant information in each case.  This caused an increase in the number of errors committed, especially in criminal cases, which caused further delays and generated complaints of judicial incompetence. However, as the situation developed, courts began to accept filing electronically or by e-mail. Though, there are still many complaints about errors. An example of this is the misconceived requirement by judges for service of documents to be effected on the parties by lawyers, under penalty of dismissal of the claim.  This decision is contrary to law, as it is a private function of bailiffs.

Conclusions

There has been some impact on the rule of law, as it relates to public law (Brazil having a large public sector), such as public procurement and the suspension of limitation periods for administrative and sanctions anti-corruption proceedings. However, the impact of COVID-19 on fundamental human rights in terms of emergency measures and access to justice has not had any meaningful detrimental effect. 

Despite a number of other rule of law issues that have plagued Brazil and will continue to do so for some time, the fundamental institutions that carry out the necessary checks and balances on the executive have remained robust, and socio-economic measures have been put in place in an attempt to mitigate the long-term effects of the pandemic. On 26th March, the Minister of Economy Paulo Guedes, announced an economic stimulus package worth US$150 billion to address the adverse economic impact of COVID-19 in Brazil.

Some of these measures are a drop in the ocean for a country with a population of 200 million.  However, with Bolsonaro currently out-of-action, having contracted the disease himself, there is likely to be less friction between the executive vis-à-vis the other powers, at least in the short term.

Frederico Singarajah is a barrister at Hardwicke Chambers and a member of the Bar Council's International Committee with a broad practice in international commercial dispute resolution.