A função legiferante executiva no Brasil: uma análise da aplicação da técnica da ponderação nos decretos de calamidade pública editados durante a pandemia da COVID 19.

Abstract

The present study has as its theme an executive function in Brazil: an analysis of the public application of the weighting technique in the calamity decrees issued during a Covid-19 pandemic. For this, it uses a documentary investigation, from March 1, 2020 to March 30, 2021. The research is called an exploratory research, externalized through a documentary investigation. The methods used were the deductive method and the historical-evolutionary method. As a research technique, a content analysis technique is used, a procedure that allows a systematic, objective and quantitative description of the content under analysis. In this sense, the research teaches in detail, all the historical evolution of the legislation concerning Fundamental Rights and Guarantees, standing out as similarities and incongruities of the legal texts. The results of the analyzes made it possible to identify that in the hypotheses that denote a flagrant collision of fundamental rights, in view of the weighting and reasonableness, one of them must prevail to the detriment of the other, the solution to the resolution of the apparent conflict will only be found by observing as circumstances peculiar to the specific case. In the situation under study, an explicit collision of fundamental rights was identified, arising from the restrictions imposed by the edition of Executive Decrees, which limited the right of citizens to come and go to the detriment of the greater primacy of the right to life. In these terms, statistical studies that demonstrate a dynamic in the number of weekly or daily corrections should be taken into account. With these results, it is possible to make the restrictions imposed by the public on the right to come and go of the citizen more flexible, taking into account the indicators of increase or reduction of infected, seeking to promote a resumption of activities for the reduction of infected, prioritizing the right to life of the community.