Accountability of public agents in exceptional situations

the covid-19 pandemic issue

Abstract

This article emerges at a time of great exceptionality. The coronavirus pandemic has created a widely recognized public calamity. As a result, it has disrupted the factual foundations of existing law and, at the same time, demanded heightened action from public administration. In this context, a problem arises that will be widely debated: How should public officials be held accountable in this exceptional situation? It is certain that exceptional situations require exceptional measures, which are not always expressly provided for in legislation. In this case, each side of the scale weighs a different constitutional principle: the administrative principle of legality and the state's duty to guarantee public health. Seeking to regulate the factual issues that naturally affect administrative action, Law No. 13,655/2018 introduced some guidelines to assist public managers in evaluating their decisions. Meanwhile, Provisional Measure No. 966/2020 contains specific rules for combating the pandemic, requiring in-depth analysis. The Federal Supreme Court, assessing the constitutionality of its text, issued a preliminary decision establishing an interpretation in accordance with constitutional dictates. In this sense, this article seeks to analyze the aforementioned provisional measure from the perspective of modern administrative law, based on the doctrinal foundations of holding public officials accountable.