Curfew And The Question Of Fundamental Rights Restrictions In Pandemic Times

Abstract

Faced with the pandemic of the new coronavirus, a set of uses and abuses of power by the public administration is problematized to respond to this health emergency. In this context, the present study aims to analyze the legality of interventions in fundamental rights imposed on curfews instituted by municipal decrees. This examination is based on the central concept of the Democratic State of Law, under the focus of the separation between powers, the constitutional division of powers and the principle of proportionality. The hypothetical-deductive method is adopted, through a review of the specialized bibliography and analysis of Supreme Federal Court’s decisions during the sanitary emergency. It is concluded that, even with a respectful reading of the actions of the political powers during the pandemic, interventions in fundamental rights determined in curfews are illegitimate, which may characterize abuse of power. It is also concluded by the importance of duty to justify of the public authorities, with an emphasis on the use of scientific evidence and strategic health information, a requirement for the rational exercise of control over state acts.