A atuação da administração pública do município de Juiz de Fora/MG no contexto da pandemia: uma análise da máxima da proporcionalidade a partir do conflito entre o direito à saúde e a livre iniciativa

Abstract

Since the beginning of the Covid-19 pandemic, public managers, representing the respective federative units, have taken swift measures to control the spread of the disease in their respective jurisdictional territories, as the virus that caused it had a high rate of transmissibility. In epidemics caused by viruses that reached the respiratory tract of humans, effective, non-pharmacological actions to control the progression of the causative agent involved distancing and social isolation, which were widely adopted. It was noticed, however, that they provided opportunities for the collision between the rights to free enterprise and health, by restricting the full exercise of commercial activities, since, intrinsically, they promote agglomeration of people. The legitimacy of these initiatives was recognized by the Federal Supreme Court (principle of federalism). It is therefore necessary to assess whether there was proportionality in the restrictive measures for the promotion of the rights to health and life, specifically, in view of the preservation of the essential core of free enterprise, regarding the assessment of the constitutionality of the limitation of any fundamental right. Considering that this specific analysis could only be carried out through empirical investigation, the city of Juiz de Fora was chosen for study, between the months of February 2020 and December 2021. To characterize the existing epidemiological picture, we examined data referring to the number of cases and deaths in the municipality on each day of publication of municipal decrees that published restrictive measures to trade. The research was supported by the theories of fundamental rights and legal arguments (ALEXY, 2001; 2002), in view of the rational (argumentative) and proportional investigation of the implementation of fundamental rights, in the face of conflicts in the concrete case. Furthermore, the consequentialist theory was used (POSNER, 2010) in order to assess whether, in the initiatives adopted, the examination of the economic, social and political impacts of these on society prevailed. It started from the assumption that the rights inherent to the exercise of economic activity would prevail, to the detriment of the adoption of sanitary control measures. Through the use of empirical research methodology, combined with qualitative strategies in relation to the interdisciplinary bibliographic and inference survey, the research hypothesis was not confirmed, since the performance of the municipal administration of Juiz de Fora, proportionally, considered the primacy of the right to health, in the face of free enterprise.