By PAULO CAPEL NARVAI*

TJ-RJ’s decision to put “freedom of movement” above life

The judge of the Court of Justice of Rio de Janeiro (TJ-RJ) who, on 29/9/2021, granted the habeas corpus collective to temporarily suspend the effects of Municipal Decree no. 49.335, of 26/8/2021, which instituted the health passport in Rio de Janeiro, thinks it has done justice, ensuring “freedom of movement” to a citizen of Rio de Janeiro, and to all citizens who circulate there. Make a mistake. His decision, contrary to what he intends, promotes injustice, as it is equivalent to authorizing a suicide bomber to blow up people around him. Authorize, at the outset, to kill.

The judge wants his decision, taken on a preliminary basis, to be “the constitutional legal remedy that aims to protect freedom of movement”. It is implicit in the first paragraphs of his decision that he considers “freedom of movement” a legal norm of absolute application and superior to the ethical imperative of not killing. Also superior to the sixth Christian religious commandment, “thou shalt not kill”. Hence, considering the aforementioned to be a remedy. habeas corpus.

I will certainly say nothing about what I think of the expression “legal remedy”, in the context of the lack of health control of the covid-19 pandemic in Brazil, marked by the negligence of many public authorities, in all powers of the Republic.

The text that, in the case of Rio de Janeiro, underlies the judicial decision is, as usually happens, a long piece, where constitutional provisions, powers of the TJ-RJ and the Federal Supreme Court (STF), legislation and jurisprudence on the right of movement, considerations about prisoners and “free people who fulfill their duties and who live according to the law”, comments about unvaccinated individuals who would be, as a result of the municipal decree, “marked, labeled, arrested in their homes” and even the statement that Rio's health regulations would be hypocritical, since “public transport (BRT) is crowded with people. Metro, ferries, buses ditto”. Among mentions of “branding slaves and cattle with a branding iron or fire”, one can read what the TJ-RJ judge thinks about health surveillance and public health protection strategies, which the law (yes the law, it is up to Brazilian mayors).

For the judge, “today it is the vaccination card that separates society. Time passes, but the abusive, illegal and retrograde practices are the same. What changes are the characters and time. The vaccination card is an act that stigmatizes people, creating a derogatory brand and preventing them from circulating freely on the streets, with a clear objective of social control. The purpose is to create a rule that is not legally admitted, but which aims to mark the individual, constituting a meta-rule that is associated with the stigma of NOT VACCINATED (capital letters in the original]”. document of this content, extensive peroration on stigmatization and stigmatization, racism, persecution of Jews, gypsies, anointing practices, fear, demagoguery, ignorance, superstition, ethics, plague in Italy, torture, water contamination, famine, war, “lepers” , foreigners, marginals, and the hunt for sorcerers and witches.“It is a sanitary dictatorship”, predicts the judge.

But the core of the arguments presented by the judge essentially questions the right of the mayor of Rio de Janeiro to issue a decree that prevents “the movement of people through the streets and establishments, whether public and/or private, gyms, events, shopping malls, cinemas, theaters, etc. stores, swimming pools, and other establishments in the city of Rio de Janeiro, unless they have the so-called 'vaccine passport' or health passport”. Thus, his decision would aim to protect citizenship rights if “someone suffers or is on the verge of suffering illegal coercion”.

Two paragraphs stand out in particular, as they intend to teach epidemiology lessons (“The next step in Brazil is to encourage vaccinated people to denounce and react against unvaccinated people, accusing them of being vectors for transmitting the virus, but don’t forget that vaccinated people are also contracting the disease”) and political science (“Of course, nowadays the reason is electoral and political. They politicized the virus. They turned it into what is most harmful in a State: electoral currency. Regrettably, in the meantime people die. Sad . Very sad. People are arrested for sitting in the square, for walking around on the sands of the beaches. Unbelievable”).

The judge continues: “Who is today's new enemy in the XNUMXst century? THOSE NOT VACCINATED (capital letters in the original). They want to force people to get vaccinated and in the name of that goodness they curtail public freedoms, arrest people in the streets, squares, close beaches, establish lockdown. I never imagined that I would watch the abuses that I watched. Result: they broke commerce, industry, closed stores, restaurants, people lost their jobs, all in the name of fighting the virus when in fact the big virus is these men who have no ethical and public commitment to society. UNBELIEVABLE (capital letters in the original)”.

By reiterating that the decree is not law and that, therefore, “it is not a source of obligation”, restricted to the law in the Democratic State of Brazilian Law, the judge disauthorizes the decree of Mayor Eduardo Paes.

In doing so, it commits, in my opinion, a deviation of focus that generates injustice, in view of what society expects from authorities of the Judiciary, losing the health perspective that, after all, is the core of the problem that the injunction seeks to remedy.

It is worth emphasizing, by the way, the merit of the municipal decree, which is based on the social right to health, expressed in Chapter II – On Social Rights, art. 6, of the 1988 Constitution, reiterated in art. 196 of the Magna Carta, which enshrines “health as a right of all and a duty of the State”. An important detail seems to have escaped the astute magistrate: the fact that article art. 197 of the CF-1988 characterizes as “of public relevance the actions and health services, being the responsibility of the public power to dispose, under the terms of the law, on their regulation, inspection and control (...)”. It is to be assumed that the TJRJ clerk is aware of Federal Law 8.080, of 19/9/1990, which regulates Section II – Health, Chapter II – Social Security, of the 1988 Constitution. Section I of Law 8080 /90 fixed (art. 15)“Common Attributions” to the “Union, the States, the Federal District and the Municipalities” who “will exercise them, within their administrative scope”, highlighting, with regard to the Carioca decree, and similar in the 5.570 Brazilian municipalities, in the case of surveillance, prevention and control actions of the covid-19 pandemic, including, therefore, immunization actions, “to meet collective, urgent and transitory needs, arising from situations of danger imminent, public calamity or outbreak of epidemics, the competent authority of the corresponding administrative sphere may request goods and services, both from natural and legal persons (...)" (art. 15, XIII), as well as "prepare technical-technical norms scientific activities for the promotion, protection and recovery of health (art. 15, XVI) and, above all, “define the instances and mechanisms of control and inspection inherent to the health police power” (art. 15, XX). In addition, the entire article 18 of Law 8080/90 is dedicated to the competences of the “municipal management of the Unified Health System (SUS)”, shared with states and the Union. Federal Law No. 13.979, of 6/2/2020, also establishes (art. 3; III, d) that, in view of the covid pandemic, “the authorities may adopt, within the scope of their competences, among others, the determination of compulsory vaccination and other prophylactic measures”.

The judge, however, biased by his notable adherence to the individual right to move around without any restriction, does not see sanitary reasons to admit any restriction to movement, which he supposes to be a right of absolute application. But, like any other legal norm, this one is not. Even the death penalty, not covered by ordinary Brazilian criminal law, remained a constitutional norm to be in force, if necessary, in case of declared war (CF-1988, art. 5, XLVII, a). Therefore, it is not enough for the judge to base his preliminary decision on respect for the human person. It is a biological fact that a human being is not just a life. Hosts that we are of thousands of other species of life, we are, each one, millions of lives at the same time.

We are, therefore, all one and millions, simultaneously. And, of those millions that we carry and take from one place to another, wherever we go across the planet, it only happens that some of them are harmful to other humans. In a word: kill. We are hosts and epidemiological vectors of mortal beings, however much that may not please the judge. Such was the case with smallpox in the past. Such is the case today with Ebola. The Ebola virus that is currently circulating in Central and West African countries has a high lethality: the zaire ebolavirus kills in 85% of cases of infection. Although SARS-CoV-2, the coronavirus that causes covid-19, has a relatively low lethality, the mortality it has been causing in several countries and in Brazil is public and notorious, with a record of more than 600 deaths by the end of September 2021.

There is no vaccine for ebolavirus, but there are vaccines, and effective ones, for SARS-CoV-2.

If a suicide bomber is not detained, when it is possible to detain him, claiming that he has the right to “freedom of movement” and that it would be dictatorial to prevent his right to come and go, what is effectively being authorized is which, when it explodes, threatens the lives of those around it. The right of the people around them justifies, fully and completely, the restriction made on their right to circulate, without rules. A similar fact occurs when an individual lives in a social environment in which an epidemic develops, in which a health control strategy includes a vaccine, proven to be effective. It seems legitimate for the health authority to act in defense of the health protection of the population, demanding that people, in order to circulate, be willing to comply with rules valid for all and that, in addition, they are vaccinated.

I am sure that the right of a person not to want to be vaccinated should be safeguarded. In this case, in order not to represent the equivalent of a suicide bomber for the other individuals that make up the population in which he is inserted, it seems fair to prevent his circulation, with restrictive rules, imposed on all equally and that, precisely for this reason, cannot be seen as “stigmatization”, “persecution” or similar adjectives.

It is not necessary to see in this, not even remotely, something that can be characterized as “a sanitary dictatorship”, but as a protective measure of public health and which, at the limit, corresponds to what the judge from Rio de Janeiro complained about in his decision: the ethics of otherness. As he said, “ethics towards the other as a being equal to us in his difference”. It is precisely the bioethical principles of justice and non-maleficence that indicate the need, with clear and equal rules for all, to restrict autonomy (that of circulating; not that of vaccinating oneself, which must be respected).

But the judge wants the citizen's right to be vaccinated or not to be respected. He considers it “his problem [of the citizen] which is supported by the principle of self-determination and the principle of legality” and that “never can a MUNICIPAL DECREE (in capital letters in the original) impede the freedom of movement of anyone for not being vaccinated”. For, I think, the magistrate is mistaken. Even though it supports its decision to grant an injunction because it considers “the presence of the fumus boni iuris and periculum in mora”. They are not and therefore the decision must be reviewed by the TJ-RJ.

The argument that citizens have the right to be vaccinated or not is acceptable. But it is incorrect that a municipal decree cannot restrict the right to travel, by means of rules. Maybe yes. To admit the opposite is equivalent to “holding the hand” of the municipal authority, leaving the suicide bomber free to act – and, therefore, attacking the right to life of so many other citizens with whom he is in contact at the critical moment. Fortunately, there is no support, in the legal norms in force in Brazil, for such a delay.

Incidentally, it is not new that the law, in Brazil and abroad, approves and deals with restrictions on the right to travel, in various everyday situations, with ease. It would even be a consummate nonsense if the right to come and go were taken as an absolute right. It is commonplace that, on any public road, for some reason, local authorities prevent the circulation of civilians, to protect them. Or that, in a square, it is forbidden to walk on the grass. No one complains, in these situations, that their freedom of movement is curtailed.

Only, one reacts with resignation to such impediments. It is not a question, it should be noted, of reasons of military order, or public safety. They arise from reasons that the local authorities try to clarify. One of these reasons, simple, is the protection of the grass so that it can renew itself. Now, if it is justifiable, before the law, that the growth of the grass is a valid reason to curtail the right to come and go, why wouldn't a measure that prevents deaths and is intended to protect public health?

There are numerous everyday situations in which the right to come and go freely is subject to restrictions. In traffic, for example, relevant limitations are imposed on locomotion, which are perfectly legal and sensible. Local authorities follow the general law regarding the colors used in traffic lights, but just visit some Brazilian cities and you will see that, in several, the general law is applied with local variations in different and creative devices, to which digital timers, sets of floating and computer-controlled lights, angulations and trims that are intended to avoid glare and backlight effects, among others.

There are streets where you cannot turn left or right (and, please, do not see yourself in these terms, relating to road regulations that speak of impediments to entering the “right” or “left” to such “politicization” ” mentioned by the judge of the TJRJ). In countless other situations, in public spaces and private environments, we are often faced with warnings that “the movement of persons is prohibited”, and we all react civilly and serenely. Nobody sees any “dictatorship” in any of this.

I think that the judge, perhaps wanting to get it right, was unhappy in his decision, and he is being unfair, as it is clear that he confused matters specific to the law with the content of a mere technical standard. No one opposed, or called into question, the Union's role in establishing general norms. This is not even addressed by the aforementioned municipal decree of Rio de Janeiro, which in good time exercised the competence that is incumbent on the executive powers, both state and municipal, to issue regulations that allow the application of general laws at the local level. That's what it's about. But the judge, in my view, diverts the focus.

The court case originating from the TJRJ concludes with an unbelievable quote from the well-known poem by Bertolt Brecht, whose opening lines say “First they took the blacks/But I didn’t care about that/I wasn’t black/Then they took some workers/But I didn’t care about that / I wasn’t a worker either (…)”.

It's Brecht completely out of context. The appeal to freedom and non-indifference that characterize the poem by the German playwright has nothing to do with the absurdity of the arguments outlined in the unjust judge's decision.

Deeply regretting the unfortunate decision issued by the TJRJ, and in the expectation that, as soon as possible, the preliminary decision will be revoked, I use Bertolt Brecht himself to express my astonishment at this decision. Brecht asked, in his time, for reasons similar to those that affect us today: “what times are these, when do we have to defend the obvious?” And, also, very aptly, warning us that “he who does not know the truth is simply ignorant, but he who knows it and says it is a lie, he is a criminal”.

*Paulo Capel Narvai is senior professor of Public Health at USP.