Direitos fundamentais na pandemia: uma análise das limitações constitucionais às medidas restritivas de liberdade de locomoção adotadas no Estado da Bahia

Abstract

The present work proposes to analyze the existence of constitutional limitations to the measures restricting freedom of locomotion adopted during the pandemic, in particular, those adopted in the State of Bahia. Thus, the starting point involves presenting the context in which these measures were adopted, for this, a brief exposition is made about pandemics in the recent history of humanity, where the new coronavirus originated, how it spread around the world, which actions to combat it were adopted internationally and nationally and, finally, the main rules produced in Brazil that gave legal basis for the action of government authorities. Next, the states of Exception Expressly provided for in the Federal Constitution of 1988 are presented, what are the conditions for their decrees, as well as which rights can be restricted during their validity. Soon after, it is discussed if the Covid-19 pandemic, supported by the institute of public calamity and the actions adopted by the government, should be considered a true State of Exception. Moreover, the understanding of the Federal Supreme Court on the competence of the federal entities to adopt the relevant measures is presented. Finally, based on the Theory of Fundamental Rights, we analyze whether the rule (principle) of proportionality is the best instrument to assess the compatibility of the aforementioned measures with the Constitution of the Republic. To do so, the deductive method is used, with an interpretative bias, based on a bibliographic-documentary research to obtain data.