This paper aims to reflect on the use of the invocation to “science” and the scientific arguments used by the Brazilian Supreme Court in defining criteria to assess the legitimacy and legality of decisions made by public administrators during the covid-19 pandemic, based on three Court decisions on federal decentralization of decisions on facing the pandemic, responsibility of public administrators and on vaccination, in which, oscillating between activism and self-containment, the Court adopts a single and homogeneous idea of science, without observing the dissent and its implications for the decision-making process on facing a public emergency resulting from a global scale pandemic, creating a gray area between technical and legal-decision-making discretion within the scope of Public Administration, with implications for the responsibility of public agents and the effectiveness of administrative measures.
This paper intend to discuss the process of militarization in the Brazilian federal government in public health and and its relationship with the crisis of Brazilian constitutional democracy. It is based on the premise that the Armed Forces do not have the technical knowledge to manage the activities to which their members have been assigned in the fight against the COVID-19 pandemic. The preliminary conclusion is that the militarization of the current government and the consequent politicization of the barracks, with regard to public health and in the context of the covid-19 pandemic, compromise constitutional democracy, insofar as it favors military appointments to different political and administrative positions in the Federal Executive, in spite of the technical specialty, including for the command of state and ministries not related to defense. The article is both prescriptive and descriptive in its premises and analyzes.
Since the ascension of Bolsonaro to office, one can notice an emerging literature on his negationist responses to COVID-19. The literature does not give enough attention to a crucial aspect of Bolsonaro’s presidency: the federal budget. By inquiring into the decisions about allocation of funds, I purport to demonstrate the following : 1) the government performed severe cuts on the development of science and technology, compromising the viability of the research on advanced studies on vaccines ; 2) the government wasted resources on the production of drugs with no effectiveness ; 3) the federal research institutions that held the technology to produce vaccines, such as the Federal Universities, were boycotted by the government and had their resources eroded in Bolsonaro’s presidency; 4) the government made no effort to import vaccines and acted to boycott the technology adopted to produce vaccines in partnership with foreign research institutions, on ideological grounds.
The Time of the Covid Pandemic has witnessed many challenges for Public Law. A remarkable one has been the lack of justification by public authorities. Many of the measures introduced have been barely coupled by the provision of reasons arguing, not on the urgency of addressing the Covid pandemic, but on the convenience, desirability, and adequacy of the particular measures implemented. The issue is highly problematic because the provision of reasons justifying decisions of public authorities is crucial to assure that these are of a discretional and not an arbitrary nature. The arbitrariness of public authorities is forbidden by and detrimental to the Rule of Law, a fundamental principle of public law.
In this paper, I present the conditions for the distinction between the notions of discretion and arbitrariness. Once the distinction is unveiled, I will present some cases of laws and regulations related to Covid in well-established European democracies that would qualify as arbitrary