Compulsory hospitalization for coronavirus is legitimate and constitutional

The newspaper O Estado de S. Paulo, on journalist Fausto Macedo’s Blog, presents this Thursday (19 March) an article by Fábio Medina Osório entitled “Compulsory hospitalization for coronavirus is legitimate and constitutional.” Read the full text:

Compulsory hospitalization for coronavirus is legitimate and constitutional

Administrative Law of the 21st century remains grounded in the foundation of police power and of infractions and sanctions. This means that, when necessary and with respect for the elements of due process, our legislation encompasses compulsory hospitalizations, closures of establishments, bans on some activities, prohibitions on public gatherings and crowds.

The new coronavirus pandemic is a situation in which the State may resort to these legal instruments that exist and can be used to impose the public interest over the private. The legislation is available to be used together with measures such as guidance and awareness campaigns for the population and encouragement of the adoption of the most appropriate behavior by individuals and companies.

These clarifications are fundamental because, in the history of Brazil, ignorance has always been the enemy of public health. The historian Adriana Goulart, for example, observed the following about the Spanish flu epidemic in 1918: “While, in Europe, the Spanish flu was spreading, in Rio de Janeiro, capital of the Republic, news about the prevailing illness was ignored or treated with disregard and in a jocular tone, even in a tone of pseudo-scientificity, illustrating a strange feeling of immunity from the disease.”

Adriana cites as an example an article published by the magazine “A Careta”, which circulated in the first half of the 20th century. Here is an excerpt from the text in question: “This malady is a creation of the Germans, who spread it throughout the world by means of their submarines, (…) our officers, sailors and physicians of our squadron, who left a month ago, pass through the hospitals at the front, picking it up along the way and being victimized by the treacherous bacteriological creation of the Germans, because in our opinion the mysterious malady was manufactured in Germany, loaded with virulence by the Teutonic know-it-alls, bottled and then distributed by the submarines that undertake to scatter the bottles near the coasts of the Allied countries, so that, carried by the waves to the beaches, the bottles picked up by innocent people spread the terrible morbus throughout the universe, thereby forcing the neutrals to remain neutral”.

For the historian, the article “denounced, on one hand, the total misinformation and ignorance of society about the problem that threatened it. And, on the other, it concealed the population’s fear, which saw in the sanitary measures a pretext for the revitalization of those considered coercive. This order of measures drew much criticism to the figure of sanitarian Oswaldo Cruz, in his tenure at the Directorate General of Public Health, during the government of Rodrigues Alves (1902-1906), establishing a sanitary tyranny that gave rise to great social tensions and triggered the well-known Vaccine Revolt.”

The current historical context, marked by the pandemic of the new coronavirus, is very different from that of the Spanish flu in terms of access to information and knowledge. Paradoxically, however, it is marked by a wave of gigantic fake news and disinformation.

The coronavirus has been affecting China since at least December 2019. Governments around the world did not pay proper attention to the phenomenon, failing to seek information and refraining from adopting effective preventive measures. Incredible as it may seem, populations were left uninformed. Many managers underestimated the problem. Through the ignorance of managers and populations, the virus spread alarmingly, with devastating effects.

One of the most effective measures is, in fact, respect for one of the basic principles of Brazilian administrative law: that of the supremacy of the public interest over the private, which was very well developed and conceived by Celso Antônio Bandeira de Mello. This is one of the structuring principles of contemporary administrative law, which is compatible with fundamental rights and safeguards the essence of the administrative-law system since its origins.

The supremacy of the public interest over the private interest must not be confused with the idea of an arbitrary public interest or with the crushing of human or fundamental rights, much less with contempt for the Democratic Rule of Law. On the contrary, the defense of the primary public interest is increasingly necessary in the Brazilian State and in administrative law, although in the contractual sphere there is a tendency toward parity between the parties. Due process itself and the closeness of administrative sanctioning law to criminal law stem, to a certain extent, from the supremacy of the public interest over the private interest.

The measures adopted by the government are grounded not in the adherence of those they address, but above all in norms founded on the public interest. Certainly, dialogue and guidance will always be fundamental so that society perceives its rights and duties and adopts spontaneous positive behaviors. But the closing of schools, bans on public events, or on the operation of bars and restaurants or on the circulation of people in certain places or at certain times, all of this depends on compulsory determinations by the State.

One of the challenges of this moment is to prevent the larger flow of people in public and private spaces. To that end, the use of police power is necessary, regardless of guidance, recommendations, and education.

Fábio Medina Osório is a lawyer, doctor in administrative law from the Complutense University of Madrid, author of “Theory of Administrative Improbity,” professor at the TRF4 and TRF2 Schools and former minister of the Office of the Attorney General of Brazil (AGU)