In this Chapter, I focus on the following constitutional provisions, and specifically on the words and sentences that appear in bold. I do not however, necessarily analyze the provisions in the order below. Education, health, work, leisure, social security, protection of motherhood and childhood and welfare are social rights, as provided by the Constitution. The social order is based on the primacy of work and aimed at social wellbeing and justice.
I reproduce the texts here for convenience. The social security system comprises of an integrated network of [social] actions initiated by the government and by society with the scope of ensuring the rights to health, social insurance and welfare.
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Section II — Health Art. Health is a right of all and a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and disabilities, and at the universal and equal access to actions and services for [health] promotion, protection and recovery. Health actions and services integrate a regionalized and hierarchical network and constitute a single system, organized according to the following diretrizes: I - Decentralization, with a single management at each level of government; II - Comprehensive services, priority given to preventive measures, without prejudice to healthcare; and III - Community participation.
I should note that these choices are directly related to my prior knowledge and experience. First, my training on legislative drafting technique influenced my choices regarding relevant sections that deal with health matters. Moreover, according to legislative drafting rules, Articles can be grouped in ascending order in sections, chapters and titles according to similar subject matters. In this way, I focus primarily on Articles that provide for the right to health and community participation only.
Second, and related to the first, my analytical process follows the importance of meanings according to the legal arrangement. Therefore, any unity in which an Article is further divided is dependent upon and applicable only according to the content of the respective caput. In practice, it means that I start by analyzing the general right to health, followed by the analysis of Art. Additionally, my choices with regard to relevant words within relevant provisions i. In principle, the entire text of Art. This is because, in my view, even though the meanings of the words expressed in those provisions relate to the health system, these sections are not directly related to For further details, see e.
The full breadth of the right to health intends to promote participatory health governance by including citizens in health planning.
This perspective of a constitutional transformative project that is also enforceable, as I will discuss below, plays a fundamental role in how I select the text and interpret the right to health. What does health as a fundamental right entail? What does health as a social right entail?
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As I mentioned in the preceding methodology section, and discussed in detail in Chapter 3, a core approach to determine the meaning of words expressed in constitutional provisions is how the words are used in Portuguese language. Barroso, supra note It is quite another to limit the scope of the right to state obligations to ensure that Brazilians are free from disease and are not at risk of death. Figueiredo, supra note In fact, Art. In fact, the Constitution explicitly establishes the reduction of inequalities as one of its fundamental objectives.
For a detailed overview, see e. At a general level, the right to health in Brazil creates positive and enforceable obligations upon state actors to take action creating a health system that at the very least provides access on an equal basis for everyone who needs the services.
Accord Barcellos, supra note For an overview of this line of argument internally, see generally Krieger, supra note 9. This controversy was widely reported in media outlets in Brazil and internationally. I will now analyze the framework of the health system as provided by the Constitution, including in relation to participation in health governance. The social order is based on the primacy of work and aimed at social well-being and justice.
For the text of the provisions that are not analyzed in this dissertation, see e. Of relevance to this study are Arts. Health is … a duty of the State and shall be guaranteed by means of social and economic policies aimed at reducing the risk of illness and disabilities, and at the universal and equal access to actions and services for [health] promotion, protection and recovery. Health actions and services integrate a regionalized and hierarchical network and constitute a single system, organized according to the following diretrizes: III - Community participation Arts.
See 81 Simply put, the right to health is not simply a right to personalized healthcare. Of course, public policies and programs within the heath system need to address the countless and diverse needs of individuals, to prevent constitutional rights from becoming empty promises. But, addressing the spectrum of health-related needs within the health system requires organizational strategy and planning, at the very least.
The right to health is a fundamental and social right—enforceable in court and entailing positive obligations. Constitutional interpreters should pay attention to whether or not government officials operationalize the health system as fully required by the Constitution. Let me offer an example for the sake of clarity keeping in mind, however, that this thesis is not about judicial interpretation or standards of judicial review. If a person launches a lawsuit against the state to obtain free hypertension medication to prevent premature death or severe disability, a fundamental social right to health perspective would require a review of a number of matters: first, why a certain drug was not available, but also the process employed in making administrative decisions about covering the drug, as well as the extent to which the government has implemented prevention and health promotion measures to address hypertension.
In sum, my point is that issues of healthcare delivery are, while important, only the tip of the iceberg, and therefore, a more comprehensive and transformative interpretation of the right to health is in order. This study focuses on community participation. In the case of Art. In other words, it is not any type of health system, but a single comprehensive and regionalized network of healthcare services and promotion measures. The provision establishes additional aspects of the operation of the health system: decentralization, comprehensiveness and community participation.
It is important to note that the caput uses the word diretrizes to establish the features for operation of the system, and this word diretrizes could go either way: an obligation upon the state or a recommended political choice. At first sight, and inferred from my training in Brazilian law, the word diretrizes means guidelines for action or yardsticks to assess governmental performance, rather than an authoritative command to implement participation. But, because no modal verb precedes the nominal verb in the provision, the word diretrizes requires closer consideration as to whether or not the term can be associated with some degree of state obligation, as I have posited.
For example, the Constitution orders government officials to reduce poverty and inequality Art.
See Chapter 3, Section 3. For a summary of the grammatical and other canons of interpretation in the context of Brazil, see e. Barroso , supra note And, the word today has the same nuance as it did when it first appeared in the Constitution. To ensure a coherent approach to the Constitution as a whole, I now analyze the use of the word diretrizes throughout the constitutional instrument.
The word diretriz appears in 30 provisions of the Constitution both in the singular and plural forms — diretriz and diretrizes. By way of illustration, Arts.
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Even accepting the word diretrizes might have a different The search used CTRL-F to search and accounted for matches in the singular as well as in the plural forms. In addition, one could argue that the framers simply made a mistake using two similar words in the same provision, for example. Back to Art. Just as the other two verbs in the caput express the idea that government must act in certain ways in relation to the form of the health system, the verb preceding the word diretrizes should also follow similar grammatical pattern.
In other words, the grammatical structure of the provision should indicate the same imperative mood of the preceding verbs expressed in Art. Put simply, my argument is that in the same way that the government must organize the system in a regionalized network of healthcare and promotion measures, the government must also ensure community participation in the organization of the health system.
And, what do community and participation mean and entail? According to Brazilian Portuguese grammar rules, a semi-colon is used to separate items in a list, and very commonly used in legal instruments. The three features expressed have value on their own and should be accounted as such. Entries 12, and In other words, the text of the Constitution is too open to provide clear guidance in any given direction, and any attribution of meaning based on the semantic canon would mean an imposition of my policy preference on the reading of the constitutional language.
The use of a Participation Fund refers to a government fund wherein public taxes and revenues are levied and transferred amongst the three levels of government for public purposes. For instance, Art. The enshrinement of participation and the right to health in the Constitution is a well-known victory of the so-called Sanitary Movement, a group of health reform activists that emerged in the mid, fighting against the military dictatorship and for constitutional rights, including the right to universalized access to health services, as well as to promotion and prevention measures.
Sections 2. For an overview of the Sanitary Movement in English, see e. For a general overview of the health reforms in Brazil and the role of the Sanitary Movement in these reforms, see e. In , a third executive order Presidential Decree In , the executive issued another order Presidential Decree The composition and attributions of the National Health Council shall be defined by statute.
Finally, the last act enacted prior to the Constitution was issued - Presidential Decree This pre-constitutional practice of participation could explain the terms expressed in the 8th Conference Report. I analyzed the right to health framework and the provision of community participation within the right to health framework.
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The analytical process included textual the so-called grammatical canon in Brazil , structural, historical and teleological canons. Community participation as part of this transformative project was aimed at providing genuine opportunities for the people to be part in the organization of the health system. This specific course of action requires government officials to provide and ensure equal access to health services and promotion measures.
Community participation as part of this Hunt and Backman, supra note at Although the text of the Constitution provides no specific steps for its implementation, my analysis concludes that participation as part of the right to health framework requires substantive opportunities to influence policy-making, and the mechanisms by which the people participate in the system must be accessible, fair, transparent and continuous.
The analysis led me to conclude that participation in the organization of the health system is a requirement established by the right to health.
As part of the right to health framework, participation implies broad inclusion in public decision making, and genuine and equal opportunities to influence health policies and programs through mechanisms and processes that are accessible, transparent and continuous. In this Chapter, I interpret and analyze the relevant statutes and executive orders governing the National Health Council in relation to the constitutional requirements of participation.
Section 5. Core principles and rules are codified documents e. Codified law is the primary source of law in Brazil, and has priority over judicial decisions. By way of background, federal statutes establish the mandate and structural rules for health councils in general, including the NHC.
I also follow the legal hierarchy continuum related to the National Health Council: enacted legislation passed by Congress, followed by executive orders issued by the federal government, and then procedures issued by the NHC. As for legal interpretation, I focus on the text and structure of the legal instruments and rely on canons of statutory interpretation such as dictionary meaning, grammatical structure and statutory context.
With respect to interpretation canons, the systematic canon also known in Brazil as the structural canon is used to determine meaning in relation to the purpose of the entire legislation. See supra note and accompanying text for an overview of this matter. Very briefly, judicial decisions serve as a loose guide for judges in determining subsequent similar cases. I turn to the grammatical canon also known as textual canon to determine the legislative intent and establish limitations on interpretive ingenuity by setting out semantic boundaries within which words and phrases can be interpreted.
In addition, this statute also provides some responsibilities for health councils, and for the National Health Council in particular. See the bibliography for the original citation]. All translations of Brazilian legislation and legal terms cited in this dissertation are translated by the author, unless otherwise stated.
A comprehensive analysis of the statute is beyond the scope of this chapter, rather I will only focus on the provisions that relate to participation and obligations to the right to health, namely: Arts. The selection of Arts.