RIO DE JANEIRO, BRAZIL – The Rio de Janeiro municipal Prosecutor’s Office (PGM) has filed an appeal with the Federal Supreme Court (STF) requesting the annulment of the injunction suspending the vaccine passport in the city.
[UPDATE] Early Thursday evening (30) STF Chief Justice Luis Fux granted the city’s appeal and vacated the restraining order on procedural grounds, thus restoring the municipal decree mandating a vaccine passport to enter certain venues.
According to the mayoralty, one of the principal arguments is that the municipal decree is based on “evidence related to the effectiveness of vaccines and the assessment of areas of potential virus transmission.”
The PGM further said that suspending the vaccine certification “makes the potential maintenance of the appealed decision a threat to legal security, administrative order, and public health.”
Another petition from the City Hall is also underway in the Supreme Court, seeking to suspend an injunction granted last week exempting the Rio de Janeiro Military Club and Naval Club from requesting proof of vaccination for access by their members. The case will be analyzed by STF Chief Justice Luiz Fux.
In the Military Clubs case, the Rio de Janeiro City Hall appealed to Court of Appeals Chief Judge Henrique Carlos de Andrade Figueira. However, the judge denied the petition, considering that the chief judge did not have jurisdiction to judge the appeal.
CONFLICTING RULINGS
Since the vaccine passport was introduced in the city of Rio de Janeiro, the Court of Appeals has received several petitions to overturn Eduardo Paes’ decree. On Wednesday alone, two rulings issued on the subject by judges within a few hours were conflicting: one suspended the requirement for the passport and the other rejected its suspension.
According to Professor of Administrative Law at UniRio and UFRRJ Emerson Affonso da Costa Moura, the issue may lead to different rulings while the case is not judged by a higher court on the merits of the decree.
“While we judge the individual demand, there won’t be any peace. It will only occur if the lawsuit is not about “Antonio” or “Pedro,” but about if, in theory, it violates the constitution or not. As they are individual suits, they are not processed in the same Chamber and are distributed [to judges] by lot,” he says.
The expert further says he believes that judge Rangel’s ruling that suspended the passport should be reviewed soon. Also the Director of the Institute of Administrative Law of Rio de Janeiro, Affonso says that the law states that during a state of public health emergency, several enforcement measures can be adopted, such as the temporary restriction of locomotion.
The attorney also believes that the argument used by the judge to suspend the passport is more “political than legal” and that the legal instrument of a “collective habeas corpus” is not applicable to the petition:
“Measures such as a lockdown and quarantine are foreseen in the law and the Supreme Court has been reiterating its constitutionality in rulings. Besides, in theory, habeas corpus, as it is an individual instrument, can only produce consequences for the plaintiff. The collective habeas corpus must imply a group of people served or having some kind of connection between them. The collective cannot be the whole collectivity. Let’s consider a group of all unvaccinated people. To suspend the decree’s validity it would require a constitutionality complaint in the Court of Appeals or an Argument of Breach of Fundamental Precept [a lawsuit alleging unconstitutionality] in the Federal Supreme Court,” he explains.
[UPDATE] In his decision late Thursday, Chief Justice Fux used both of professor Affonso’s arguments when overturning the ban.