Constitutional Law
Abdulai, Emmanuel Saffa, ‘Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 3–18 Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.
Accetto, Matej, ‘Pandemic and the Rule of Law’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 127–143 Abstract: This paper addresses the challenges that the Covid-19 pandemic posed for the operation of the legal order by reference to the jurisprudence of the Slovenian Constitutional Court on the pandemic and the measures adopted to combat it. While the focus is on the Slovenian experience, the context of the contribution will be familiar to all: the pandemic necessitated drastic measures restricting fundamental rights, which in turn raised a number of constitutional challenges in determining the proper conditions and limits of these measures. Some of these challenges concerned the procedural aspects, such as the standing requirements to be able to bring an action before the Constitutional Court contesting the constitutionality of particular measures. Others related to the substantive aspects, notably the application of—and possible adjustments to—the principle of proportionality in assessing whether a particular limitation of fundamental rights was, in fact, lawful.
Addadzi-Koom, Maame Efua, ‘Quasi-State of Emergency: Assessing the Constitutionality of Ghana’s Legislative Response to Covid-19’ (2020) 8(3) The Theory and Practice of Legislation 311–327 Abstract: On 15 March 2020, the President of the Republic of Ghana addressed the nation on anti-coronavirus measures which took effect immediately. He directed the Attorney-General to submit an emergency legislation to Parliament and the Minister for Health to issue an immediate Executive Instrument to regulate the relevant measures. Five days later, Parliament passed the Imposition of Restrictions Act, 2020 (IRA) after a voice count in its favour. A few days, thereafter, the President issued an Executive Instrument (E.I. 64) pursuant to the IRA. The minority members of Parliament, some legal scholars and interested Ghanaians expressed their disapproval of the procedures leading to the enactment of the IRA as well as its nature, form and content. The contentions cover multiple constitutional and legal grounds including the procedural propriety of using a voice vote in Parliament for emergency legislation, the necessity of a new emergency legislation and the time limit for the new emergency legislation. Essentially, these issues point to assessing the overall constitutionality of the law-making procedures and legislative provisions of the IRA. This is the focus of this paper. The paper argues that the IRA stands unconstitutional from the very beginning of its intended existence. The paper concludes that while the IRA is currently operational, its continued existence is challengeable under the 1992 Constitution of Ghana, thus, there is a window of opportunity to right the wrong.
Adhani, Hani, ‘Constitutional Court of The Republic of Indonesia: Safeguarding Citizens’ Constitutional Rights in The Middle of A Pandemic’ (2020) 3(1) INSLA E-Proceedings 609–615 Abstract: Since the announcement of the coronavirus by WHO that COVID-19 is a pandemic, there are concerns that this coronavirus pandemic will have a negative impact on all sectors of human life. The health and economic sectors are the most vital, causing many countries around the world to experience outbreaks and it is difficult to avoid them. Many countries are simply not ready to face this pandemic, so this has resulted in more casualties and an economic recession. However, amid the outbreak, it turns out that there is still a country that can survive and one of the factors that cause this country to survive is because the law enforcement process is carried out optimally and is supported by law enforcement officials who are also professional, independent and with integrity. In this study, the author will discuss the extent to which the role of the Indonesian Constitutional Court as the guardian of the constitution in safeguarding the constitutional rights of Indonesian citizens and providing legal certainty amid a pandemic.
Aghaei Togh, Moslem, ‘Constitutional Law Requirements for Dealing with Emergency Situations with Emphasis on Covid 19’ (2022) Journal of Law Research (advance article, published online 5 July 2022) Jurisdiction: Iran
Abstract: Although laws and regulations in all legal systems are typically formulated, enacted, and promulgated for ordinary situations, sometimes situations arise for political systems that endanger the life of society. To manage these dangerous situations, there are various tools in political systems, one of which is to declare a state of emergency. In such cases, restrictions on fundamental rights and freedoms, including the right of movement, the right to employment and the freedom of the media, are imposed. Given that the fundamental rights and freedoms of the people are restricted in a state of emergency, it is imperative that governments adhere to a set of formal and substantive rules so that this situation does not lead to a fundamental violation of fundamental rights and freedoms. With the spread of Covid 19 disease around the world, some countries have declared a health emergency in order to deal with the disease. In Iran, although the capacities of Article 79 of the Constitution were not formally used and a state of emergency was not declared, the use of Article 176 of the Constitution imposed restrictions on some rights and freedoms. An examination of the process of applying these restrictions in Iran shows that the formal and substantive requirements for emergency situations have been met to a large extent.
Ahmed, Sufian, ‘Transformative Constitutionalism: Rise of Coercive Federalism Amidst COVID-19 Migrant Crisis’ (SSRN Scholarly Paper No 4235627, 2 October 2022) Abstract: The Indian constitution which was drafted by the Constituent Assembly of independent India has served as the grunt norm since the past seven decades. In spite of being the most elaborative and lengthiest constitution among the existing nations, the Indian constitution has been amended more than a hundred times. With amendments in place, the constitution has very slowly, yet substantially shown a progressive attitude by moulding itself to the changing ideas of Liberty, Equality and Fraternity into what today we term as ‘Transformative Constitutionalism’. In light of the recent crisis that resulted in a countrywide lockdown, the constitutional provisions have been rendered ineffective in combatting the dearth of welfare suffered by migrant workers and it triggered a debate that the Cooperative federalism of India is moving towards the Coercive federalism. The above allegations are the contemporary reality of the Indian constitution and raises two major question which forms the core of this research that is whether the transformative constitutionalism an indefinite phenomenon? Whether the COVID-19 migrant crisis ensued the increasing tendencies of coercive federalism? The present research delves into the philosophy of transformative constitutionalism, brunt of COVID-19 migrant crisis, federal structure of Indian constitution while drawing parallel to the increasing tendencies of coercive federalism. Part I of the project deals with introduction to the topic and the research question, Part II deals with the concept of transformative constitutionalism at length, Part III deals with the comparison of India’s federal structure during its initial days vs now, Part IV deals with legal framework under the constitution dedicated solely for the migrant workers, Part V of the project delves into the analysis of Code of Social Security 2020 from migrant workers perspective, Part VI and Part VII deals with the scope of coercive federalism amidst migrant crisis and conclusions and suggestions respectively.
Akech, Joseph Geng, ‘Constitutional Resilience and Limitation of Rights Under Covid-19 Response in South Sudan’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 179–200 Abstract: This chapter examines how Covid-19 has impacted on constitutional resilience in South Sudan. In particular, it considers how measures have complied or failed to comply with the legal framework on emergency powers and the implications this holds for constitutionalism. This chapter commences with an overview of the country context and then outlines the applicable normative frameworks on emergency powers. The section thereafter discusses the measures adopted and their implications for civil and political rights, as well as certain socio-economic rights. Safeguards, legal and institutional, to such limitations are discussed in the penultimate section. The final section concludes the chapter with key remarks.
András, Karácsony and Nagypál Szabolcs, ‘The Rule of Law and the Extraordinary Situation’ (2021) 6(1) Public Governance, Administration and Finances Law Review 65–72 Abstract: The various legal theorists dealing with the operation and effect of law have mostly examined situations that can be described as occurring in the usual, regular, normal state of social life. Over the last half century, and particularly since the formation and later enlargement of the European Union, the requirement of the rule of law has emerged as a key topic. The test of the rule of law is as follows: it is necessary to examine in an abnormal situation or, as it were, in an extraordinary situation exactly how it is possible to take political decisions that are of fundamental importance to society while also guaranteeing that these decisions remain within the rule of law at all times.The aim of this study is to investigate how and by what constitutional mandate the Hungarian Government deviated from the normal constitutional situation in 2020. The ‘state of exception’ theorised by Carl Schmitt and Giorgio Agamben means the suspension of the law. It is important to understand their views in order to see that the Hungarian situation in 2020 is utterly dissimilar to such a state of exception. In short, we need to distinguish a state of exception from an extraordinary situation, because the latter does not imply the suspension of law in general or, more specifically, the suspension of the rule of law, but that parliamentary and government decisions remain within it. The special legal order applied in an extraordinary situation is not in fact a suspension of democracy, still less of the rule of law. On the contrary, it actually falls within both: in a state of national crisis, this situation is democracy itself and the rule of law itself, and – accordingly – strict laws (both democratic and imposed within the rule of law), or rather laws of cardinal importance, make its conditions and its functioning possible and regulate it.
Andreoli, Enrico, ‘The Rule of Law under the Threat of the Pandemic. Echoes from the African Constitutional Justice’ (2021) 46(1) DPCE Online 1445–1554 Extract: The ACB & Ors v Prime Minister & Ors case deals with a case of prorogation of Parliament of Lesotho made by the Prime Minister, which was an obvious attempt to avoid a vote of no-confidence. And such attempt was cautiously hidden behind a claim to be protecting human lives from the threat posed by the spread of Covid-19.
Angelos, Claudia et al, ‘Diploma Privilege and the Constitution’ (2020) 73 SMU Law Review Forum 168Jurisdiction: USA
Abstract: The COVID-19 pandemic and resulting shutdowns are affecting every aspect of society. The legal profession and the justice system have been profoundly disrupted at precisely the time when there is an unprecedented need for legal services to deal with a host of legal issues generated by the pandemic, including disaster relief, health law, insurance, labor law, criminal justice, domestic violence, and civil rights. The need for lawyers to address these issues is great but the prospect of licensing new lawyers is challenging due to the serious health consequences of administering the bar examination during the pandemic.State Supreme Courts are actively considering alternative paths to licensure. One such alternative is the diploma privilege, a path to licensure currently used only in Wisconsin. Wisconsin’s privilege, limited to graduates of its two in-state schools, has triggered constitutional challenges never fully resolved by the lower courts. As states consider emergency diploma privileges to address the pandemic, they will face these unresolved constitutional issues.This Article explores those constitutional challenges and concludes that a diploma privilege limited to graduates of in-state schools raises serious Dormant Commerce Clause questions that will require the state to tie the privilege to the particular competencies in-state students develop and avenues they have to demonstrate those competencies to the state’s practicing bar over three years. Meeting that standard will be particularly difficult if a state adopts an in-state privilege on an emergency basis. States should consider other options, including privileges that do not prefer in-state schools. The analysis is important both for states considering emergency measures and for those that might restructure their licensing after the pandemic.
Apum, Apilang et al, ‘First 100 Days of COVID-19 Firefighting: Hits and Misses of the Policy in India’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 87–119 Abstract: This chapter on India’s first 100 days of response to the COVID-19 epidemic sheds light on the immediate response of the State towards combating the pandemic. It provides a succinct review of the constitutional approach and the measures implemented to handle the pandemic. It also covers the adopted economic policies, surveillance methods, and compliance measures. This chapter came to the conclusion that India could have handled the initial days of the pandemic more effectively by giving adequate notice to the populace and by taking local states into consideration before announcement of the stringent lockdown.
Armeanu, Andrei, ‘Legal Limitations of the Constitutional Rights of Institutionalized Persons Imposed during the SARS-CoV-2 Pandemic’ (Proceedings, Consciens Conference, 2020) 108–112 Abstract: The rapid emergence and evolution of the SARS-COV-2 epidemic in Romania has led national state authorities to adopt a series of measures limiting citizens’ constitutional rights. These measures were ordered to limit the spread of the pandemic on national territory and were established by Presidential Decree on March 16, 2020. The Presidential Decree no. 195/2020 - on the establishment of emergency status on Romanian territory, allowed the limitation of certain constitutional rights, including those of institutionalized persons, for 30 days. The main rights affected were the right to free movement, the right to intimate, family and private life, the right to education, and the right to private property. Later, the government decree under which the state of alert was ordered extended some of these legal limitations, to the present day. In Romania, the persons in institutions, including the elderly, persons with disabilities and children, remain among the most vulnerable during the current state of alert. In the present study, we will analyse the effects of limiting the constitutional rights of institutionalized persons during the state of emergency and state of alert, pointing out the main issues raised by the Ombudsman and referencing some legal and practical solutions proposed by NGOs and the EU institutions.
Arnold, Rainer and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic: Contributions to the World Law Congress 2021 in Barranquilla (Springer, 2023)Link to book page on publisher website
Book summary: This book brings together the contributions from the four workshops organized by Rainer Arnold at the World Law Congress of Barranquilla. From the point of view of the rule of law, the contributions deal to a large extent with the legal instruments and their application in the management of the pandemic. 16 country reports show the diversity of instruments, but they all confirm the importance and effectiveness of the rule of law. The basic principles of the concept of the rule of law are also examined, as are its universal validity and its relationship to constitutional jurisdiction. The reading provides insight into the differences and commonalities in the national perspectives of the fight against the pandemic and shows the common conviction that the rule of law provides the central orientation despite the extraordinary emergency situation.
Attaran, Amir, ‘The Failing Federation: Why Canada Is Ineffective at COVID-19’ (2020) 11(1) Journal of National Security Law & Policy 229–246 Abstract: In exploring how Canada’s Constitution has affected its response to COVID-19, Amir Attaran explains how the legal and political contours of Canadian federalism have become a brake on the country’s response to the pandemic. Unlike what Canadians may believe, the black letter law of their Constitution is not the cause of the problem, it is the federalism and the struggles between the federal government and provinces that has caused issues. Worries about inflaming provinces and secession coupled with a federal government that only rarely seeks to assert its full constitutional authority has led to an ineffective response that is arguably the greatest cause of lives lost during the pandemic. The problem is not the constitution, but rather the self-neutering political disinclination of the federal government to act. Attaran therefore identifies reforms that could be put into place and highlights Australia, Germany, and Switzerland as models for consideration.
Attaran, Amir and Adam R Houston, ‘Pandemic Data Sharing: How the Canadian Constitution Has Turned into a Suicide Pact’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 91 Abstract: For decades, public health professionals, scholars, and on multiple occasions, the Auditor General of Canada have raised warnings about Canada’s dysfunctional system of public health data sharing. Current, timely, and complete epidemiological data are an absolutely necessary, but not sufficient, precursor to developing an effective response to the pandemic. Nonetheless, it remains true that nearly two decades after data sharing proved a catastrophic failure in the 2003 SARS epidemic, epidemiological data still are not shared between the provinces and the federal government. This is largely due to a baseless and erroneous belief that health falls purely within the jurisdiction of the provinces, despite the Supreme Court of Canada’s clear conclusions to the contrary, which has misled Canada to rely on voluntary data sharing agreements with the provinces that are not merely ineffective, but actually inhibit data sharing. As outlined in this chapter, there is no reason for this to be the case, since Canada already possesses statutory powers, under the Statistics Act and the Public Health Agency of Canada Act, to oblige provinces to share critical epidemiological data in a timely manner. It must exercise those powers, both in response to COVID-19 and against the foreseeable certainty of even more serious public health emergencies in the future.
Austin, Lisa M et al, ‘Test, Trace, and Isolate: COVID-19 and the Canadian Constitution’ (Osgoode Legal Studies Research Paper, 22 May 2020) Abstract: Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen COVID-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s ‘test, trace, and isolate’ strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to COVID-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider how the privacy impacts of contact tracing apps could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests. We argue that so long as apps are carefully constructed and the information they reveal is appropriately safeguarded, tracing apps may have a role to play in the response of a free and democratic society to the Covid 19 pandemic.
Ayala Corao, Carlos, ‘Venezuela: COVID-19 + Dictatorship + Complex Humanitarian Emergency’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 75-88 Extract from Introduction: Currently, Venezuela is simultaneously subject to two states of emergency: a state of alarm and a state of economic emergency. In effect, the new state of alarm in response to COVID-19 was added to the state of economic emergency that the Maduro regime decreed in 2018 and that is still in force. This state of economic emergency has been intermittently used to issue executive orders on economic matters, despite the fact that this is one of the subject matters and competencies constitutionally reserved for the National Assembly.
Ayers, Samantha R, ‘Vaccinations and Fundamental Rights: The Need for Federal Vaccination Legislation’ (2021) 52(2) University of Toledo Law Review 261–287 Extract from Introduction: This note focuses on the interaction between fundamental rights and the consequences of parental refusal to vaccinate their minor children. Whereas parents have the right to raise their children,10 and a right to religious freedom, those rights are restricted by a governmental interest in protecting public health, child welfare, and promoting uniformity among the several states in the country. The note aims to explore different rights afforded to citizens by the Constitution and explain situations in which it is necessary, and constitutional, for the government to regulate behaviors and limit rights of the people, to protect the country as a whole. Section I of this note explores fundamental rights that have been granted to individuals by the Supreme Court of the United States through their interpretations of the Constitution and the Equal Protection and Due Process Clauses. Through those fundamental rights, individuals have been protected heavily from governmental intrusion into their lives. The rights granted, however, are not unqualified, and are subject to government regulation in some circumstances.
Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so.
Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.
Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests.
Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.
Ayuni, Qurrata, ‘Constitutional Review of Covid-19 Law at Indonesia Constitutional Court’ (2023) 6(1) UNES Law Review 2922–2933Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so.
Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.
Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests.
Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.
Abstract: This paper analyzes the constitutionality of Law Number 2 of 2020 concerning COVID-19 which was originally passed as emergency legislation in the form of ‘government regulation in lieu of law’. The COVID-19 Law reaps pros and cons because it is considered to have the potential to give birth to abuse of power in times of crisis. Grounded by final decision of The Constitutional Court, this paper raises three main issues; First, the vital role of judicial power in providing checks and balances in an emergency situation. Second, the prohibition of granting immunity to the practice of irregularities in state finances in times of crisis. Third, the need for a time limit for granting discretion caused by COVID-19 to ensure legal certainty. Through the method used, namely normative juridical, conclusions were obtained regarding the urgency of the role of the power of the Constitutional Court in Indonesia as the protector of the Constitution in the COVID-19 emergency.
Babie, Paul T and Charles J Russo, ‘If Beer and Wrestling Are “Essential,” So Is Easter: COVID-19, Freedom of Religion or Belief, and Public Health in Australia and the United States—Why Rights Matter’ (2020) 55 New England Law Review 45 Abstract: This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions is to balance the need to preserve public health while respecting the right to FoRB for all. Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government.
Babiker, Mohamed Abdelsalam, ‘COVID-19 and Sudan: The Impact on Economic and Social Rights in the Context of a Fragile Democratic Transition and Suspended Constitutionalism’ (2021) 65(S2) Journal of African Law 311–331 Abstract: This article argues that the lockdown imposed in Sudan due to the COVID-19 pandemic has seriously affected the livelihood of vulnerable populations and their right to live a dignified life. It explores how emergency measures were aimed at containing the spread of the pandemic. The article argues that these measures have seriously affected the enjoyment of core economic and social rights, particularly in the context of a weak legislative framework of social protection. It concludes by arguing that Sudan’s transitional government is not subject to parliamentary scrutiny and exercises legislative and executive powers that are de facto illegitimate, as they are not subject to review by the courts and because of the current suspension of constitutional organs and governance structures. This incomplete governance structure is concerning from a rule of law perspective and has prevented scrutiny of COVID-19 emergency measures, particularly those affecting the basic rights of vulnerable groups.
Balasubramaniam, R Rueban, ‘The COVID-19 Emergency: Malaysia’s Fragile Constitutional Democracy’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 423 Abstract: This chapter argues that the COVID-19 pandemic triggered a formal declaration of emergency which is likely to produce lasting damage to constitutional democracy in Malaysia. The pandemic coincided with the unexpected fall in 2020 of a democratic reformist government which, in a historic victory in 2018, had defeated an ethno-authoritarian regime that had controlled government since 1957. The ensuing political uncertainty, followed by a declaration of emergency, gave the constitutional monarch, the king, legally and politically unaccountable power to determine who formed the government. While the king acted in good faith, he appointed an interim government that proved resistant to establishing genuine democratic legitimacy in Parliament. In addition, the courts were reluctant to judicially review the declaration of emergency and laws enacted by the government during the emergency, including a troubling ‘fake news’ ordinance that made it unlawful to question the king’s declaration of emergency. Finally, ideologues constructed an authoritarian re-description of constitutional legality to claim that the king’s decisions were sufficient to imbue constitutional and democratic legitimacy to political decisions that were not, in fact, based on meaningful democratic processes. The COVID-19 pandemic thereby amplified authoritarian trajectories in Malaysia likely to favour a return to ethno-authoritarian rule.
Bartlett, Ollie, ‘Does Ireland Need a Constitutional Right to Health after the COVID-19 Pandemic?’ (2022) 73(2) Northern Ireland Legal Quarterly 365–379 Abstract: There will be many legal legacies of the COVID-19 pandemic. This commentary argues that one of them should be the constitutionalisation of the right to health in Ireland. The overriding objective of saving lives has not always been explicitly linked with fundamental rights protection in government communications or the mainstream media. When the state police power permits the adoption of extraordinary measures to protect the public’s health, why would there be a need for a constitutional right to health? This commentary argues that the existence of a constitutional right to health in Ireland would make the process of designing, implementing and explaining the necessity of restrictions in times of public health crisis a more transparent exercise. Moreover, a constitutional right to health would provide a normative and procedural framework for reviewing government decisions that restrict one aspect of the right to health (for example maternity care) to protect another (protection from infectious disease). This commentary links these considerations to the recent proposal to amend the Irish Constitution to include a right to health and addresses the concerns raised about such a process in light of the benefits of a constitutional right to health as well as the social changes wrought by the COVID-19 pandemic. The commentary also evaluates the constitutional text that was proposed and highlights some of the considerations that must be taken into account when drafting a constitutional right to health.
Bateman, Selena and Adrienne Stone, ‘Australia: COVID-19 and Constitutional Law’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 223-232 Introduction: The Commonwealth of Australia is a federal parliamentary democracy established by the Constitution of 1901. For the most part this constitutional system has appeared to function well during the COVID-19 pandemic and the response has inspired some innovations which may prove to be permanent. However, the pandemic has placed stress on federal relations and revealed weaknesses notably in parliamentary oversight of the executive and, to some extent, in rights protection.
Bechtold, Eliza, ‘Has the United States’ Response to the COVID-19 Pandemic Exposed the Marketplace of Ideas as a Failed Experiment?’ (2020) 25(3) Communications Law 150–160 Abstract: Considers whether the Trump Administration’s handling of the coronavirus pandemic, as well as the public opinions voiced by certain high-profile individuals, corporations and political action committees, has revealed the marketplace of ideas, on which the principle of freedom of speech under the First Amendment to the US Constitution is founded, to be a failed experiment.
Becknell, Conan, ‘Fourth Amendment Search and Seizure-Online Schools During a Pandemic: Fourth Amendment Implications When the State Requires Your Child to Turn on the Camera and Microphone Inside Your Home’ (2021) 44(1) University of Arkansas at Little Rock Law Review 161–192 Extract from Introduction: This Note argues that the requirement that public-school students, who are attending school online due to the COVID-19 pandemic, keep their video and in some instances their audio on during virtual class is a search within the meaning of the Fourth Amendment and that legislators, school districts, and courts should address the constitutional implications of such searches. Part II of this Note provides a historical perspective for defining a search, describes exceptions to the warrant requirement, and highlights the foundational basis that online compulsory schooling is a search within the meaning of the Fourth Amendment.22 Part III provides insight regarding the current pandemic while examining compulsory school formats throughout the United States.23 Part IV then explores how States’ requiring children to turn on audio and video within the home is a search within the meaning of the Fourth Amendment and identifies factors pertaining to special needs searches that courts, legislatures, and school districts should consider in addressing online classes.24 Finally, Part V highlights these Fourth Amendment implications while outlining factors courts should use to address the information obtained in these special needs searches.
Begg, Morgan, ‘Powers of Detention in Victorian Pandemic Legislation’ (Report, Institute of Public Affairs, 25 March 2022) Abstract: This research highlights how the powers of detention in the Victorian government’s pandemic management legislation could be struck down for being incompatible with the Australian Constitution.
Bence, Gát, ‘Coronavirus Test of the European Union’s Policy on the Rule of Law’ (2021) 6(1) Public Governance, Administration and Finances Law Review 19–33 Abstract: The issue of the rule of law has been on the European Union’s (EU) agenda since the beginning of the 2010s. The legal history of the EU shows that the EU’s approach to the topic of the rule of law underwent significant changes. Initially, the Member States called for guarantees of fundamental rights in EU institutions. This trend began to change in the late 1990s and early 2000s, when the possibility of European rule of law control over Member States and the predecessor of the current Article 7 of the Treaty on European Union (TEU) were introduced by the Treaty of Amsterdam. However, the idea that the EU institutions can constantly monitor the Member States in the name of the rule of law has only emerged and started dominating the European political agenda since the early 2010s. Over the last decade, the EU institutions have continuously expanded their toolkit for monitoring Member States in this regard. Following calls from some Member States and the European Parliament, in 2014 the Commission set up the new EU framework to strengthen the rule of law. In the same year, the European Council introduced an annual rule of law dialogue. In 2016, the European Parliament proposed the establishment of an annual rule of law report that monitors all Member States. At first, the European Commission was reluctant to accept this idea, but finally it introduced an annual rule of law report in 2020. However, the EU’s policy on the rule of law suffers from fundamental shortcomings, which were especially visible during the first wave of the coronavirus crisis in the spring of 2020. In the pandemic situation, it has become even more apparent that the EU’s policy on the rule of law raises a significant issue of EU institutions exceeding their competences and stands on a questionable legal basis. Criticisms formulated against Hungary during the pandemic have revealed that the EU institutions do not provide sufficient guarantees for an objective examination of the situation of the rule of law in the Member States. The situation brought about by the coronavirus has also raised a number of questions regarding the lawful functioning of EU institutions, which shows the need for a rule of law mechanism capable of verifying that the EU institutions themselves also properly respect the rule of law.
Bender, Matt, ‘Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System’ (2021) 66(1) Villanova Law Review 1–61 Abstract: A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court have been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others. They cannot be incompatible. Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights. This paper addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings? Instead of rejecting virtual criminal hearings outright, new proposals are offered for how virtual courtrooms can safeguard constitutional rights. The prevailing belief that criminal defendants should reject virtual trials is questioned. Virtual trials may lead to better outcomes for defendants than traditional trials, specifically during the ongoing pandemic. Beyond preserving rights in a virtual courtroom, the ways technology can improve the criminal justice system are explored. Through an analysis of existing indigent defense and First Amendment scholarship, the myth that traditional court decorum should trump open court and virtual hearings is addressed. Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed. Transparency can help safeguard defendants’s rights and improve indigent clients’s representation and outcomes. Instead of disrupting the courtroom—whether a hearing is virtual or traditional—convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys. These proposals have significant implications for courts and clients by providing a framework for virtual litigation, and leveraging technology for a more equitable criminal justice system. Livestreams and virtual, remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.
Berman, Emily, ‘The Roles of the State and Federal Government in a Pandemic’ (SSRN Scholarly Paper No ID 3617058, 2 June 2020)Jurisdiction: USA
Abstract: A recurring question during the coronavirus pandemic response in the Spring of 2020 has been about the division of labor and the allocation of authority between the state and federal government. This essay briefly outlines the respective roles of the state and federal governments and lays out the powers and authorities they each bring to bear in a pandemic situation. It then considers whether the federal response reflected these previously understood roles. It concludes that while President Trump was relatively quick to assert powers that he did not possess, he was less willing to invoke powers that he did, in fact, enjoy. The result was a strong rhetorical role for the federal government, but an anemic one when it came to actually carrying out federal responsibilities.
Bhandari, Vrinda and Faiza Rahman, ‘Constitutionalism During a Crisis: The Case of Aarogya Setu’ in Uma Kapila (ed), Coronavirus Pandemic: Lessons and Policy Responses (Academic Foundation, 2020) [pre-published version of chapter] Abstract: Aarogya Setu is a contact tracing app launched by the Indian government on April 2, 2020, as a tool to combat the COVID-19 crisis. Issues concerning the privacy and security concerns with the app have been discussed extensively. In this short piece, we focus on the issue of lack of legislative foundations and certain practical governance oriented considerations related to the roll out of the app. We begin by considering the principles of evaluating executive action during a crisis and whether extraordinary times truly call for extraordinary measures. We then explore the importance of a clear and specific law and why the Disaster Management Act or Section 144, CrPC fail to provide an adequate legal foundation for the app. We then consider the importance of law and process of legislation and provide certain recommendations on addressing the procedural irregularities and governance related issues that were related to the roll out of the app.
Białogłowski, Wojciech, Dominika Łukawska-Białogłowska and Bogusław Przywora, ‘Suspendium Ad Kalendas Graecas? The Problem of the Constitutionality of Suspending the Statute of Limitations for Fiscal Offences during the State of the Epidemic or the State of the Epidemic Threat as the Example of Broadly Understood “Fiscal Repression” of the State against the Individual’ (2024) 29(1) Bialystok Legal Studies / Białostockie Studia Prawnicze 255–267 Abstract: One of the basic principles defining the relationship between individuals (including entrepreneurs) and the state is the principle of protecting the citizen’s trust in the state and the law enacted by it. This principle is based on legal certainty, understood in the jurisprudence of the Constitutional Tribunal of the Republic of Poland as a certain set of features inherent in the law which ensure legal security for the individual; the individual then has the possibility of full knowledge of the reasons for the operation of state authorities and the legal consequences that his or her actions may entail. An individual should be able both to determine the consequences of behaviours and events on the basis of the legal status in force at a given moment, and to expect that the legislator will not change it arbitrarily. On 22 June 2021, Article 15zzr1 was added to the Act of 2 March 2020 on special solutions related to the prevention, counteraction and combating of COVID-19, other infectious diseases and crisis situations caused by them; the article stipulates that during the state of epidemic threat or state of the epidemic, as announced due to COVID-19, and in the period of six months after their cancellation, there is no statute of limitations for the criminality of the act and no statute of limitations for the execution of a penalty in cases of crimes and fiscal crimes (paragraph 1); the periods referred to above are counted from 14 March 2020 – in the event of an epidemic threat, and from 20 March 2020 – in the event of an epidemic (paragraph 2). The subject of this paper is an attempt to answer the question of whether the indicated provision – interfering with the current model of the relationship between penal fiscal law and tax law – meets constitutional standards.
Bień-Kacała, Agnieszka, ‘Limiting Fundamental Rights by Governmental Regulations. An Illiberal Response to the COVID-19 Pandemic in Poland’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 163–178 Abstract: The chapter focuses on the limitation of fundamental rights by governmental regulations within the Polish illiberal constitutional framework. First, the illiberalisation of human rights is presented. Then, the constitutional framework of emergencies is described with reference to the non-application of this framework. Further, the legal response to fighting the pandemic is discussed, emphasising the unconstitutionality of limitations on rights and freedoms by government acts rather than by the parliament, along with the judicial reaction to unconstitutional measures. The chapter concludes that the constitutional system and human rights protection deteriorated but have not achieved the authoritarian end yet.
Birmontiene, Toma, ‘The Main Trends in Constitutional Jurisprudence Developed by Constitutional Courts During the COVID-19 Pandemic’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 87–96 Abstract: The article analyses the problems related to the constitutionality of the legislation adopted during the time of the COVID-19 pandemic, in particular, it examines how European constitutional courts were looking for new, or somewhat forgotten, ways of interpreting the constitution and searching for a proper balance between the interests of the individual vis-à-vis those of society, whether the executive authorities did not overstep their powers, whether the states properly chose the specific legal regulation to control the pandemic, whether the requirement that human rights restrictions to control the pandemic must be based on law remained unchanged during the pandemic, and whether the precautionary principle is not a substitute for the constitutional principle of proportionality. The article considers if constitutional courts faced the dilemma as to whether the justification for the differentiated implementation of human rights based on a specific criterion in time of the pandemic could be constitutional. The pandemic situation also highlighted the importance of scientific knowledge in addressing public and human health issues in constitutional jurisprudence. The article is based on several decisions adopted by constitutional courts of European countries during the pandemic, which seem to highlight some important trends in constitutional jurisprudence in this respect.
Bjørnskov, Christian and Stefan Voigt, ‘This Time Is Different?:On the Use of Emergency Measures during the Corona Pandemic’ (2022) 54(1) European Journal of Law and Economics 63–81 Abstract: The COVID-19 pandemic has not only caused millions to die and even more to lose their jobs, it has also prompted more governments to simultaneously declare a state of emergency than ever before enabling us to compare their decisions more directly. States of emergency usually imply the extension of executive powers that diminishes the powers of other branches of government, as well as to the civil liberties of individuals. Here, we analyze the use of emergency provisions during the first wave of the COVID-19 pandemic and find that it can be largely explained by drawing on political economy. It does, hence, not constitute an exception. We show that many governments have (mis-)used the pandemic as a pretext to curtail media freedom. We further show that executive decrees are considered as a substitute for states of emergency by many governments.
Bjørnskov, Christian, Stefan Voigt and Mahdi Khesali, ‘Unconstitutional States of Emergency’ (2022) 51(2) The Journal of Legal Studies 455–481 Abstract: Nine of 10 modern constitutions contain explicit emergency provisions describing who can declare a state of emergency (and under what conditions) and the additional powers the government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze the conditions under which government behavior under a state of emergency deviates from constitutional provisions and a gap between de jure provisions and de facto behavior thus results. In a novel data set comprising 853 emergency declarations, 115 are identified as unlawful. We find that autocratic governments are more likely than democratic governments to violate the constitution. The requirement that a second chamber approve the emergency declaration is associated with a higher likelihood of its being unconstitutional.
Blackman, Josh, ‘What Rights Are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic’ (Liberty and Law Center Research Paper No No 20-04, 2020) Jurisdiction: USA
Abstract: Under conventional constitutional doctrine, courts pose familiar questions. Is a right ‘fundamental’ or ‘non-fundamental’? Is a classification ‘suspect’ or ‘non-suspect’? Should a law be reviewed with ‘strict scrutiny’ or with “rational basis scrutiny? But during the COVID-19 pandemic, a novel question prevailed: was a right ‘essential’ or ‘non-essential.’ If a right was deemed ‘non-essential,’ then the state could regulate, restrict, and even prohibit that right. Modern constitutional doctrine was simply set aside during the emergency. Different states drew different lines. Some states deemed the free exercise of religion and the right to keep and bear arms as ‘essential,’ but access to abortions were deemed ‘non-essential.’ Other states did the opposite: religion and guns were ‘non-essential,’ but abortions were ‘essential.’ And in general, the courts declined to intervene so long as the state also restricted ‘comparable’ activities.Can the free exercise of religion be anything but essential? Can the sole method of obtaining a firearm be deemed non-essential? And under controlling Supreme Court precedent, can abortions be deemed mere elective surgeries? This article provides an early look at how the courts have interpreted the First, Second, and Fourteenth Amendments during the time of pandemic.Part I begins with a detailed survey of the emergency lockdown measured issued in March and April of 2020. First, we will study the limits placed on religious worship. Second, we will review how Governors regulated firearm stores—the sole means in many states by which people can obtain a gun. Third, we will recount how four states interpreted their ban on ‘non-essential’ surgeries to prohibit certain types of abortions.Part II revisits an old, but timely precedent from 1905: Jacobson v. Massachusetts. During the COVID-19 pandemic, Governors viewed Jacobson as a constitutional get-out-of-jail-free card. It isn’t. Jacobson concerned a challenge based on the Due Process Clause of the Fourteenth Amendment—what we would today call substantive due process. It is a mistake to simply graft Jacobson onto the modern framework of constitutional law.Part III introduces two competing approaches to understand the free exercise of religion during the pandemic. Chief Justice Roberts articulated the first view in his concurrence in South Bay Pentecostal Church v. Newsom. Here, the Court deferred to the government’s determination of what is ‘non-essential.’ Justice Kavanaugh developed the second model in his dissent in Calvary Chapel Dayton Valley v. Sisolak. With this approach, the Court does not defer to the government’s designation of what is ‘non-essential.’ Under the Calvary Chapel approach, the free exercise of religion is presumptively ‘essential,’ unless the state can rebut that presumption.Part IV extends these two frameworks to the context of the Second Amendment. Under the South Bay framework, prospective firearm owners would have to show that these decisions were irrational. But with the Calvary Chapel approach, the right to sell firearms would presumptively be deemed a ‘most-favored right.’We are still in the early stages of the COVID-19 pandemic. To date, the courts have largely settled on the South Bay approach. Perhaps this framework may have made sense in the tumultuous beginning. However, as our understanding of the pandemic settles, and we learn to live with COVID-19, the courts will resume a normal approach to constitutional law. And Justice Kavanaugh’s Calvary Chapel approach charts the path forward.
Blum, Stephanie Cooper, ‘Federalism: Fault or Feature: An Analysis of Whether the United States Should Implement a Federal Pandemic Statute’ (2020) 60(1) Washburn Law Journal 1–61 Abstract: As COVID-19 plagues the world, countries grapple with a range of measures - such as quarantines, isolation, stay-at-home orders and masks - to limit its spread. In the United States, under the Tenth Amendment to the U.S. Constitution, states have taken the lead in implementing a variety of public health safety measures to address this contagious and deadly virus. In many instances, citizens have claimed a violation of their individual rights and raised numerous legal challenges. But given that the virus knows no borders, a pivotal question is what role the federal government should play in creating a more uniform response that respects individual rights. This Article addresses the legal and policy questions of enacting a federal pandemic statute. It provides guidance to public health experts and lawmakers should they decide that a national and more coordinated response would be helpful as the United States confronts COVID-19 and other pandemics.
Boersig, J, J Campbell and S Carmichael, ‘Accused Stripped of the Power to Elect to Have Trials before a Jury of Their Peers’ (2021) 33(1) Current Issues in Criminal Justice 69–75 Abstract: On 2 April 2020, the COVID-19 Emergency Response Act 2020 (ACT) made amendments to address the ongoing – and, at that stage, escalating – COVID-19 outbreak. Amongst its provisions, the Act amended the Supreme Court Act 1933 (ACT) to allow judge-alone trials on indictable offences, at the election of a judge. This article assesses the rationale for this amendment, finding that the concerns expressed by the Australian Capital Territory (ACT) legislature that delay in justice would have negative ramifications are merited. The evidence demonstrates that delay in trial proceedings can negatively affect witness memory, prolong victim and witness trauma, and harm defendants through indeterminate incarceration. However, the authors express reticence about the constitutional legality of waiving such a fundamental right through territory legislation. There are multiple constitutional grounds on which the legislation can be challenged, with this article exploring the possible implications of the Kable Doctrine. The authors’ comparison to New South Wales (NSW) and Victoria shows that there were more appropriate measures that balanced the swift execution of justice and interests of an accused. The right to trial by a jury of peers is a bedrock of Australian law and the decision to abrogate that right represents a dangerous precedent.
Bonds, Victoria R, ‘Tinkering with the Schoolhouse Gate: The Future of Student Speech After Mahanoy Area School District V. B.l’ (2022) 42(2) Loyola of Los Angeles Entertainment Law Review 83–109 Abstract: When the Supreme Court last created a rule about students’ First Amendment rights, MySpace was the most popular social media platform. Students’ use of social media and technology has radically changed since then, and it is time the First Amendment case law reflects that. With the transition to online learning after the COVID-19 pandemic and overall increased reliance on technology, students need clear answers about when school officials can punish them for their social media posts. The Supreme Court had a chance to clarify First Amendment student speech law this year in Mahanoy Area School District v. B.L., but instead, left it up to the lower courts to decide when school officials can punish students for their off-campus speech. However, the current circuit courts’ tests are unclear and heavily favor school officials. This Essay argues that the lower courts should instead adopt a test where school officials cannot punish students for their off-campus speech unless it falls within an exception to the First Amendment.
Boyer, Cynthia, ‘Abortion Restrictions During a Pandemic at the Intersection of the 13th Amendment and Electoral Legislation’ (2021) 19(2) The University of New Hampshire Law Review 423-449Jurisdiction: USA
Abstract: The current pandemic is intensifying restrictions on a wide range of fundamental rights which form a key pillar of the rule of law, it includes access to reproductive rights. Some states have moved forward with their ideological quest of control and infringement of constitutional rights in order to ban or limit abortion what is a fundamental attack on constitutional rights and in particular those associated with the Thirteenth Amendment. These restrictions on abortion resulting from the proclamation of a state of emergency follow the path already taken by certain states to reinforce their coercive measures. They raise major legal and political questions with regard to reproductive rights and individual freedom. As the state continues to impose and exercise strong and unequal constraints on women’s bodies through anti-abortion laws and pandemic restrictions through an instrumentalization of the health crisis, it establishes a system of involuntary servitude and subordination for procreation which breaches the 13th Amendment.
Brady, Alan and James Rooney, ‘COVID-19 Lockdowns and the Right to Education in Ireland’ (2021) 110(440) Studies: An Irish Quarterly Review 415–424 Abstract: COVID-19 Lockdowns and the Right to Education in Ireland Alan Brady and James Rooney In January 2021, the Minister for Education ordered all schools – including special schools – closed, in response to the third, and, so far, most extreme, wave of the COVID-19 pandemic. The guidance of the National Public Health Emergency Team (NPHET) to the Minister for Health on 30 December 2020 was that ‘schools should reopen as planned.’1 NPHET continued however that, ‘the high and rising levels of community transmission will become a risk to the ongoing provision of education at primary and secondary level unless these levels of transmission can be addressed.’2 On 5 January 2021, the NPHET advised the Minister for Health: Schools are safe environments, with very little evidence of transmission within schools, so that it seems that the majority of infections of children and adolescents occurs outside the school setting’3 and that ‘the opening of schools in August 2020 had no detectable effect on the growth rate in case numbers over subsequent weeks.4 However, the NPHET continued: The current epidemiological situation has deteriorated to a point where the significant levels of mobility and linked activity that the full reopening of schools would generate, constitutes a very significant additional risk in the context of what are already unprecedented levels of disease transmission in the community. It is important to state that this advice is not based on a changed assessment of the risks in relation to transmission levels in schools. Rather, it is a reflection of the overall epidemiological situation and the absolute need now to reduce all opportunities for transmission. Schools are distinctive institutions within our society as they not only serve an obvious social and educational function, but they also are the means by which we ensure the protection of a key fundamental right which our constitution extends to all children in Ireland: the right to a free primary education. Further, the educational rights of Irish children are guaranteed not only in Bunreacht na hÉireann, but also in international treaties to which the state is a party, from the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child (UNCRC) to the UN Convention on the Rights of People with Disabilities (UNCPRD). The closure of schools, even with the provision of online learning for those in a position to access it, has significant implications for the right to education as guaranteed by the Constitution of Ireland, the ECHR and the UN Convention on the Rights of the Child (UNCRC). In this article, we examine how the blanket closure of schools affects education rights protection in Ireland. In this, we have paid particular attention to those whose education rights are most vulnerable and at risk of being denied, namely disabled children and children from socioeconomically disadvantaged backgrounds. The constitutional right to primary education Article 42.4 of the Constitution of Ireland provides: ‘the state shall provide for free primary education’. On paper this is one of the most innovative passages in our constitution, unamended since its inclusion in 1937. Its immediate predecessor – Article 10 of the Free State constitution – was the first enumerated socioeconomic right in the common law world, and only the third such right contained in any democratic constitution.6 However, for as promising as this express guarantee appears at first, a study of how it has been applied in practice is somewhat less encouraging. In Crowley v Ireland, the first case to engage with this provision – in 1980, over forty years after Article 42.4 became operative – a strike by the INTO in the three national schools in Drimoleague left the schoolchildren of Drimoleague unable to access free primary education for the duration of the strike. It was argued on behalf of the children that Article 42.4 of the constitution created a right actionable against the state when, as in this case, their source of primary education was withdrawn. The Supreme Court rejected this argument.
Brandes, Tamar Hostovsky, ‘Solidarity as a Constitutional Value’ Buffalo Human Rights Law Review (forthcoming) Jurisdiction: USA
Abstract: In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a ‘solidarity series of events’, under the hashtag ‘together at home’, and chose the title ‘Solidarity’ for the ambitious global initiative to find a treatment to the virus, establishing a ‘Solidarity’ response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus. The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community. This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has payed relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication. The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized.The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them. Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of ‘bottom-up’ transnational and global solidarity.
Brenner, Michael, ‘Challenges to the Constitutional Law Caused by Corona’ (2022) 34(1) European Review of Public Law_ _Abstract: In Germany, the Corona pandemic did not disrupt the structures of state action nor did it even throw them overboard. The regular regime of action consisting of the statutory law, ordinance, and administrative acts proved itself capable of combating the pandemic. Remarkable is that during the pandemic the time factor became an essential element of the principle of proportionality. The flexibility of the principle gave state action in this extraordinary situation room for maneuver and freedom of design in different directions and with different purposes: If the number of infections increased, the principle of proportionality enabled the necessary measures to be tightened; however, if the numbers decreased, the principle required these measures to be loosened. Therefore, the principle of proportionality has proven its worth as a criterion for the legality of restrictions on fundamental rights, also and especially in times of a pandemic.
Briffault, Richard, ‘States of Emergency: Covid-19 and Separation of Powers in the States’ [2023] Wisconsin Law Review (forthcoming) Abstract: No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states they pushed back, particularly—albeit not only—where the governor and the legislative majority were of different political parties. Some of these conflicts wound up in state supreme courts. This Article examines the states’ response to the COVID-19 pandemic through the prism of the separation of powers. After considering the actions governors took and the sources of their authority, it focuses on the principal state court decisions concerning the separation of powers questions arising out of the pandemic. Although governors lost a handful of high-profile decisions, overall they did quite well. Courts often read their powers broadly and rejected challenges to their authority. State judicial analysis in these COVID powers conflicts involved both close attention to the specific language of state constitutions and statutes, and reliance on doctrines used by federal courts. The Article then reviews some of the state legislative responses—new laws and proposed constitutional amendments—to gubernatorial power. It concludes by considering what the pandemic experience tells us about state separation of powers, the mix of distinctive state arguments and federal analogies in state court analysis, and the role of partisanship in these disputes.
Brink, Ton van den and Matteo Gargantini, ‘Models of Solidarity in the EMU: The Impact of COVID-19 After Weiss’ (2021) 17(3) Utrecht Law Review 80–102 Abstract: Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had found that program to respect EU law. The ruling is as such not directly concerned with Covid-19 measures, but it may have nonetheless important consequences thereon. In this contribution we will explore what those consequences may be. Apart from the direct effects on the ECB’s pandemic emergency purchase programme (PEPP), we zoom in on the ruling’s indirect consequences on the broader question of how to arrange solidarity in EMU. With regard to the latter, we contend that Weiss and the Covid-19 crises combined will test the basic models of solidarity the EMU relies upon: the models of individual fiscal responsibility, ECB based solidarity and the model of fiscal union. These models are assessed from economic, constitutional and democratic perspectives.
Bröstl, Alexander and Ľudmila Gajdošíková, ‘Protecting the Rule of Law: Once Again About the Legitimacy and Competences of the Constitutional Courts’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 23–30
Abstract: This article concerns the role of a judge (the supreme judicial body) in a democracy which is understood as a guarantee of the Rule of Law in general. It underlines the (democratic) government in the sense of the original Greek word ‘kybernai’, besides ‘archein’ and ‘kratos,’ which is, e. g. present in the works of Plato and Aristotle. It also tries to focus on the topic of unconstitutional constitutional amendments, discussed in some countries together with the control of the legislature by the constitutional courts (or in this respect equal judicial bodies). It deals with the more or less traditional view of the undemocratic nature of judicial review, and discusses about the sovereignty of the parliament in cases of constitutional amendments versus constitutional courts as ‘supreme’ bodies with the power to protect the constitutionality (as written in some constitutions).
Bunikowski, Dawid and Robert Musiałkiewicz, ‘The Principles of Subsidiarity and Decentralisation During the COVID-19 Pandemic, with Particular Emphasis on the Polish and Finnish Legal Systems’ (2022) 28 Comparative Law Review 71–106 Abstract: The article focuses on the principles of subsidiarity and decentralisation during the COVID-19 pandemic, with particular emphasis on the Polish and Finnish legal systems (both countries in the Baltic Sea Region). How were those constitutional principles concerning self-government ‘treated’ (dealt with) by public authorities? It analyses the principles of subsidiarity and decentralisation, interpretations of the principle of decentralisation in both Poland and Finland, relations between the state and local self-government, cooperation between the government and self-government administration in combating the pandemic in selected countries, and Polish and Finnish regulations during the pandemic. Methodologically speaking, many different methods and sources are applied. The methodological approach is analytical (analysis of legal acts, literature, media releases and different reports), but also empirical (observation of reality). The thesis is that the principles of subsidiarity and decentralisation during the COVID-19 pandemic were commonly disregarded during the pandemic.
Burris, Scott, ‘Individual Liberty, Public Health, and the Battle for the Nation’s Soul’ The Regulatory Review (Blog Post, 7 June 2021) Abstract: This essay examines the legacy of the US Supreme Court case Jacobson v. Massachusetts in the context of the COVID-19 pandemic. The author contends that the vision set by Jacobson — one of coexistence and cooperation in a democratic commonwealth — is in jeopardy as courts in recent COVID-19 constitutional cases have unveiled a new view based less on the social contract than on a strong form of libertarianism.
Cahyono, Ma’Ruf, ‘The Role of Constitutional Law in the Era of the Covid-19 Pandemic in Indonesia’ (2022) 19(2) Webology 8900–8911 Abstract: The outbreak of the Covid-19 virus, which is spreading very quickly in various parts of the world, has a bad impact on several different sectors that can harm the country if the country does not take quick and right decisions. This encourages governments of countries in the world to create new regulations so that they are able to ensure the safety of their citizens and also sectors affected by the Covid-19 pandemic can recover. Policy issuance is certainly closely related to constitutional law and laws. Constitutional law is a regulation of the required state institutions and their authorities, internal relations between state institutions, and the relationship between state institutions and citizens. The purpose of this study was to determine the role of constitutional law in handling cases of Covid-19 that hit Indonesia and its implementation. The method used in this study is the literature review method or literature review which searches the literature for research purposes. The results of this study indicate that the role of constitutional law in handling Covid-19 cases in Indonesia can be seen through the making of simple laws and regulations rather than having to change the legal status of the national constitution. The application of constitutional law in handling Covid-19 cases in Indonesia can be observed from existing policies, namely through the issuance of simple laws such as PP, Presidential Decree, and others.
Cameron, Iain and Anna Jonsson Cornell, ‘Dealing with COVID-19 in Sweden: Choosing a Different Path’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 237 Abstract: In dealing with the COVID-19 pandemic, Sweden for several reasons stands out in a European context. In general, most but not all measures have been soft in character in the sense that they do not impose legal obligations, and Sweden did not impose a total lockdown. The main idea behind this policy was that measures needed to instil voluntary adherence instead of being legally enforced, in order to be sustainable. It is clear that the responsible Swedish administrative agency (Folkhälsomyndigheten) from the beginning adopted a long-term strategy, based on science and experiences from other pandemics. The main criticism of the Swedish approach can be summarised as the timing of measures taken (described by some as a lack of understanding of the initial urgency), the decentralised health care and crisis management system, and the lack of resources to test and conduct contact tracing in the initial phase of the pandemic. This chapter analyses and explains the Swedish approach from a constitutional law perspective.
Capíková, Silvia, Eduard Burda and Mária Nováková, ‘Measures Introduced in the Slovak Republic in Response to the Public Health Crisis Caused by the COVID-19 Pandemic’ (2021) 14(2) Medicine, Law & Society 321–350 Abstract: The SARS-Cov-2 pandemic outbreak in the Slovak Republic in March 2020 required rapid legal response to protect lives and health of inhabitants and new complex challenges emerged. The objective of this paper is an analysis and critical assessment of measures adopted in the field of health law. As most significant problem fields in Slovakia arose: 1/ Legality and hierarchy of measures limiting everyday life and exercise of citizen rights and freedoms; 2/ the scope, proportionality, extent and duration of measures; 3/ adherence to the measures by the public and law enforcement issues. The pandemic unraveled need to innovate the legal framework of contagious diseases control, for example, constitutional emergency regimen, or powers of the Public Health Authority. Established rule of law framework served to safeguarding against some disproportionate or unwanted effects of anti-pandemic measures, however, future development of more sophisticated legal tools to control the pandemic is needed.
Casey, Conor, Oran Doyle and David Kenny, ‘The Irish State’s COVID-19 Response and the Rule of Law: Causes for Concern’ (2021) 110(440) Studies: An Irish Quarterly Review 446–457 Abstract: Since March 2020, the most dominant issue in the Irish legal landscape has been, unsurprisingly, the COVID-19 Pandemic. Ireland has not declared a constitutional state of emergency since the pandemic reached its shores: it cannot, as a public health emergency is not grounds for use of emergency powers in the Irish constitution. But the Irish state’s approach to tackling the pandemic since March closely resembles a typical constitutional emergency response, heavily reliant on executive action in the form of regulations made by the Minister for Health. The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 and Emergency Measures in the Public Interest (COVID-19) Act 2020 (Emergency Measures Act) – the two main statutory planks of the state’s COVID-19 response – delegated broad powers to make regulations for ‘preventing, limiting, minimising or slowing the spread of COVID-19’ and to deal with the harsh economic and social effects of the pandemic. This authority was used to make ministerial regulations that implemented ‘lockdowns’ of varying stringency, similar to those in other states. This included shutting down non-essential business activity; mandating the wearing of masks on transport and business premises; restricting gatherings in private dwellings; limiting the number of people who could attend events; and preventing you from leaving your home unless you had a ‘reasonable excuse’. These powers are perhaps the most extensive powers delegated to the executive in the history of the state. To ameliorate the devastating socio-economic effects of the virus and these measures, the government also issued regulations introducing socio-economic supports such as rent freezes, eviction bans, business subsidies, and emergency social welfare supports. Some major measures – such as mandatory hotel quarantine for certain incoming travellers – were put on a statutory footing. But most restrictions on personal freedom were implemented by the Minister for Health making a regulation to prohibit an action, subject to a type of penalty specified by the Oireachtas. These penalties include the criminal sanctions of fines and imprisonment, supplemented by fixed penalty notices (colloquially referred to as ‘on-the-spot fines’) and an obligation to comply with directions issued by gardaí. The government also relied on its own inherent constitutional executive powers to issue public health advice, to unilaterally extend the immigration permissions of thousands of migrants in the state; and to compensate for the economic impact of lockdown measures. The government has, therefore, drawn liberally upon the three different faces of state power, the ‘force of law (imperium), the force of money (dominium) and the force of information (suasion) to respond to the COVID-19 pandemic.’ Assessing the state COVID-19 response: some positives Assessing whether the government’s response to COVID-19 has been, all things considered, optimal or reasonable, is a deeply complex moral, political and public health question, one far beyond the scope of this article. But one positive was robust constitutional institutions of government that have the capacity to act for the common good in the face of enormous challenges. When the virus reached Irish shores in March 2021, the Irish state was swiftly able to marry Hamiltonian qualities of dispatch, unity of purpose, and flexibility, with the technocratic expertise of its public health advisors and other civil servants to act to protect life, health, and socio-economic stability. The legislature, despite not housing a government majority, passed robust emergency legislation quickly and with some scrutiny. The government utilised these powers decisively, and with consultation with relevant expert advisors. This is no small thing. We do not, in making this observation, specifically endorse the choices made by the state and/or its technocratic advisors as compared to possible alternative measures or strategies. Rather, the readiness and willingness of the executive branch to swiftly act in good faith for the common good – with due regard for expert advice – is laudable compared with some of its comparators.
Cavalcanti, Maria Francesca and Matthijs Jan Terstegge, ‘The COVID-19 Emergency in the Netherlands: A Constitutional Law Perspective’ 43(2) DPCE Online 2037–6677 Abstract: With the Covid-19 (the Coronavirus) outbreak in Europe, starting at the beginning of February 2020, the Dutch government was forced to take drastic measures to control it. These measures impacted the social and economic life of the people living the Netherlands as well as their businesses in a severe way. These measures limited inter alia some of the fundamental rights as protected by the Dutch Constitution. This article describes the juridical framework in which the measures to combat Covid-19 are taken. More specifically, it focuses on the way in which the Dutch state is organised and the division of power between the higher and lower authorities and the legal instruments these various authorities have. In addition, a brief overview is given of the various measures taken by the authorities.
Cercel, Cosmin, ‘Law, Politics, and the Military: Towards a Theory of Authoritarian Adjudication’ (2021) 22(7) German Law Journal 1192–1208 Abstract: This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.
Cerruti, Tanja, ‘Rule of Law and Balance of Rights in the COVID-19 Pandemic’ in Martin Belov (ed), Rule of Law in Crisis: Constitutionalism in a State of Flux (Taylor & Francis, 2022) 47-64
Chandra, Aparna, ‘A Life of Contradictions: Group Inequality and Socio-Economic Rights in the Indian Constitution’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 311 Abstract: The Covid-19 pandemic has demonstrated that crises exacerbate and are exacerbated by antecedent inequalities associated with group identity. Addressing such inequalities requires adopting a normative principle—which equality law can supply—that places a positive duty upon the state to redress socio-economic disadvantages arising from group identity. However, as this chapter argues, the Indian Supreme Court has failed to engage with questions of socio-economic disadvantage in conjunction with group inequality. On the one hand, while the Court has understood the Constitution’s equality code as encompassing a substantive vision of equality, by and large, the Court has not read into these provisions any judicially enforceable positive obligation on the state to redress group-based disadvantages. As such, state failure to secure substantive group equality remains non-justiciable. On the other hand, the Court has read in positive obligations of redistribution into its socio-economic rights jurisprudence; however, it has not engaged with questions of group equality in understanding the scope and content of these rights, the concomitant positive obligations on the state, or in the remedial action ordered by the Court. This gap between the constitutional guarantees of equality and of socio-economic justice leaves unaddressed the group-based material disadvantages that lead to exponential inequalities in times of crisis. An argument for bridging this gap would raise the question: should courts adjudicate and enforce positive state obligations at all? The chapter argues that a focus on group equality can actually address some of the concerns with the Court’s extant practices and processes regarding the adjudication of socio-economic rights.
Chang, Wen-Chen and Chun-Yuan Lin, ‘Taiwan’s Effective Pandemic Control with Dialogic Constitutionalism’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 311 Abstract: To date, Taiwan has successfully controlled the COVID-19 pandemic without serious restrictive measures or any lockdowns. Since the outbreak of the pandemic, Taiwan has been careful in formulating policies and issuing measures to balance the need for pandemic control and the maintenance of human rights protection, democracy and the rule of law. This chapter analyses how Taiwan has achieved success in pandemic control despite its barred access to the World Health Organisation and its geographic proximity and close economic ties to China. It is argued that legal preparedness after the 2003 SARS epidemic helped to some extent, but other than law, a comprehensive national healthcare system with affordable care, a high level of digital technology with cautious application, and a vibrant civil society actively engaged in the regulatory process and pandemic control were pivotal. In addition, the key mechanism keeping governmental power under control was a model of ‘dialogic constitutionalism’ that served to channel and initiate open and vibrant political dialogues with horizontal and vertical separations of powers between various government branches and, more importantly, between the government and wider society.
Chaplin, Steven, ‘Protecting Parliamentary Democracy in “Plague” Times: Accountability and Democratic Institutions during the Pandemic’ (2020) 46(1) Commonwealth Law Bulletin 110–123 Abstract: The spread of COVID-19 has not only placed strains on public health and the economy. It has presented challenges to the constitutional structure and the continuing requirement that parliaments within the Westminister system of government be able to operate. In such systems, the continued legitimacy of government action and accountability for those actions rests and must remain with the elected chamber of Parliament. At the same time, COVID-19 precludes normal gatherings of parliamentarians for proceedings. This article briefly explores the constitutional necessity for continued parliamentary scrutiny, the various forms such proceedings have taken to date and the application of parliamentary privilege to such proceedings.
Chidhawu, Tinotenda, ‘Zimbabwe’s Response to Covid-19 and Its Socio-Economic Impact’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 371–402
Abstract: This chapter presents an overview of the situation regarding Covid-19, and discusses the measures adopted by the Zimbabwean government to curb the spread of the pandemic. The Siracusa Principles, the General Comments of the Human Rights Committee and other human rights bodies provide the guiding standard in assessing the kind of measures that were adopted, the legality of the containment measures, the enactment of new laws or the use of existing legislation to address Covid-19, the constitutionality thereof, and the content of the law and how it has impacted on human rights. This chapter also discusses court decisions concerning the challenges to some of the measures adopted by the government, after which it examines the socio-economic impact of the measures taken by the government.
Chilton, Adam S et al, ‘Support for Restricting Liberty for Safety: Evidence During the COVID-19 Pandemic from the United States, Japan, and Israel’ (SSRN Scholarly Paper ID 3591270, 2 May 2020) Abstract: Democratic governments around the world have taken dramatic steps to halt the spread of COVID-19. These steps have prevented new infections and deaths, but they have also entailed unprecedented restrictions on civil liberties. Navigating this tradeoff between security and liberty is particularly difficult for democracies because they need to maintain public support for their policies and are constrained by their constitutions. We administered surveys to nationally representative samples in three economically advanced democracies—the United States, Japan, and Israel—to assess the extent to which the public supports liberty restrictions designed to combat COVID-19. We found consistent and widespread support for policies restricting civil liberties across all three countries. We also experimentally manipulated information about (1) the constitutionality of these policies and (2) the infections they would prevent, finding evidence that respondents’ support for restrictions on civil liberties may depend more on their effectiveness than their legality.
Chinn, Scott et al, ‘Practicing Pragmatism During a Pandemic: Indiana’s Appellate Courts Practically Apply Indiana’s Constitution in 2020’ (2022) 54(4) Indiana Law Review 827–849 Abstract: Although the last few years produced minimal developments in Indiana constitutional law, this survey period, the Indiana appellate courts used their constitutional powers to pragmatically address issues associated with the COVID19 pandemic and to clarify the test for constitutional double jeopardy violations.
Chopko, Mark, ‘The Constitutionality of Providing Public Funds for U.S. Houses of Worship during the Coronavirus’ (2021) 10(1) Laws Article 8 Abstract: U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching public interest, such as health care or social services, but does not involve the Government in advancing religion per se. Moreover, the most recent U.S. Supreme Court cases hold that it is a violation of the First Amendment to exclude a religious actor, solely because it is religious, from a general public program and funding on equal terms with secular actors. Pandemic relief from the federal government has been made available to houses of worship (churches, mosques, synagogues, etc.) to mitigate the economic impact of government lockdown orders and public health restrictions on assembly, by offsetting loss of revenue and avoiding the suspension or termination of employees. The extension of such relief sits precisely at the crossroads of debated legal questions about whether such assistance is aid to religion—prohibited—or neutral disaster relief on equal terms with other community-serving entities—permitted. This article concludes that the inclusion of houses of worship is constitutional, given the trend and direction of U.S. law, although the matter will continue to be debated as the effects of the pandemic recede.
Chrysogonos, Kostas and Anna Tsiftsoglou (eds), Democracy after Covid (Springer, 2022) Book details, contents and pricing on publisher website
Abstract: This book, one of the first of its kind, explores the impact of the COVID-19 pandemic on modern Western democracies from a comparative constitutional law and policy perspective. Through 11 scholarly contributions, it tackles cutting-edge topics for the liberal state, such as emergency legislation, judicial scrutiny of COVID-19 measures, parliamentarism and executive decision-making during the pandemic. The book examines these topics both from a microscopic national constitutional angle, with a focus on European states, and from a macroscopic regional and comparative angle, on par with the American example. The COVID-19 pandemic is thus treated as an international state of emergency that has enabled far-reaching restrictions on essential human rights, such as freedom of movement, freedom of religion or even major political rights, while giving rise to the ‘administrative state.’ This edited volume explores each of these pressing themes in this exceptional context and evaluates different liberal states’ responses to the pandemic. Were these responses reasonable, effective and democratic? Or is the COVID-19 pandemic just the beginning of a new era of global democratic backsliding? How can liberal democracies manage similar crises in future? What lessons have we learned? The institutional knowledge gained turns out to be the key for the future of the rule of law.
Chrysogonos, Kostas and Panagiotis Viopoulos, ‘The Pandemic as an Idiosyncratic Case of a State of Exception’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 3–21
Abstract: One of the characteristics of constitutionalism is that it usually flourishes in societies experiencing a state of normality. It is telling that its worldwide ascendance during the last two and a half centuries went hand-in-hand with a long-term mitigation of the use of mass organized violence in international as well as in national politics. COVID-19, however, is an asymmetric threat for humankind which could prove itself to have consequences comparable to those of a war. Whether this or eventual future pandemics might be enough to jeopardize the constitutional acquis is still an open question. Our aim shall be to show that the answer to such questions is not so much a matter of constitutional theory as of historical reality.
Civitarese Matteucci, Stefano, ‘Italy - The Italian Response to Coronavirus Was Constitutionally Legitimate: Was It Suitable as Well?’ [2020] (October) Public Law 796–798 Abstract: Assesses whether the measures introduced by Italy in response to the coronavirus pandemic were constitutionally justified. Examines whether such Governmental powers were legitimate, the considerations of necessity and urgency, and the proportionality test. Discusses the limited role of Parliament, the confusing level of regulations issued, the tentative nature of some decisions and whether creeping privatisation of health services is likely.
Cogan, John, ‘Congress Has Already Ruled in California v. Texas’ (2021) 62(9) Boston College Law Review Electronic Supplement, Article 2 Abstract: In California v. Texas, opponents of the Affordable Care Act (ACA) have asked the Supreme Court to invalidate the statute. Relying on a 2017 legislative change to the ACA’s individual mandate, the challengers argue that the mandate is unconstitutional. They then assert that the mandate is inseverable from the rest of the ACA, thus the entire statute must fall. Earlier this year, however, Congress said otherwise. Last March, Congress passed the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. The two statutes amend and expand provisions of the ACA, thereby overriding Texas v. United States, the district court decision that underlies California v. Texas. In short, Congress has already ruled, via an override, on the severability question at issue in California v. Texas. The ACA stands, even with an unconstitutional individual mandate.
‘Conditions of Confinement, COVID-19, and the CDC’ 134(6) Harvard Law Review 2233–2256 Extract from Introduction: Section A surveys recent cases in the Eighth Amendment and Fourteenth Amendment conditions of confinement sphere to show that courts are giving excessive deference to Centers for Disease Control and Prevention (CDC) guidance and sometimes ceding the constitutional inquiry to the CDC altogether. Section B then argues that this level of deference is inappropriate given established principles of administrative and constitutional law. The CDC’s guidance represents the most informal of agency actions — it was promulgated with little process and involves details of prison administration outside the CDC’s expertise. Administrative law instructs courts to provide this sort of agency action little to no deference. Here, courts have done the opposite. Further, by inserting the CDC into constitutional cases, courts are abdicating a duty that is fundamentally theirs: to answer questions about what our society is willing to accept in the name of punishment. In fact, courts are deferring to CDC guidance which itself seems to subjugate the best public health advice to penological interests of incarceration. This results in a double deference of sorts: courts defer to the CDC which in turn defers to prison officials. Both public health and constitutional rights get lost along the way.
Conklin, Michael, ‘“The Most Demanding Test Known to Constitutional Law”: Do Coronavirus Bans on Church Services Satisfy Religious Freedom Restoration Act Requirements?’ [2020] Washburn Law Journal (forthcoming) Abstract: On March 29, Houston Pastor Juan Bustamante was warned that he could face fines and imprisonment for continuing to hold in-person church services. The next day he filed an Emergency Petition for Writ of Mandamus in the Texas Supreme Court. This Article evaluates his case, which could have broad implications because—like many states—Texas has a Religious Freedom Restoration Act (RFRA) that closely mirrors the federal RFRA. Arguments from both sides are analyzed to determine if such government action limiting religious practice is likely to overcome what the Supreme Court has identified as ‘the most demanding test known to constitutional law.’ City of Boerne v. Flores, [1997] USSC 68; 521 U.S. 507, 534 (1997).
Connors, Kyle J, ‘Symposium: Pandemics and the Constitution: Federalism and Contagion: Reevaluating the Role of the CDC’ (2020) 12(1) ConLawNOW 75–94 Abstract: The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of public locally-focused CDC recommendations. Second, this essay argues for greater federal influence over public health measures such as quarantine and isolation for a more uniform national response. As the law now exists, federal authority over everything but international border quarantines is somewhat ambiguous. State and local governments have exercised quarantine authority inconsistently, and may not possess the institutional knowledge to weigh the costs and benefits of confinement actions. Inevitably during a severe pandemic, localities may also push the limits of their authority to quarantine, potentially in opposition to federal government policy, hindering a nationwide pandemic response. Implicit in this recommendation is a call for greater statutory authorization for the CDC. Finally, the potential constitutional questions that arise from the suggested policy alterations are considered. Government officials are always in a challenging position when responding to a pandemic. This challenge is magnified when federal authority over the matter is unclear. The United States system of public health federalism must be rebalanced in some areas, to gain an effective uniform response to an outbreak of disease.
Conzutti, Andrea, ‘A Trial Vaccine to Combat COVID-19? The First Historical Case of Suspension of a Law by the Constitutional Court’ [2021] (3) Le Regioni 600–618 Abstract: The essay focuses on the recent order of the Constitutional Court, n. 4 of 2021, with which for the first time a contested law was suspended. In particular, the urgency of the pandemic crisis required a prompt response from the Constitutional Justice Body, which could not wait for the usual procedural deadlines. For this reason, the Constitutional Judges faced this exceptional situation by resorting to the equally exceptional institute of the suspension. We have thus witnessed a test of judicial efficiency, which has led in a very short time to the release of a conservative measure, suitable to avoid, in the meantime, a serious violation of the constitutional division of legislative competences between the State and the Regions.
Corbin, Caroline Mala, ‘Religious Liberty in a Pandemic’ (SSRN Scholarly Paper No ID 3634084, 23 June 2020) Abstract: The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.
Corradetti, Claudio and Oreste Pollicino, ‘The “War” Against Covid-19: State of Exception, State of Siege, or (Constitutional) Emergency Powers?: The Italian Case in Comparative Perspective’ (2021) 22(6) German Law Journal 1060–1071 Abstract: Is the Covid-19 pandemic changing the constitutional-power structures of our democracies? Is this centennial public health emergency irreversibly constraining our liberties? The paper examines recent state-measures of containment during the initial phase of spread of the Covid-19 crisis. It compares primarily the Italian scenario with the Chinese and the American one. It asks whether the measures adopted particularly in the Italian case (known as DPCMs) amount to a state of exception or to a use of emergency powers. Cognizant of the authoritarian risks in severed enjoyments of constitutional rights, the authors conclude that this is not what occurred in the case of solid democracies. At the level of governmental analysis, the ‘decree’ strategy of the Italian DPCMs allude to paternalistic forms of power-exercise that empty the self-determining prerogative of the parliament.
Da Silva, Michael and Maxime St-Hilaire, ‘Towards a New Intergovernmental Agreement on Early Pandemic Management’ [2021] (COVID-19 Special Issue) National Journal of Constitutional Law (forthcoming) Abstract: The Canadian response to COVID-19 produced several problems that are at least partially attributable to a lack of coordination between the federal and provincial governments. The federal government has not taken on a strong coordinating role. Many provinces have ‘gone their own way’ even where uniform standards are necessary to minimize public health threats. While some believe the federal government should use its existing powers to coordinate a response, the federal government alone cannot address all possible concerns and there are strong political incentives for federal government not to unilaterally take a stronger role in pandemic management. This article accordingly motivates an intergovernmental agreement on pandemic preparedness and early pandemic responsiveness (viz., early pandemic management). An intergovernmental agreement is a more promising tool for securing the coordination necessary for good pandemic management than unilateral federal action or the status quo. A detailed agreement that clearly sets out who will do what when a pandemic is imminent/when a pandemic begins will clarify expectations in early pandemic management and incentivize compliance therewith, helping to secure much-needed coordination. Developing it in non-pandemic conditions should also ensure a more rational approach to pandemic management that improves health outcomes and better fulfills Canada’s moral and international legal obligations.
Dahlqvist, Julia and Jane Reichel, ‘Swedish Constitutional Response to the Coronavirus Crisis: The Odd One Out?’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 135-154 [OPEN ACCESS BOOK] Extract from Introduction: In this contribution, the Swedish response to the coronavirus crisis is analysed against the Swedish constitutional and administrative model, taking into account non-legal factors such as social trust and a tradition of consensus-building in the political sphere. The main focus of this chapter is to analyse the Swedish constitutional framework and illustrate how the structure of power and democracy may have influenced the Swedish approach to COVID-19 – and how well these structures have been maintained during the pandemic. The Swedish approach is illustrated in actions relating to restrictions for private citizens, eg, of the freedom of movement and freedom of assembly, and some restrictions against companies. As the pandemic remains ongoing, the strategies and actions continue to change and develop at the time of writing.
Darian, Marzieh Tofighi, ‘Iran’s COVID-19 Response: Who Calls the Shots?’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 349 Abstract: This chapter examines the response to the COVID-19 crisis in Iran and seeks to understand how the institutional arrangements created fit within the existing constitutional system. It also asks what future impact they might have on constitutional rights and relations between different branches of government. The chapter traces the options available under the Iranian Constitution to face such a crisis and analyses the constitutional path chosen for the establishment of the National Headquarters to Combat Corona (NHCC), as well as its impact on the power dynamic between different constitutional actors. It also reviews the legal grounds and the scope of NHCC decision-making power, and the potential for its overreach. It concludes that the institutional design created in response to the pandemic has exposed the structural defects and limits of Iran’s constitutional system, especially with respect to the division of power between the executive branch and the Supreme Leader on the one hand, and Parliament and other specialised constitutional councils on the other. The lack of judicial and legislative oversight over NHCC decisions exposes the dangers of this institutional scheme.
Davis, Maggie, Christine Gentry and Trudy Henson, ‘Symposium: Pandemics and the Constitution: Calling Their Own Shots: Governors’ Emergency Declarations During the COVID-19 Pandemic’ (2020) 12(1) ConLawNOW 95–106 Abstract: This paper outlines governors’ powers to combat public health emergencies, and then analyzes specific measures taken by the states in response to the COVID-19 pandemic. State powers to quarantine, isolate, and take other measures to protect the public health and welfare are well-established, going back to the police power reserved for states in the Tenth Amendment and recognized by the U.S. Supreme Court over one hundred years ago. Additionally, most state constitutions and statutes specifically grant governors authority to take a variety of protective measures during emergencies. While large-scale quarantine and isolation orders have not been previously implemented in the United States, these powers rest comfortably within states’ authority to address public health emergencies.
Del Mundo, Israel, ‘Face Masks and Freedom of Speech: The Constitutionality of Illinois Face Mask Mandates Amidst the COVID-19 Pandemic’ (2022) 71(1) DePaul Law Review 115–139 Abstract: This Comment considers the constitutionality of Governor Pritzker’s Executive Order, analyzing whether the Illinois face mask mandate violates the First Amendment of the U.S. Constitution. This Comment argues that it does not. Part II provides a background of the COVID-19 disease, the events leading up to the issuing of Governor Pritzker’s Executive Order, and the responses to that Executive Order. In addition, Part II surveys caselaw concerning freedom of speech and regulations created to preserve public health. Part III analyzes whether a face mask requirement by the State of Illinois abridges freedom of speech in the context of Governor Pritzker’s Executive Order. Part IV discusses the impact of the Executive Order and considers the implications and efficacy of statewide face mask mandates generally. Part V concludes this Comment by revisiting the instruction that caselaw provides.
Deva, Surya, ‘COVID-19’s Impact on Civil and Political Rights: Reflections from Hong Kong’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 91-97 Introduction: Covid-19 and the government responses to it – e.g., social distancing or quarantine norms, mandatory mask wearing rules and compulsory lockdowns – have raised a range of constitutional questions all over the world.1 China is no exception. However, these questions are unlikely to enter courts (or even public discourse) in mainland China for three reasons. First, the 1982 Constitution of the People’s Republic of China has no direct effect: despite the Constitution containing a long list of fundamental rights, no citizen could rely on these – in the absence of a law – in court proceedings to challenge a government action or inaction. Second, Chinese courts do not enjoy the power of judicial review. Third, the Chinese government strictly controls discussion about politically sensitive issues, and issues surrounding Covid-19 falls into this category.
‘Devolution’ (2020) July Public Law 554–557 Abstract: Reviews devolution-related developments, including: the powers granted to devolved Ministers by the Coronavirus Act 2020; the Northern Ireland Executive’s legislative programme and the coronavirus-related legislation passed by the Assembly; key provisions of the Coronavirus (Scotland) Act 2020 and accompanying health protection regulations; and coronavirus-related regulations passed by the Welsh Assembly.
Di Bari, Michele, ‘Let Judges Speak for Themselves: Can Comparative Constitutional Case Law Help Conceptualize Universal Standards in the Fight against COVID-19?’ [2021] (1) Dirittifondamentali.it 200–221 Abstract: This contribution provides an examination of recent constitutional case law concerning the judicial review of emergency measures adopted in the fight against the COVID-19 pandemic. In particular, the aim of this comparative analysis is twofold: On the one hand, its purpose is to verify whether Supreme Courts were able to engage with the limitation of fundamental rights without being too deferential as it could be expected during emergencies; on the other hand, it attempts, to demonstrate that it is possible to conceptualize universal standards for the protection of fundamental rights during health emergencies through what is called comparative constitutional case law (CCCL). The analyzed case law belongs to different legal orders, namely, Kenya, Kosovo, and Slovenia; however, all the cases concern freedom of movement and its legitimate (possible) limitations. The analyses of different cases are provided separately, and in the last paragraph some conclusive hypotheses have been drawn and left open for a future debate.
Domenici, Irene and Franciska Engeser, ‘The Institutional Tragedy of Pandemic Triage Regulation in Italy and Germany’ (2022) European Journal of Health Law (Advance article, published online 4 March 2022) Abstract: This article adopts a comparative approach exploring the reactions to the scarcity of resources resulting from the Covid-19 pandemic in Italy and Germany. Both countries showed a fragmented structure including individual hospitals, medical associations and recommendatory interdisciplinary bodies, such as ethics councils. Against this background, the authors use the different constitutional frameworks in which the healthcare systems are embedded to assess the legitimacy of the intervention by non-legislative bodies. It is demonstrated that, in both jurisdictions, a certain level of parliamentary involvement in establishing triage criteria or procedures is constitutionally required, as in situations of extreme scarcity the prioritisation decision cannot be determined by a mere clinical analysis but rather demands a normative choice.
Donley, Greer, Beatrice Chen and Sonya Borrero, ‘The Legal and Medical Necessity of Abortion Care Amid the COVID-19 Pandemic’ (2020) 7(1) Journal of Law & the Biosciences Article lsaa013 Abstract: In response to the COVID-19 pandemic, states have ordered the cessation of non-essential healthcare. Unfortunately, many conservative states have sought to capitalize on those orders to halt abortion care. In this short paper, we argue that abortion should not fall under any state’s non-essential healthcare order. Major medical organizations recognize that abortion is essential healthcare that must be provided even in a pandemic, and the law recognizes abortion as a time-sensitive constitutional right. Finally, we examine the constitutional arguments as to why enforcing these orders against abortion providers should not stand constitutional scrutiny. We conclude that no public health purpose can be served by this application because abortion uses less scarce resources and involves fewer contacts with healthcare professionals than prenatal care and delivery assistance, which is continuing to be provided in this public health emergency.
Draper, Brandon, ‘And Justice for None: How COVID-19 Is Crippling the Criminal Jury Right’ (SSRN Scholarly Paper ID 3666261, 3 August 2020) Abstract: The jury trial is meant to be the beacon of the criminal justice system in the United States. Amid the COVID-19 pandemic, access to fair and constitutional jury trials has largely come to a halt. Courts correctly decided to stop all jury trials and other in-person proceedings as the nation learned more about a new and deadly virus. Nevertheless, this decision denied access to this important constitutional right. Additionally, courts employed video conference technology such as Zoom and WebEx platforms to conduct arraignments, general docket appearances, and some pretrial hearings. Overall, this technology has greatly assisted in the continued function of most aspects of the criminal justice system.Four months into the pandemic, some criminal courts are beginning to consider and test two adaptations of jury trials to attempt to meet the needs of the system: (1) trials that are both in-person and compliant with social distancing policies; and (2) trials conducted exclusively via video conference. This Essay argues that at best, these solutions are grossly unfair to all of those who participate in the criminal justice system. And at worst, they likely violate the Sixth Amendment rights of the accused and create ethical concerns for prosecutors, defense attorneys, judges, and jurors. Despite these legitimate concerns, courts should attempt to resume jury trials that are both in-person and compliant with social distancing policies. Courts may also allow remote trials for defendants who on advice of counsel wish to proceed on that basis. While an imperfect solution, it allows the accused to maintain their Sixth Amendment confrontation right or give a knowing and voluntary waiver, and provides the criminal justice system the best opportunity to mitigate the other issues created to attempt to ensure a fair jury trial.
Draper, Brandon, ‘Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice’ (2021) 105(2) Marquette Law Review 205 Abstract: The Sixth Amendment’s criminal jury right is integral to the United States criminal justice system. While this right is also implicated by the Due Process Clause, Equal Protection Clause, and several federal and state statutes, criminal jury trial rates have been declining for decades, down from approximately 20% to 2% between 1988 to 2018. This dramatic drop in the rate of criminal jury trials is an effective measure of the decreased access to fair and constitutional criminal jury trials.
Drinóczi, Tímea and Agnieszka Bień-Kacała, ‘COVID-19 in Hungary and Poland: Extraordinary Situation and Illiberal Constitutionalism’ (2020) 8(1–2) The Theory and Practice of Legislation 171–192 Abstract: Hungary and Poland have started their illiberal remodelling in 2010 and 2015 respectively. Both governments routinely apply the illiberal version of the Rule of Law (illiberal legality), which involves that every situation has the potential to be exploited for political gain. Both states opportunistically apply their constitutions and selectively invoke favourable constitutional provisions. And yet, this paper claims that the Hungarian Fundamental Law and the Polish Constitution are equipped with adequate emergency measures to provide for a proper framework for emergency legislation. In illiberal emergency constitutionalism, Hungary uses and abuses its Fundamental Law, while Poland is disregarding its binding 1997 Constitution and, at the same time, creates its new invisible illiberal constitution. This paper explores how it is done during the current human pandemic crisis by focusing on, first, the emergency regimes the constitutions provide for and their (non-)application. Second, it compares the operation of the parliaments as the Sejm chaotically passes crisis management related omnibus legislation and amendments on the presidential election during the extra-constitutional ‘state of epidemic’. The Hungarian Parliament operates under the ‘danger of crisis’. Yet, it still delivers regular legislative activities, as the emergency ‘legislation’ is done through governmental decree as per the Coronavirus Act 2020, which is unconstitutional. These phenomena necessitate an in-depth inquiry about the nature, form, and content of the Hungarian and Polish emergency legislation and governmental decrees. It is concluded that, under normal circumstances, the Hungarian and Polish constitutional measures set for guiding the authorities in emergencies are adequate. In the current political and constitutional setting and COVID-19 crisis, the form and the content of some essential Hungarian and Polish emergency measures stay below standards. It is a further warning sign for the European community to take Hungarian and Poland illiberal constitutionalism seriously. Their pushing the envelope will not end by itself.
Dubey, Uttam, ‘Right to Emergency Medical Services In India’ (SSRN Scholarly Paper No ID 3639124, 30 May 2020) Abstract: The onslaught of the Novel Corona Virus (COVID-19) pandemic has awakened the individuals and governments globally from the delusion of possessing an efficient public health care system to the worst of the nightmares. The nightmare of people from most advanced countries dying on the streets due to non-availability of beds in hospitals is turning into reality during this pandemic. Although the intellectuals worldwide are busy painting the post-COVID-19 scenario, it is difficult for anyone to paint a conclusive picture of pandemic aftermath. Nonetheless, this pandemic has white-washed the farce created by the States in providing efficient healthcare to its citizens.The situation in India is much grave. Developed countries worldwide became helpless at the peak of the pandemic as the number of patients exceeded the public health care infrastructure. However, in India, the helplessness in providing adequate medical care is imposed on the citizens due to non-cooperation from private hospitals. During the pandemic, the private Hospitals, on the one hand, refused to treat non- COVID 19 patients by mandating a COVID 19 negative certificate and on the other hand did not open up their infrastructure for the COVID-19 patients by citing health concerns of its negative patients. This non-cooperation of private hospitals was precipitated by inaction of the government in enforcing their writ on these hospitals.These dire circumstances compel everyone to ponder upon a pertinent question related to emergency medical care in India. Whether as an Indian citizen, do we have any right to emergency medical care and whether the authorities are doing enough to ensure such right is not violated due to whims of management of private hospitals?The question is as tricky as any question related to rights of Indian citizens enshrined in Constitution of India as it provides a dream of utopian State for its citizens, like the delusion of the efficient public health care system as stated above. However, Indians most often wake to the reality of their rights trampled upon without any redress by institutions created under the Constitution.
Dung, Nguyen Duy and Nguyen Tat Thanh, ‘Limitation of Constitutional Rights in the Context of Covid-19 in Vietnam’ (2023) 11(2) Russian Law Journal 161–168 Abstract: The COVID-19 pandemic is causing severe impacts on the world and Vietnam. Not only does it affect the lives and health of each individual, but it also threatens the economy, politics, and social stability of countries all over the world. Many countries have taken different response measures within their capabilities. But these epidemic prevention and control measures have raised concerns about their effect on the constitutional rights of people in society. This research paper aims to provide an analysis of limitations on constitutional rights in Vietnam in the context of the COVID -19, the deficiency of Vietnamese law on this issue. To achieve its objective, general and specific scientific scholarly research methods, including those denominated concrete-historical, logically historical, system-based, comparative legal (law), among others, are carried out. The paper clarified the legal provisions on constitutional rights, scientific views on the limitation of rights, and the fact of rights limitation in Vietnam in the COVID-19. At the same time, point out the inadequacies in the provisions of Vietnamese law and offer some solutions. The authors argue that the Government of Vietnam has enacted several legal documents restricting constitutional rights at different levels; however, the legality of these documents is a matter of controversy. At present, in Vietnam, the constitutional jurisdiction mechanism is still quite opaque, processes of power control, so far, have not been built in special situations of the society, and there is a lack of tools to assess the reasonableness of limitation of rights. The most important task here is to build completeness and enhance the effectiveness of the legal system, including constitutional norms.
Durojaye, Ebenezer and Robert Doya Nanima, ‘From Muhammed and Others to De Beer and Others: Striking the Balance between Public Health Measures and Human Rights during Covid-19 Era in South Africa’ (2021) 47(1) Commonwealth Law Bulletin 175–194 Abstract: This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed.
Durojaye, Ebenezer and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022)link to book page on publisher website
Book summary: Highlights the role that data, science and technology have played in African states' responses to the COVID-19 pandemic. Focuses on the impact of emergency measures on the rights of marginalized groups, including women, children and the poor. Offers recommendations for strengthening human-rights-based approaches to government interventions for future pandemics.
Earley, Brady, ‘Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics’ (SSRN Scholarly Paper ID 3908624, 20 August 2021) Abstract: This article undertakes a comparison of legal restrictions on religious gatherings in the United States during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied upon proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 models a better way. Instead of using proportionality or equality, these local officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, fewer deaths, and fewer cases during the 1918 pandemic and offers a useful precedent for government officials currently managing the religious freedom concerns of COVID-19.
Ejima, Akiko, ‘Constitutional Oversight Mechanism for Government Decision Making in an Era with COVID-19’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 107-114 Introduction: Since COVID-19 pandemic spread all over the world, we frequently compare countries by number of infections and deaths. Why did some countries manage to keep the virus under control and others not? Moreover, why did some governments respond to the situation swiftly and effectively, and others not? Why did some governments take more drastic measures and others not? The decision-makings by governments is a result produced from a particular constitutional mechanism. It is time to compare not only decisionmakings but also constitutional mechanisms in which government decisions are made.
Esen, Selin, ‘Impacts of the COVID-19 Pandamic on the Constitutional Rights in Turkey’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 209-220 Introduction: The Covid-19 outbreak has multidimensional effects on individuals, communities and states. Therefore, this global pandemic not only directly affects basic constitutional rights and freedoms, such as life, health, movement, expression, worship, association, assembly, privacy, property, and access to justice, but also it has visible impacts on economy, politics and culture. Some measures taken due to eliminate the pandemic are so drastic that raised the question of their compability with the Constitution, democratic norms and rule of law in many countries. The Covid-19 pandemic has profoundly affected Turkey, as it has adverse impacts on almost every country around the globe. Below, I will discuss some of the constitutional questions on countring Covid-19 in Turkey.
Farber, Daniel A, ‘The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts’ (SSRN Scholarly Paper No ID 3635740, 25 June 2020) Jurisdiction: USA
Abstract: When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination. Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used ‘business as usual’ constitutional analysis that ignore the crisis conditions under which the government must contend with today. During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.
Note: in Jacobson v Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.
Fehr, Colton, ‘Mandatory COVID-19 Vaccinations and the Charter’ (2022) 31(1) Constitutional Forum / Forum Constitutionnel 7–18Jurisdiction: Canada
Abstract: This article considers whether mandatory COVID-19 vaccinations would survive constitutional scrutiny. I maintain that at various junctures throughout the pandemic, such a policy would comply with the Charter so long as the punishments for any violation of such a law did not include imprisonment.
Figueiredo, Marcelo, ‘COVID-19 and the Brazilian Reaction’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 41-51 Extract from Introduction: The objective of this text is to briefly address the most relevant constitutional and legal issues involving the COVID-19 pandemic, especially the measures adopted by the authorities and powers constituted in Brazil to face this enormous public health challenge…. In Brazil, it is the President of the Republic’s competence to decree both states (of defense and of siege), submitting them to the National Congress. Very few voices have advocated these states to be enacted with the coming of the pandemic to the Brazilian territory. In fact, in our opinion, it is not even the case of its application, except for a complicated and unwanted hermeneutic acrobatics of the constitutional text. Nevertheless, as a member of the United Nations (UN), World Health Organization (WHO) and other international and regional organizations, Brazil maintains constant international contact (good institutional relationship) with such entities for the defense of peace, life and human health, having a human rights friendly Constitution, as the so-called citizen Constitution of 1988 is known. It is important to point out that several Constitutions of the 1980s, as well as the Brazilian one, reinstalled the democratic life in different Latin American countries, in general, after long periods of dictatorship and authoritarianism that lasted on average twenty years.
‘Fifth Circuit Upholds Abortion Restrictions During COVID-19 Pandemic: In Re Abbott 954 F.3d 772 (5th Cir. 2020)’ (2021) 134(3) Harvard Law Review 1228–1235 Abstract: The article focuses on the decision of the U.S. Court of Appeals for the Fifth Circuit in the case In re Abbott in which court upheld GA-09, a Texas executive order that temporarily postponed all nonessential medical procedures, including abortions, in response to the COVID-19 pandemic. It mentions court relied on principles central to common-good constitutionalism, potentially indicating that this judicial philosophy is gaining traction on emergency powers.
Figueroa, Daniel, ‘Diminishing Religious Liberties: COVID Under the First Amendment’ (SSRN Scholarly Paper ID 3753678, Social Science Research Network, 22 December 2020) Abstract: The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.
Finch, Naomi et al, ‘Undermining Loyalty to Legality? An Empirical Analysis of Perceptions of “Lockdown” Law and Guidance during COVID-19’ (2022) 85(6) The Modern Law Review 1419–1439 Abstract: This article substantially extends the existing constitutional and legal critiques of the use of soft law public health guidance in the UK during the COVID-19 pandemic. Drawing upon the findings of a national survey undertaken during the first wave of the pandemic in June 2020, it shows how the perceived legal status of lockdown rules made a significant difference as to whether the UK public complied with them and that this effect is a product of the legitimacy that law itself enjoys within UK society. Based on this analysis, it argues that the problems with the Government’s approach to guidance, that have been subjected to criticism in constitutional and legal terms, may also be open to critique on the basis that they risk undermining the public’s loyalty to the law itself.
Finnane, Mark, ‘‘Phillips’ Brief: The Curious Case of a Lost Emergency: Section 119 in 1919’ (2021) 45(2) Criminal Law Journal 134–136 Abstract: The disruptive effects of pandemic became familiar terms of discourse in the course of the 2020 experience of COVID-19. They manifested themselves not only in a contentious politics of public health response and accompanying civil control measures. They have been evident too in the capacity of a major health crisis to shift the terrain of ‘politics as usual’ into new possibilities of governance and State provision. Such innovation as has occurred in Australian public policy has taken place against a background of constitutional arrangements for the Federation that, for good or ill, date to the late 19th century.
Fisher, James C, ‘“All I Can Do Is Ask”: COVID-19, Lockdowns without Law, and Constitutionalism in Japan’ [2021] (2) Public Law 251–261 Abstract: The 2016 Japanese creature-feature ‘Shin Godzilla’ failed to replicate abroad its domestic commercial and critical triumph. Superficially, it reheats a time-honoured formula: giant reptile flattens Tokyo. But the real antagonist in this franchise reboot is not the eponymous lizard, but Japanese government. In its defining scenes, Japan’s political order fails tragicomically to handle a crisis. This made cathartic viewing for a Japanese audience still nursing the trauma of 2011’s natural and nuclear disasters-and anger at the official response. Its force was, it seems, somewhat lost on international viewers lacking this intuitive understanding of the story’s real villain. The institutions and conventions of Japanese public power have been tested afresh by the COVID-19 pandemic and, in the opinion of most Japanese and international observers, have again been found wanting. The sudden resignation of Japanese Prime Minister Abe Shinzo-ostensibly on grounds of ill health-came as support for his administration neared its historic low. Paradoxically though, for most of 2020, Japan’s health outcomes resembled those of widely applauded jurisdictions such as Taiwan, Singapore and the Republic of Korea. Clearly, the government has been judged not directly on health outcomes, but on its general handling of this major crisis. Japan has controversially declined to follow comparable jurisdictions into mandatory ‘lockdown’. Some work is needed to contextualise and assess Japan’s distinctive non-coercive response, which concerns the relationship between extra-legal guidance and positive law, and invites reflection on wider trajectories of Japanese constitutionalism.
Fisher, Roger S, ‘Travel Restrictions and Border Security Measures on the Canada–US Border During the COVID-19 Pandemic: Does Law Matter in a Crisis?’ in Stanley D Brunn and Donna Gilbreath (eds), COVID-19 and a World of Ad Hoc Geographies (Springer, 2022) 379–398 Abstract: Limited travel restrictions and border controls may be justified on a short-term emergency basis in the early stages of an outbreak of infectious disease even though such measures, if applied broadly, may not conform to the principles of ethical public health practices and almost certainly infringe on constitutionally protected rights and freedoms. Although the broad travel restrictions and border controls on the Canada-U.S. border raise a number of novel legal and public policy issues in terms of their necessity, efficacy, and constitutionality, a tradition of judicial deference in cases involving public health measures during a pandemic suggests that the courts may uphold the travel restrictions and border control measures as a necessary and reasonable limit on constitutionally protected rights and freedoms.
Flynn, Alexandra et al, ‘Municipal Power and Democratic Legitimacy in the Time of COVID-19’ in Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 91 Abstract: As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local ‘main street’ businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the Constitution, they are considered to be nothing more than ‘creatures of the province.’ However, courts have decided in many cases that local decisions are often considered governmental and given deference. This chapter focuses on the tensions in this contradictory role when it comes to municipal responses to COVID-19, particularly when those responses take the form of closure of public spaces, increased policing by by-law officers, and fines. I conclude that municipalities serve an important role in pandemic responses, alongside provincial and federal governments. Provincial law should be amended to capture the important role of municipalities in Canadian federalism, especially in the area of municipal finance.
Flynn, Tom, ‘Crisis, Opportunism, and Opportunity: How the Pandemic Has Exacerbated Pre-Existing Constitutional Tensions in the European Union’ in Carla Ferstman and Andrew Fagan (eds), COVID-19 Law and Human Rights: Essex Dialogues (School of Law and Human RIghts, University of Essex, 2020) 51–61 Extract from Introduction: The global Covid-19 pandemic arrived at a time of pre-existing and overlapping constitutional crises in the European Union, and exacerbated them. Two are the particular subjects of this contribution. First, several Member States had been sliding into authoritarianism long before the pandemic hit. The rise of ‘post-fascism’ in Hungary in particular was already a matter of serious concern, as was the EU’s failure to respond to it. Covid-19 has made this crisis worse, as Hungary has responded with a law suspending its Constitution and allowing the government to rule by decree, while the EU has continued to merely wag its finger. This calls into question the Union’s commitment to its claimed foundational values, amongst which are democracy and the rule of law. Secondly, tensions between ‘northern’ and ‘southern’ Member States over fiscal discipline and economic solidarity have remained unresolved since the last Eurozone crisis. The EU’s response to the crisis beginning in 2008 revealed the deep conflicts between the debtor and creditor states of Europe, and raised complex legal and political questions as to how the Union could and should assist Member States in financial distress. These questions have now resurfaced in the context of Covid-19, with ill-tempered arguments between the so-called ‘frugal four’ (Austria, Denmark, the Netherlands, and Sweden) and hard-hit states such as Italy and Spain as to how the Union should respond to the pandemic in monetary, financial, and economic terms. … This contribution therefore seeks to place the Covid-19 crisis in the context of a Union well-used to crisis, and already dealing with at least two when the pandemic hit. Will the Union muddle through as it has historically done, or do the structural tensions at work mean that a more radical rethink is needed?
Fombad, Charles Manga and Lukman Adebisi Abdulrauf, ‘Comparative Overview of the Constitutional Framework for Controlling the Exercise of Emergency Powers in Africa’ (2020) 20(2) African Human Rights Law Journal 376–411 Abstract: The need to act swiftly in times of emergency gives governments a reason to exercise emergency powers. This is a legally valid and accepted practice in modern democracies. Post-independence African constitutions contained provisions that sought to regulate states of emergency, placing the emphasis on who could make such declarations and what measures could be taken, but paid scant attention to the safeguards that were needed to ensure that the enormous powers that governments were allowed to accrue and exercise in dealing with emergencies were not abused. As a result, these broad powers were regularly used to abuse fundamental human rights and suppress opponents of the government. In the post-1990 wave of constitutional reforms in Africa, some attempts were made to introduce safeguards against the misuse of emergency powers. This article undertakes a comparative assessment of the extent to which these reforms have reduced the risk that the exercise of emergency powers poses to human rights and progress towards constitutionalism and respect for the rule of law, especially in times of global pandemics such as COVID-19. Indeed, the COVID-19 pandemic has exposed the weaknesses of the constitutional reforms designed to check against the abuse of emergency powers. In most African countries, governments in dealing with the virus decided to act within the legislative framework, which subjects them to few checks rather than rely on the constitutional frameworks which in most cases provide for more elaborate checks. It is clear from the experiences of the past few months that most African constitutions never anticipated an emergency of such magnitude. The article concludes by arguing that one of the major lessons of the COVID-19 pandemic is that there is a need to review the constitutional and regulatory framework for the exercise of emergency powers to better prepare for future pandemics.
Foran, Michael, ‘The Emergency Paradox: Constitutional Interpretation in Times of Crisis’ (2021) 25(1) Edinburgh Law Review 118–124 [unpublished version on SSRN] Abstract: The COVID-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This paper explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law.
Fradella, Henry, ‘Symposium: Pandemics and the Constitution: Why the Special Needs Doctrine Is the Most Appropriate Fourth Amendment Theory for Justifying Police Stops to Enforce COVID-19 Stay-at-Home Orders’ (2020) 12(1) ConLawNOW 1–14Jurisdiction: USA
Abstract: Despite the fact that the steps the federal and state governments take to curtail the spread of the viral infection are presumably taken in the best interest of public health, governmental actions and actors must comply with the U.S. Constitution even during a pandemic. Some public health measures, such as stay-at-home orders, restrict the exercise of personal freedoms ranging from the rights to travel and freely associate to the ability to gather in places of worship for religious services. This Essay explores several completing doctrines that might justify the authority of law enforcement to stop people who are out of their homes when a public health order has directed people to shelter-in-place during the COVID-19 pandemic.
‘Freedom of Speech’ (2020) July Public Law 558–560Jurisdiction: UK
Abstract: Reviews developments concerning freedom of expression, including: OFCOM’s publication of a note on broadcasting related to the coronavirus pandemic; the complaints received by OFCOM about the broadcast of a coronavirus-related interview with conspiracy theorist David Icke, and about comments made on ITV’s current affairs programme ‘This Morning’; and OFCOM’s publication of its review of public service broadcasting between 2014 and 2018.
Gárdos-Orosz, Fruzsina, ‘COVID-19 and The Responsiveness of the Hungarian Constitutional System’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 157-165 Extract from Introduction: This report analyses the constitutional framework of the Hungarian government’s use of emergency powers to control the COVID-19 pandemic. I will focus here on the most debated issues of public law.
Garland, Norman M, ‘The Constitutionality of Remote Trials’ (2021) 51(1) Southwestern Law Review 107–115 Abstract: ‘When the American people chose to enshrine that right in the Constitution, they weren’t suggesting fruitful topics for future cost-benefit analyses. They were seeking to ensure that their children’s children would enjoy the same hard-won liberty they enjoyed.’ Justice Gorsuch emphasized the importance of a unanimous verdict for a criminal proceeding when delivering his opinion in Ramos v. Louisiana. Though the case dealt with Louisiana’s criminal courts adhering to a unanimous jury verdict as implied within the Sixth Amendment, Justice Gorsuch’s reasoning could apply to a dilemma that many states are facing today: the constitutionality of conducting remote trials. Due to COVID-19 and the pandemic, many trials have either been delayed or conducted remotely. Parties have argued that the inability to cross-examine a witness face-to-face was a violation of their Confrontation Clause rights as written in the Sixth Amendment. Courts that have conducted remote trials have reasoned that it is in the states’ public policy interest to protect people from contracting the COVID-19 virus by not appearing in court. But the pervasive question is whether the Confrontation Clause can yield to such a public policy interest.
Gates, Alexander A, ‘Legal and Ethical Implications of Mandatory COVID-19 Vaccination Programs’ (2022) 25 Quinnipiac Health Law Journal 125 Abstract: This article will explore the legality behind vaccine mandates that inherently infringe on civil liberties and what it means for people in different walks of life. In Part II, this note will illustrate the historical background of vaccines and discuss the characteristics that make vaccines unique in preventing infection from otherwise deadly viruses. In Part III, a constitutional basis for compulsory vaccination will be reviewed using case law. In Part IV, the religious and philosophical exemptions that are inherent objections to vaccines will be discussed. In Part V, the Food, Drug, and Cosmetic Act’s (FDCA) Emergency Use Authorization (EUA) will be explored. In Part VI, this note will determine the legality of vaccine mandates in specific situations. In Part VII, the ethical considerations of mandating a vaccine will be evaluated using different frameworks. Part VIII will conclude with a legal and ethical analysis of vaccine mandates.
Gates, Samantha, ‘Pandemics, Privacy and Pressing Constitutional Limits: The Commonwealth’s Use of the Nationhood Power to Facilitate COVIDsafe’ (2023) 50(2) University of Western Australia Law Review 194–223 Abstract: The advent of COVID-19 saw the Commonwealth Government launch the voluntary contact tracing app – COVIDSafe. Accompanying the launch of the app, the Commonwealth inserted Part VIIIA into the Privacy Act 1988 (Cth) (‘Privacy Act’). Part VIIIA put in place a scheme of privacy protection for users of COVIDSafe to increase public trust in the app, and therefore its uptake. What is remarkable about Part VIIIA is its constitutional basis. While the constitutional validity of the Privacy Act is sourced in the external affairs power, the Commonwealth instead relied on the amorphous nationhood power to support Part VIIIA. The aim of this article is to examine Part VIIIA and determine whether it can truly be said to be a law with respect to the nationhood power. This will carry implications for future uses of the nationhood power by the Commonwealth in the realm of privacy protection.
Gatter, Robert, ‘Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures’ (2021) 64(1) Washington University Journal of Law & Policy 151–166 Abstract: State and local officials have issued public health orders aiming to prevent or slow the spread of COVID-19. As a result, constitutional challenges have been brought claiming that certain measures (stay-at-home orders, mask mandates, etc.) violate the right to free exercise of religion, the right to free assembly, and the right to due process. This Article acknowledges the highly deferential standard applied when assessing whether a government’s public health action, during a public health emergency, violates the due process clause. Gatter encourages judges to adopt ‘focused scrutiny’ in these cases, further constraining judicial review by a scientific focus. This review can be applied to any standard. Courts applying focused scrutiny focus their attention to the known science of the infectious disease as well as evidence of the efficacy of the government’s public heath measure. When both the government’s public health action and the constitutional review of the action occur during a declared emergency, Gatter argues this method is necessary to off-set the risk of judicial rubber stamping, defend against public health policy driven by fear or politics, and to strengthen the scientific basis of public health measures taken during the pandemic.
Geddis, Andrew and Alex Latu, ‘Unlawful Commands, Bills of Rights, and the Common Law’ (SSRN Scholarly Paper ID 3711775, 14 October 2020) Abstract: In Borrowdale v Director General of Health [2020] NZHC 2090, a full bench of the High Court issued a declaration that a series of governmental commands issued during the first 9 days of New Zealand’s ‘lockdown’ response to COVID 19 were ‘not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.’ This declaration formally records the Court’s conclusion that for more than a week New Zealanders’ statutorily guaranteed rights and freedoms were limited without legal basis. In this comment we explain both why this was so, and why the Court was right to recognise that fact by way of a declaration. We also examine the Court’s finding that these limits did not constitute a suspension of either laws or their execution in terms of the Bill of Rights Act 1688. Finally, we suggest that the High Court missed an opportunity to clearly elucidate the constitutional limits on the executive’s power to promulgate apparently coercive directives in the absence of any legal authority. The impending appeal of the High Court’s judgment to the Court of Appeal perhaps provides an opportunity to revisit that last matter.
Note: link to Borrowdale v Director-General of Health [2020] NZHC 2090 (19 August 2020) on NZLII.
Gentithes, Michael and Harold J Krent, ‘Symposium: Pandemics and the Constitution: Pandemic Surveillance: The New Predictive Policing’ (2020) 12(1) ConLawNOW 57–74 Abstract: As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it. To assess the privacy impact of such policies, we first examine the growth of predictive policing, which similarly treats some individuals differently based on the likelihood that they will either commit or be the victim of a crime. Although predictive policing has generated much social benefit, concluding that someone is likely to commit a crime should not justify either a stop and frisk or, worse, an increased sentence if a crime is in fact committed. We should be wary of depriving individuals of freedom solely on the statistical probability that they will commit a crime in the future. We then examine whether the increased public health surveillance that is likely to be launched can comport with our constitutionally-protected fundamental liberties. As with predictive policing, if the government focuses traditional data collection efforts on those most likely to contract the virus, no constitutional issue arises. But, if the government restricts the freedoms of those who may have been exposed to the virus, and if the government restricts the freedoms of those who are least likely to be immune thereafter, courts must balance the government’s public health interest against the constitutional infringement on the fundamental rights to work and travel. We argue that governments can only justify such actions based on a strong showing of public health necessity and must afford anyone subject to such serious restrictions some limited opportunity to challenge the government’s classification, which would leave them stripped of the right to travel and possibly their ability to pursue a livelihood. Given that the balance between governmental power and individual rights tips towards the government in times of crisis, we end by suggesting the constraints that the government should respect when casting such a wide surveillance net.
Gerkrath, Jörg, ‘Constitutional Engineering of State of Exception Regimes within the European Union’ in Braum, Stefan (ed), Experimental Law: The Rule of Law and the Regulation of the Corona Pandemic in Europe (Nomos, 2023) 45–64
Giacomelli, Luca and Elisabetta Lamarque, ‘The Italian Constitutional Court and the Pandemic: A National and Comparative Perspective’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: Never before have the world’s democracies simultaneously experienced such a major contraction of civil liberties as during the ‘new’ coronavirus pandemic, producing massive debates about the role of government power during times of crisis. This essay focuses on the response provided by constitutional courts to face the emergency. The attitude of the Italian court can be effectively summarized by the following key words: continuity, loyal cooperation, autonomy, step-by-step approach, working methods. From a comparative perspective, the reaction of many other national and supranational courts was not so different and inspired by the same criteria.
Gibellino, Elisa and Federica Cristani, ‘First 100 Days of Italian COVID-19 Policy: A New Image for Democracy, Security, Education, and the Economy in Italy’ in Aleksandar Stojanović, Luisa Scarcella and Christina R Mosalagae (eds), The First 100 Days of Covid-19: Law and Political Economy of the Global Policy Response (Springer Nature, 2023) 121–144 Abstract: Italy was the first in Europe which suffered from the outbreak of the Covid-19 pandemic, with around 90,000 estimated victims only in the first 100 days. This Chapter offers on overview of the development of the Italian state of emergency in the first months of the pandemic through the lenses of a variety of themes: policy, democracy, economy, security and education. After the first 100 days of the pandemic, we see (a) new face(s) of Italy, with manifold challenges, ranging from more concerns on the privacy side when it comes to surveillance and security, and new forms of intervention of the state in the national economy. Additionally, major concerns have come along for democracy and constitutionalism, as the Chapter will illustrate in detail.
Ginsburg, Tom, ‘COVID-19 and the US Constitution’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 69-74 Extract from Introduction: Despite all its messiness, and its poor policy outcome, the coronavirus response in the United States has been successful in responding to the preferences of the public. This public is highly misinformed and distrustful of expertise. It important to remember that the United States is in something of an epistemic crisis, in which large segment of the population believes in conspiracy theories and distrusts science as a matter of course. We also have a longstanding libertarian tradition distrustful of all government as a matter of principle. From a public health perspective these people should be ignored. But from a democratic perspective they should not. The United States has had an extended constitutional conversation, involving state governments, courts at both states and the federal level, legislatures, and the public itself, about the response, and it surely is not a very good advertisement.
Golia, Angelo et al, ‘Constitutions and Contagion. European Constitutional Systems and the COVID-19 Pandemic’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–42, 9 November 2020) Abstract: The COVID-19 pandemic has posed an unprecedented governance challenge, with governments resorting to very different (legal) strategies to respond to the health emergency. A rich literature is already dedicated to measures adopted in individual States. This article adds an original comparative contribution to that literature by exploring the influence of specific constitutional features on the legal response to the pandemic and how, in turn, these responses have the potential to reconfigure the institutional frameworks in place. Our analysis shows that both constitutional contexts and legal traditions significantly matter in pandemic times, in particular when it comes to the rule of law credentials of measures adopted.We focus our study on measures taken during first six months of the pandemic (the ‘first wave’) in four European jurisdictions with significantly different constitutional settlements; namely France, Germany, Italy, and the United Kingdom. Following a contextual approach, the comparative analysis concentrates on four macro-issues: 1) the legal bases of adopted measures; 2) the horizontal allocation of power; 3) the vertical allocation of power; and 4) the role of the judiciary, especially in terms of fundamental rights protection. Across all four analytical categories, constitutional and institutional factors – such as the respective forms of government, vertical power conflicts, presence of pre-existing emergency schemes or legal doctrines, and the structure of the judicial systems – significantly impacted the (legal) path taken in the four jurisdictions under scrutiny and, importantly, reinforced pre-existing patterns of institutional shifts or social and political tensions. In particular, the role of two institutional features generally overlooked in the literature on the matter emerged: the concrete functioning of the vertical allocation of power and the reciprocal relationships between different jursdictions within judicial systems. By these means, this article aims to broaden and enrich the analytical toolkit of the literature concerning the relationship between states of emergency and specific forms of constitutional government and State.
Gordon, Jeffrey, ‘Protest Before and During a Pandemic’ (2022) 50(4) Federal Law Review 421–448 [accepted manuscript version available on SSRN] Abstract: Liberal democracies have struggled recently with protecting freedom of speech and assembly during the COVID-19 pandemic. This is an old, general problem in new, specific guise. In Australia, the Supreme Court of New South Wales has been exercising a statutory jurisdiction to authorise or prohibit proposed public assemblies for 40 years. This article offers the first sustained analysis of the Court’s jurisprudence. After describing the operation of the statutory permit scheme and systematising the case law, this article critiques the Court’s jurisprudence from the perspective of free speech and freedom of assembly. It then argues that there is a puzzle at the heart of the legislative scheme: the conferral of a wide discretion the exercise of which produces a narrow legal order. This puzzle suggests that the legal effect of an authorising or prohibiting order does not exhaust its broader social significance.
Goyal, Gourish and Srinidhi Boora, ‘An Outlook on the Constitutionality of State Amendments on Labour Laws during Pandemic’ (SSRN Scholarly Paper ID 3824582, 8 January 2021) Jurisdiction: India
Abstract: Ubi Jus Ibi Remedium - Where a right is vested, there is a remedy. A right from the beginning of work is a right till the end of work until suspended. Constitutional rights of the labourers can be described under Articles 14-16, 19 (1)(c), 21, 23, 38, 39 and 41-43, 51 and these rights directly concern the labourers. When COVID-19 Pandemic has hit the public health and economic crisis severely, Labourers are most affected due to this pandemic. The Nationwide Lockdown has hit the Companies, factories and Businesses directly and led to huge losses and affected labourers all over the country as they work on a daily basis. Labourers across the country have been battling with the social, political and economic challenges. Both the Central and State Governments were negligent in handling the labourers during the pandemic. Migrant crises have arisen and change of labour laws by states violates the constitutional rights of labourers. This Article will further define in detail about Violation of Constitutional Rights - Media and Reports - History Involved - Dilution of the Labour Laws by the State Government’s - Protection of Labours Rights - Issues Involved and the steps taken by the Supreme Court of India.
Gragl, Paul, ‘Lawless Extravagance: The Primacy Claim of Politics and the State of Exception in Times of COVID-19’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 9-32 [OPEN ACCESS BOOK] Extract from Introduction: In conformity with the virological imperative, governments across the world resorted to massive restrictions on the freedom of movement and other fundamental rights of individuals to combat the COVID-19 pandemic. When confronted with the potential illegality or unconstitutionality of the respective legal provisions put in place to do so, the Austrian chancellor Sebastian Kurz replied that when facing looming disaster, one cannot afford to discuss legal sophistries. It would be better, he continued, not to over-interpret legal questions on this matter and to let the relevant courts deal with them in due time. In other words, the time for critical reflection and discussion may come, but not until the emergency is over. We may interpret these words to the effect that, under the primacy claim of politics which places the good before the right, any use of constitutional provisions that constrain the powers of politics can be regarded as an abuse directed against this good itself. Politics, in its quest for this good, would consequently trip over one’s own laws and be rendered hamstrung and incapacitated by them. Legal guarantees of freedom, equality, and human rights in general thus prevent politics from doing what is necessary and need to be taken on and challenged.
Graver, Hans Petter, ‘COVID-19 Regulation in Norway and State of Exception’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 167-173 Extract from Introduction: Norwegian Prime Minister Erna Solberg held a press conference on March 12, 2020. Here she announced, “the strongest and most comprehensive measures we have had in Norway in peacetime”.1 This, and subsequent measures to deal with the pandemic, challenged the basic constitutional rules of Norway on the state’s exercise of authority in several ways. The decision to shut down the country on March 12, 2020 was formally taken by the Norwegian Directorate of Health and overlooked the Constitution’s requirement that it is the cabinet that must make such decisions. The rules of the Disease Prevention Act (1995) were subsequently stretched to the extreme, both by state and local authorities. A Corona Act was prepared in secrecy. The bill proposed a transfer of authority to the government, which at best was at the very edge of what the Constitution allows, with scant provision for parliamentary and judicial control. Use by the authorities of both legal regulation and recommendations and advice, partly in regulatory form, for example on social gatherings and social distancing, created uncertainty about the state of the law.
Greene, Alan, ‘Closing Places of Worship and COVID-19: Towards a Culture of Justification?’ (2021) 25(3) Edinburgh Law Review 393–400 Introduction: In Reverend Dr William JU Philip and others for Judicial Review of the closure of places of worship in Scotland (Philip), Lord Braid in the Court of Session upheld a challenge by the leaders of several Christian denominations to the Scottish Government’s COVID-19 regulations that required the closure of all churches for congregational worship and private prayer. The closures were in response to increasing COVID-19 cases and the particular risk posed by the new B117 variant which emerged in late 2020. The petitioners raised two distinct issues: firstly, that the respondents lacked any constitutional power to restrict the right to worship in Scotland; and secondly, that even if it did have that power, the closure was nevertheless an unjustified infringement of their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (‘ECHR’) and to associate with others under Article 11 ECHR. As to the first question regarding the constitutionality of the measures, the applicants highlighted the separation between church and state as affirmed in the Acts of Union and Article IV of the Declaratory Articles appended to the Church of Scotland Act 1921. This was dismissed by the court, noting that if the state’s civil power could allow for a more draconian interference with worship such as the imposition of a curfew, then logically, a less draconian interference must also be permissible. The principal question for the court therefore was not whether to draw a clear demarcating line between church and state but rather a question of proportionality as to where the line must be drawn. Here, the court assessed the proportionality of the measures’ impact on the petitioners’ right to manifest their religious beliefs under Article 9 read in conjunction with their right to associate with others under Article 11 ECHR. The court found that these measures were a disproportionate interference with the right to freedom of religion under Article 9 ECHR as the Government failed to show that no less intrusive means other than the closure of places of worship were available to address the legitimate aim of reducing the risk of the spread of COVID-19 by a significant extent. On its face, this looks like a victory for human rights enforced by a muscular judiciary scrutinising closely the justifications proffered by the political branches of government; yet overall, the judgment is unsettling as to the conception of human rights and the rule of law being protected.
Grez Hidalgo, Pablo, Fiona de Londras and Daniella Lock, ‘Parliament, the Pandemic, and Constitutional Principle in the United Kingdom: A Study of the Coronavirus Act 2020’ (2022) 85(6) The Modern Law Review 1463–1503 Abstract: Constitutions come under pressure during emergencies and, as is increasingly clear, during pandemics. Taking the legislative and post-legislative debates in Westminster and the Devolved Legislatures on the Coronavirus Act 2020 (CVA) as its focus, this paper explores the robustness of parliamentary accountability during the pandemic, and finds it lacking. It suggests that this is attributable not to the situation of emergency per se, but to (a) executive decisions that have limited Parliament’s capacity to scrutinise; (b) MPs’ failure to maximise the opportunities for scrutiny that did exist; and (c) the limited nature of Legislative Consent Motions (LCMs) as a mode of holding the central government to account. While at first glance the CVA appears to confirm the view that in emergencies law empowers the executive and reduces its accountability, rendering legal constraints near-futile, our analysis suggests that this ought to be understood as a product, to a significant extent, of constitutional actors’ mindset vis-à-vis accountability.
Grogan, Joelle, ‘COVID-19, Rule of Law and Democracy: Analysis of Legal Responses to a Global Health Crisis’ (2022) 14(2/3) Hague Journal on the Rule of Law 349–369 Abstract: The COVID-19 pandemic caused a severe strain on health systems globally, while simultaneously presenting a social, economic, legal, political, and regulatory challenge. Where the efficacy of pandemic laws adopted by governments are a matter of life and death, the urgency with which action needs to be taken during a pandemic creates a law-making environment which incentivises rapid action without scrutiny and the use of power without restraint. Under such conditions, adherence to the foundational values of democracy and the rule of law come under increased pressure if not threat. The demands of emergency provide a convenient guise and means of justification for the use of power which only serves to consolidate power within the executive to the detriment of the separation of powers and weakening of the institutions of liberal democracy. This article provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the specific examples are drawn from across the globe to highlight common trends and concerns, specific highlight is given to the EU and its Member States. It offers an outlook on how to prepare for future emergencies by building on the lessons of the current one.
Grogan, Joelle and Alice Donald, ‘Policy Paper on the Implications of COVID-19: Insights into State Governance and the Rule of Law, Human Rights and Good Governance during the COVID-19 Pandemic’ (RECONNECT Project, European Commission, 30 January 2022) Abstract: This paper outlines the key findings of our research on the impact of the COVID-19 pandemic on law and legal systems throughout the world from the perspective of the rule of law, democracy and human rights. It highlights challenges to pre-existing assumptions about state performance during conditions of a health crisis, and puts forward recommendations based on what can be identified as positive practices both within the European Union (EU) and beyond it. The research is based on the RECONNECT supported ‘Power and the COVID-19 Pandemic’ Symposium, which published comparative analyses on the impact of the pandemic - and government responses to it - on the legal systems in 64 countries worldwide, including 26 EU Member States, and it also draws from further bodies of research to support these findings. This paper provides a preliminary analysis on how the global health crisis has affected the state of democracy and the rule of law. While the findings are drawn from a global study, specific highlight and focus in the formulation of this paper was given to EU Member States and the actions they took over the course of the first 18 months of pandemic. The key findings and policy-oriented recommendations for post-pandemic measures and processes are applicable in a global setting, but are, again, targeted for particular relevance to EU Member States.
Guruparan, Kumaravadivel, ‘The Sri Lankan Experience with COVID-19: Strengthening Rule by Executive’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 115-120 Extract from Introduction: Sri Lanka’s constitutional governance in the post-war context was already taking an authoritarian turn when COVID 19 stuck in February 2020. The country had just elected its war-time Defence Secretary, Gotabaya Rajapaksa, a former army soldier as its President in November 2019. President Rajapaksa came into power promising to repeal reforms enacted in 2015 that took away some powers from the disproportionately powerful Executive Presidency and to make the Presidency strong again. The Government that came into power in 2015 promised to abolish the Executive Presidency but settled for a reformed Presidency unable and unwilling to muster support for a wholesome reform effort. President Rajapaksa has very conveniently instrumentalised the COVID19 pandemic to justify and further expand the powers of the Executive at the expense of the other two forms of Government. This short article will focus on three aspects of how COVID19 has impacted on matters relating to constitutional governance.
Gutmann, Jerg, Roee Sarel and Stefan Voigt, ‘Measuring Constitutional Loyalty: Evidence from the COVID-19 Pandemic’ (University of Hamburg, Institute of Law and Economics (ILE), Working Paper No 55, 4 February 2022) Abstract: Constitutional loyalty, the importance ascribed to complying with constitutional rules, is difficult to measure across countries due to differences in context, history, and culture. We overcome this challenge by exploiting the COVID-19 pandemic as an ideal setting in which societies around the world face a novel and similar public health crisis, inducing governments to adopt comparable policies. Based on a survey carried out in 53 countries around the world in 2021, we show that citizens’ support for COVID-19 mitigation policies declines if courts signal doubts about their constitutionality. We further demonstrate that this effect of constitutional loyalty depends on citizens’ characteristics, such as their confidence in the courts and their moral convictions.
Hafetz, Jonathan, ‘State Interventions During the COVID-19 Pandemic: The Case for Mask Mandates Under Human Rights Law’ in Tomas Zima and David N Weisstub (eds), Medical Research Ethics: Challenges in the 21st Century (Springer, 2023) 337–354 Abstract: The coronavirus pandemic has sparked political and legal conflict over medical guidance from public health authorities. Public health measures can raise constitutional questions regarding both the government’s authority and the restriction on individual liberty. Despite initial conflicting advice, public health experts have issued clear and repeated warnings that measures such as social distancing and mask wearing are essential to reducing transmission of the virus. Yet, these measures have prompted significant backlash, often out of proportion to the burden on individuals. The chapter will examine constitutional power of the state to implement public health measures during the pandemic that restrict individual freedom. While the chapter will focus on the United States, it will also consider how international law informs the constitutional analysis. Further, the chapter will examine the value of more coercive forms of enforcement, including monetary sanctions, to foster compliance. Not only are such sanctions lawful, but they are particularly important given the hyperpolarized climate and widespread dissemination of misinformation surrounding the virus.
Hajdini, Bojana and Gentjan Skara, ‘The Right to Freedom of Peaceful Assembly During the Covid-19 Pandemic in the Light of ECHR Standards’ (2022) 6 EU and Comparative Law Issues and Challenges Series (ECLIC) 267–286 Abstract: The COVID-19 crisis confronted states with the challenge of finding an immediate balance between public health measures and the principles of the rule of law. The rapid spread of the virus associated with the severe consequences on human health and life required prompt action, without the necessary scientific evidence to assess the effectiveness of the measures taken. Being faced with such a situation, numerous countries opted for drastic measures, like lock down and the restriction of some fundamental human rights and freedoms. This paper analyses the freedom of peaceful assembly during the COVID-19 pandemic in Albania, addressing the research question of whether and to what extent the response of the Albanian government to the COVID-19 pandemic was in compliance with the European Convention of Human Rights (ECHR). In this attempt, it will briefly introduce the measures taken by the Albanian government in the face of the situation and their impact. Following, it will focus on the recent decision of the Constitutional Court of Albania (D-11/21) in relation to the constitutionality of Order 633/2020 of the Ministry of Health and Social Protection which restricted the right of assembly. It will also analyze the extensively-discussed Order 633/2020 in the light of the ECHR and EU standards. The paper concludes that the measures taken by the Ministry of Health and Social Protection of Albanian lacked clarity on ratio legis and most importantly, information on how these measures would be implemented and to what extent they would restrict human rights.
Halladay, Carolyn, ‘Not Dead Yet: Protest, Process, and Germany’s Constitutional Democracy Amid the Coronavirus Response’ in Nadav Morag (ed), Impacts of the Covid-19 Pandemic: International Laws, Policies, and Civil Liberties (Wiley, 2022)
Halmai, Gábor, ‘The Pandemic and Constitutionalism’ (2022) 4(3) Jus Cogens 303–315 Abstract: The paper discusses the reactions of different political and constitutional systems reactions to the pandemic and also the impact of COVID to populism, constitutionalism, and autocracy. Beyond the choice between economic and health considerations also applied in liberal democratic countries, which have lead either to ‘under-’ or ‘overreaction’ to the pandemic, certain illiberal regimes used the crisis situation as a pretext to strengthen the autocratic character of their systems. In some cases, this needed an ‘underreach,’ like in Poland to insist on the presidential election, which has been important to entrench the power of the governing party’s incumbent, elsewhere ‘overreach,’ like in Hungary, where an unlimited emergency power of government has been introduced after the very first cases of contagion. These autocratic ‘overreactions’ have breached the formerly used authoritarian legalistic approaches by openly violating their own illiberal constitutions. New ‘conservative’ theories on ‘common good constitutionalism’ emerged to legitimize the necessity of authoritative rule by the executive power. The paper concludes that one possibility to overcome authoritarian populism and restore constitutionalism in crisis situation such as the COVID-19 pandemic would be to rely on the involvement of the well informed public, one that is capable to understand and assess the advice of the meritocratic elite. This kind of participation would also help build up a constitutional culture necessary to preserve the values of constitutionalism.
Halmai, Gábor, ‘The Pandemic and Illiberal Constitutional Theories’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 299-314 [OPEN ACCESS BOOK] Extract from Introduction: I use ‘illiberalism’ in this chapter as a critical reaction to liberalism. The main theoretical objects of this illiberal critique are the values of political liberalism: human rights, justice, equality and the rule of law, its commitment to multiculturalism and tolerance, ideas of Isaiah Berlin’s ‘negative liberty’, Karl Popper’s ‘open society’, John Rawls’ ‘overlapping consensus’, or Ronald Dworkin’s equality as the ‘sovereign virtue’. From an institutional point of view, and this will be more visible in the legal reactions to COVID-19, illiberalism challenges liberal democracy, which is not merely a limit on the public power of the majority, but also presupposes rule of law, checks and balances, and guaranteed fundamental rights.
Herdegen, M, ‘The Corona Crisis: Challenges for the Socio-Cultural Underpinnings of Constitutional and EU Law’ in Werner Gephart, (ed), In the Realm of Corona Normativities: A Momentary Snapshot of a Dynamic Discourse (Vittorio Klostermann, 2020) 169–178
Hering, Laura, ‘COVID-19 and Constitutional Law: The Case of Germany’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 149-156 Extract from Introduction: Four main constitutional issues emerged during the first weeks of the pandemic: the Federalist system, the functioning of parliament under epidemic circumstances, the adequacy of the adopted measures’ legal basis, and their proportionality. Besides these specific constitutional issues, which will be discussed below, the first weeks of the pandemic also revealed much about German constitutional culture as a whole. This phase demonstrated that German society has great respect for constitutional law, using it as a medium of reflection and a means of solving societal problems. The public debate regarding the Covid-19 measures was conducted in a highly legalistic manner and employed the categories of constitutional law, which is not a matter of course. For the most part, these debates were carried out in the major daily newspapers as well as in online platforms such as the “Verfassungsblog”.2 Nevertheless, this mode of reflection was not formalistic but extremely considered and responsive, impacting the choice of concrete measures. It allowed politicians to develop solutions that they would not have been able to reach without this reflection process. Consequently, the crisis has also revealed the degree to which constitutional law guides political processes in Germany. This close interaction with German constitutional law has contributed significantly to the successful management of the first weeks of the pandemic in Germany.
Hickman, Tom, ‘Abracadabra Law-Making and Accountability to Parliament for the Coronavirus Regulations’ (SSRN Scholarly Paper ID 3732097, 17 November 2020) Jurisdiction: UK
Abstract: Since 26 March 2020 the day-to-day life of every person in the country has been regulated and restricted to an exceptionally high degree by criminal laws made by regulations that have intruded deeply into the heart of individual liberty, regulating the purposes for which people can leave their homes, their ability to socialise and meet family members and their ability to work. The regulations have been made under the Public Health (Control of Disease) Act 1984. Disquiet about the development of a modern form of government by proclamation gradually built-up in Parliament over the summer of 2020. This paper examines this issue. It identifies the two functions of Parliament in relation to delegated legislation as (a) accountability and (b) transparency. It concludes that in the period 26 March 2020 to 12 October 2020 Parliament was unable to perform these functions adequately. Regulations were produced at the last minute, shortly before they came into effect, and parliamentary scrutiny and debate of the measures, if it occurred at all, was belated, restricted and stale. It is suggested that far from being merely a product of an exceptional period, the experience highlights structural weaknesses in the regime for scrutiny of delegated legislation which need to be urgently addressed.
Hidayat, Anwar, ‘Reconstruction of the Constitutional Law Post-Covid-19 Emergency’ (2022) 5(3) Budapest International Research and Critics Institute-Journal (BIRCI-Journal) 27948–27953 Abstract: The purpose of this study is to identify and describe changes in constitutional law as a form of conformity in the post-Covid-19 emergency situation, especially in Indonesia. The method used in this research is descriptive qualitative. The data collection technique used a literature study in the form of a documentation study. The data analysis method uses qualitative analysis which is then directed to draw a conclusion using deductive thinking methods. The results show that the post-Covid-19 Emergency Constitutional Law has a lot to do with economic recovery efforts from the socio-economic impacts caused by the Covid-19 pandemic since the beginning of 2020. In 2022, since the decline in the positivity rate in Under WHO standards, Indonesia has begun to implement so many policies related to national economic recovery such as accelerating government spending, relaxing income taxes, and restoring the national economy by implementing state financial policies through the relaxation of the state budget.
Hill, Mark, QC, ‘COVID-19, Constitutions, and the Courts: Evaluating the Impact of the Coronavirus Pandemic on Religious Liberty’ (2022) 64(4) Journal of Church and State 702–720 Abstract: Commentators on the spread and consequences of COVID-19 pandemic tend to be epidemiologists and statisticians, modeling likely developments in the future based on past events. As the evidence changes, so do their predictions, allowing governments, health providers, and others to adjust their own responses, claiming to be following the science. Graphs and tables of infection and fatality have dominated print and broadcast media. Writing in the early summer of 2022, some two and a half years after COVID-19 was first identified in Wuhan, China, in December 2019, provides a tolerably robust vantage point from which to identify and assess the extent to which steps taken by governments throughout the world had an impact upon the individual and collective right to freedom of religion.1 Governments responded in different ways, but all responses involved some restrictions on the freedoms enjoyed by citizens, including (but certainly not limited to) freedom of religion or belief, as articulated in pan-national human rights instruments as well as constitutional and similar provisions applicable in the domestic laws of each state. The thrust of this article is an evaluation of the constitutionality of the restrictions imposed by national governments, and the efficacy of the courts in ensuring the exercise of religious freedom.
Hodge Jr., James G, ‘National Legal Paradigms for Public Health Emergency Responses’ (2022) 71(1) American University Law Review 65–109 Abstract: The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government--federal or state--should actually ‘call the shots’ to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. Avoiding it entails substantial changes. Expansive interpretations and executions of core federal emergency powers illuminate new paradigms for modern public health emergency preparedness and response where states remain key players, but the feds are primary play-callers.
Hodge, James G et al, ‘Regressive Federalism, Rights Reversals, and the Public’s Health’ (2022) 50(2) Journal of Law, Medicine & Ethics (forthcoming) Abstract: As the United States emerges from the worst public health threat it has ever experienced, the Supreme Court is poised to reconsider constitutional principles from bygone eras. Judicial proposals to roll back rights under a federalism infrastructure grounded in states’ interests threaten the nation’s legal fabric at a precarious time. This column explores judicial shifts in 3 key public health contexts – reproductive rights, vaccinations, and national security – and their repercussions.
Hodge, James G, Hanna Reinke and Claudia M Reeves, ‘Balancing Religious Freedoms and Public Health Protections During the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3619427, 4 June 2020) Abstract: Extraordinary responses to the COVID-19 pandemic are generating substantial debates over the scope and reach of public health powers and religious freedoms. Emergency declarations at every level of government to limit societal impacts of COVID-19 may shift constitutional norms, but do not completely negate rights to free exercise or assemble. Yet, no one has an unmitigated right to harm others in pursuit of their faith. Somewhere between individual religious rights and communal public health objectives lies a legally viable balance. Finding it during the pandemic is controversial. Among the most contentious issues are governments’ temporary orders suspending large religious gatherings to maintain social distances. While many religious leaders have complied, others have vociferously objected. Reaching accord begins with an assessment of legal principles of separation of church and state, especially concerning claims of religious rights to assemble despite unprecedented public health risks.
Hofmann, Ekkehard, ‘COVID-19 and the Federal State’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 77–89 Abstract: After almost two years through the pandemic, COVID-19 has proven to be a considerable and specific challenge for liberal states such as the Federal Republic of Germany. Its constitution requires state actors on all levels to take action to protect its citizens against risks entailed by infectious diseases, but also to respect the rule of law and fundamental rights, data protection legislation and institutional arrangements, particularly the relationship between the central level (‘Bund’) and the states (‘Länder’). As it turns out, this federalist structure does not provide for an adequate legal framework when it comes to global pandemics such as COVID-19.
Hogan, Gerard and Hilary Hogan, ‘Legal and Constitutional Issues Arising from the 2020 General Election’ (SSRN Scholarly Paper No ID 3587047, 27 April 2020) Jurisdiction: Ireland
Abstract: In 1989, a series of novel legal issues arising out of the general election of the same year were examined by the first named writer. If the aftermath of the election of 1989 seemed unusual, it pales in comparison to the series of events that took place following the 2020 general election. It seems timely to re-visit some of the issues explored in the 1989, as well as considering some of the new issues thrown up by the 2020 general election. In this article, we analyse the following questions: what is the effect of a death of a general election candidate? Is the outgoing Taoiseach obliged to resign if he is not re-elected as Taoiseach on the date of the first sitting of the Dáil following the general election, and no other candidate for that office is elected on that day? What is the scope of powers afforded to a caretaker Taoiseach and his Ministers? Is the Seanad validly constituted if a new Taoiseach has not nominated eleven members? If not, can the Oireachtas continue to pass legislation over which the Seanad has a more limited role? Many of these questions assumed new relevance in the context of the actions taken by the acting Government during the Covid-19 pandemic.
Holčapek, Tomáš, ‘Judicial Oversight in Times of a Pandemic’ (2021) 12 Czech Yearbook of Public and Private International Law 360–370 Abstract: This paper focuses on judicial decision-making during the Covid-19 pandemic, especially in the area of judicial oversight or review of various restrictive measures adopted in order to protect public health. A pertinent question is how well-equipped courts are to protect individual rights from excessive interference by public authorities at a time when a lot of essential information about nature and severity of the threat, and which counteractions would be the most suitable, is unavailable. Is it a valid point that law is prepared for usual, nonexceptional circumstances, but fails in times of a true crisis? For this purpose, the paper analyses selected case law and evaluates how it approaches a problem which most developed countries are currently attempting to resolve.
Hostovsky Brandes, Tamar, ‘Constitutionalism and Social Solidarity: A Theoretical and Comparative Analysis’ Buffalo Human Rights Law Review (forthcoming) Abstract: In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a ‘solidarity series of events’, under the hashtag ‘together at home’, and chose the title ‘Solidarity’ for the ambitious global initiative to find a treatment to the virus, establishing a ‘Solidarity’ response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus. The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community. This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has payed relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication. The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized. The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them. Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of ‘bottom-up’ transnational and global solidarity.
Hutler, Brian, ‘Public Health Deference: Rethinking the Judicial Enforcement of Constitutional Rights during a Pandemic’ (2023) 73(1) Syracuse Law Review 55–83 Abstract: Jacobson v. Massachusetts has long stood for the proposition that courts should generally uphold the government’s public health policies even when they incidentally infringe constitutional rights protections. But the COVID-19 pandemic disrupted this traditional understanding, as many federal courts struck down or enjoined state and local pandemic-response policies, downplaying the applicability of Jacobson. Meanwhile, prominent legal scholars argued that judicial deference premised on Jacobson should be completely abandoned. This article argues that Jacobson must be reconsidered in light of COVID-19, but its posture of deference should not be abandoned. Instead, this article proposes a new theory of ‘Public Health Deference,’ which is the deference that courts should afford to the government’s pandemic-response policies. This article argues that Public Health Deference should be premised on the quality of the processes by which the government creates and implements public health policies, even during an emergency. Courts should not blindly defer to the government’s pandemic response; instead, they should evaluate the government’s decision-making processes to ensure that they meet standards of transparency, accountability, public justification, and community engagement.
International Institute for Democracy and Electoral Assistance (International IDEA), 'The Impact of the COVID-19 Pandemic on Constitutionalism and the Rule of Law in East Africa' (Analytical Report, Webinar, 11 June 2020, 1 September 2020) Extract from Introduction: The countries of East Africa (Burundi, Ethiopia, Kenya, Rwanda, Tanzania and Uganda) have adopted a range of emergency measures as part of their national responses to the COVID-19 crisis. The steps introduced range from the shutdown of institutions, isolation and quarantine policies, health screenings at airports and border crossings, international flight suspensions, domestic travel restrictions, limits on public gatherings, the closure of public services and military deployment. Given the range of actions introduced and imposed, there has been only limited reflection on the implications of these measures on the rule of law and constitutionalism. The webinar was based on two overall premises: first, the need to consider constitutionalism and the rule of law in terms of their ultimate goals, which include a guarantee to respect citizens’ fundamental rights and freedoms in both ordinary and extraordinary circumstances; second, the imperative of recognizing the need for a holistic perspective that is focused not only on civil and political rights but also on the economic and social rights of citizens in the context of the COVID-19 crisis
Jackson, Jeffrey, ‘Symposium: Pandemics and the Constitution: Tiered Scrutiny in a Pandemic’ (2020) 12(1) ConLawNOW 39–55 Abstract: During this spring of COVID-19, Americans are facing numerous state and local government-imposed restrictions that would have seemed implausible a few short months ago. While many of these restrictions seem to be unquestionably warranted, there have been others that have the potential to negatively impact fundamental rights. From abortion restrictions to gun control, these actions threaten liberty in the name of police powers. During this time of crisis, there is a need for courts to be especially vigilant. Throughout the nation’s history, the concept of emergency power has been used to justify restrictions on the rights of Americans, with tragic results.
In order to protect rights, however, courts must understand the framework. While many cases seem to suggest that government action in the face of an emergency should be given a deferential standard of review, this is an incorrect reading of the precedent, at least where fundamental rights are concerned. Instead, emergency regulations that burden fundamental rights are subject to the same tiered scrutiny that applies in normal times. While an emergency may create a “compelling interest” that would allow government to invade rights in a manner it might not in normal times, the standard does not change. Rather, the nature of the emergency is already “baked in” to the tiered scrutiny test
Jacobs, Leslie Gielow, ‘Misinformation, Social Media, and Opportunities for Content-Based Regulation Within the Constraints of the United States Constitution’s Free Speech Guarantee’ (2024) 55(2) University of the Pacific Law Review 277–288In order to protect rights, however, courts must understand the framework. While many cases seem to suggest that government action in the face of an emergency should be given a deferential standard of review, this is an incorrect reading of the precedent, at least where fundamental rights are concerned. Instead, emergency regulations that burden fundamental rights are subject to the same tiered scrutiny that applies in normal times. While an emergency may create a “compelling interest” that would allow government to invade rights in a manner it might not in normal times, the standard does not change. Rather, the nature of the emergency is already “baked in” to the tiered scrutiny test
Abstract: This article explores the challenges of regulating false speech on social media platforms within the boundaries of the United States Constitution. It discusses landmark cases that have shaped the boundaries of false speech regulation and highlights the difficulty of regulating false speech due to the constitutional guarantee of freedom of speech. The article also discusses Section 230 of the Communications Decency Act, which provides legal protection to internet service providers. It explores limited opportunities for regulating false speech through defamation lawsuits, professional discipline, and restrictions on false commercial speech and fraud. The article also discusses the regulations imposed by federal and state governments on product vendors and service providers to prevent consumer confusion or deception. It provides examples of how the government has addressed misinformation during the COVID-19 pandemic and in election-related matters. While the United States has fewer options for content-based regulation compared to European countries, there are still opportunities to address the spread of misinformation.
Jilkine, Vladimir, ‘COVID-19 Pandemic and Changes to Finland’s Legislation in Line with the WHO Guidelines’ (2022) 22(1) SOCRATES: Rīga Stradiņš University Faculty of Law Electronic Scientific Journal of Law 13-23 Abstract: The article analyses new legislative amendments in Finland, including an interim amendment to the Infectious Diseases Act, which aims to protect the life and health of clients and patients using social and medical services. The rapid spread of the number of cases of coronavirus infection in Finland, including the new Omicron strain, required urgent measures and new amendments to the legislation. Therefore, in the context of the overall fight against the coronavirus pandemic in the world, these provisions of the Finnish Constitution are a transition from the absolute priority of universally recognised norms of international law to the priority of the Basic Law, subject to the condition of the inadmissibility of guaranteed restriction of human rights. Finland’s desire to comply with the global integration processes in the context of persisting risks of the spread of coronavirus infection has led to digital harmonisation of legislation and legal norms in accordance with the principles of international law. The amendments to Finnish legislation were based on the enshrined provisions of the Constitution and the existing international legal framework, considering possibilities for responding to pandemic and transboundary emergencies in accordance with WHO guidelines.
Jefferies, Regina, Jane McAdam and Sangeetha Pillai, ‘Can We Still Call Australia Home? The Right to Return and the Legality of Australia’s COVID-19 Travel Restrictions’ (2022) Australian Journal of Human Rights (Advance article, published online 24 January 2022) Abstract: In the two years since Australia logged its first COVID-19 case and sealed its borders, thousands of citizens and permanent residents were locked out. Despite having a formal right to return, their ability to come home was hampered by a ‘one size fits all’ approach to hotel quarantine, travel caps linked to state/territory capacity, and a lack of federal facilities. This article examines the legality of Australia’s entry controls in light of international and domestic law. It documents the evolution of Australia’s response from the initial outbreak in China to the 2021 Delta outbreak in India, analysing the (limited) publicly available information as to the rationale for the restrictions. It examines the right to return in Australian domestic law, including whether citizens have a constitutionally protected right of entry. It also analyses the right to enter under international law, evaluating whether Australia’s settings constitute an arbitrary restriction of that right—especially since the drafters of the International Covenant on Civil and Political Rights thought it ‘inconceivable’ that a government would prevent citizens from returning for public health reasons.
Jha, Shilpi, ‘Exodus of Migrant Workers’ in India: Law, Accountability and Blind Spots’ (SSRN Scholarly Paper No ID 3688375, 7 September 2020) Abstract: Humanity is going through a tough and challenging phase due to an outbreak of COVID-19. The Pandemic has taken the lives of millions of people all over the world. An element of threat is prevailing within individuals and Governments of all the Nation, big or small. As on 7th September 2020, the World Health Organization (WHO) estimates 27,312,773 corona Cases, out of which 893,463 people have succumbed to the disease and 19,383,476 patients have recovered from the disease 7,035,834 cases are still active. The number of Corona cases in India is equally alarming. COVID-19 is an infectious disease caused by a newly discovered coronavirus. World Health Organization (WHO) declared COVID-19 as a Public Health Emergency of International Concern on 30th January 2020. The disease is deadly and highly contagious. The WHO guides that ‘The disease spreads primarily from person to person through small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs, sneezes or speaks’. In this background the Government of India declared Lockdown to reduce a person to person contact and curb the impact of the pandemic. This entire episode of an ongoing pandemic caused by COVID-19 has given rise to many issues one of them is a mass exodus of migrant workers from cities to villages and small towns. Government’s Lockdown suggests people stay indoors so that pandemic can be curbed but the mass exodus of migrant workers is an absolute violation of the order. The author is analyzing the International and domestic commitment by the Government vis-à-vis criminal liability of migrant worker under Indian Penal Code, 1860. This article is dealing with the international and national commitment of Government towards Migrant worker’s Rights and criminality of actions of migrant workers in breaking the Governmental orders to restrict the spread of deadly disease like COVID-19. The purpose of the article is to find out whether exodus or reverse migration is because of the failure of the government machinery in securing migrant workers’ rights or failure of migrant workers in observance of Governmental orders. To achieve this purpose, the author has analyzed three factors - firstly, India’s commitment towards fundamental International principles on migrant worker’s rights; secondly, interpretation of principles protecting rights of worker guaranteed under the Constitution of India and statute on migrant worker’s rights in India and thirdly violation of lockdown rules by the migrant workers with reference to Sections 269, 270, 271 of Indian Penal Code 1860. The research methodology used is descriptive, doctrinal and based on secondary resources like United Nation`s instruments entrusting responsibility on Governments of State Parties, Constitution of India,1950, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Newspaper reports, WHO reports and the Indian Penal Code,1860.
Jonung, Lars, ‘Sweden’s Constitution Decides Its COVID-19 Exceptionalism’ (SSRN Scholarly Paper ID 3796848, 10 June 2020) Abstract: The Swedish policy response to covid-19 stands out as exceptional in international comparisons. The approach adopted is fundamentally determined by the Swedish constitution. Three articles of the constitution are central for this explanation. The first one guarantees the freedom of movement for Swedish citizens, thus ruling out the use of nation-wide lockdowns as an instrument in peacetime. The second one establishes independence for public agencies, allowing them to design and administer the policy response to the pandemic with a minimal interference by the central government. The third one reserves exceptional powers to local government, making a central response to the pandemic difficult to implement. In addition, the Swedish approach is fostered by strong trust by the public in the government, in public authorities and in the workings of the political system.
Kabira, Nkatha and Robert Kibugi, ‘Saving the Soul of an African Constitution: Learning from Kenya’s Experience with Constitutionalism during COVID-19’ (2020) 20(2) African Human Rights Law Journal 436–461 Abstract: On 27 August 2010 Kenyans celebrated the promulgation of a new Constitution. This Constitution aimed at fundamentally transforming the governance framework through far-reaching institutional, administrative, legal and policy reforms. Ten years later this Constitution was put to the test when the government of Kenya reported the first COVID-19 case. In this article the authors argue that even though Kenya put in place a transformative Constitution intended to consolidate the rule of law, democracy, human rights and governance, the government’s response to the COVID-19 pandemic questioned the transformative character of the Constitution and exposed inherent contradictions embodied in the Constitution. The article demonstrates that the Constitution is a double-edged sword, a site of tension and contradiction, on the one hand, and a site of hope and transformation, on the other.
Kabumba, Busingye, ‘The 1995 Constitution and COVID-19’ [2020] LawAfricaJurisdiction: Uganda
Abstract: The Coronavirus disease (Covid-19) has fundamentally challenged many aspects of international and national life that we had long taken for granted. As at current count, over one million people around the world have tested positive for Covid-19, with over sixty-five thousand deaths thus far. In Uganda, fifty-two people have so far tested positive, and the government has already taken extraordinary measures to try to ensure that this figure remains low. In the midst of this national and global crisis, it might appear insensitive – perhaps even distasteful - to reflect on the legal questions arising in this moment. However, it is possibly precisely at such a time that we should be mindful of, and cling to, the safety and guidance to be found in law – and, in particular, the Constitution. It is in this spirit that this short piece reflects upon the extent to which the government of Uganda can effectively respond to the challenge posed by Covid-19, while respecting and complying with the safeguards stipulated under the 1995 Constitution.
Kadomatsu, Narufumi, ‘Legal Countermeasures against COVID-19 in Japan: Effectiveness and Limits of Non-Coercive Measures’ (2022) China-EU Law Journal (advance article, published online 11 April 2022) Abstract: This paper analyzes the Japanese legal responses to COVID-19. Japan did not declare the state of emergency on the constitutional level. In addition, it did not enact a new law and instead amended existing statutes several times to cope with the situation. The paper first introduces provisions of the Novel Influenza Act and Infectious Diseases Acts provisions before and after the February 2021 amendments. The remarkable feature of the Japanese countermeasures was the focus on non-coercive measures. There is no compulsory scheme to ensure ‘staying at home’ for general residents. Regarding the facility managers, the NIA provided for the public announcement of non-compliance of the ‘recommendation’ to ensure effectiveness. The legal nature of such public announcements is disputed in Japanese administrative law. The February 2021 amendments added the possibility of issuing an order whose effectiveness was guaranteed by administrative fines. This paper analyzes the traditional emphasis of ‘administrative guidance’ in Japan and proposes hypotheses as to why open non-compliance cases of facility managers are observed. Concerning patients, prior to the February 2021 amendment, the IDA provided for the problematic legal figures of ‘recommendation’ and ‘immediate execution’. The Feb. 2021 amendment, which added administrative fines, made the legal figure more complex. COVID-19 countermeasures have highlighted the difficulty of legal control when public behavior change is a policy goal. We must proceed by trial and error and accumulate knowledge regarding legal regulations or governmental messages that effectively affect public behavior. In the process, we should embrace the basic principles of constitutional democracy, such as the democratic legitimacy and accountability of government decisions and the principle of the rule of law. Simultaneously, we must remember that infectious disease control is a matter of human rights and discrimination, especially considering the unfortunate history of infectious disease control in Japan.
Kahl, Wolfgang and Konstantina-Antigoni Poulou, ‘The Rule of Law and Fundamental Rights in the Coronavirus Pandemic in Germany’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer International Publishing, 2022) 125–146 Abstract: The coronavirus pandemic has been a great challenge for most constitutional states in many aspects. This will be illustrated in this contribution taking Germany as an example, with the focus lying mainly on the rule of law principle and fundamental rights, examined in light of the case law developed so far. Notably during the first lockdown, a lot of fundamental rights in Germany were massively curtailed. This is why this unprecedented situation was sometimes qualified as a ‘state of emergency’ or a ‘corona-dictatorship’, given that the breadth, depth and duration of the encroachments on fundamental rights were, and in some cases still are, exceptionally great. Nevertheless, the following contribution demonstrates that such an approach is misplaced. The German Basic Law (‘Grundgesetz’) does not provide for a state of emergency or any other exceptional provisions regarding the interventions in fundamental rights in times of crisis. The traditional model of the separation of powers has proven to be sufficiently flexible to meet the needs for even far-reaching encroachments on fundamental rights on the one hand, and to adequately control and react to these encroachments in accordance with the rule of law on the other.
Kamińska, Agnieszka Gloria, ‘Profiles of Potential Unconstitutionality of Legislation Restricting Personal Freedom for the Containment of COVID-19 on the Example of the Italian Republic’ (2022) 27(2) Białostockie Studia Prawnicze 125–145 Abstract: The Sars-CoV–2 pandemic is changing the main issues of Italian constitutional law. The phases of the Italian normative management of the crisis focused on important and extraordinary measures and brought to light some structural problems of the Italian constitutional legal system. More generally the ongoing health crisis is revealing the lack of an articulated emergency framework in the Italian Constitution and questioning whether existing legislative tools are suitable to face contemporary threats. This article aims to analyse the main issues raised by the Italian government’s reaction to the coronavirus: the notion of emergency in Italian constitutional law, the legal forms chosen to fight the virus, the choice of the Italian Government to regulate the emergency by decrees of the President of the Council of Ministers, the role of decree law (‘decreto-legge’), from the emergency and the compression and restriction of fundamental rights to the balance of the fundamental freedoms with the protection of right to health.
Kálmán, Kinga and Boldizsár Szentgáli-Tóth, ‘New Perspectives on Comparative Constitutional Law: Methodological Bases and Challenges - Establishing a Global Database from the Practice of Constitutional Review During the Pandemic’ (MTA Law Working Paper No 2022/20) Abstract: The present paper describes the methodological background of our ongoing research project establishing a global database on constitutional review practice during the Covid-19 pandemic. The outcome of this project will be a user-friendly, multilayered platform in English, aided by legal research and information technology instruments, facilitating the further creation of substantial scientific works. Its overall added value lies in the database’s unprecedented focus on constitutional review, with a broad coverage of countries, jurisdictions, and constitutional topics. In addition, by ensuring access to the original sources as much as possible, and owing to careful verification, all information provided in the database will be of guaranteed authenticity.
Kapogianni, Vicky, ‘The Bifold Cypriot Facet: Echoes of the UN Peacekeeping Mechanisms and the Politico-Legal Policies in the COVID-19 Era’ (2021) 33(1) Cyprus Review 167–197 Abstract: COVID-19 proffered the opportunity to promote intergroup solidarity and enhance coexistence in the dichotomised island of Cyprus. Nevertheless, devices put in place as drastic preventive measures not only incited internal and external reactions, but also resulted in further distancing the two communities. Preventive policies and mechanisms implemented during the pandemic were introduced in the form of exceptional orders’ which prioritised the protection of public health; thus, they remained in an external relationship to normative constitutional law. In an attempt to cope with the COVID-19 state, emergency measures that generated ambiguities within the exercising powers, since different parts of the Cypriot Constitution delimit the role of each government branch, were determined. Ergo, constitutional-compliance questions emerged as per the laws applied and interpreted in the aftermath of the emergency promulgation, examining whether rights under human rights law remained aligned with the rule of law and whether these means were upheld in the context of the pandemic.
Kasim, Aminuddin et al, ‘Covid-19 Vaccination Policy by The Indonesian Government: A Constitutional Perspective’ (2023) 11(2) Russian Law Journal 203–211 Abstract: The existence of the Covid-19 pandemic is a very dangerous threat to the nation and state, so concrete steps are needed to deal with its spread. This research aims to find out the notion of social protection in the constitution, as well as to assess the alignment of the Indonesian Government’s vaccination policy with the constitution. This research aims to find the alignment of vaccination policies with constitutional values and assess public compliance with vaccination policies. The results show that the Indonesian constitution in the understanding of social protection adheres to the concept of socialism - solidarity which is based on the protection of human rights, justice and benefit, and as for the vaccination policy carried out by the government, it is in line with constitutional values because it contains protection of health rights.
Kendrick, Thomas A, ‘Rebuttal: Alabama’s Gubernatorial and Legislative Responses to the COVID-19 Pandemic Were Valid, Constitutional, and Appropriate’ (2022) 83(6) Alabama Lawyer 404–414 Abstract: As a lawyer who defends healthcare providers that continued to care for patients during the COVID-19 pandemic, I take a different view from my opposing counsel who published an article in the September edition of The Alabama Lawyer.
Kettl, Donald F, ‘States Divided: The Implications of American Federalism for COVID-19’ (2020) 80(4) Public Administration Review 595–602 Abstract: The explosion of the coronavirus onto the global stage has posed unprecedented challenges for governance. In the United States, the question of how best to respond to these challenges has fractured along intergovernmental lines. The federal government left most of the decisions to the states, and the states went in very different directions. Some of those decisions naturally flowed from the disease’s emerging patterns. But to a surprising degree, there were systematic variations in the governors’ decisions, and these variations were embedded in a subtle but growing pattern of differences among the states in a host of policy areas, ranging from decisions about embracing the Affordable Care Act to improving their infrastructure. These patterns raise fundamental questions about the role of the federal government’s leadership in an issue that was truly national in scope, and whether such varied state reactions were in the public interest. The debate reinforces the emerging reality of an increasingly divided states of America.
Khan, Md Saif Ali, ‘Fundamental Right to Oxygen and Life: A Judicial Obligation in the Second Wave of Covid 19 Pandemic’ (2021) 24 Supremo Amicus Journal (unpaginated) Abstract: Right to life is the most important right under any legal system of the world and Indian constitution guaranteed right to life under article 21 of the constitution of India which guarantee right to life and personal liberty. Indian judiciary while interpretation of article 21 provides number of rights which make life possible or complete court further provides a concept of dignified life and interpreted the article 21 and gives wider interpretation which includes all the essential requirement which makes life possible. However, Second wave of covid 19 hits India and large number of loss of life. and number of covid patient died due to want of essential medical aid including life savings medicine, Beds in Hospital. non supply of oxygen leads to number of deaths all over the country as well as national capital, Hence, it is the constitutional court take sou motu cognizance of non-supply of oxygen and emergency medical aid and direct the centre and state for the same. this paper critically analysis the judicial creativity in order to wider the scope of right to life and further paper also deal the judicial activism in second wave of covid 19.
Kharel, Tara, ‘Local Governments in Managing COVID-19 Pandemic in Nepal: Beyond the Constitutional and Legal Limit’ (2021) 2(1) International Journal of Natural and Human Sciences 34–40 Abstract: This paper aims to analyze the constitutional and legal provision of public health in Nepal. Furthermore, this paper tries to analyze the role of local governments on COVID-19 management and tries to compare its constitutional jurisdiction elaborating the importance of the local governments in federal structure. This study tried to analyze the health-related provisions on the Constitution of Nepal, Infectious Disease Act, 1964 and the Public Health Service Act, 2018 comparing it to the practice by the local governments while fighting with the COVID-19 pandemic. The desk review research methods used in the study included the review of the literatures from different sources based on secondary sources of data collection (including media reporting) only. Firstly, this paper identifies the need of drafting a new act to control the epidemic situation. Secondly, this paper identifies the fact that the local governments are not confined within the constitutional jurisdiction only during corona virus crisis management, hence, redefining the power and authority under schedule 8 of the Constitution of Nepal is also important. Thirdly, this paper identifies that the effective role of local governments to fight COVID-19 pandemic illustrating local governments as the heart of the federalism.
Kilonzo, Josephat Muuo, ‘Addressing Covid-19: A Test of Kenya’s Constitutional and Democratic Resilience’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 111–144 Abstract: Kenya confirmed its first case of Covid-19 in March 2020. In a bid to control the spread of the virus, the executive issued directives that, inter alia, discontinued learning in all educational institutions, suspended travel into Kenya, imposed a dusk-to-dawn curfew, curtailed movement in and out of selected regions and closed places of worship and entertainment. The government then proceeded to issue legislative and executive directives that reduced taxes in order to mitigate the economic losses occasioned by the containment measures. The judiciary closed down courts, resorting instead to electronic management of cases. This chapter discusses Kenya’s responses to the Covid-19 pandemic with the aim of understanding whether they meet its constitutional and human rights obligations and what they mean for the country’s constitutional and democratic resilience.
Klinge, Sune et al, ‘COVID-19 and Constitutional Law in Denmark’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 131-139 Introduction: Unlike other Western European constitutions, the Danish constitution does not have a general constitutional provision on the state of emergency and only one special Article on state of emergency namely Art. 23, which allows the government to issue provisional Acts if it is not possible to convene Parliament. Such provisional Acts may not violate the Constitution and they must be submitted for Parliament’s approval or rejection as soon as Parliament are able to convene again. Exceptional (and unconstitutional) measures can be enacted without formally proclaiming a state of emergency under the concept of constitutional necessity. Constitutional necessity is recognized in constitutional scholarship and in case law e.g. from the legal aftermath after the German occupation of Denmark under World War II. While the Danish authorities reacted promptly after the first Danish COVID-19 case with restrictions on fundamental rights, in particular the freedom of assembly, the constitutional civil and political rights were considered sufficiently flexible to accommodate for the measures taken in response to the COVID-19 crisis. This may be why the Danish government apparently never considered to invoke constitutional necessity.
Knauer, Nancy J, ‘The COVID-19 Pandemic and Federalism’ (SSRN Scholarly Paper ID 3599239, 9 May 2020) Abstract: The COVID-19 pandemic is an unprecedented public health crisis that has prompted an unprecedented response. Drastic and previously unthinkable steps have been taken to ‘flatten the curve’ and avoid overwhelming our health systems. In the absence of a coordinated national response to the crisis, the pandemic has underscored both the promise and limits of the Tenth Amendment. As state and local actors have scrambled to adopt policies to protect their residents and minimize the loss of life, the result has been a patchwork of advisories and orders that reveal stark regional disparities and some confounding inconsistencies. The reliance on state and local actors has produced many innovative programs and novel attempts at regional coordination, but it has also led to direct competition between and among jurisdictions as they vie for desperately needed resources. Moreover, it has elevated the friction between the federal government and state and local leaders to alarming levels. This essay examines the role of federalism in the early days of the COVID-19 pandemic in the United States. It explores the dangers that arise when disaster relief is politicized and proposes failsafe mechanisms to prevent key institutions from abdicating their responsibility to the American people. The first section reviews our current preparedness and response policy, which is grounded on a strong vision of cooperative federalism where a response is federally supported, state run, and locally executed. The second section uses the lens of comparative institutional analysis to evaluate the shortcomings of this approach, specifically in the context of pandemic planning. By addressing three core institutional considerations – competency, political responsiveness, and stability – it maps out potential gaps that have the potential to compromise response efforts. The third section discusses failsafe provisions to ensure that disaster relief does not fall victim to partisan wrangling. A brief conclusion notes that the reliance on state and local actors in this pandemic has been a pragmatic, but also imperfect, institutional choice because state and local level initiatives are by their nature partial and porous. They are necessarily hampered by the lack of uniformity and certainty that could come from a federal pandemic response and, unfortunately, they are ill-suited to stop a novel virus in search of its next host.
Knight, Dean R, ‘New Zealand, COVID-19 and the Constitution: an Effective Lockdown and Muted Rule of Law Concerns’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 233-241 Extract from Introduction: While the health response was pretty effective, New Zealand did not manage to dodge constitutional issues in its emergency response. Perennial issues arose: rule-of-law concerns, restrictions on rights, institutional decision-making challenges, enforcement discretion and so forth. However, the depth of concern about these issues was much more muted than in other countries – especially as New Zealand quickly emerged from significant and ongoing restriction. And parliamentary and judicial processes, while attenuated for a period, continued to provide oversight over the government’s response to the virus.
Koltay, András, ‘The Punishment of Scaremongering in the Hungarian Legal System. Freedom of Speech in the Times of the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3735867, 23 November 2020) Abstract: Scaremongering is restrained by criminal law as a limitation to freedom of speech in Hungarian law. Without relevant case law, free speech commentators had rarely discussed the provision until the government’s actions taken in order to step up against the COVID-19 pandemic, and the following amendment of the Criminal Code in Spring 2020 brought the subject back into the field of public debates. The article analyses the constitutional issues related to the limitation of scaremongering, and takes the two constitutional court decisions in this subject as guideline.
Kritzman-Amir, Tally Amir, ‘Flattening the Curve, Constitutional Crisis and Immigrants’ Rights Protections: The Case of Israel’ (2020) 2 Frontiers in Political Science Article 592150 Abstract: Despite being a small and relatively secluded country, managing the COVID-19 pandemic has so far been quite a challenge for Israel. This contribution seeks to explain how Israel had managed migration and the pandemic amidst a constitutional crisis between February and July 2020.
Krotov, Andrey, ‘Shock Strategy under Pandemic Conditions: Transformation of the Political Regime and Legal System’ (SSRN Scholarly Paper ID 4103739, 8 May 2022) Abstract: The spread of the coronavirus infection COVID-19 in 2020, as a new global threat to humanity, caused the unprecedented social upheaval changing the world forever. In order to combat COVID-19, the governments of various countries have introduced the anti-coronavirus rules accepted by the population mostly quite favorably because of the application of the appropriate media space tools by the authorities. The series of anti-crisis solutions, declared as temporary and formally adopted solely for the purpose of stopping the spread of infection, were used by the ruling group in their own political interests, and subsequently enshrined in legislation on an ongoing basis (shock strategy), thus allowing in a short time and in the least-cost manner to achieve the desired goal — the retention of power of the ruling elite. The shock strategy turned out to be most in demand in countries with the authoritarian government, where the authorities skillfully used the ‘pandemic window of opportunity’. This article analyzes the special aspects of coverage of the COVID-19 pandemic in the Russian media in 2020, which allowed to form a positive attitude of the population towards changing the ad hoc voting procedure on amendments to the Constitution of the Russian Federation in 2020, which led not only to a significant change in the system of national law, but also finally completed the formation of authoritarian trend in Russia, at the same time ‘zeroing’ the presidential terms of President Vladimir Putin. There have been also investigated the actions of the Russian authorities aimed at the legitimation of the voting procedure on amendments to the Constitution including the court decisions related to the declared subject of the article. It was revealed that a number of anti-coronavirus rules formally adopted by the Russian government in order to minimize the negative consequences of the pandemic were used by the ruling group of politicians in their own interests. The censoring and compilation of information covering the process of combating COVID-19 by the authorities, both through the traditional media and through the use of various websites, made it possible to achieve the goals pursued by the Russian political elite in the shortest possible time. The obtained data have not only a theoretical, but also a practical effect; they make it possible to assess both the legitimacy of changing the voting procedure on amendments to the Constitution of the Russian Federation, and to form a methodology in order to prevent the situation where the ruling political groups take advantage of the quarantine rules adopted in order to combat the spread of COVID-19.
Krusian, Anzhelika R et al, ‘The Institutional and Legal Justification of the Restriction of Freedom of Movement in Conditions of Counteraction the Spread of the Covid-19 Pandemic’ [2020] (42) Revista San Gregorio 257–266 Abstract: The study touches upon the issue of determining the current state of ensuring and restricting freedom of movement in Ukraine in the context of counteracting the spread of the COVID - 19 pandemic. Particular attention is paid to the substantive component and the expediency of certain restrictions on freedom of movement, namely: self-isolation and observation. The normative-legal bases of restriction of the constitutional right to freedom of movement are investigated and gaps of their substantiation are revealed.
Kuo, Ming-Sung, ‘Democracy and Emergency: Finding the Constitutional Foundation of the Knowledgeable State in Social Dynamics’ (2023) 50(S1) Journal of Law and Society S45–S64
Abstract: This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state’s ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization’s initial response to the COVID-19 pandemic, the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.
Kustra Rogatka, Aleksandra, ‘Freedom of Assembly and the Right to Protest in Times of COVID19: The Case of Poland’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 81
Lachmayer, Konrad, ‘Constitutional Compliance or Governmental Mismanagement? Rights Limitation in Austria from Lockdowns to Compulsory Vaccination’ in Arianna Vedaschi (ed), Government Policies to Fight Pandemics: Defining the Boundaries of Legitimate Limitations on Fundamental Freedoms (Intersentia, 2023) (forthcoming) Abstract: This paper traces back the legal COVID-19 responses by the Austrian government. In the first part of the paper legal and institutional issues are raised. The rejection of the state of emergency, the concept of legal responses, the role of Parliament and the multilevel system will be examined. The second part focuses on the limitation of fundamental rights and the case law of the Austrian Constitutional Court.
Lachmayer, Konrad, ‘Democracy, Death and Dying: The Potential and Limits of Legal Rationalisation’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 47-68 Abstract: The first part and starting point of the chapter (section II) refers to the shift of the paradigm of death from an unpredictable though inevitable condition of life to the economised timing of death. This rationalised approach has given governments the possibility to influence death and dying. In terms of Foucault’s bio-politics, governments not only control the bodies of the people, but also decide upon their life and death. During the COVID-19 pandemic, (European) states have come under pressure to protect the lives of the people and to keep death rates low. This role of the state in managing death and dying is also expressed in law, which I will focus on in the second part of the chapter (section III) . Democratic processes have created the legal framework of life and death (legal thanatology). Budgetary law can serve as an example for the democratic decision-making about life expectancy. As courts strengthen and enhance the effectiveness of rights, they also have an effect on the life and death of human beings. While the discussion on a traditional liberal rights perspective can be understood as an empowerment of the people to decide for themselves about life and death (individual autonomy), state obligations to guarantee liberal rights (eg, the right to life) or social rights (eg, right to health) affect the government’s decisions about life and death. The possibilities and limits of the rationalising function of the rights-based case law will be discussed. In the third part of the chapter (section IV) the effects of legal thanatology in the COVID-19 pandemic will be analysed. Different approaches of European democracies illustrate that decision-making on life and death will lead to different consequences. Moreover, an international perspective demonstrates European privileges as well as European responsibilities in a post-colonial world. In the concluding section V, the necessity to negotiate about death and dying in democratic societies will be addressed.
Lachmayer, Konrad, ‘Judging, Fast and Slow: Constitutional Adjudication in Times of COVID-19’ in Saša Zagorc and Samo Bardutzky (eds), Constitution at the Brink of a State of Emergency: Celebrating Thirty Years of the Constitution of Republic of Slovenia (1991-2021) (University of Ljubljana, Faculty of Law, forthcoming 2022) Abstract: During an emergency, time is of the essence. While the executive branch may make quick decisions, courts in general, and supreme and constitutional courts in particular, seem to act relatively slowly. Nevertheless, the function of constitutional review becomes even more important when emergency measures introduced by the executive infringe fundamental rights, violate the rule of law or undermine democracy. The following paper analyses the potential, possibilities and perspectives of fast-track constitutional adjudication and contrasts it with slower forms of judicial review. Recent developments during the COVID-19 crisis serve as an example.
Lakshmi, Ritansha, ‘Constitutional Framework During COVID-19’ (SSRN Scholarly Paper ID 3764869, 12 November 2020) Jurisdiction: India
Abstract: This Paper dealt with the novel coronavirus and its stages of transmission. How this become Public Health Emergency and How the Indian government combat this deadly virus with the help of lockdown. And the legality of lockdown. This paper also dealt with the constitutional framework such as Tracing patients: Surveillance vs Right to Privacy and Quarantine vs Right to freedom of movement.
Landa, César, ‘Fundamental Rights During the Coronavirus Pandemic in Peru’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 63-68 Extract from Introduction: Following an exponential increase in the number of patients with symptoms of COVID-19, the government issued Supreme Decree (Decreto Supremo) 044-2020-PCM on March 15, declaring a nationwide fifteen-day state of emergency due to the public health disaster. This decree suspended the right to personal freedom, freedom of movement, inviolability of the home, and the right to assembly, in accordance with Section 137- 1 of the Constitution. The decree has since been extended multiple times, with the current, fifth extension lasting through June 30…. Ever since, daily life in the country has been radically transformed: the exercise of our rights—not only personal freedoms, but social rights, too— has been limited and restricted by the authorities’ decisions, as well as the actions of the police and military, as we will see below.
Larkin, Paul J, ‘Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate’ (SSRN Scholarly Paper ID 3962522, 12 November 2021) Abstract: Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an ‘emergency temporary standard’—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment. Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.
Lawrence, Meghan K, ‘Tinker Stays Home: Student Freedom of Expression in Virtual Learning Platforms’ (2021) 101(6) Boston University Law Review 2249–2288 Abstract: Following the COVID-19 outbreak of March 2020, states imposed mandatory ‘lockdowns,’ forcing schools throughout the country to move to virtual learning platforms. With this unprecedented shift came many unforeseen challenges for school officials, including assessing what First Amendment rights students retain in virtual learning platforms. Falling into an unusual gray area where students are technically ‘in school’ because they are attending school-run classes, and yet off campus as they are doing so from the privacy of their homes, school officials have little guidance from the currently established student speech categories to make these determinations. While this issue originally arose out of the unique circumstances surrounding the COVID-19 pandemic, schools will likely continue to face this problem in the future, whether by the uncertain prospect of further school closings as new COVID-19 variants emerge or by schools and students continuing to take advantage of the convenience and safety provided by online platforms. This Note focuses on the intersection of existing student First Amendment rights both on and off campus and the constitutional protections afforded to speech and expression within the home. Ultimately, this Note concludes that there is no one-size-fits-all test that can be applied to all aspects of the virtual learning platform. While schools arguably must have some authority to limit student expression within virtual learning platforms, that authority must be balanced with students’ First Amendment rights. The two central problems posed by virtual learning platforms, virtual backgrounds and physical backgrounds, require a unique solution to balance protection of students’ rights and respect for a school’s authority. This Note argues that schools should wield far more authority over students’ virtual backgrounds and less authority over their physical backgrounds. To control physical backgrounds, school officials must presume students are entitled to First Amendment protection over student expression subject to only few exceptions in specific categories of speech. Virtual backgrounds, on the other hand, do not exist outside of the virtual class, and thus do not implicate the same First Amendment and privacy concerns. This bifurcated solution thus accounts for the nature of virtual learning environments and balances school authority with not only students’ First Amendment rights but also students’ privacy rights, students’ autonomy, and the authority of students’ parents to control their homelife.
Le Bouthillier, Yves and Delphine Nakache, ‘The Right of Citizens Abroad to Return During a Pandemic’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 299 Abstract: To prevent the spread of COVID-19 Canada has, like most other states, temporarily limited access to its territory. It has, as requested by international law, allowed the return of its own citizens. However, in contrast to other countries, Canada has opted for a more restrictive approach by requesting air carriers to deny boarding to any passengers abroad, citizen or not, with symptoms suggestive of COVID-19. In this article, we assess the legality of Canada’s approach regarding the return of citizens, both under international human rights law and Canadian constitutional law.
Lee, Edward, ‘Informal Governance of the United States’ (SSRN Scholarly Paper ID 4032053, 9 February 2022) Abstract: The United States faces vexing problems. Yet many people—indeed, a majority of Americans—think the government is broken. The prospect that the federal government can tackle the many challenges the country faces, from attacks on election administration to faltering infrastructure and a deadly pandemic, seem dim. In the face of these profound challenges, policymakers may have to turn to more innovative approaches. Informal governance, which lacks written or formal authorization, organization, and rules, may become the last best hope for solving intractable problems and breaking the gridlock and polarization in Washington. Although the United States prizes a written Constitution and the formal rule of law, informal governance of the United States dates back to President George Washington’s creation of and reliance on a cabinet, an institution nowhere mentioned in the Constitution or then-existing federal law, to deal with national crises facing the early United States. This Article examines two more recent examples of informal governance of the United States—an informal group of physicians known as the Wolverines who orchestrated the strategy of social interventions in the United States during the pandemic and an informal group of Republicans and Democrats, business and labor groups, who joined to promote election integrity during the 2020 U.S. elections, including respect for the final election results. By studying these case studies, this Article identifies the promises and perils of informal governance of the United States. The Article sets forth a constitutional theory based on the Tenth Amendment to justify the general practice of informal governance, but also identifies valid concerns about the lack of transparency and accountability, and potential for abuses and even illegality that informal governance may foster. The Article closes by offering several reforms or safeguards to prevent informal governance from devolving into rogue operations or a shadow government.
Lee, Gyooho, ‘Legitimacy and Constitutionality of Contact Tracing in Pandemic in the Republic of Korea’ (SSRN Scholarly Paper ID 3594974, 7 May 2020) Abstract: The Republic of Korea (hereinafter referred to ‘South Korea’ or ‘Korea’ interchangeably) had learned a valuable lesson from the Middle East Respiratory Syndromes (hereinafter ‘MERS’) outbreak in 2015. Hence, the Infectious Disease Prevention and Control Act of 2015 (hereinafter ‘IDPC Act of 2015’) and its pertinent ministerial ordinance newly prescribed legal basis to retrace contacts of the infected patients. It is called as ‘contact tracing.’ During the COVID-19 pandemic, the contact tracing system has come into play well. Even though the legitimacy of the contact tracing system is guaranteed under the IDPC Act of 2015 and of 2020, the constitutionality can be challenged because it may violate the freedom of the infected patients and their contacts to move and maintain their occupation, and their freedom of privacy. When there is a conflict between the fundamental rights, an upper-level one will take precedence over a lower-level one. When we take into account the pandemic of deadly COVID-19 virus, right to life, right of occupation and right to know information on the movement paths of the infected patients which non-infected persons have should take precedence over the right to move and the freedom of occupation and of privacy, of the infected persons and their contacts. However, in restricting the fundamental rights of the infected patients and their contacts, the proportionality test will be applied. Hence. there are certain requirements for legislation that restricts the fundamental rights of the nationals only by the public’s risk to those who are in contact with an infected person or to those merely suspected of being infected. All of the following must be balanced: (i) the legitimacy of the purpose, (ii) the adequacy of the method for achieving the goal, (iii) the minimum of damage, and (iv) the balance of legal interests between the public interest to be protected by the legislation and the fundamental right to be infringed.The provisions of the IDPC Act are intended to protect the health of the people. The contact tracing based on those provisions is effective and adequate for achieving the said objective. In addition, the public interest, i.e., national health, to be achieved through the provisions is greater than the limited private interests, i.e., freedom of privacy, of occupation, and of movement which can be enjoyed by the infected patients and their contacts. However, the state needs to explore whether the third requirement, which is minimization of harm of the infected patients and their contacts, has been met. In other words, the disclosure of personal information of the infected persons or their contact needs to be minimized while Article 37 (2) of the Korean Constitution is taken into account. The issue here is whether the limitations to the right to privacy, to move, and the right of religion, of the infected patients or their contacts must be provided by the IDPC Act. Even though the scope of disclosure of the movement paths of the infected patients and their contacts is advised by the KCDC’s guidelines, its legal bases are on, e.g., Articles 34 bis (1), 76 bis and 6 (2) of the IDPC Act. Also, the pandemic of a novel infectious diseases is not predictable, so that the scope of disclosure of the movement paths of the infected persons and their contacts can be different based on the type of a new infectious disease. In this context, even though the KCDC’s guidelines are not binding upon local governments, it is not fair to say that the scope of disclosure of the movement paths of the infected persons and their contacts is not groundless and unconstitutional. Taking into account the difficulty in delineating the effect of a new infectious disease and the necessity for expeditious countermeasure against it, the disclosure of the movement paths of the infected patients and their contacts is constitutional under the IDPC Act combined with those of Personal Information Protection Act despite the fact that the contents of the KCDC’s guidelines are not explicitly provided under the IDPC Act.
Levine, Kay L, Jonathan Remy Nash and Robert A Schapiro, ‘Protecting State Constitutional Rights from Unconstitutional Conditions’ (2022) 56(1) U.C. Davis Law Review 247–288 Abstract: The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for state unconstitutional conditions analysis. As attention turns to distinctive state constitutional rights — in the context of COVID-19 disputes, abortion litigation, and more generally — state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis. Three reasons in particular drive this doctrinal claim. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A state court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a state statute or regulation risks undermining the very nature of the right. Second, uncritically adopting federal doctrine ignores the state’s distinctive legal framework, interests, and history, all of which might lead to a deviation from federal law. With respect to the topics on which unconstitutional conditions litigation typically focuses, such as licenses and permits, the federal-state disparities are especially stark. Third, robust legal development in our federal system depends in part upon the interplay of different institutional interpreters. When state courts and federal courts engage in independent interpretative activity, they create the possibility of dialogue and mutual learning. This interpretive interplay enhances federal doctrine, as well as doctrinal development in other states. Given the gaps and inconsistencies in the unconstitutional conditions doctrine, such interjurisdictional enlightenment is especially needed in this area. After explaining why states should develop their own doctrines of unconstitutional conditions, we suggest the relevant considerations that should guide states in formulating their doctrines.
Li, Victor WT and Trevor TW Wan, ‘COVID-19 Control and Preventive Measures: A Medico-Legal Analysis’ (2021) 27 Hong Kong Medical Journal (advance article, published 11 June 2021) Abstract: Extract from Introduction: The coronavirus disease 2019 (COVID-19) pandemic has compelled governments around the world to deploy preventive and control measures of unprecedented stringency and scale. In Hong Kong, the Chief Executive-in-Council has invoked extensive powers under Section 8 of the Prevention and Control of Disease Ordinance (Cap 599) and adopted a series of subsidiary regulations in an attempt to control the spread of COVID-19. Such extensive power is subject to judicial scrutiny using a four-stage proportionality inquiry tailored for evaluating whether rights and freedomsderogating laws and measures are consistent with the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383). In the context of a public health emergency, it has to be shown that such laws and measures pursue legitimate aims that are required by the ‘exigencies of the public health situation’ and are rationally connected to them. They should also be no more than reasonably necessary to achieve these aims without imposing an unacceptably harsh burden upon the individual. Drawing upon the framework of the proportionality inquiry, we seek to explore the medical and constitutional justifications underlying three of such regulations: compulsory use of face masks, group gatherings ban, and compulsory testing for high-risk groups. Furthermore, we will comment on the potential mandatory use of the ‘LeaveHomeSafe’ application in public facilities for contact tracing purposes, as well as compulsory vaccination for healthcare workers.
Lock, Daniella, Fiona de Londras and Pablo Grez Hidalgo, ‘Delegated Legislation in the Pandemic: Further Limits of a Constitutional Bargain Revealed’ [2023] Legal Studies (Advance article, published online 5 October 2023) Abstract: The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the ‘constitutional bargain of delegated law-making’. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation; the exercise of self-restraint by the Executive in the use of delegated authority; and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the Covid-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic.
Mahadew, Roopanand, ‘The Constitutionality of Legal Measures Taken by the Government of Mauritius in the Context of the Covid-19 Pandemic’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 255–281 Abstract: The Covid-19 has had significant impact on Mauritius from a social, political and economic perspective. While the first and elementary actions taken by the government had been measures to contain and control the pandemic, subsequent legal amendments, post Covid-19, eventually followed which have affected socio-economic rights of Mauritians. The right to work has been the most severely affected arguably with the amendments brought to the Worker’s Rights Act 2019. While these amendments generated significant debate by workers, trade unions and political parties, there have been little movements to constitutionally challenge the legal measures taken in the employment sector. The right to health of Mauritians is arguably affected with the imposition of a consent form prior to vaccination which absolves the government of any responsibility for injuries or death caused by the vaccine. The parliamentary and judicial responses to these amendments have been almost non-existent. The reluctance and inaction of citizens in challenging decisions of the government reading vaccination and limitation of rights have also been found as causes of concern. Finally, the existing constitutional framework on derogation of rights in times of public emergency has also been found to be in dissonance with the Siracusa Principles.
Mala Corbin, Caroline, ‘Religious Liberty in a Pandemic: Constitutional Challenges to Mass Gathering Bans’ (2021) Fides et Libertas: The Journal of the International Religious Liberty Association (Special Edition on COVID-19 and Religious Liberty) 130 Abstract: The coronavirus pandemic led to an unprecedented shutdown of the United States. To stem the spread of the highly contagious pathogen, much of the country shut down for at least a month in April 2020, with the vast majority of governors ordering people to stay at home as much as possible.2 When cases surged again in the United States, some states reinstated those orders. The emergency regulations usually included a ban on large gatherings, such as any in-person gathering of more than ten people. Although some states exempted worship services, others did not.3 Churches sued, arguing that these bans violated their Free Exercise Clause rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a supermarket or superstore—allowed as essential services. This essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.
Malecki, Mikolaj and Marek Slawinski, ‘The Repressive Nature of Selected COVID-19 Regulations in the Polish Legal System’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: The subject of this paper is the question of the constitutionality of the sanctions for violation of restrictions and prohibitions introduced during the outbreak of the SARS-CoV-2 coronavirus epidemic in Poland. The starting point for our considerations is the distinction made by the Polish Constitution between extraordinary and ordinary measures in dealing with dangers. Extraordinary measures (which include, inter alia, the state of a natural disaster) allow for more severe limitations of constitutional rights and freedoms than is permitted by the ordinary ones. The state of epidemic introduced in Poland on March 31, 2020, is an ordinary measure. However, the comparison between sanctions used during this state, and sanctions that are possible to be imposed during the extraordinary state of natural disaster shows that the former are more severe than the latter. This observation leads to the conclusion that the sanctions of the state of epidemic are in breach of one of the basic rules that govern the limitation of constitutional rights and freedoms in the Polish Constitution, that is the proportionality rule.
Manga Fombad, Charles and Gatsi Tazo, ‘Cameroon’s Response to the COVID-19 Pandemic: Combating a Deadly Pandemic Within a Weak Rule of Law Framework’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 3-12 Extract from Introduction: Prior to 1990, emergency powers in Cameroon had largely been used to perpetuate an authoritarian system noted for its regular violations of human rights. A new framework for regulating declarations of states of emergency was introduced in the revised Cameroonian Constitution of 1996. The responses to the COVID-19 pandemic gives us today an opportunity to assess whether these reforms succeeded. This raises two main issues. First, the effectiveness of legal framework for exercising emergency powers and secondly the effectiveness of their implementation. In examining Cameroon’s response to the pandemic, the next section of this chapter will provide a general overview of the constitutional and regulatory framework for dealing with such emergencies. This is followed by section 3, which examines some of the main measures put in place by the Government to control the spread of the virus. Section 4 takes a critical look at the Government’s response. In concluding, it is contended that for a deadly pandemic like this, the weak measures put in place by the Cameroonian government have been compounded by the generally weak framework for constitutionalism and respect for the rule of law.
Mangione, Gabriella, ‘The COVID-19 Pandemic and Italian Constitutional Law: Some Reflections on the Sources of Law’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer Nature Switzerland, 2023) 195–204 Abstract: The massive body of legislation adopted during the first few months of the Covid pandemic in order to contain its effects has represented a new, extraordinarily serious and pervasive phenomenon, which has had a profound impact both on fundamental rights and on individuals’ lives, standing in open contradiction to the constitutional order of the sources of law. The paper provides some reflections on the relationship between the pandemic and sources of law.
Manole, Domnica, ‘Rule of Law and the Pandemic: The Experiene of the Republic of Moldova’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 251–253 Abstract: Since 2019, most constitutional courts and supreme courts in the world have faced cases where laws of parliaments or measures of executives related to emergencies are challenged. With the outbreak and spread of the COVID-19 pandemic, the Constitutional Court of Moldova has resolved some applications in this regard. The pandemic has been a challenge for the constitutional judges and at the same time it has brought to them the satisfaction of effectively guaranteeing human rights during exceptional situations.
Maor, Moshe, Raanan Sulitzeanu-Kenan and David Chinitz, ‘When COVID-19, Constitutional Crisis, and Political Deadlock Meet: The Israeli Case from a Disproportionate Policy Perspective’ (2020) 39(3) Policy and Society 442–457 Abstract: This article describes the efforts made by the Israeli government to contain the spread of COVID-19, which were implemented amidst a constitutional crisis and a yearlong electoral impasse, under the leadership of Prime Minister Benjamin Netanyahu, who was awaiting a trial for charges of fraud, bribery, and breach of trust. It thereafter draws on the disproportionate policy perspective to ascertain the ideas and sensitivities that placed key policy responses on trajectories which prioritized differential policy responses over general, nation-wide solutions (and vice versa), even though data in the public domain supported the selection of opposing policy solutions on epidemiological or social welfare grounds. The article also gauges the consequences and implications of the policy choices made in the fight against COVID-19 for the disproportionate policy perspective. It argues that Prime Minister Netanyahu employed disproportionate policy responses both at the rhetorical level and on the ground in the fight against COVID-19; that during the crisis, Netanyahu enjoyed wide political leeway to employ disproportionate policy responses, and the general public exhibited a willingness to tolerate this; and (iii) that ascertaining the occurrence of disproportionate policy responses is not solely a matter of perception.
Mariani, Nicole, ‘Hiding in Plain Language: A Solution to the Pandemic Riddle of a Suspended Grand Jury, an Expiring Statute of Limitations, and the Fifth Amendment’ (2022) 76(4) University of Miami Law Review 938–981 Abstract: Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), ‘no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.’ That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario. In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, to combat the rampant and unabating COVID-19 outbreak in Florida, the District Court for the Southern District of Florida suspended grand juries from March 26, 2020, until November 17, 2020, creating a nearly eight-month period during which prosecutors could not obtain indictments. But, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to be prosecuted by indictment. Thus, during the grand jury suspension, the five-year statute of limitations applicable to most federal crimes was expiring on uncharged criminal conduct that ended in 2015 at a time when prosecutors could not comply with the Fifth Amendment. Despite being alerted of this constitutional issue, Congress did not enact legislation giving either the Chief Judge of the United States Supreme Court or the Chief Judges of the United States District Courts authority to suspend statutes of limitations during national emergencies, such as the COVID-19 pandemic, that affect the functioning of the courts. The combination of that judicial decision to suspend grand juries and that legislative decision not to suspend statutes of limitations posed a pandemic riddle: how can prosecutors comply with both the statutes of limitations and the Fifth Amendment when there are no grand juries? This Article examines the text of 18 U.S.C. § 3282(a), Federal Rule of Criminal Procedure 48(a), and 18 U.S.C. §§ 3288 and 3289; the purposes of statutes of limitations and the Fifth Amendment right to prosecution by indictment; and the related legislative history. Based on that examination, this Article suggests that, for most federal crimes, when defendants assert their Fifth Amendment right to prosecution by indictment during a pandemic (or other national emergency) that suspended grand juries and the statute of limitations on their alleged crimes is expiring, prosecutors can uphold that constitutional right and that statutory privilege as well as the public interest in seeing lawbreakers brought to justice by: (1) filing an information to toll the statute of limitations under 18 U.S.C. § 3282(a); (2) dismissing that information without prejudice under Federal Rule of Criminal Procedure 48(a) if the defendant does not waive his right to prosecution by indictment; and (3) obtaining a timely indictment within six months of the resumption of grand juries under the savings clauses in 18 U.S.C. §§ 3288 and 3289 for re-prosecutions after the dismissal of a timely filed information. This Article concludes that there already is a mechanism in the federal statute of limitations appliable to most federal crimes that allows prosecutors to constitutionally preserve criminal charges when a national emergency prevents grand juries from finding indictments.
Mariner, Wendy K, ‘Shifting Standards of Judicial Review During the Coronavirus Pandemic in the United States’ (2021) 22(6) German Law Journal 1039–1059 Abstract: Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.
Massa, Michele, ‘A General and Constitutional Outline of Italy’s Efforts against COVID-19: With the Best Face On’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: During the COVID-19 pandemic, in Italy no aspect of individual and social life remained untouched, nor did the legal system. Several constitutional problems arose, concerning all the principles which form the core of the republican form of State. After an overview of the COVID-19 outbreak and the main legal tools employed to face it in Italy, some of these problems are surveyed. In brief, at the peak of the emergency, democracy, rights of the human person and regional and local autonomy have been put to the test, but not breached. However, in the aftermath, during the recovery phase, the solidarity and internationalism principles face particularly difficult challenges, in which the destiny of Italy and the European Union are intertwined.
Massaro, Toni M, Justin R Pidot and Marvin J Slepian, ‘Pandemics and the Constitution’ [2022] (1) University of Illinois Law Review 229–276 Abstract: The COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another. Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life. How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow. We argue that ingredients for consensus already exist, even if they are obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives and we share a fidelity to basic constitutional legal norms that can inform how we safely return. This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.
Mathen, Carissima, ‘Resisting the Siren’s Call: Emergency Powers, Federalism and Public Policy’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 115 Abstract: Virtually everyone in Canada would describe the COVID-19 pandemic as an emergency. The federal government’s decisions—to close borders and order Canadians into quarantine—suggest that it shares this view. Yet it has neither declared an emergency nor triggered the federal Emergencies Act. The lack of such action has been criticized. At the same time, there has been less focus on the emergency powers available to Parliament under the ‘peace, order and good government’ clause in s. 91 of the Constitution Act 1867. In this chapter, I explore three demands that would require emergency branch legislation: regulating long-term care; providing relief to persons under residential and commercial tenancies; and instituting nation-wide testing. Examining the emergency branch’s benefits and drawbacks, I argue that emergency powers must be approached with continual caution, with due appreciation for the operational and political complexities inherent in a federal state. While a national, ‘top-down’ approach may be effective in some situations, in others it is preferable to encourage regional responses and inter-governmental cooperation.
Matic, Andreea Elena and Mihaela Agheniței, ‘Brief Considerations Regarding the Concept of Rule of Law in the Context of the Covid-19 Global Crisis’ (2022) 18(3) Acta Universitatis Danubius. Juridica (advance article, published online 29 November 2022) Abstract: In the present paper we aim to analyse some aspects in which the COVID-19 pandemic generated a crisis regarding the application of the rule of law. First, we will refer to some general aspects regarding the content and importance of rule of law concept in democratic societies. Then, taking into account the fact that the law regulates situations that occur in real life, in society, we will discuss the fact that the COVIC 19 pandemic situation generated circumstances which had not been foreseen by the democratic states authorities and this generated an actual global crisis. This crisis affected the rules regarding the good governance. As the pandemic is approaching its end, our societies are not yet prepared to enforce new necessary aspects of the rule of law. Also, we will refer to the fact that the year 2021 was the third year in a row in which WJP Rule of Law® reported that the rule of law scores of several countries have declined rather than improved.
Mazzi, Davide, ‘The Irish Public Discourse on Covid-19 at the Intersection of Legislation, Fake News and Judicial Argumentation’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1233–1252 Abstract: This paper aims to perform a multi-level analysis of the Irish public discourse on Covid-19. Despite widespread agreement that Ireland’s response was rapid and effective, the country’s journey through the pandemic has been no easy ride. In order to contain the virus, the Government’s emergency legislation imposed draconian measures including the detention and isolation of people deemed to be even ‘a potential source of infection’ and a significant extension of An Garda Síochána’s power of arrest. In April 2020, journalists John Waters and Gemma O’Doherty initiated judicial review proceedings before the High Court to challenge such legislation, which they defined as unconstitutional, ‘disproportionate’ and based on ‘fraudulent science’. The proceedings attracted widespread media coverage in what soon became a debate on the legitimacy of emergency legislation and the notion of ‘fake news’ itself. After a brief survey of the legislative background to Ireland’s Covid response, the argumentative strategy is analysed through which the High Court eventually dismissed Mr Waters and Ms O’Doherty’s challenge. Focusing on the process of justification of the judicial decision, the paper provides a descriptive account of the argument structure of the Court’s decision. This sheds light on the pattern of multiple argumentation through which the Court interpreted relevant norms in the Constitution and at once re-established the primacy of ‘facts’ informing political decision-making at a time of national emergency.
Meierhenrich, Jens, ‘Constitutional Dictatorships, from Colonialism to Covid-19’ (2021) 17 Annual Review of Law and Social Science 411–439 Abstract: In this article, I use the concept of constitutional dictatorship as a heuristic, as a way of thinking more explicitly about constitutional violence than is customary in comparative constitutional law. Constitutional dictatorship is an epic concept. It is capable of illuminating—and retelling—epic histories of constitutional law, of alerting us to commonalities in constitutional practices of domination—and thus of violence—that would otherwise remain shrouded in legal orientalism. The analysis aspires to make constitutional law strange again. To this end, I trace nomoi and narratives of constitutional dictatorship from colonialism to the coronavirus pandemic. Arguing against emergency scripts, I relate the idea of ‘emergency’ to the everyday and both to coloniality. Mine is a rudimentary conceptual history—a Begriffsgeschichte—of constitutional dictatorship. I think of the empirical vignettes about crisis government in the colony/postcolony on which my comparative historical analysis is based as prolegomena to a critical theory of constitutional dictatorship.
Mengie, Legesse, ‘COVID-19 and Elections in Ethiopia: Exploring Constitutional Interpretation by the House of the Federation as An Exit Strategy’ (2021) 25(1) Law, Democracy & Development 64–89 Abstract: Over 60 countries have postponed their elections due to COVID-19. As an election is the primary means by which government power is assumed in constitutional democracies, the postponement of elections has posed this question: what exit mechanisms do constitutional systems have to address a power vacuum caused by unforeseen circumstances like COVID-19? In other words, how can a legitimate government that adheres to the rule of law, a constitution more specifically, be ensured when elections cannot be held? While some countries held elections amid COVID-19 with precautions, others postponed them. Ethiopia is one of those countries which have postponed their elections. The postponement of Ethiopia’s general elections sparked a debate about how the power vacuum caused by the pandemic should be addressed. After deliberating on the matter, Ethiopia’s lower house approved constitutional interpretation by the upper house as the best solution. The upper house, through interpreting the Constitution, extended the term limits of the federal and regional governments. This article intends to address the question posed above by examining constitutional interpretation by the upper house as an exit strategy. It explores constitutional interpretation by this house and its implications for the rule of law and legitimacy of government. I conclude that comprehensive understanding of the Constitution offers an answer to the conundrum. The upper house has adopted a holistic interpretation approach and that is commendable. However, the ruling that allows the government to stay in power for an unknown time and the partiality inherent in the house compromise the merit of its interpretation.
Merris, Amos, ‘COVID-19 and Constitutional Law in the United Kingdom’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 199-205 Introduction: The COVID-19 Pandemic has had, and continues to have, a devastating impact in the United Kingdom (UK). At the time of writing, the Government’s figure for the total number of COVID-19 associated UK deaths (where there has been a positive test result) is 44,220 although the figure provided by the Office of National Statistics (where COVID-19 is mentioned on the death certificate) for just England and Wales is 49,371. A number of pressing constitutional and human rights questions have arisen and new problems continue to emerge. The purpose of this note is to provide a brief overview of the most important issues to date.
Mezzetti, Luca, ‘Health State of Emergency and Management of the Pandemic: The Italian Experience’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer Nature Switzerland, 2023) 187–194
Abstract: The Italian Constitution does not contain a section or title specifically dedicated to the regulation of states of emergency or institutional crisis, internal or external, unlike what happens in the cases of the German or Spanish Constitution.
Migone, Andrea Riccardo, ‘Trust, but Customize: Federalism’s Impact on the Canadian COVID-19 Response’ (2020) 39(3) Policy and Society 382–402 Abstract: This article explores how Canadian federalism, with its complex mix of competencies, and the country’s punctuated gradualism policy style interface with urgent, complex decision-making like the COVID-19 pandemic. We find that while punctuated gradualism favors tailored responses to pandemic management it is weaker when coordination and resourcing are to be undertaken during non-crisis situations and that, while the level of cooperation among Canadian jurisdictions has progressively increased over the years, policy is still almost exclusively handled at the federal, provincial and territorial levels. Furthermore, the model appears to have critical ‘blind spots’ in terms of vulnerable communities that do not emerge as such until after a crisis hits.
Miliuvienė, Jolita, ‘Preconditions to Avoid Constitutional Rule of Law Crisis: Some Reflections on Appointment Procedure of Constitutional Justices’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 53–65
Abstract: The weakening of the constitutional review institutions is the red flag for the appropriate implementation of the principle of the rule of law. Successful renewal of constitutional composition is one of the guaranties of the independence of the Constitutional Court. The wave of constitutional crises related to the renewal of the composition of the constitutional courts that have recently swept through Europe and beyond revealed the importance of this procedure to the preservation of the rule of law in the state. Therefore, taking as the example Lithuanian case, the article analyses the peculiarities of the mechanism for appointing the justices of the Constitutional Court, and the reasons for the increasing incidence of untimely appointments of constitutional justices. Political interference in judicial appointment might be seen as a threat to independence of constitutional judges. However, the necessity to overcome the counter majoritarian difficulty doesn’t permit to eliminate the politicians from the appointment procedure. Therefore, the safeguards to the possible abuse of the powers given to the political actors participating in the appointment of constitutional judges should be determined and some particular criteria to take into account while choosing the appropriate candidacies must be applied. The wisdom of sages around the world is needed to keep the right balance between political interference and judicial independence and to ensure accordingly the respect of the rule of law in every step of the national legislation.
Miyandazi, Victoria, ‘An Equality-Sensitive Approach to Delivering Socio-Economic Rights during Crises: A Focus on Kenya’ in Shreya Atrey and Sandra Fredman (eds), Exponential Inequalities: Equality Law in Times of Crisis (Oxford University Press, 2023) 335–352 Abstract: This chapter discusses how the dire situation of vulnerable groups in Kenya is exacerbated in times of crises, such as the Covid-19 pandemic. Loss of employment, food shortages, and the high cost of living, coupled with the lack of equality-sensitive interventions by the government, have led to a rise in the number of Kenyans living in absolute poverty. This is despite the fact that Kenya’s 2010 Constitution contains multiple provisions on the protection of the socio-economic rights of vulnerable groups, with Article 20(5)(b) going even further to require the prioritization of the needs of vulnerable groups when implementing the socio-economic rights in Article 43 of the Constitution, to ensure their widest possible enjoyment. The chapter argues that, as much as Kenya’s laws provide the necessary legal framework and impetus for applying equality-sensitive approaches to delivering socio-economic rights and to avoid reinforcing inequality in times of crisis, they are not implemented by those in charge. The challenge, therefore, is the lack of application of actual laws in practice to facilitate the implementation of socio-economic rights to address the adverse effects of crises and their aftermath. In the final analysis, the chapter emphasizes that the needs of the most vulnerable in society should be prioritized when the state is implementing initiatives to respond to crises. This is what is constitutionally mandated in Kenya. To achieve this may mean the enactment of laws to best tackle contempt of court orders and blatant disregard of the law.
Mok, Kenny and Eric A Posner, ‘Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic’ (2021) 102(6) Boston University Law Review 1729–1785 Abstract: We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.
Mongiardo, Joseph, ‘Constitutional Law - How a 2019 Measles Outbreak Has Paved the Way for COVID-19 Vaccination Mandates - C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, 191 A.D.3d 52 (N.Y. App. Div. 2020)’ (2022) 18 Journal of Health & Biomedical Law 72–82 Abstract: Efforts to vaccinate a general population have a legacy of longstanding conflict, pitting the state’s duty to the general welfare, health, and safety of all its people against the fundamental freedom of free exercise of religion for its citizens. In C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, the Appellate Division of the New York Supreme Court addressed whether a municipal board of health’s vaccine mandate violated residents’ religious freedom under the 1st and 14th Amendments. Neutral laws of general applicability, which pass the rational basis test, need not stand up to strict scrutiny and do not implicate the Free Exercise Clause. The Appellate Division of the New York Supreme Court, with an eye toward potential COVID-19 vaccination mandates, affirmed that a vaccine mandate is a reasonable and proper exercise of a state’s police power and does not violate federal or state constitutional rights to the free exercise of religion when done for a ‘compelling state interest... narrowly tailored to apply only to a specific, confined geographical area with a high incidence of disease and only applied for a limited period of time’.
Moonen, Toon, ‘Questions of Constitutional Law in the Belgian Fight against COVID-19’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 123-130 Extract from Introduction: In this overview, the focus is on three constitutionally relevant concerns: (II) confinement measures and their impact on fundamental rights; (III) the granting of ‘special powers’ to the executive and its impact on democratic control; and (IV) the distribution of powers between the federal state and the federated entities. I conclude that these seem to correspond to concerns raised elsewhere, even if some features of the Belgian architecture may have complicated matters more than necessary (V).
Moosavian, Rebecca, Clive Walker and Andrew Blick, ‘Coronavirus Legislative Responses in the UK: Regression to Panic and Disdain of Constitutionalism’ (2021) 72(S1: Supplementary Issue on COVID-19) Northern Ireland Legal Quarterly 1–36 Abstract: The United Kingdom has considerable prowess in handling emergencies, not just in counterterrorism but also in a wide range of other real or imagined disasters, including public health risks. Core legislation has been installed, including the all-encompassing Civil Contingencies Act (CCA) 2004 and the more specialist Public Health (Control of Disease) Act (PHA) 1984. Despite these finely honed models, the UK state regressed to panic mode when faced with the COVID-19 pandemic. Rather than turning to the laws already in place, Parliament fast-tracked the Coronavirus Act 2020, with scant debate of its shabbily drafted contents. In addition, the UK Government has relied heavily, with minimal scrutiny, on regulations under the PHA 1984. The article analyses the competing legal codes and how they have been deployed to deal with COVID-19. It then draws out the strengths and weaknesses of the choices in terms of the key themes of: the choice of sectoral versus general emergency legislation; levels of oversight and accountability; effectiveness; and the protection of individual rights. Following this survey, it will be suggested that the selection of legal instruments and the design of their contents has been ill-judged. In short, the emergency code which is the most suitably engineered for the purpose, the CCA 2004, has been the least used for reasons which should not be tolerated.
Mubangizi, John C, ‘Poor Lives Matter: COVID-19 and the Plight of Vulnerable Groups with Specific Reference to Poverty and Inequality in South Africa’ (2021) 65(S2) Journal of African Law 237–258 Abstract: This article explores the impact of the COVID-19 pandemic on vulnerable people in South Africa in the specific context of poverty and inequality. It does so by first looking at the conceptual context and then highlighting the extent of the impact both from a constitutional and human rights context and from a legislative context. It uses the poor and vulnerable as a proxy to explore the impact of the pandemic (and the measures put in place to contain it) on the specific constitutional rights of vulnerable people, before suggesting a human rights-based approach to managing the pandemic. It concludes that, despite the South African government having undertaken some of the actions recommended, there remains room for improvement and scope for further research, as the pandemic is expected to continue for some time.
Mudau, Paul, ‘Has the COVID-19 Pandemic Exposed the Fragility of South Africa’s Constitutional Democracy?’ (SSRN Scholarly Paper No ID 3821643, 23 July 2020) Abstract: On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the National Coronavirus Command Council mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy.
Mukherjee, Gaurav, ‘Evictions, Demolitions, and Responsive Constitutionalism in the COVID-19 Lockdown in Cape Town’ (SSRN Scholarly Paper ID 3744891, 8 December 2020) Jurisdiction: South Africa
Abstract: In this article, I comment on the judicial responses to several incidents of eviction and demolition of illegal structures during the COVID-19 lockdown by Cape Town City officials, including members of the Anti Land Invasion Unit. The cases implicate complex legal questions, many of which are heavily contingent on factual situations: first, whether it was permissible for City Officials to conduct evictions and demolitions when they had been specifically disallowed by section 36(1) of Alert Level 3 Regulations; second, whether the protections afforded by the PIE Act extends to structures which may not be fully completed nor occupied; third, the relationship between the common law remedy of counter-spoliation and its applicability to situations of land invasion where housing rights and judicially supervised eviction and demolitions are concerned, and fourth, the constitutionality of the manner of determination of whether a structure is built or occupied – the response to which determines whether the provisions of the PIE Act kick in. Finally, I also comment on the accountability of private actors tendered to carry out evictions and demolitions – which may create perverse incentives to maximize their numbers, with little regard for constitutional safeguards.
Muraviov, Victor, ‘Rule of Law Concept and Its Development by the EU Constitutional Justice’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 73–83
Abstract: The article is devoted to the complex analysis of the notion of the rule of law and its development in preambles or other general provisions of European constitutions. The authors underline that the rule of law constitutes a fundamental and common European standard to guide and constrain the exercise of democratic power. Rule of law is a fundamental principle of constitutionalism. The special attention is paid to the issues and problems related to the definition of elements of the rule of law. It is proved that the concept of rule of law includes accessibility of the law; questions of legal right should be normally decided by law; equality before the law; power must be exercised lawfully and reasonably; human rights must be protected; means must be provided to resolve disputes without undue cost or delay; trials must be fair; compliance by the state with its obligations in international law as well as in national law should be provided. In this respect, the author determines two main dimensions of the rule of law at the EU level: the internal dimension of the European Union and Member States and the external dimension of this concept.
Mushak, Nataliia, ‘Constitutional Restrictions of Human Rights Under the State of Emergency’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 179–185
Abstract: This article is devoted to the impact of COVID-19 on the constitutional restrictions of human rights under the state of emergency. The author analyzes the main and important by-laws adopted by the Ukrainian state authorities on restrictions of human rights in view of the rapid spread of the coronavirus pandemic in the world. The research established that under the martial law or a state of emergency, certain restrictions on rights and freedoms may be established, indicating the validity of these restrictions. This article stipulates that under the Constitution of Ukraine the constitutional rights and freedoms of a person and a citizen cannot be limited, except in cases stipulated exclusively by the Constitution of Ukraine.
Mustafi, Ritwik Guha et al, ‘The Constitutionality and the Overall Impact of the Dilution of Labor Laws in India during the Covid-19 Pandemic: A Comprehensive Analysis’ (2021) 1(4) Jus Corpus Law Journal 39–46 Abstract: This paper briefly examines the background of the labor laws in India and their specific purposes. The paper then analyses the constitutionality of the dilution of labor laws and the overall impacts therein. Finally, the paper suggests some alternative measures which can be applied given that there is a second wave of the pandemic. The paper uses the doctrinal method of research as ample materials for reference are available in form of articles, books, and electronic resources.
Nabaneh, Satang and Basiru Bah, ‘The Covid-19 Pandemic and Constitutional Resilience in The Gambia’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 201–221 Abstract: This chapter provides an assessment of The Gambia’s journey through the coronavirus (Covid-19) pandemic. It examines the country’s constitutional resilience in the face of the public health emergency which shook the country’s health, economic and constitutional setup. This chapter provides an overview of the pandemic by giving a narrative of the trajectory of events in terms of the number of cases, recoveries and fatalities registered. It also provides an overview of how the government responded and the constitutional and legal implications of government measures in response to the pandemic. This chapter argues that the exercise of emergency powers vested in the President by the 1997 Constitution and other emergency laws resulted in the limitation of fundamental rights and freedoms. These limitations were largely in accordance with international law and similar to those put in place in other jurisdictions. This chapter argues that while the constitutional framework of The Gambia enables the country to deal with public health emergencies, uneven application of the law may result in unfair limitation of rights of some sectors of society.
Nagy, Zoltán and Attila Horváth, Emergency Powers in Central and Eastern Europe : From Martial Law to COVID-19, (Central European Academic Publishing, 2022) [OPEN ACCESS BOOK] Book Summary: The basic goal of this volume is twofold: On the one hand, readers are provided with an in-depth analysis and comparison of the systems of emergency powers of eight Central and Eastern European countries, paying special attention to the states of exception declared in the previous decades; on the other hand, the book is devoted to discussing the constitutional law aspects of the responses for COVID-19 crisis, highlighting the relevant legal and political debates, dilemmas and viewpoints surrounding the pandemic up until June 2021. Although the viewpoint of the book is primarily based on constitutional law, we also deal with the COVID-19 pandemic as an economic crisis, comparing the fiscal and monetary measures of crisis management.
Contents:
- Trócsányi László, ‘The Theoretical Questions of Emergency Powers’ 19
- Béres Nóra, ‘International Aspects of the COVID-19 Health Crisis with Special Regard to Human Rights’ 33
- Marinkás György, ‘Dealing with the COVID‑19 Pandemic on the EU level: Introducing the “Web of Competencies” Theory’ 71
- Petar Bačić and Marko Ivkošić, ‘The Croatian “Emergency Constitution” on Test’ 97
- Hojnyák Dávid and Szinek Csütörtöki Hajnalka, ‘Dimensions of Emergency Powers in the Czech Republic’ 129
- Nagy Zoltán and Horváth Attila, ‘The (Too?) Complex Regulation of Emergency Powers in Hungary’ 149
- Katarzyna Zombory and Németh Zoltán, ‘To Introduce or Not to Introduce? Regulation of the State of Emergency Under the 1997 Polish Constitution vs the COVID-19 Pandemic’ 189
- Szentpáli-Gavallér Pál and Fegyveresi Zsolt, ‘Where is the “Special Legal Order” Heading in Romania?’221
- Slobodan Orlović and Ivan Milić, ‘Serbian Legal Disharmony During the COVID‑19 Pandemic’ 247
- Szinek János and Szinek Csütörtöki Hajnalka, ‘The Multi-Level Regulation of the Traditional and the Exceptional Emergency Powers in Slovakia’ 279
- Sibilla Buletsa, ‘Legal Regulation of the Special Legal Regimes in Ukraine’ 303
- Nagy Zoltán et al, ‘Summary: Pondering About Emergency Powers During COVID-19’ 343
Abstract: The announcement of a period of disaster under Uganda’s Public Health Act led to the adoption of various restrictions to curb the spread of Covid-19. The country’s youth were significantly affected, given that more than 75 per cent of the population of approximately 45 million are under the age of 30 and burdened with unemployment, poverty and lack of education. This chapter evaluates the response to the pandemic by Uganda’s executive, Parliament and judiciary, and analyses its implications for constitutionalism.
Nanima, Robert Doya, ‘A Right to a Fair Trial in Uganda’s Judicature (Visual-Audio Link) Rules: Embracing the Challenges in the Era of Covid-19’ (2020) 46(3) Commonwealth Law Bulletin 391-414 Extract: In Uganda, this right is provided for in the Constitution’s Bill of Rights. This section examines the context of the right to a fair trial and the guarantees that it provides for the accused. It emphasises Article 28(3)(g) and underscores the peculiarity of this provision concerning the bigger picture of virtual courts. Uganda’s Constitution provides for the right to a fair trial in its Bill of Rights
Nanima, Robert Doya, Ebenezer Durojaye and Derek M Powell, ‘Constitutional and Human Rights Issues Arising from Covid-19 in South Africa’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 341–369 Abstract: South Africa announced a national lockdown on 17 March 2020 following the outbreak of Covid-19. Its approach to the pandemic has been based on a patterned model in which restrictions imposed in terms of the Disaster Management Act are categorised in degrees of intensity ranging from level 1 (least intense) to level 5 (most intense). In the period between the first wave of infection in early 2020 and the second wave in January 2021, the country moved from level 5 to level 1 before shifting to level 3. A surge in infection numbers led to three restrictions as of 17 June 2020 and again in 2021. There is no doubt that various sectors of the population have been adversely affected, among them women, children and the elderly. This chapter evaluates the response to the pandemic by South Africa’s executive, Parliament and judiciary, and analyses its implications for constitutionalism.
Neo, Jaclyn L, ‘Constitutionalizing Care: How Can We Expand Our Constitutional Imaginary after Covid-19?’ [2022] International Journal of Constitutional Law (advance article moac075) Abstract: The Covid-19 pandemic has no doubt caused serious disruptions to lives across the globe. These range from minor inconveniences to major consequences to personal, social, political, economic, and constitutional aspects. With the pandemic still present but its biggest effects waning, this framing article for our symposium on Covid-19 seeks to address the question of whether constitutional law should be rethought, recalibrated to create a more resilient, more egalitarian, and more protective constitutional order. It offers a series of provocations centered around the idea of care as a constitutionalist ideal by which to organize a refreshed post-Covid constitutional order. By care, I mean that which is necessary for the health, welfare, maintenance, and safety of persons. The constitutionalization of care could mean a further reorientation of our constitutional focus from the usual ‘hard’ subjects of constitutionalism, i.e. emergency power, pandemic regulation, and the continued working of the legislature, towards what may, so far, have been marginalized as ‘soft’ constitutional subjects like social relations and families. These, I argue, are critical as Covid-19 has shown us that it is these ‘soft’ constitutional subjects that have had the widest and deepest impact on the ground. This article therefore seeks to reconsider our constitutional epistemology.
Nettesheim, Martin, ‘Liberal Constitutionalism in Times of Crisis and Emergency’ (2022) 34(1) European Review of Public Law_ _Abstract: We live in times of crisis. It is a widespread basic social feeling that socio-economic routines and normality have gone off track, that we are surprised by unforeseen events and changes and thus live in a permanent state of emergency. The article frames this view of a changing social environment using a constitutional framework of analysis. Many of the current crises are not managed in a special legal framework (‘state of emergency’), but in the normal form of law. This threatens to contaminate this normal form, which will also have repercussions for the management of normal situations. The article then asks what criteria can be used to distinguish special situations from normal situations. It takes a critical view of the currently observed attempt to constitutionalize exceptional administrative law.
van Niekerk, Bouwer and Parveen Munga, ‘COVID-19 and the Right to Freedom of Movement’ (2020) 20(4) Without Prejudice 20–22Jurisdiction: South Africa
Abstract: Section 21 of our Constitution concerns the rights to freedom of movement and residence, in terms of which every person is guaranteed the right to freedom of movement and every citizen is guaranteed the right to enter, remain and reside anywhere in the Republic. The importance of the rights enshrined in s21 cannot be overstated. Its effect is to preclude the former policy of segregation and the severe restrictions imposed on the black populace. It, like many of the rights enshrined in our Constitution, also serves as a stark reminder of the conditions and status quo that warranted the inclusion of a right seemingly manifest. Remarkably, this section is not comprehensively dealt with in some of our most esteemed academic works dealing with our Constitutional Law. The reason for this is, in all likelihood, axiomatic – this right is so manifest that academic scholars have found neither the need nor the inclination to expand on it. There are also not (as of yet) any groundbreaking Constitutional Court judgments in our jurisprudence opining on this section, as this has never been seriously challenged in our young democracy. But now the national lockdown is infringing upon this very right; our personal movements are curtailed, which halts our ability to trade and disallows something as significant as attending funeral of a loved one. How is it that this right can be so fundamentally and so drastically impeded?
Nieto, Adan, ‘Controls and Penalties in the time of Pandemic: The Constitutional State on Trial’ in Braum, Stefan (ed), Experimental Law: The Rule of Law and the Regulation of the Corona Pandemic in Europe (Nomos, 2023) 255–286
Nikitin, Yurii et al, ‘Constitutional Right to Health Protection and Medical Care in Ukraine in the Context of the Pandemic COVID-19’ (2020) 13(4) Journal of Politics and Law 99–109 Abstract: The content of the right to health protection and medical care according to Ukrainian legislation is analyzed in the article as well as peculiarities of its realisation in the context of the pandemic COVID-19. It examines also the correlation between the notion ‘health protection’ and ‘medical care’. On the basis of this correlation, the conclusion is made that the right to health protection is broader and includes, but is not limited to, the right to medical care. Some international standards in the sphere of health protection, which constitute the basis of Ukrainian legislation in this area, are analyzed. The conclusion is made that Ukraine should take into account such standards while limiting human rights, in particular, the right to health protection and medical care in the context of the pandemic COVID-19. It is mentioned that the significant problem remains the legal regulation of quality control of medical care, the creation of organizational technologies with a clear division of control functions between the various actors in the health care system, which is extremely important in terms of the pandemic. The attention is also paid to the personal data protection issue in the sphere of health care. The conclusion is drawn that there should be mechanisms for reporting and protecting against abuse while collecting personal data, and people should be able to challenge any COVID-19-related measures for the collection, aggregation, storage and further use of their data.
Noah, Lars, Law and the Public’s Health: Cases, Controversies, and Covid-19 (Carolina Academic Press, forthcoming May 2023) Abstract: The varied responses to our latest pandemic have embroiled all three branches of the U.S. government—as well as the private sector—in a dizzying range of legal disputes, colored by growing partisanship and deepening ideological divisions. This casebook includes 140 judicial decisions, more than one-third of which are less than three years old and almost one-quarter of which relate to Covid-19. Other included case law covers the likes of smallpox, influenza, HIV and other sexually transmitted infections, salmonella and other bacterial threats, smoking and vaping, obesity and diabetes, drug and alcohol abuse, gun violence, motor vehicle accidents, and lead contamination. Instead of focusing on either discrete issue areas (e.g., respiratory contagions) or clusters of legal rules (e.g., free exercise of religion), this casebook groups the excerpted opinions and affiliated discussion by reference to the various tools available for promoting the public’s health, broadly divided according to whether government intervention aims to manage (1) people, (2) places, (3) things, or (4) information. Obviously, these tools often overlap, and the final chapter attempts to recombine them in assessing the multifaceted nature of policy responses to a handful of modern problems. Designed for use in law school, Law and the Public’s Health focuses specifically on public law rather than health law and medical ethics, making it an accessible casebook for law students without a background in medicine.
Nomani, MZM and Madiha Tahreem, ‘Constitutionality and Legality of Corona Virus (COVID-19) Induced Lockdowns in India: Limits of Sanction and Extent of Liberation’ (2020) 11(3) International Journal on Emerging Technologies 14–18 Abstract: The Corona Virus (COVID-19) and its global spread have resulted in declaring a pandemic by the World Health Organization. India rapidly responded and clamped Lockdown from March 25, 2020, to April 14, 2020. The Government legitimized move on the constructional mandate of Article 47 and Entry 29 of the seventh schedule of the Constitution of India, 1950. It has also utilized time tested quarantine law contained under Indian Penal Code, 1860, and Epidemic Diseases Act, 1897. Such a health emergency was not contemplated under the Constitution of India, 1950; therefore, it has envisioned calamitous situation underpinned Disaster Management Act, 2005, to chart the preventive strategy of COVID-19. The innovation of COVID-19 as disaster and catastrophe fitted into the phrase ‘beyond the coping capacity of the community.’ The Central Government assumed the role of the custodian to undertake all preventive and anticipatory measures. Because of rising death cases after two weeks of Lockdown, it wanted to extend for the prevention of infectious and contagious diseases further. The paper is a critical appraisal of the constitutionality and legality of COVID-19 induced Lockdown and attendant sanction and liberation in the context of social and egalitarian context.
Oakes, Anne Richardson, Ilaria DiGioia and Vanice Valle, ‘The Intersection of Federal, State and Local Government Responsibilities to Protect Public Health During the Pandemic in the United States and Brazil’ (2021) 24(36) Juris Poiesis 274–279 Abstract: The United States and Brazil are federal countries with constitutions that diffuse regulatory power away from the centre in favour of state and local governments. In the absence of strong presidential leadership, the frontline of response has been at these lower levels but the result has been intra-governmental conflict concerning allocation of responsibilities and a patchwork of responses that have done little to promote public confidence in the ability of their governments to control the spread of the disease. In both countries public health emergency orders which have closed businesses and schools, required masks to be worn on public transport and in public places and at their most extreme, required citizens to stay at home or ‘shelter in place’ have generated law suits framed not only in terms of infringement of constitutional rights but also of separation of powers at both horizontal and vertical levels. This paper focuses specifically on the way in which management of the pandemic has generated intragovernmental conflict at the vertical level. It notes that in the United States two- tier constitution which recognises only federal and state governments and has nothing to say regarding local autonomy, local authorities seeking to put in place increased measures of public health protection have struggled to develop legal strategies that can withstand state gubernatorial opposition. This is not the case in Brazil where the Brazilian Constitution of 1988 gives municipalities equal federative partnership with states and the federal government, a status recently confirmed in relation to the management of the pandemic by two recent decisions of the Federal Supreme Court of Brazil (SFT).
Obayashi, Keigo, Takatoshi Tezuka and Jonathan Hafetz, ‘Constitution Under Pandemic: Constitutional Issues on the Japanese Method of Responding to the Covid-19 Pandemic and Comparison to the United States’ (2022) 37(2) Chiba Law Journal 61–86 Abstract: In response to the COVID-19 pandemic, governments around the world have taken their own measures. However, the methods have varied from country to country. For example, some countries imposed strong restrictions on the human rights of their citizens to prevent the spread of the pandemic, while others took a softer approach by encouraging their citizens to exercise restraint. The soft approach, in particular, appears to have been relatively effective in limiting the spread of infection. However, this approach carries some problems, such as the fact that it can be de facto coercive. Even though the de facto coercive approach can actually restrict individual rights, courts may still find that this restriction is not coercive and therefore does not violate individual rights. This paper examines the constitutional issues related to Japan’s response to COVID-19. First, it examines the role of the state in charge of public health with regard to COVID-19 and provides three models of responses taken in various countries around the world: the mandatory model, the self-restraint model, and the hands-off model. Then, it focuses on the responses taken in Japan, which has adopted the self-restraint model, and summarizes the measures taken by local governments as well as the problems those measures raise. Finally, the paper analyzes the constitutional problems of the Japanese model, based on a comparison with the U.S. model that uses elements of a mandatory model.
Odyakmaz, Zehra and Bayram Keskin, ‘The Future of States Facing The Covid-19: The Thought of Constitutionalism and a Review in Terms of Comparative Constitutional Law’ (2022) 117(2) Archive for Legal and Social Sciences / Архив За Правне И Друштвене Науке 13–36 Abstract: The Covid 19 pandemic, which started in 2020 and spread to the world, has become an important issue of international politics. In this context, the social, economic and political effects of the pandemic constitute the focal point of global discussions. During the pandemic, some states preferred to declare a state of emergency, and in states that did not declare a state of emergency, governments began to use ‘extraordinary powers’. These powers began to be perceived as powers transferred to ordinary constitutional orders over time. It is observed that the measures taken in these states can also exceed the rules of the ordinary constitutional order. Constitutional courts and/or high courts of many countries may find some measures taken by governments to be unconstitutional. In this study, examples from Hungary and Israel practices and the decisions of the US and Indian high courts regarding the measures taken by the governments will be discussed. In addition, the issue of the normalization of the emergency powers and the claim that the declaration of the state of emergency is a measure that the political powers take advantage of pandemics and crises will be mentioned. A further projection as a result of the exercise of the powers related to the state of emergency is also related to participation in the political processes: In the context of remote voting, the right to a fair trial, the principle of publicity of the hearings, and the ability of citizens to attend the hearings in their homes are positive developments in terms of public interest. In the end, what is certain is; after the Covid 19 pandemic, constitutional orders will continue by keeping changing.
Oliva, Javier Garcia and Helen Hall, ‘Public Gatherings during the Covid-19 Crisis: Responses from Public and Private Law in England’ in Andrades Navarro Agustin (ed), Derecho y Pandemia Desde Una Perspectiva Global / Law and Pandemic From a Global Perspective (Thomson Reuters, 2021) 169–192 Abstract: This chapter discusses the responses from public authorities in the United Kingdom to public gatherings during the Covid-19 crisis in England. The authors focus on both Public (particularly the restrictions on freedom of association) and Private Law issues, and approach these legal challenges from the perspective of the English Constitutional Culture.
Oluduro, Olubayo, ‘Walking a Tightrope: Balancing Human Rights and Public Health Measures During the Covid-19 Pandemic in Nigeria’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 223–254 Abstract: As of 8 July 2021, there were 184,820,132 confirmed cases of Covid-19 globally and more than 4,002,209 deaths. In Nigeria, the government has instituted regulations and emergency measures to combat the pandemic, but some of them have grave implications for human rights. This chapter examines the pandemic’s impact on the human rights of vulnerable and marginalised groups in Nigeria, the nature of the measures taken, and their constitutionality and effectiveness (or otherwise). It argues for the need to adopt a rights-respecting approach in combating Covid-19 as well as other future public health emergencies.
Owusu-Dapaa, Ernest, Richard Obeng Mensah and Delali Adzo Gawu, ‘Seeking a Panacea to the COVID 19-Induced Constitutional Crisis in Ghana: Comparative Insights from Natural and Positive Legal Theories’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 33–52 Abstract: Although Ghana’s 1992 Fourth Republican Constitution deals with public emergencies, the recent Covid-19 pandemic exposed a significant lacuna in the Constitution regarding presidential and parliamentary elections. A conflict between strict adherence to the Constitution’s tenets to hold elections at set times and the need to safeguard the lives of citizens arose but the Constitution provides no explicit panacea to the problem. Meanwhile, the inability to hold elections within stated timelines is likely to result in the constitutional crisis of power vacuum. This calls for the interpretation and deployment of the Constitution in a manner that resolves the crisis occasioned by the Covid-19 pandemic and other such occurrences in the future. Using the doctrinal approach to legal research, the paper analyses this Covid-19-induced constitutional crisis from the perspective of legal theory. It comparatively explores insights from natural law theory and legal positivism to critically evaluate the philosophies underpinning various responses to the constitutional crisis. It argues that finding a practical and lasting solution to a constitutional crisis as the one presented by the Covid-19 pandemic will require a balancing of legal philosophical approaches to enable adherence to law and reason.
Padula, Carlo and Giacomo Delledonne, ‘Italy: The Impact of the Pandemic Crisis on the Relations between the State and the Regions’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: n analysis of the impact of the COVID-19 pandemic on the Italian constitutional order must focus on the relations between the State and the regions during the crisis. The pandemic crisis was a national one, although it affected Italian regions unequally. Furthermore, healthcare represents the core of regional policies: for this reason, regions almost inevitably came to the forefront during the crisis. This chapter investigates the regional response to the COVID-19 crisis against the background of the relations between the State and the regions. The chapter is divided into three parts. First, it focuses on the most important legal tool during the crisis, the Prime Minister’s decrees, and their impact on the Italian regional model. Second, it focuses on how, in legal terms, the state and regional acts dealing with COVID-19 can coexist. Third, it presents and the measures adopted by the presidents of the regions for this purpose. In doing so, the chapter focuses on three cases: Lombardy, Veneto, and Campania.
Paglialonga, Jacob, ‘The COVID-19 Cover-Up; How Federal Courts Are Changing Constitutional Law to Uphold Unconstitutional State Actions’ (SSRN Scholarly Paper ID 3607298, 21 May 2020) Jurisdiction: USA
Abstract: When a state deprives us of fundamental liberties, the judiciary is required to assess the government action using the strict scrutiny standard of review. Under this level of scrutiny, the state action must be narrowly tailored and serve a compelling state interest, or it is unconstitutional. An essential aspect of strict scrutiny is that the burden of proof is on the government. Meaning, when State actors infringe on our liberties, they must support the necessity of their actions with evidence. Amidst the COVID-19 pandemic, federal courts have largely failed to apply the strict scrutiny standard of review to state actions. Instead, courts have invented an entirely new standard of review specifically for state actions during a ‘public health crisis.’ Under this new COVID-19 standard of review, courts may only overturn state actions that lack a real or substantial relation to public health or that amount to a plain, palpable invasion of rights. This standard of review shifts the burden of proof from the state to the individual. Ergo, to earn back bereaved liberties, individuals must demonstrate that a state’s action is not somehow related to a public health crisis or provide evidence that a state’s action meets the court’s subjective definition of a ‘palpable invasion of rights.’ Unsurprisingly, the new COVID-19 standard of review vindicates state deprivations of liberty regardless of merit or necessity.This Article addresses the new COVID-19 standard of review federal courts are employing to reject constitutional challenges to state actions in response to the coronavirus. This Article describes the fundamental liberties abridged by state lock-downs, and the judicial scrutiny historically applied to these types of infringements on liberty. This Article examines the 1905 Supreme Court case of Jacobson v. Commonwealth of Massachusetts, which courts utilize to support the new COVID-19 standard of review. This Article reviews other legal precedents in the area of ‘quarantine law’ to expose how the COVID-19 standard of review is a radical divergence from traditional jurisprudence. Lastly, this Article compares federal court opinions using the new COVID-19 standard of review with the few court decisions still using strict scrutiny. This comparison demonstrates that once subjected to minimal scrutiny and the burden of proof, state governments utterly fail to support the efficacy and necessity of their COVID-19 ‘emergency’ actions.
Pamungkas, Ery, ‘Constitutional Court and Legal Certainty Covid-19 Pandemic Status’ (Proceedings of the 2nd International Conference on Law, Social Science, Economics, and Education, ICLSSEE 2022, 16 April 2022, Semarang, Indonesia, 2022) Abstract: Since WHO announced that the Covid-19 virus had entered a pandemic period, the international community has made various policy adjustments to overcome this. The impact of the policy to stop the infection from spreading is felt all over the world, including in Indonesia. This underlies Indonesia to ratify In respect of Law No. 1 of 2020 Governing State Monetary Policies and Banking Device for Managing the Corona Virus Disease (COVID-19) Epidemic and Threats to the Economic Affairs and Welfare, the court has published a rule. The System of Finance Becomes a Law (Perppu 1/2020), which was subsequently enacted as Law Number 2 of 2020. This Law then became the basis for changes to various economy and government administration policies. Some citizens then submitted a request to the Judge for a reassessment of the statute in light of the constitution Act. From several requests for judicial review of the Law, in Decision Number 37/PUUXVIII/2020, it was found how the Judiciary’s attitude towards the constitutionality of Law 2/2020 was found. This paper discusses, among others, what subjects were submitted by the applicant in testing the Law to the High Court and analyses the Court’s legal considerations before making a decision on the legal challenge and how the implications of this decision were in ensuring legal certainty for policies implemented during the Covid pandemic.
Parajuli, Karuna, ‘Unprepared and Unlawful: Nepal’s Continued Failure to Realize the Right to Health during the COVID-19 Pandemic’ (International Commission of Jurists, Briefing Paper, September 2021) Extract from Executive Summary: The COVID-19 pandemic has brought immense challenges to public authorities in nearly every country in the world, and Nepal is no exception. The serious strain on scarce public resources in a difficult economic and developmental environment, gross failures of wealthier States to fulfil their obligations of international cooperation, and the incoherence of international responses must be taken into account in any assessment of Nepal’s performance in discharging its human rights obligations. This paper should therefore be understood and read in this broader context, some of which is detailed in ICJ’s September 2020 report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses. 1 Within this context, Nepal, like other States, has and international legal obligation to respect, protect and fulfill the right to health, obligation that is reflected and reinforced in its Constitution. This briefing paper assesses Nepal’s compliance with these and other applications human rights obligations in its responses to the COVID-19 pandemic from early 2020 through August 2021.
Parmet, Wendy E, Constitutional Contagion: COVID, the Courts, and Public Health (Cambridge University Press, 2023) Link to book page on publisher website
Book summary: Constitutional law has helped make Americans unhealthy. Drawing from law, history, political theory, and public health research, Constitutional Contagion explores the history of public health laws, the nature of liberty and individual rights, and the forces that make a nation more or less vulnerable to contagion. In this groundbreaking work, Wendy Parmet documents how the Supreme Court departed from past practice to stymie efforts to mitigate the COVID-19 pandemic and demonstrates how pre-pandemic court decisions helped to shatter social contracts, weaken democracy, and perpetuate the inequities that made the United States especially vulnerable when COVID-19 struck. Looking at judicial decisions from an earlier era, Parmet argues that the Constitution does not compel the stark individualism and disregard of public health that is evident in contemporary constitutional law decisions. Parmet shows us why, if we are to be a healthy nation, constitutional law must change.
Parmet, Wendy E, ‘From the Shadows: The Public Health Implications of the Supreme Court’s Covid-Free Exercise Cases’ (2021) 49(4) Journal of Law, Medicine & Ethics 564–579 Abstract: This article analyzes the Supreme Court’s ‘shadow docket’ Free Exercise cases relating to COVID-19. The paper highlights the decline of deference, the impact of exemptions, and the implications of the new doctrine for vaccine and other public health laws.
Parmet, Wendy E, ‘Rediscovering Jacobson in the Era of COVID-19’ (SSRN Scholarly Paper ID 3620353, 5 June 2020) Abstract: As courts continue to hear constitutional challenges to COVID-related orders, citations to the Supreme Court’s 1905 decision, Jacobson v. Massachusetts, have been proliferating. This essay re-examines Justice Harlan’s nuanced and ambiguous opinion in Jacobson, situating in in its epidemiological and jurisprudential context. The essay also looks at Jacobson’s complex legacy, and how judges, including Chief Justice Roberts in South Bay United Pentecostal Church v. Newsom, have been applying Jacobson as they review COVID-19 social distancing orders. Note: in this 1905 decision, the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.
Note: in Jacobson v Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.
Phiri, Christopher, ‘Covid-19 and Zambia’s Constitutional Dilemma’ in Ebenezer Durojaye and Derek M Powell (eds), Constitutional Resilience and the COVID-19 Pandemic: Perspectives from Sub-Saharan Africa (Springer, 2022) 145–178 Abstract: Desperate times call for desperate measures. This holds true in times of public emergencies. Constitutionalism and the rule of law, however, impose limits on how the powers of government can be duly exercised even in the face of public emergencies. Focusing on the period March 2020 to March 2021, this chapter examines the response of the Zambian government to the Covid-19 pandemic through the lens of constitutionalism and the rule of law. It reveals that the response was exclusively executive-driven. Several measures which the executive introduced to contain the spread of Covid-19 had no legal basis, and enforcement was arbitrary. Parliamentary and judicial oversight was also largely absent. This saw apparent violations of human rights go without redress. This chapter ends with some general observations on what could be learnt from the experience during the period under examination, to facilitate constitutional resilience in the future.
Platon, Sébastien, ‘Reinventing the Wheel … and Rolling over Fundamental Freedoms? The Covid-19 Epidemic in France and the ‘State of Health Emergency’ (2020) 8(3) The Theory and Practice of Legislation 293–309 Abstract: In order to cope with the Covid-19 crisis, the French Parliament has adopted an Act creating a new emergency powers regime, dubbed state of health emergency, which is currently in force. The present paper aims at analysing and providing a critical appraisal of this regime. In particular, it will be demonstrated that this regime is rather imbalanced in that it confers important powers to the executive with limited checks and balances. It will also be contended that the creation of a new regime was not necessary, and that it would have been wiser to amend the existing state of emergency.
Pooe, TK, ‘Ending 1990s Law and Development Ideas, Paradox of Path Dependence in Economic Planning Institutions Under Covid-19: SA’s Response’ (2024) Law and Development Review (advance article, published online 6 March 2024) Abstract: This paper argues that the COVID-19 pandemic can and should be understood as a form of creative destruction (Schumpeter’s gale), at a hyper level owing to its biological/medical dimension. Therefore, the critical response to such a hyper force is to rethink how institutions administer Public Policy in South Africa (Path Dependency), most importantly economic development planning institutions and Covid-19 responses, in the form of ‘The Economic Reconstruction and Recovery Plan’. It’s the contention of this paper that the reason why Covid-19 continues to impact the South African government’s economic planning ethos is anchored in its developmental orientation, particularly how constitutional legalism has impaired economic development planning. This could impart be due to the unaddressed influences of the initial waves of Law and Development post-1994. The South African experience with the initial waves of Law and Development were muted owing to the problematic nature of the 1994 transition which sought peace at all costs without necessary addressing substantive economic development reform considerations. Therefore, using the policy experiences of Covid-19 and Lee’s, General Theory of Law and Development, particularly the aspects of Development and State Capacity and Political Will, a revision of the South African Constitution will be called on, principally chapter’s 2 and 6 (Bill of Rights) and (Province).
Putri, Aulia Kartika, Hinza Praitma Adli and Akhmad Habibullah, ‘Analysis of Government Regulations in Lieu of Law No. 1 of 2020: As a Response to the Urgency of the COVID-19 Pandemic’ (2023) 4(1) Jurnal Studi Ilmu Pemerintahan 179–188 Jurisdiction: Indonesia
Abstract: This study delves into the analysis of Government Regulations in Lieu of Law (PERPU) enacted by the president as a response to the urgency of the COVID-19 pandemic. It specifically focuses on PERPU No. 1 of 2020, which was issued during a state of coercive crunch without replacing or amending an existing or forthcoming law. The study employs a normative juridical or normative law research method using a statute and conceptual approach to examine the compliance of PERPU No. 1 of 2020 with the parameters outlined by the Constitutional Court. The findings reveal that the determination of the reason for the Health emergency in this PERPU seems subjective and is not in line with the parameters outlined by the Constitutional Court. The study concludes that the issuance of PERPU must be regulated more strictly and transparently to ensure that it is only utilized in exceptional situations, in accordance with the Constitution and its application is objective.
Raganelli, Biancamaria and Pierre de Gioia Carabellese, ‘From the Pandemic to the Recovery: A Legal Analysis’ (2021) 69(2) Estudios de Deusto 185–227 Abstract: The health crisis caused by Covid-19 has brought with it numerous and profound legal issues that have affected all branches of law, fueling an intense scientific debate in relation to the rights and fundamental freedoms guaranteed in the legal system. In addition, the exceptional situation generated by the health crisis has been clearly reflected in the Courts in the different jurisdictions. The constitutional courts of the different Member States of the Union have not been immune to this, either, they have had to address the problems derived from the reinforcement of powers of the Executive Power and the restrictions of not a few fundamental rights. For its part, the Court of Justice of the European Union has not been immune to the public health crisis caused by the pandemic and has already had to adopt first decisions. This paper analyzes the main legal problems that the declaration of the state of exception has raised, focusing on some of the most relevant jurisdictions in the European Union, although, occasionally, references to some non-community systems are incorporated. And it is because the exceptional circumstances have forced the various States of the international community to restrict fundamental rights and freedoms. But, at the same time, the current context has brought several critical issues to the table, the main one being the difficulty of acting with proportionality. The judgment of proportionality on the measures adopted (that the limiting measures are adequate or suitable for the achievement of the aim pursued; that they are the minimum essential for that purpose and that there is proportionality between the sacrifice required of the right limited by that measure and the specific right , good or interest that is intended to protect) cannot be done outside the limits pre-established by the Ordinances. The right of exception arising from the crisis raises, ultimately, relevant questions in relation to the necessary balance to be sought between the guarantee of fundamental rights and the limits to which public powers must be subject. Taking into account the above, The objective of this work is none other than to demonstrate that the legal systems of the Member States of the European Union guarantee both from a formal and a substantial or material point of view the rights and freedoms in accordance with the constitutional traditions shared by all of them. In this sense, the Court of Justice of the European Communities is not alien to this approach but takes the same line. Europe now faces a new challenge. The recovery after the pandemic offers a new opportunity for Europe and its Member States to take a step forward on the bumpy path towards a European Political Union capable of strengthening a structure that is now weakened. A path and a project still full of obstacles that needs to reinforce its unity through a greater identity among the European peoples.
Rainer, Arnold, ‘Pandemia and Constitutional Law: Some Reflections on the German Experience’ (2020) 22(1) Studii Juridice şi Administrative / Legal and Administrative Studies 33–52 Abstract: The fight against the Covid 19 pandemia in Germany can be regarded, until now, as rather successful. Serious, large-scale restrictions of fundamental rights have been temporarily imposed on the population. A quick and efficient response to the infection risk was indispensable; the institutional and organizational measures taken for this purpose have stimulated the discussion how far the rule of law exigencies have been observed.
Rajagukguk, Blucer W et al, ‘Measuring the Impact of COVID-19 Law Response and the Role of Supreme Audit Institutions’ (2022) 12(2) Italienisch 855–862 Abstract: The objective of this paper is to measure the impacts of constitutional arrangement of a state of emergency, especially Covid-19 pandemic, and to suggest the role of Supreme Audit Institutions to reduce those impacts. This paper uses a descriptive analysis to study constitutional arrangement of emergency in several countries and focuses on the Covid-19 law response in Indonesia. This paper also highlights pandemic-related audits which were conducted by Badan Pemeriksa Keuangan (BPK), the Supreme Audit Institution of Indonesia. This paper concludes that emergency response by the government (such as in the Covid-19 pandemic) should not contradict the intention of legal system to achieve justice in society. Moreover, audit by SAIs is crucial to adjust the emergency response. Thus, this paper suggests that SAIs should take the opportunity and perform audit on the pandemic law response to make a difference to the lives of citizens.
Raposo, Vera Lucia, ‘Portugal: Fighting COVID-19 in the Edge of Europe’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 723–730 Extracts from Introduction: Portugal has been praised, amongst its European pairs and outside Europe, for its answer to the COVID-19 pandemic. The key – or one of the keys – for the Portuguese (moderate) success was the timely declaration of the state of emergency, done in a moment in which the country was not yet in a real public health crisis.… Basically, a large set of acts have been issued, not all of them clear enough, making it difficult to assess the regime under the State of Emergency in Portugal. The decision to impose the state of emergency was very debated among Portuguese constitutionalists. Some argued that the Constitution does not provide legal grounds to impose compulsory isolation and compulsory quarantine, therefore, such measures could only be imposed under the state of emergency…The necessity to impose the state of emergency in Portugal had a very clear purpose: to provide legal grounds for the suspension of some individual rights and liberties, as required to deal with the pandemic.
Rattey, Justin D, ‘Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana’ [2020] Penn State Law Review (forthcoming) Abstract: Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s ‘construction zone.’ The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.
Reinke, Benedikt, 'Introduction' in Günter Frankenberg et al, ‘The End of Globalization?: Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy’ (TLI Think! Paper No 22/2020, 7 December 2020) Extract: before we turn to the three papers at the core of this publication, and indeed to appreciate more fully the important contribution they make, I propose that we need to ask the democracy question with regard to the current pandemic: How is the pandemic handled by democratic governments and why does this matter? More specifically, how does it matter for an exploration of “resurging nationalism, authoritarian constitutionalism and the uncertain futures of democracy”? ... Like the articles of our three contributors, my introductory considerations thus engage with a pressing issue of legal governance and its relationship to, and impact upon, social, political and constitutional developments. More specifically, I will discuss a selection of current legal restrictions put in place in response to Covid-19 that may illustrate the very fine line between legitimate state authority in times of (natural) disaster and the danger of abusing emergency powers which constitutes a fundamental threat to any democratic system. This contested line, I will argue, is acutely relevant to this special issue’s core theme: where does democracy end and autocracy begin – and what lies in-between?
Note: This special issue arises from a Focus Seminar on ‘‘The End of Globalization? - Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy” held at the Transnational Law Institute of King’s College London in 2019. Inspired by the discussions at the Focus Seminar, it brings together legal scholars Günter Frankenberg, Jiří Přibáň and William Partlett, to address complex challenges to democracy, the rule of law and human rights.
Reley, Pawan and P Jahnavi, ‘No Vaccine, No Salary: Is Mandatory Vaccination for COVID-19 Constitutional under Indian Law?’ (2022) 8 Indian Journal of Law & Public Policy 61 Abstract: Numerous district administrations across India have indirectly made vaccination mandatory. One of the indirect methods is that employees are not paid their salary if they are not vaccinated. This paper attempts to analyse the state’s actions through the lens of constitutional law. It analyses the impact of mandatory vaccination on individual autonomy and informed consent of a person and connects the same to Article 21 of the Constitution of India. It also connects the policy of mandatory vaccination to the principles of rationale classification and manifest arbitrariness engrafted under Article 14 of the Constitution of India. It then analyses the constitutional validity of the departmental instructions of no vaccine, no salary in the light of Article 300A of the Constitution of India. It further deals with the conditions which the legislature has to fulfil in order to adopt the policy of mandatory vaccination. This paper also looks at the aspect of mandatory vaccination from the lens of conflict between different fundamental rights. It also suggests a few alternate measures through which the state can fulfil its purpose of universal vaccination.
Riberi, Pablo, ‘When the Center Lies Outside the Figure: Republic, Imbalance of Powers and Emergencies’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 33-40 Introduction: No normative system is as capable of controlling human behavior as Law. In this context, transboundary law has become a necessary, rational, and sensible feature for civilized life. Here and now, we are immersed in complex settings where Law is permeates and indeed attributes meaning to multiple relationships in civil societies. Law spreads to every corner of the world while vigilant States are overzealous and willing to regulate all aspects of human life. We live within Law-saturated societies.1 A fundamental question in constitutional theory, then, is whether there are actual limits to Law.2 In other words, does Law encompass everything? Can the rules of law foresee and regulate every extraordinary event?
Robertson, Christopher T and Michael Shammas, ‘The Jury Trial Reinvented’ (2021) 9(1) Texas A&M Law Review 109–164 Abstract: The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable, but spurred some courts to begin using technology to transcend time and place restrictions. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments, and facilitating secretive deliberations infected by implicit bias. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement; better fostering civic education and democratic deliberation; improving accuracy in sorting truth from falsehood; and enhancing efficiency in terms of both time and cost.
Robitaille, David, ‘COVID-19 in Canada: The Division of Powers over Quarantine and Borders’ National Journal of Constitutional Law (forthcoming 2020-2021) Abstract: The Canadian Constitution rests on the principle of federalism and its underlying principles of coordinated interpretation, balance between the powers of Parliament and those of the provinces, and the conciliation of diversity with unity. These principles continue to apply in a time of health emergency, like the COVID-19 pandemic. This crisis raised some new issues regarding which order of governments, or both, can regulate and make decisions over matters such like quarantine and interprovincial borders. We will argue that, according to the principles of federalism, those powers must be shared between the federal and the provinces based on their international, interprovincial and local impacts. Our analysis will essentially be prospective since there is no Supreme Court of Canada’s decision on those specific head of powers.
Robson, Ruthann, ‘Symposium: Pandemics and the Constitution: Positive Constitutionalism in a Pandemic: Demanding Responsibility from the Trump Administration’ (2020) 12(1) ConLawNOW 15–37 Abstract: We have become accustomed to conceiving of our constitutional rights as affording protection only against government infringement, but not as granting us any positive rights to claim government protection or action. The circumstances surrounding the COVID-19 pandemic should make us question this reflexive resort to negative constitutionalism. The numerous failures of the present federal Administration to ameliorate and address the pandemic are startling. Even under current doctrinal limits of negative rights, the Administration’s failures should give rise to individual constitutional claims. Most importantly, we should reorient our constitutional frameworks, theories, and doctrines toward recognition of positive rights to health and life. We deserve a Constitution that protects our survival.
Rodriguez, Daniel B, ‘Public Health Emergencies and State Constitutional Quality’ (2020) 72 Rutgers University Law Review 1223–1245 Abstract: As I write this, we are in the midst of a historic era in American regulatory law, one in which state government officials have implemented draconian restrictions on individual and business behavior, all under the rubric of the state police power and accompanying statutes that authorize aggressive state governmental action. As disputes over the government’s legal authority to impose severe regulations continue to work their way through the courts, commentary will grow over the merits of particular decisions. Moreover, there have already been valuable contributions to the discussion of how best to frame these legal challenges under the rubric of Jacobson v. Massachusetts, the seminal 1905 case that addressed the balance to be struck between public health actions under the police power and civil liberties. My focus here is not on this constitutional adjudication, either in the particulars of the disputes or in the general approach courts should follow in resolving these controversies. Rather, I want to look at this issue from a structural perspective, asking how best to think about constitutional and institutional design given the challenges raised by the most remarkable health emergency presented by coronavirus disease 2019 (‘COVID-19’). Consider this Article as a thought experiment, one that looks at how we might redesign state constitutions to enable government to respond most effectively to these kinds of emergencies.
Rondon, Gabriela, Debora Diniz and Juliano Zaiden Benvindo, ‘Speaking Truth to Power: Legal Scholars as Survivors and Witnesses of the Covid-19 Maternal Mortality in Brazil’ (2022) 20(3) International Journal of Constitutional Law 1360–1369 Abstract: The Covid-19 health emergency has placed special demands on legal scholars, particularly on those based in the Global South. Brazil has been one of the epicenters of the pandemic, with over 680,000 deaths as of August 2022. Our narrative emerges from the duality of our positions amid a national tragedy—we are at the same time survivors of the collective threat of a would-be autocrat and a Covid-19-denialist government, and witnesses to how our preexisting privileges put us in a position of readiness ‘to speak truth to power.’ Speaking truth to power means not only to exercise an independent spirit of analysis and judgment with respect to power, but also to interpellate power openly about its wrongdoings. We understand that our responsibility as legal scholars is to embrace the urgency of the moment—to expand our research agendas beyond our previous academic trajectories and work to mitigate situations of rights violations. It also means that our work as legal scholars has had to transcend the traditional academic spaces. We have positioned ourselves as advocates and litigators for those most affected by the pandemic, in particular vulnerable women. In this article, we share one of our key initiatives during the pandemic—a constitutional lawsuit to demand the right of pregnant and postpartum people to access Covid-19 vaccines.
Roudik, Peter et al, ‘Freedom of Expression during COVID-19’ (Law Library of Congress Legal Report, September 2020) Abstract: This report, prepared by the research staff of the Law Library of Congress, surveys legal acts regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. The report focuses on recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan.
Rozenshtein, Alan Z, ‘Digital Disease Surveillance’ (2021) 70(5) American University Law Review 1511–1576 Abstract: The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap. Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious-disease outbreaks. Part II explains how the ‘special needs’ exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a ‘special needs with bite’ standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.
Rytel-Warzocha, Anna, ‘Common Courts’ Right to Constitutional Review in the Face of the Threat to the Rule of Law: The Case of Poland’ in Rainer Arnold and Javier Cremades (eds), Rule of Law and the Challenges Posed by the Pandemic (Springer, 2023) 117–125
Abstract: Any violation of the rule of law is indeed a direct or indirect threat to individual freedoms and rights as constitutional guarantees aimed to ensure their protection and enforcement in the event of unlawful state interference can only function properly in a democratic state that respects fundamental principles. After 2015, in face of the politicisation of the centralised constitutional judiciary in Poland, the search for alternative solutions of constitutional review stated. The reaction of the doctrine of law and, above all, of common courts to the undemocratic actions of the authorities aimed at the political abduction of the Constitutional Tribunal, which before 2015 had been an independent body guarding the Constitution and constitutional civil rights and freedoms in particular, confirms the thesis of that the diffused constitutional review can play a significant role allowing to avoid the applications of laws that violate constitutional rights and freedoms. The reinterpretation of the Constitution in this regard that has taken place after 2015 can serve as an example of how the constitution allows the ‘dormant’ defence mechanisms to be brought out in the face of a threat to democracy.
Schiavello, Aldo, ‘Rights, Balancing and Certainty’ in Giuseppina Campisi, Arabella Mocciaro Li Destri and Carlo Amenta (eds), COVID-19 and Communities: The University of Palermo’s Voices and Analyses During the Pandemic (Springer, 2022) 123–129 Abstract: Indeterminacy is one go the main characteristics of the law in contemporary constitutional State. It challenges the objectualist conceptions of law that reduce law to a system of norms or a set of facts and confirms those conceptions that regard the law as an interpretative social practice. Legal systems’ constitutionalization increases legal flexibility at the expense of legal certainty; it imposes to legislators, judges and individuals the responsibility and the associated risks of individuating the law. The ways in which the legislator, at different levels, faces the Covid-19 current pandemic offer an interesting perspective to analyze the positive and negative.
Scott, Donald and Linda N An, ‘A Constitutional Analysis of Face Mask Laws’ (2021) 72 University of New Brunswick Law Journal 47-81 Extract from Introduction: The framework for this paper will be a brief examination of the public health law in Canada and the authority of each level of government: Federal, Indigenous, Provincial, and Municipal, to mandate a mask law and the constitutional jurisdiction for such a mandate. The following section considers the impact of relevant health measures imposed by governments that have fallen under the scrutiny of the Canadian Charter of Rights and Freedoms. The authors conclude that each level of government in Canada has constitutional authority to enact face mask laws to combat an epidemic or pandemic, and such laws will survive Constitutional and Charter scrutiny provided the law is supported by reasonable evidence and tailored for the circumstances. We conclude the potential Charter challenges have merit, but in each case, the section 1 proportionality test lands in favour of upholding face mask laws to protect public health.
Seamon, Richard H, ‘How the U.S. Constitution Connects with COVID-19’ (2021) 64(9) Advocate 20–23 Extract: In the following, I discuss the federal residential eviction moratorium. The moratorium arguably exceeds the federal government’s statutory and constitutional powers. I hope the discussion shows the continuing vitality and central relevance of the U.S. Constitution to the challenges that confront our country today.
Sepaha, Priya, ‘COVID-19 Lockdown as a National Emergency: A Constitutional and Legal Perspective’ (2021) 1(2) Law Colloquy Journal of Legal Studies (LCJLS) 1–13Jurisdiction: India
Abstract: The COVID-19 pandemic has wreaked havoc across the world and one year into the pandemic. It is essential to look back into the ‘national emergency’ situation that prevailed during March, April and May in 2020. The pandemic came as a shock to the entire nation putting administration as the whole set up of the country into shambles, considering that India had never seen such a situation earlier since the birth of the constitution. The Government of India was in a fix to understand the situation that the country was in to remedy the situation and ensure that law and order are maintained. The lockdown was one means to control the spread of the disease, but what needs to be answered is the legal and constitutional justification of the same. Analysing the lockdown from a Constitutional standpoint, the relevant articles of the Constitution are Article 352 and Article 360, respectively. Article 352 speaks about the power of the President to declare an emergency when he is satisfied that the security of India on any part of its territory is threatened by war, external aggression or armed rebellion, and Article 360 provides for the declaration of a financial emergency when the President is satisfied that ‘the financial stability or credit of India or of any part of the territory thereof is threatened’. This paper provides a detailed constitutional perspective of the lockdown and the pandemic. The paper brings forth a right to health perspective and emphasises the need to incorporate the right to health as an absolute fundamental right in the Indian Constitution. This research study is purely qualitative, with a doctrinal methodology being adopted. A review of secondary material is of prime consideration in terms of obtaining inputs for addressing the research questions elucidated above.
Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) OPEN ACCESS Summary: The purpose of this book is to trace a very broad map of the different constitutional issues that are being debated in different parts of the world in the context of the pandemic. In view of this, scholars of 26 countries were invited to submit a short commentary on which constitutional issues are of concern in their part of the world, in the context of the COVID-19 crisis. This “mapping” will hopefully be the basis for conducting deeper analysis in future research projects in the field of comparative constitutional law, in connection with crisis derived from pandemics.
Note: this book and its individual chapters are listed in the Constitutional Law section of this bibliography, and in other sections if relevant. The book’s contributions are in English and French. Following our practice of only including works in English, we have only listed the English contributions in other sections of the bibliography.
Contents :
- AFRICA
- Manga Fombad, Charles and Gatsi Tazo, ‘Cameroon’s Response to the COVID-19 Pandemic: Combating a Deadly Pandemic Within a Weak Rule of Law Framework’
- Lamghari, Abdelaziz, ‘De quelques aspects constitutionnels lies a la pandemie du COVID-19 au Maroc’
- Narey, Oumarou, ‘Le droit constitutionnel à l’épreuve de la pandémie de la COVID-19: cas du Niger’
- AMERICA
- Riberi, Pablo, ‘When the Center Lies Outside the Figure: Republic, Imbalance of Powers and Emergencies’
- Figueiredo, Marcelo, ‘COVID-19 and the Brazilian Reaction’
- Serna de la Garza, José María, ‘COVID-19 and Constitutional Law: the Case of Mexico’
- Landa, César, ‘Fundamental Rights During the Coronavirus Pandemic in Peru’
- Ginsburg, Tom, ‘COVID-19 and the US Constitution’
- Ayala Corao, Carlos, ‘Venezuela: COVID-19 + Dictatorship + Complex Humanitarian Emergency’
- ASIA
- Deva, Surya, ‘COVID-19’s Impact on Civil and Political Rights: Reflections from Hong Kong’
- Shankar, Uday, ‘COVID-19 and the Court in India’
- Ejima, Akiko, ‘Constitutional Oversight Mechanism for Government Decision Making in an Era with COVID-19’
- Guruparan, Kumaravadivel, ‘The Sri Lankan Experience with COVID-19: Strengthening Rule by Executive’
- EUROPE
- Moonen, Toon, ‘Questions of Constitutional Law in the Belgian Fight against COVID-19’
- Klinge, Sune et al, ‘COVID-19 and Constitutional Law in Denmark’
- Mathieu, Bertrand, ‘La crise sanitaire: un revelateur de la crise de la democratie liberale. Reflexions sommaires a partir de la situation française’
- Hering, Laura, ‘COVID-19 and Constitutional Law: The Case of Germany’
- Gárdos-Orosz, Fruzsina, ‘COVID-19 and The Responsiveness of the Hungarian Constitutional System’
- Graver, Hans Petter, ‘COVID-19 Regulation in Norway and State of Exception’
- Zubik, Marek and Dominik Łukowiak, ‘COVID-19 and Constitutional Law: the Case of Poland’
- García Roca, Javier, ‘La experiencia de España en el Estado de alarma ante el coronavirus’
- Tanasescu, Elena-Simina, ‘COVID-19 and Constitutional Law: Romania’
- Merris, Amos, ‘COVID-19 and Constitutional Law in the United Kingdom’
- MIDDLE EAST
- OCEANIA
- Bateman, Selena and Adrienne Stone, ‘Australia – COVID-19 and Constitutional Law’
- Knight, Dean R, ‘New Zealand, COVID-19 and the Constitution: an Effective Lockdown and Muted Rule of Law Concerns’
Abstract: In connection with the need to take measures aimed at preventing the spread of COVID-19 disease in Poland, legislators applied legal mechanisms available, which provide for the introduction, through secondary legislation, of a number of restrictions upon rights and freedoms. The purpose of this paper is to seek an answer to an important constitutional question, namely to determine whether the measures introduced by public authorities in Poland with the aim to prevent, counteract and combat COVID-19 were conformant with the constitutionally accepted standards or not? Were they based on due legal grounds? Were they necessary and proportional?
Severin, Adrian, ‘Protection of Religious Freedom in Romanian and International Law, with Special Reference to the Case Of The Romanian Orthodox Church’ (2020) 14 Conferința Internațională Educație și Creativitate pentru o Societate Bazată pe Cunoaștere - DREPT 10–21 Abstract: The establishment of the state of emergency, followed by the state of alert, in Romania, amid the Covid 19 pandemic, raised the issue of the relationship between the state and the church, as well as that of the legal regime of religious freedom in Romania. In this context, several key questions were asked. What is the distinction between right and its exercise, given that, at most, the exercise can be limited? Who establishes the content of the right to practice a religious cult? The church or the state? Is a law that requires the modification of religious beliefs, even if only in their outward expression, compatible with the principle of religious freedom? May church hierarchs be required to cooperate in enforcing such a law? What are the procedural and substantive conditions regarding the regulation of religious activity? May religious freedom be restricted in some way? If the direct limitation is not allowed, according to the Constitution, could indirect limitations be accepted? This study attempts to answer all of these questions. In essence, the answer is that the state has a wide margin of maneuver in establishing the framework for the manifestation of religious freedom, including the hygienic-sanitary measures imposed by the fight against a pandemic, but it has strict limits. In any case, religious freedom cannot be restricted in any way.
Shammas, Michael and Michael Pressman, ‘Advocacy through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference’ (SSRN Scholarly Paper ID 3664014, 30 July 2020) Jurisdiction: USA
Abstract: The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties? While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment’s protections, especially if the Covid-19 pandemic continues longer than expected. If courts eventually allow digital jury trials, certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.
Shankar, Uday, ‘COVID-19 and the Court in India’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 99-105 Extract from Introduction: The chapter builds on the intervention made by the judiciary on the issues surfaced during the time of pandemic that affected the general public. It enquires into the response on the selected issues during the global pandemic. In conclusion, it brings out the significance of access to the judicial forum and the court’s promptness to intervene in issues of public importance to save the institutional credibility.
Shannon, Tyler, ‘Texas Proposition 3: A State Constitutional Response To Restrictions On Religious Gatherings’ (2023) 55 Texas Tech Law Review 559–598
Abstract: For centuries, religious groups of all faiths have assembled for in-person gatherings. For most of modern American history, civil law posed little or no barrier to this practice. The COVID-19 pandemic changed that. From the outset of the pandemic, state and local officials issued orders restricting in-person religious gatherings. Some prohibited religious gatherings of all sizes, while others placed restrictions on capacity or limited certain religious practices. As with most things in modern American life, legal challenges ensued, and outcomes varied greatly. Many turned to federal courts, seeking to enjoin state action under federal law. Others have taken a different approach: utilizing the substantive liberty guarantees of state constitutions. These proponents of religious liberty have turned to state constitutions for greater protection of religious gatherings during times of public emergency. In 2021, Texas voters approved their response to the COVID-era restrictions on religious gatherings: an amendment to their state constitution prohibiting government limitations on religious services. This Article analyzes that amendment by discussing its origins, scope, and potential conflict with the federal Establishment Clause.
Shaw, Jo, ‘Citizenship and COVID-19: Syndemic Effects’ (2021) 22(8) German Law Journal 1635–1660 Abstract: This article begins the task of outlining the impacts of the COVID-19 pandemic in relation to matters of citizenship, using what is termed a ‘syndemic analysis.’ This type of analysis places both the pandemic and citizenship in their wider contexts. The synergistic or intersectional thinking encouraged by the characterization of the pandemic as a syndemic, which links together health, socio-economic issues, and political questions, is useful for highlighting how much more vulnerable to many of the negative impacts of the pandemic in the sphere of citizenship are those who are also more vulnerable both to catching and suffering more seriously from the virus and to experiencing negatively the externalities of the measures taken to restrict social contact by shutting down economies. While the scope of the review is relatively broad and encompasses many different domains of ‘pandemic life,’ what emerges from the analysis are important insights into how many of the impacts of the pandemic in fact operate at the intersection of citizenship and constitutional law and thus play out in the form of changes in relation to constitutional citizenship, both as ideal and as practice. The article takes an important step towards developing the use of constitutional citizenship as a framing device for understanding citizenship as putative full membership in a given society.
Shrivastava, Abhijeet and Anujay Shrivastava, ‘“Economic” Dignity and Transformative Constitutionalism in India: Attempting to Cut the “Gordian Knot”’ (2021) 1(4) Jus Corpus Law Journal 446–457 Abstract: In jurisdictions such as India, courts often employ various ‘constitutional values’ while adjudicating hard cases. We often hear that a court has pronounced a decision, protecting and upholding the personal liberty, privacy, autonomy, or ‘dignity’ of an individual, or alternatively, upheld the ideas such as justice, constitutional morality, rule of law, or even the majesty of law, in its decision. Dignity, a constitutional value, has been identified by scholars, philosophers, practitioners, and judicial authorities to convey itself in various forms. In 2020, a Full-Bench of the Hon’ble Supreme Court of India in Gujarat Mazdoor Sabha v State of Gujarat had invoked the phrase ‘economic dignity’, while striking down two Gujarat notifications issued during the COVID-19 pandemic, as unconstitutional. While upholding the fundamental rights and human rights of labourers/workers in the State of Gujarat, the Court often utilized the term ‘dignity’. Regrettably, however, the Court did not coherently elaborate on the contours of ‘economic dignity’. Consequently, the term remains an uncut ‘Gordian Knot’ and is subject to valid criticism on grounds such as indeterminacy. In this article, while briefly evaluating the various conceptions of dignity, we shall attempt to make a coherent evaluation of what ‘economic’ dignity entails for India. We shall highlight how ‘transformative constitutionalism’ has impacted the development of dignity in India, especially ‘economic’ dignity. Subsequently, we shall attempt to cohere ‘economic’ dignity in furtherance of transformative constitutionalism. Finally, we conclude by arguing that ‘economic’ dignity (which may be considered an extension of Kantian intrinsic-worth dignity) connotes minimal economic assurances, in the absence of which, one’s value as a human being would be degraded – and thus, one’s dignity hampered.
Shrivastava, Anujay and Abhijeet Shrivastava, ‘Judicial Appointments, Collegium System, and Unresolved Constitutional Enigmas in India: Proposing an “Emergency Collegium” and the “Automatic Elevation Alternative”’ (2021) 1(4) Jus Corpus Law Journal 290–304 Abstract: From the constitutional history of Judicial Appointments in India, it is well-known that the manner and procedure in which Judicial Appointments happen today, is starkly different from the original Judicial Appointments procedure contemplated under the Indian Constitution. Originally, Judicial Appointments to the Higher Judiciary (including appointments to the Supreme Court of India under Article 124 of the Constitution) were primarily the task of the Executive, where the Judiciary had no real say in the appointments to Higher Judiciary. This dynamic saw a stark shift after the Second Judges’ Case and subsequent precedents, which tilted the power dynamics around Judicial Appointments to Higher Judiciary (i.e. Supreme Court and various High Courts) in favour of the Supreme Court, and also established a ‘Collegium System’ to govern such Judicial Appointments. However, a Constitutional Enigma revolving around Judicial Appointments still persists. Should the Supreme Court be bereaved of most of its sitting Judges and the total strength of the court reduce to less than five sitting Judges, the Collegium propounded by the Third Judges’ Case would come to a collapse. If such a scenario arises in wake of calamities such as the devastating effects of the ongoing COVID-19 pandemic, how would Judicial Appointments to the Higher Judiciary be made? In this article, we seek to address this Constitutional Enigma, which is an unlikely but not an impossible or too remote a reality. We highlight the lacunae in the present judicially created law concerning Judicial Appointments. Moving forward, we propose the idea of an ‘Emergency Collegium’ and lay out its modalities. Subsequently, we highlight an alternative of ‘automatic elevation’ of pan-India senior-most High Court Judges and also forward criticisms against such an alternative. Finally, we conclude by highlighting the necessity for a constitutional amendment or a ‘Fifth Judges’ Case’ to address this unresolved Constitutional Enigma.
Siwu, Sonya Claudia and Rofi Aulia Rahman, ‘The State of Emergency in Indonesia. A Great Lesson from the Covid-19 Pandemic’ (Proceedings, 3rd International Conference on Law Reform, 2022) 124–137 Abstract: The Covid-19 pandemic is interpreted by the President as a public health emergency (KEPPRES No. 12 of 2020). None of those declarations refers to either Article 12 or Article 22 of the 1945 Constitution of the Republic of Indonesia, although the situation (de facto) meets all the criteria of a state of emergency. On behalf of justice, normal law shall be applied in a normal situation, while in an abnormal situation, an abnormal law shall be applied. Regarding that issue, this paper investigates these three questions: i) why is the state of emergency not applied in the time of Covid-19? ii) how to measure the scale of the emergency of Covid-19 pandemic from the perspective of the state of emergency? iii) how should the law of the state of emergency in Indonesia overcome the situation in the future? These questions would be discussed on the level of legal philosophy using legal politics approach, statutory approach, conceptual approach, theoretical approach, and comparative approach. The main principle is solus populi suprema lex. It should be implemented properly. The results of this study indicate and explain that the state emergency law must adhere to the concept of people’s security is state security. In addition, state emergency laws must be anticipatory to new and very diverse developments and forms of danger.
Smith, Stephen, ‘The Right to a Public Trial in the Time of COVID-19’ (2020) 77(1) Washington & Lee Law Review Online Article 1Jurisdiction: USA
Abstract: Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis, and turns on a case’s specific circumstances. This essay proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.
Solanes Mullor, Joan, ‘Protecting Political Rights During the COVID-19 Pandemic: The Emergence of Strict Scrutiny in Spain’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 161–174 Abstract: The states of alarm declared in Spain to address the COVID-19 pandemic have restricted multiple fundamental rights. While such restrictive states of alarm are not new in our constitutional history since 1978, the scale of the restrictions and the nature of rights affected is unprecedented, as some of them, especially political rights, have never been the focus of the previous states of alarms declared in the country. This chapter explores how the state of alarm relates to the limitation of the right to political participation and to the Spanish judicial response in light of the challenge posed by the pandemic. It examines the legal basis for the restrictions on political rights under the state of alarm, the decisions taken by Spanish public authorities limiting those rights during the pandemic and the judicial response to the measures. Surprisingly, the customary deference of the courts during emergencies has vanished. The Spanish judiciary has actively protected political rights and deployed a model of judicial review that formally and substantially stresses the protection of political rights even in times of crisis.
Soucek, Brian, ‘Discriminatory Paycheck Protection’ (SSRN Scholarly Paper No ID 3628709, Social Science Research Network, 16 June 2020) Jurisdiction: USA
Abstract: Lobbyists and strip club owners have both gone to court recently to challenge their exclusion from the $659 billion Paycheck Protection Program, one of Congress’s largest responses yet to the economic devastation unleashed by the COVID-19 pandemic. So far, surprisingly, strip club owners have been successful while political lobbyists have failed. Appeals are still pending in three circuits, with more surely to come.This Essay argues that when it comes to the Constitution, these split decisions get things exactly right: strip clubs have a stronger free speech claim than lobbyists do, despite the fact that lobbyists engage in expression closer to the core of the First Amendment. Seeing why requires us to answer what the Supreme Court recently referred to, and dodged (in Matal v. Tam), as a ‘notoriously tricky question of constitutional law’: how to draw the line between selective subsidies for expression and targeted attempts to suppress it. The strip club cases ask when the government’s funding priorities become a form of discrimination--an abridgment of speech rather than an ordinary decision about what to support during the current crisis.
Souza, Antonio, ‘Coronavirus and Constitutional Jurisdiction’ (SSRN Scholarly Paper No ID 3709063, 7 March 2020) Abstract: This article aims to understand the coronavirus pandemic in the light of comparative law in a jurisprudential analysis between Brazil and Germany.
da Sousa, Cunha Ricardo, ‘The (New) Normal under the State of Emergency in Timor Leste’ (2022) 22(2) Australian Journal of Asian Law 45–57 Abstract: Timor-Leste has dealt with the challenges posed by the Covid-19 pandemic in the context of a developing state undergoing political crisis with limited resources in the public health sector. The process of simultaneously overcoming this political crisis and fighting the pandemic with existing limited resources involved all the branches of government in strategic cooperation within the framework of the constitutional separation of powers. The result was the declaration of long periods of State of Emergency and the consequent suspension of constitutional rights for periods of time lengthier than originally anticipated. This article argues that this ‘new normal’ affirms the maturity of the constitutional regime in Timor-Leste but questions the future of some of the solutions applied.
Stefanovska, Vesna, ‘Divergences from the Separation of Powers in Times of Emergency With Special Emphasis to the Republic of North Macedonia’ (2021) 6(3) Journal of Liberty and International Affairs 52–61 Abstract: The worldwide pandemic caused by the coronavirus has disturbed the pure conception of the separation of powers. States forced by the newly established situation, declared a state of emergency, thus the Republic of North Macedonia was not an exception. This paper will focus on the divergences from the separation of powers in the countries from the Western Balkans and across Europe whose departure in the well-established system of checks and balances intrigued the media. The case of North Macedonia was maybe the most interesting because in time of declaring the state of emergency by the President of the Republic, the legislative branch of power – the Assembly was dissolute which meant that the already difficult situation became more complicated to establish a balance between the branches of power to function in protecting the general health of the citizens and the fundamental human rights and freedoms.
Stephenson, Peta, ‘Constitutional Issues Arising from Restrictions on Freedom of Movement During the COVID-19 Public Health Emergency’ in Belinda Bennett and Ian Freckelton (eds), Australian Public Health Law: Contemporary Issues and Challenges (Federation Press, 2023) ch 4
Stephenson, Scott, ‘The Relationship between Federalism and Rights during COVID-19’ (2021) 32(3) Public Law Review 222-235 Abstract: During the early stages of the COVID-19 pandemic, a number of difficult issues involving rights arose for consideration, including with respect to freedom of movement, return to one’s country of citizenship, health care and education. Many of those issues had a federal dimension in Australia, with, for instance, different States adopting different responses to the issue or the Commonwealth and States sharing responsibility for taking action on the issue. This article argues that the response to COVID-19 implicated three aspects of the relationship between federalism and rights, with each yielding a different conclusion. First, federalism affected the protection of rights in a decidedly mixed manner. Second, federalism affected deliberations on rights in a broadly positive manner. Third, the federal-based protection of freedom of movement in the Constitution proved not to be a substitute for a rights-based protection of freedom of movement.
Stevens, Patrick A, ‘Constitutional Interpretation Remains Unsettled After Sixth Circuit’s Preliminary Assessment of University Vaccine Mandate’ (2022) 83 Ohio State Law Journal Sixth Circuit Review Article 001 Abstract: At the beginning of the 2021 school year, Western Michigan University (WMU) instituted a policy requiring student-athletes to be vaccinated against COVID-19, and sixteen student-athletes requested religious exemptions to this requirement, which the university denied. Barred from participation in team activities, these student-athletes sued WMU in federal court for allegedly violating their rights under the First Amendment. The case reached the Sixth Circuit Court of Appeals as WMU sought a stay of the district court’s preliminary injunction, which kept the school from enforcing the vaccination requirement against the plaintiffs. Because the likelihood of success of a plaintiff’s claim is typically the determinative factor when the Sixth Circuit decides whether to stay a district court’s preliminary injunction, the court declined to stay the preliminary injunction in Dahl v. Board of Trustees of Western Michigan University. 5 The court’s analysis in Dahl delineates the distinctions between WMU’s vaccination requirement and mandates that are constitutionally valid. This decision also spotlights the precarious balance between proper deference to sincerely held religious beliefs and misguided deference to what may instead be political and social ideologies masquerading as—or entangled with religious beliefs.
Stollsteiner, Gabriel, ‘France-COVID-Related Organic Law Ruled Valid despite Breach of Constitutional Provisions’ [2021] (2) Public Law 432–435 Abstract: Basing its decision on the ‘particular circumstances’ of the COVID crisis, the French Constitutional Council’s decision n 2020-799 DC of 26 March 2020 ruled valid an emergency law enacted in apparent contravention of art.46 of the French Constitution. Article 46 requires that 15 days pass between the introduction of an organic law (termed ‘Institutional Acts’ in the Constitution’s official translation) and its first discussion in Parliament. The Institutional Act suspended deadlines for the Constitutional Court’s preliminary review of constitutionality.
Sullivan, Barry, ‘Lessons of the Plague Years’ (2022) 54(1) Loyola University Chicago Law Journal 15–137 Abstract: The COVID-19 pandemic has challenged governments of every description across the globe, and it surely would have tested the mettle of any American administration. But the pandemic appeared in the United States at a particularly inopportune time. January 2020 marked the beginning of a presidential election year in a deeply polarized country. President Donald Trump was a controversial figure, beginning the fourth year of a highly idiosyncratic administration. He was both a candidate for re-election and the subject of an ongoing impeachment proceeding. In these circumstances, the pandemic quickly became politicized. President Trump’s response to the COVID-19 pandemic has often been faulted for his lack of leadership, and for his refusal to ‘follow the science.’ During the 2020 election, the Democrats sought to portray themselves as the ‘party of science,’ touting their willingness to ‘follow the science,’ and distinguishing themselves in that way from President Trump—whom they portrayed as someone who did not ‘believe in science.’ As this Article shows, however, the issue was more complicated than ‘following the science’ or not. The president failed to demonstrate the leadership that the situation called for, and he seemingly lost all interest in the pandemic after he failed to win re-election—even as the infection and death counts spiraled out of control. But the story of the federal government’s missteps also involves the government’s scientific bureaucracy, and its relationship to the president and other political actors—matters that transcend the personalities or particularities of any specific administration. From the beginning of the pandemic, government scientists purported to speak with great authority, but their pronouncements were far from consistent. The federal government’s response to the pandemic involves failures by scientists and politicians and implicates some of the most fundamental aspects of our constitutional system. First, the primary responsibility for public health rests with the states in our federal system, but the national government is constitutionally authorized to act in a national public health emergency. At the end of the day, however, the effectiveness of federal action may depend as much on the quality of the president’s leadership and relationships with state officials (and, at least in times of extreme partisanship, on whether the president and state officials belong to the same political party), as on any specific constitutional or legal authority. Second, it is a commonplace that Congress makes the laws, while the president’s role is to ‘take Care that the Laws be faithfully executed.’ For the federal government to respond effectively to a national health crisis, Congress must grant the president the legal authority to act, and the president must be willing to exercise the authority that Congress has given. That too depends on presidential leadership, and, at least in times of extreme partisanship, it may also depend on the respective party affiliations of the president and congressional majorities. Third, in several recent cases, the Supreme Court has enthusiastically endorsed the so-called ‘unitary executive’ theory, which holds that the president must have strong chain-of-command authority over all administrative decisionmakers, regardless of how technical or inappropriate for resolution by short-term political calculation their work may be. On the other hand, governmental transparency and sound policy demand that policymakers and the public be able to recognize where scientific expertise ends, and politics begins. Finally, given the date currently set for presidential elections, the Twentieth Amendment ensures that a defeated or otherwise retiring president will retain all the power of the presidency for approximately ten weeks after a new president has been elected, regardless of how much political support or interest in governing the incumbent president may have. This Article explores the effects that each of these constitutional principles and understandings has had on the government’s efforts to combat the COVID-19 pandemic, as well as the effect that the government’s performance with respect to the pandemic should have on how we think about these principles and theories. Those inquiries are particularly appropriate now, when the problems posed by political polarization, unconventional political leaders, and the public’s need for the best available science are unlikely to disappear.
Sweat, Bryanna, ‘A Discussion of Constitutional Protections in a Pandemic-Susceptible World’ (SSRN Scholarly Paper No 4357392, 23 December 2022) Abstract: The Constitution grants us the right to a speedy trial and the right to confront witnesses against us. This comment addresses the following question: Can a litigant’s constitutional protections be held intact in a pandemic-susceptible world? The author discusses the historical background of these two important constitutional protections and illustrates how COVID-19 impacted these rights in the criminal justice system. This topic is important because there will be another pandemic, and when that happens, the criminal justice system needs to be equipped to handle it. The comment discusses four topics: (1) the precautions that were put into place during the pandemic; (2) the impact of the pandemic on the execution of justice; (3) whether the reasoning for constitutional protections can still be in place with the modernization of technology; and (4) the preparation for the next pandemic. The author’s main research method was reviewing case law and breaking down the Sixth Amendment through legislative websites. The author also interviewed Judge Nicholas Chu of Travis County, Texas, who conducted the nation’s first criminal trial via Zoom. He provided not only insight into the trial but also his thoughts on the progression of criminal procedure in the courtrooms. The author concludes that it is possible for constitutional protections to stay intact in a pandemic-susceptible world. Whether the current court system will adopt those methods used during the pandemic poses another question. The author concludes that advancing current courtroom procedures is necessary to move the needle forward in the criminal justice system.
Syed, Iffath U, ‘Canada’s Fight Against COVID-19: Constitutionalism, Laws, and the Global Pandemic’ in Nadav Morag (ed), Impacts of the Covid-19 Pandemic: International Laws, Policies, and Civil Liberties (Wiley, 2022)
Syryt, Aleksandra, ‘Polish Constitutional Institutions in a Pandemic’ in Irena Lipowicz, Grażyna Szpor and Aleksandra Syrt (eds), Instruments of Public Law: Digital Transformation during the Pandemic (Routledge, 2022)
Szente, Zoltán and Fruzsina Gárdos-Orosz, ‘Using Emergency Powers in Hungary: Against the Pandemic and/or Democracy?’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 155-178 [OPEN ACCESS BOOK] Extract from Introduction: Below, we present a constitutional analysis of the introduction of the two special legal orders in March and November 2020, the legislative authorisation of the Government to exercise extraordinary powers to fight the coronavirus pandemic, and the emergency decrees of the Government. Our primary intention is to examine how the executive has used the emergency powers during a real crisis situation in a country that has been so frequently characterised as a semi-authoritarian or populist regime.
Tanasescu, Elena-Simina, ‘COVID-19 and Constitutional Law: Romania’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 191-197 Introduction: Although essentially a sanitary crisis, in Romania the COVID 19 pandemic has triggered the institution of emergency measures that helped concealing an on-going political and constitutional crisis. The legal regime of restrictions to the exercise of fundamental rights has been the focus of constitutional debates and it has allowed the Constitutional Court to display a rather formalistic approach of the Constitution.
Tassopoulos, Ioannis A, ‘The Impact of the Pandemic on the Greek Constitution’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 147–159 Abstract: This chapter discusses the main legal problems Greece faced during the various phases of the COVID-19 crisis. The impact of the pandemic on the protection of civil rights seems to be lasting and nefarious. Fundamental rights were subject to unprecedented restrictions for the sake of public health, without any effective judicial protection. Free movement, the right of assembly, religious liberty, freedom of speech, economic liberty, and ultimately personal autonomy limited by compulsory vaccination, were regulated exhaustively by detailed and intrusive administrative rules and prohibitions. Moreover, the pandemic put under great pressure the existing framework for the constitutional protection of fundamental rights where the principle of proportionality is the cornerstone of judicial review.
Termini, Roseann B, ‘An Essay on Public Health and Liberty - The Impact of the 1905 United States Supreme Court Decision of Jacobson: Compulsory Vaccination under State Police Power vs. the Individual Right to Refuse a Vaccination in This Modern-Day Era of the COVID-19 Pandemic’ (2021) Widener Law Review (forthcoming) Abstract: The COVID-19 pandemic has thrust vaccines in the forefront. Undoubtedly, vaccines are far from a new phenomenon. Over two centuries ago, Edward Jenner was credited with inventing a vaccine to prevent smallpox. Other notable vaccines include Pertussis (1914), Diphtheria (1926), Tetanus (1938) combined at DTP in 1948. The licensing of the polio vaccine in 1955 was cause for celebration. Fast forward to early 2020, the dire necessity for a vaccine to combat COVID-19 became apparent as an unprecedented pandemic infiltrated the United States. To comprehend the issue of the right to refuse a vaccination for COVID-19, the past is examined by the United States Supreme Court decision of Jacobson. This decision impacted the right of an individual to refuse a vaccine versus compulsory vaccination under state police power to protect the public.
Thakur, Shubham Kumar and Priyanka Gangwar, ‘Judicial Review: Exploring Constitutional Obligations during Crisis’ (2022) 7 Law & Political Review 87–103 Jurisdiction: India
Abstract: The effect of the pandemic inevitably restricted fundamental rights and thus gives rise to a complex web of questions like, could court interfere with the other organs of government while respecting the doctrine of separation of power? How much judiciary can intervene in the matter of state? Although this question was quite settled earlier by numerous precedents and case laws but it becomes new again because of the pandemic.
Thielbörger, Pierre, ‘Germany: Federalism in Action’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 91-116 [OPEN ACCESS BOOK] Abstract: After giving an overview over the course of the pandemic in Germany including the state’s response to it (section II), the analysis proceeds in section III with characterising the German model of federalism, the constitutional rules on state emergencies, democratic power-sharing and the special protection of fundamental rights as well as infectious disease law. It examines the different legal levels – the constitutional framework of the GG, federal laws (mainly the German Infektionsschutzgesetz (IPA) and – to some extent – decrees by the executive at the different levels (Verordnungen). In section IV, the strengths and weaknesses of the German (highly federalist) approach are weighed against each other in how far and under which circumstances is the federal state equipped to adapt its institutional set-up and its legislative procedures to adjust to ‘crisis mode’, and how has the German response played out with regard to the principle of democracy? The chapter concludes with options for legal and policy reform.
Thomas, Robert, ‘Virus Governance in the United Kingdom’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 71-90 [OPEN ACCESS BOOK] Extract from Introduction: As an essay on contemporary constitutional history, this chapter considers the constitutional challenges of pandemocracy in the United Kingdom (UK), and, in particular, what I term ‘virus governance’, that is, the concentration of power in the executive to respond to the virus. I discuss and consider the constitutional problems raised by virus governance, in particular, executive law-making, limited parliamentary scrutiny, and the impact of the virus on the UK’s territorial constitution. Overall, I argue that the virus has further exposed the UK’s pre-existing multiple constitutional fault-lines. The UK’s ongoing slow-burn constitutional crisis is being accelerated and there is a heightened need to address its deep-seated underlying structural causes.
Thomas, Robert H, ‘Hoist the Yellow Flag and Spam® Up: The Separation of Powers Limitation on Hawaii’s Emergency Authority’ (2020) 43 University of Hawaii Law Review 1-52 (forthcoming) Abstract: Hawaii’s government has a long experience responding to public health emergencies. But until 2014, when the Hawaii legislature adopted a comprehensive structural overhaul, Hawaii’s emergency response statutes and organization were a patchwork of scattered provisions that did not conform to modern emergency management and response practices. The law’s first major test has been a dramatic one: the COVID-19 worldwide pandemic. Hawaii’s governor exercised his authority to issue a declaration of emergency, and later issued supplemental proclamations purporting to extend the termination date for the emergency. This article analyzes whether the statute’s internal limitation on delegated emergency power—the ‘automatic termination’ provision, under which an emergency proclamation terminates by law the sixtieth days after it was issued—may be enforced by the courts. It argues that that the circumstances in which a court would sustain a challenge are limited, and that the primary remedy will be a political one. It should not be so, however, because Hawaii precedents confirm that the courts should enforce the essential separation of powers boundaries between the other branches. This article examines the prominent narrative threads that have emerged from Hawaii’s history of adjudicating claims arising out of public health crises, quarantines, and emergencies, as a way of comparing the directions a court might take.
Tomkins, Adam, ‘Constitutional Government in the Time of Covid: The Scottish Experience’ (2023) 27(3) Edinburgh Law Review 284–309
Abstract: The author provides a bird’s eye view from his time as an MSP of the Scottish Government’s legislative and executive response to the Covid-19 pandemic. He concentrates on the efforts of Scottish Parliament and the Scottish courts to hold them to account, and ultimately finds them lacking.
Tomkins, David, ‘The Constitutional Challenge to End the COVID Border Closures’ (2020) 71 LSJ: Law Society of NSW Journal 72–74Jurisdiction: Australia
Abstract: On 25 May 2020, Clive Palmer and Mineralogy Pty Ltd commenced proceedings in the original jurisdiction of the High Court alleging that Western Australia’s ('WA’) border restrictions are in breach of s 92 of the ‘Constitution’. On 16 June, Kiefel CJ remitted part of those proceedings - essentially the determination of contested questions of fact - to the Federal Court. On 25 August, Rangiah J issued a number of findings of fact and the case is now set to return to the High Court for further argument - most likely over two days before a Full Court in November 2020. Not only is the constitutionality of state border restrictions a matter of significant public interest and practical importance, in the words of the Western Australian Solicitor- General this case may also be ‘one of the most significant cases on s 92 for some time’.
Toth Jr., Robert J, ‘Revisiting Jacobson v. Massachusetts: The Covid Cases’ (2021) 54(4) Creighton Law Review 559–604 Abstract: How should the political branches of state and local governments cooperate with one another to promulgate emergency public health legislation? And how much deference should the judiciary allocate state executives and legislatures when reviewing such legislation? This Note proposes a local application of the War Powers Resolution’s ‘sliding scale of deference’ in an effort to strike a constitutional balance between state executives and state legislatures. A local application of this fluid system of checks and balances would protect against unnecessarily burdening emergency executive orders by allowing state legislatures to recalibrate hurried emergency orders. Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive orders. This process extends an additional layer of security to public health and fundamental rights in light of a declared emergency. In sum, granting state legislatures more deference in redressing emergency public health orders and mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to public health and fundamental rights during declared emergencies.
Trstenjakin, Verica, ‘The Corona Crisis and Fundamental Rights from the Point View of EU Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020) Abstract: In 2020, the world was surprised by the so-called Corona crisis, which has adverse effects in several areas. Although initially it appeared only as a major public health emergency, it turned into a crisis of solidarity, economic and also legal crisis. The Corona crisis also highlighted some other problems in the EU, in particular the issue of solidarity and the effectiveness of adoption of legal acts and decision-making. The issue of fundamental rights violations was often raised. The Member States have adopted specific measures, which have also restricted fundamental rights in certain cases. In practice, the protection of public health has almost always been balanced against all fundamental rights, which were at least partially restricted. There were restrictions based on considerations for public health such as: restriction of free movement, infringements of protection of data protection, and restriction of free economic activities and enterprise (e.g. compulsory closure of shops). Against this background, this contribution provides a protection of fundamental rights in the EU, their possible limitations and restrictions, and discusses key Charter’s fundamental rights during the Corona crisis.
Trstenjakin, Verica, ‘Law and Medicine: The Influence of Fundamental Rights on the Corona-Crisis and the Influence of the Corona-Crisis on Fundamental Rights in the EU’ (2021) 14(2) Medicine, Law & Society 351–370 Abstract: The article deals with the intersection of law and medicine, especially in the time of the Corona-crisis. It analyses restrictions of human/fundamental rights in the time of the Corona-crisis at the EU level. Conditions for restrictions of fundamental rights are provided by Article 52(1) of the EU Charter of Fundamental Rights. The case-law of the Court of Justice of the EU concerning the restrictions of fundamental rights in connection with health protection is also analysed. The last part provides an overview of some decisions of constitutional courts of EU Member States concerning the justifications of restrictions of fundamental rights during the Corona-crisis.
Tshering, Sonam, ‘The Rule of Law and Legal Controversies: The Impact of Covid-19 in Bhutan’ in Joshua Aston, Aditya Tomer and Jane Eyre Mathew (eds), Comparative Approaches in Law and Policy (Springer Nature, 2023) 101–118 Abstract: Bhutan is considered a nation of happiness and it proved well during COVID-19. While even the developed nations struggled to cope with the pandemic, Bhutan made headlines as one of the successful nations with just over 20 deaths due to COVID-19. However, with three national lockdowns and stringent COVID-19 protocols, this small nation also faced numerous challenges. With the Executive taking over the nation, the impact on the separation of power and the rule of law became the most prominent features of concern. This article provides a brief summary of some of the most controversial legal issues during the pandemic in Bhutan. The article provides an analysis of how the state became powerful and how the rule of law took a back seat in the name of COVID-19 and its possible implications for Bhutan’s future.
Tsuji, Yuichiro, ‘COVID-19 Vaccination in Japan: Remedies for Injured Patients’ (2021) 16(1) Health Law & Policy Brief 40–54 Abstract: This article examines COVID-19 vaccination in Japan and possible compensation rights for those who experience adverse reactions. In Japan, the Constitution and the Local Autonomy Act place regular vaccination of citizens as a municipal task. If a disaster occurs that is beyond the jurisdiction of the municipality, the prefectural government, which is positioned above the municipality, responds. The central government is constitutionally responsible for coordinating prefectures in the event of a disaster that exceeds their capacity to handle. Japanese constitutional jurisprudence holds that social restrictions inherent to property rights do not necessitate compensation, but it is possible that compensation would be necessary if society’s evaluation of compensation for property rights changes significantly. A lower court decided that compensation under the property rights provision could be applied if the vaccination caused serious damage to the health or life of citizens. The Supreme Court of Japan has recognized the government’s liability, judging that negligence exists in the system of vaccination itself in the obligation of doctors to question patients during vaccination when serious damage to health or life occurs due to vaccination. This decision would also apply to adverse reactions caused by COVID-19. The debate on whether compensation is necessary or unnecessary gives a scathing assessment of the negligence of the political branches. Even if compensation based on property rights is not necessary, provisions based on social rights can be used to require the government to take steps in parliament and governance to help the socioeconomically vulnerable. Constitutional scholars should be careful when they argue that compensation for property rights is unnecessary, as citizens may misunderstand that socioeconomic support based on social rights is also unnecessary.
Tsuji, Yuichiro, ‘Japanese Government Actions Against Covid-19 Under the Directives of Constitutional and Administrative Law’ (2020) 4(1) Cardozo International & Comparative Law Review 1–34 Abstract: This paper further elucidates the actions of the Japanese government against COVID-19 during the first five months of 2020. On May 25, 2020, the government lifted the emergency declaration passed under the amended Art. 49(2) of the amended Influenza Special Measures Act (ISMA). This paper argues that the effects of the Japanese government action is not unique, but is instead similar to those of other countries. In 2012, the Japanese government had passed ISMA against severe acute respiratory syndrome (SARS), not COVID-19. The Government hesitated to use ISMA against COVID-19 for political reasons. The government opened advisory boards and chose a policy judgment If a delay in governmental actions led to an increase in the number of serious patients, the governmental inaction was subjected to the State Redress Act and the people of Japan could, through the election process, change the government in the next election. The emergence of COVID-19 has compelled Japanese scholars to question the validity of legal principles. Outside of Japan, the New York Times argues that the Japanese constitution should be amended to cope with such an emergency. This paper is vigilant of the governmental interventions that are carried out in the name of emergency and keeps legal principle under the rule of law. An emergency does not allow us to ignore the law; nor does it put the administration above the law. If the emergency is predicted, we can prepare and prevent resulting distress with the use of law. If an emergency occurs, we can mitigate damages and recover by interpreting or amending the existing statutes. The lessons from the actions undertaken by the Japanese government should be shared with other countries that have democratic constitutions. When we start a constitutional and administrative law analysis, the legal and political responsibilities should be distinguished.
Tsuji, Yuichiro, ‘Political Power and the Limits of Academic Freedom in Japan in the Era of Covid-19’ (2022) 22(2) Australian Journal of Asian Law 117–130 Abstract: This article examines the Japanese government’s response to Covid-19 from the perspective of academic freedom in constitutional jurisprudence. Academic freedom, which aims to maintain a certain tension between scientific research and politics, is constitutionally guaranteed in Japan. However, the Covid-19 pandemic has provided an opportunity for the Japanese government to exclude critics of its policy responses from expert advisory bodies, both its own recently established Covid-19 expert subcommittee and the long-standing Science Council of Japan. This article argues that the government’s actions violate the constitutional protection of academic freedom and are part of a wider trend whereby the government exploits its ‘personnel’ or ‘appointive’ power to ensure support for its policies, and that this has serious implications for the rule of law.
Twomey, Anne, ‘Federal and State Powers to Deal with Pandemics: Cooperation, Conflict and Confusion’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)
Udayanganie, UaT, ‘Dilemma of Mandatory Vaccination for COVID 19: Analysis of Constitutional and Legal Issues under the Sri Lankan Law’ (Proceedings of the Annual Research Symposium, Faculty of Law, University of Colombo, 23rd November 2021 (2021) 216 Abstract: Sri Lankan authorities have suggested that the vaccination card for COVID-19 be made mandatory for citizens above the age of 30 years old, whenever they visit public places from Sept. 15, 2021 onwards. Such policies appear to be effective in convincing some non- vaccinated individuals to get their dosage to ensure community safety. Even so, this raises many complex issues regarding the interplay of competing rights. The key issue is where to draw the line between government’s duty to protect the health and community protection and the individual autonomy, bodily integrity and human dignity, particularly when a worldwide pandemic causes millions of deaths and economic devastation. Another crucial point that need to be considered in the current vaccination debate in Sri Lanka is that Covid-19 poses a major public health risk not just to people who are non-vaccinated by choice, but to those who cannot yet get vaccinated, such as children due to irregular and inconsistent supply of vaccines, issues in the process of vaccination prioritization and people who did get vaccinated but develop breakthrough infections. First part of this paper presents a constitutional and legal analysis of the possibility of the country making the vaccination against COVID-19 mandatory. Second part of the paper seeks to reflect debates in other jurisdictions as well where mandatory vaccination is being recommended to tackle the COVID-19 pandemic. Finally, the paper suggests the proportionality approach in designing and implementing such a law or policy and substantiates the argument that a mandatory vaccination would be legal if the government has designed and implemented rational criteria within the explicit parameters that a mandatory vaccination is required and proportionate in the interest of public health and safety and for the protection of the rights and freedoms of the community. The research employs a doctrinal black letter approach by referring to relevant primary and secondary sources.
van Staden, Martin, ‘Constitutional Rights and Their Limitations: A Critical Appraisal of the COVID-19 Lockdown in South Africa’ (2020) 20(2) African Human Rights Law Journal 484–511 Abstract: The purpose of the rule of law, entrenched as supreme in section 1(c) of the South African Constitution, is to guard against tyranny. If the rule of law is conceptualised as a meta-legal doctrine that is meant to permeate all law in the promotion of certainty, predictability and accessibility, in the interests of safeguarding constitutional rights, this makes sense. Yet, the COVID-19 pandemic has seen the reach of state power expand at the expense of these rights. South Africa’s COVID-19 lockdown, and within at least its first five months carrying the endorsement of the courts, has made a mockery of the rule of law so conceived. This article considers the constitutionality of South Africa’s COVID-19 lockdown against the backdrop of the constitutional rights limitation regime within the broader theoretical framework of constitutionalism and the rule of law. This analysis is conducted in the context of some early challenges brought against the lockdown in four High Court cases. The article concludes that the South African government, with the partial endorsement of the courts, has strayed beyond the bounds of the Constitution and engaged in unjustified violations of constitutional rights.
Váňa, A and Z Koudelka, ‘Pandemic and the Constitutional Law in the Czech Republic’ [2023] (4) Analytical and Comparative Jurisprudence 86–94 Abstract: The Covid or Chinese flu pandemic put a number of countries in a state of emergency. Whether this state is explicitly a state of emergency is not decisive, since various legal systems use various terms, but it is decisive that in respect of its power the Czech state uses collective and blanket bans to regulate persons differently than under normal conditions.The article deals with the impact of the Covid pandemic on the legal system. It points out to the deficiencies in the current legislation. Its basic idea is that the fundamental legal solution to states of emergency must be represented by constitutional regulation. It determines areas in which the Constitutional Act on the Security of the Czech Republic should be amended. Constitutional embodiment of emergency lawmaking with executive power is suggested along with introducing controls by the Chamber of Deputies and with obligatory inspection of emergency legislation acts by the Constitutional Court. It is also suggested for a form of legislation to be thoroughly used for blanket bans and orders in preference to a form of a special administrative decision – measure of a general nature.The experience with the Covid pandemic approved that the legal solution to a crisis must stem in the constitutional legislation. A regular act cannot represent the basis. This constitutional legislation may in the future also be the constitutional act on security. Although it is appropriate to amend it in the following areas:1. Introduce the possibility of emergency legislation issued by the executive power.2. Introduce parliamentary review of individual emergency legislation acts. 3. Introduce mandatory review of emergency legislation acts by the Constitutional Court.4. In the case of general bans issued by the Ministry of Health amend their provisions from general nature to sublegal regulation.
Vedaschi, Arianna and Chiara Graziani, ‘COVID-19 and Emergency Powers in Western European Democracies: Trends and Issues’ in Joelle Grogan and Alice Donald (eds), Routledge Handbook of Law and the COVID-19 Pandemic (Routledge, 2022) 388 Abstract: This chapter addresses the legal reactions of several Western European democracies to COVID-19. More specifically, the authors highlight some common trends and address several issues arising from the use of emergency powers. The chapter first offers an overview of whether and how the constitutions of selected Western European countries regulate emergency, so as to attempt a categorisation of emergency powers. Secondly, the analysis considers whether (or not) these emergency models have been applied in the fight against the pandemic caused by COVID-19. In doing so, it finds out that resort to emergency powers as written in constitutions has been unusual as a response to the pandemic, since many countries have preferred alternative strategies. The conclusion points out that a sort of ‘escape’ from pre-existing emergency powers can be observed and discusses the reasons that may lie behind this choice. Furthermore, the authors provide recommendations as to changes that might be introduced once COVID-19 is over, to improve emergency frameworks and make them suitable to face global emergencies.
Vedaschi, Arianna, ‘The Marginalisation of Parliament in Facing the Coronavirus Emergency: What about Democracy in Italy?’ in Matthias C Ketterman and Konrad Lachmayer (eds), Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart, 2022) 117-134 [OPEN ACCESS BOOK] Extract from Introduction: This chapter focuses on the reactions to COVID-19 in Italy. Italy has been one of the Western countries that have been most and earliest hit by COVID-19, setting itself, during the so-called first wave of coronavirus, as the ‘model’ to which other states looked in order to put in place their own lockdown strategies. Yet what have been the consequences of legal responses to COVID-19 on the Italian democratic framework? To what extent can some principles at the very core of democracy be put under tension in order to safeguard public health? Could the ‘Italian approach’ to COVID-19 be improved in terms of compliance with such principles without losing its effectiveness? Ultimately, what about democracy in Italy?
Vedaschi, Arianna and Chiara Graziani, ‘New Dynamics of the “Post-COVID-19 Era”: A Legal Conundrum’ [2023] German Law Journal (advance article, published online 12 December 2023) Abstract: In this Article we analyze whether and how the legal reactions to COVID-19 brought permanent changes to three main areas that are at the very basis of the study of comparative constitutional law: the horizontal separation of powers in different forms of government; the vertical separation of powers and its effects on forms of state; and the reviewability of limitations to human rights and personal freedoms by bodies exercising constitutional review. Rather than just examining and categorizing the reactions, we search for the political, institutional, factual, and sometimes even cultural rationales at the basis of each trend. Our claim is that COVID-19 was a driving force for relevant changes in the three analyzed areas, but we also recognize that these changes did not come ‘out of the blue,’ as they were already ‘latent’ in considered legal systems. The analysis demonstrates that the traditional categories we use to classify the forms of government, forms of state, and the mechanisms of constitutional review, although being useful paradigms to study these topics, have in themselves the potential to be ‘stretched,’ and even unhinged, when global and long-lasting emergencies, as COVID-19, are in place.
Vinceti, Silvio Roberto, ‘COVID-19 Compulsory Vaccination of Healthcare Workers and the Italian Constitution’ (2021) Annali di Igiene, Medicina Preventiva e di Comunità (advance article, published online 11 October 2021) Abstract: On April 1, 2021, the Italian Government issued the Decree Law no. 44 establishing COVID-19 compulsory vaccination for healthcare workers. In covering the news, national and international commentators have foreshadowed controversy over its constitutional status. In fact, it seems sensible to wonder if mandatory vaccination is consistent with the right to medical self-determination in the Italian Constitution, and if vaccine mandates that exclusively apply to a specific part of the population can be squared with its Equality Principle. As it happens, both answers are in the affirmative. On the one hand, the Italian Constitution acknowledges medical self-determination, but it explicitly admits of public health coercive measures, as both the text of the Constitution and its original understanding make abundantly clear. On the other, as to the Equality Principle, the scientific literature has long attested to the unique benefits of vaccinating healthcare workers, which seem all the more appropriate amidst a pandemic. Moreover, the government’s choice of moderate penalties for vaccine refusal and the temporary nature of the mandatory regime further agree with the Italian Constitutional Court’s interpretation of the Equality Principle - the so-called ‘Reasonableness Criterion.’ The Decree Law – meanwhile become, with minor modifications, Law 76 of May 28 2021 - is thus expected to pass foreseeable judicial review. However, it would be beneficial if the Italian government more vocally advocated the constitutionality of its vaccination policies in a general effort to contrast vaccine hesitancy.
Violante, Teresa, ‘The COVID-19 Pandemic and the State of Emergency: Lessons from Portugal’ in Kostas Chrysogonos and Anna Tsiftsoglou (eds), Democracy after Covid: Challenges in Europe and Beyond (Springer, 2022) 23–44 Abstract: The present chapter analyses the normative response of Portugal to the coronavirus crisis. As in other European Member States, the reaction to the pandemic was developed through a combination of enactment of the constitutional state of emergency with the statutory administrative emergency regime. Under both frameworks, there has been a strengthening of the executive at the expense of a parliamentary retreat. This chapter covers both responses to the pandemic and their shortcomings, mainly regarding the lack of democratic legitimation of the fight against the pandemic in face of a parliamentary circumvention and abdication.
Vlachopoulos, Spyridon, ‘The Danger of Constitutional Mithridatism: Fundamental Rights in Times of a Pandemic’ (2022) 34(1) European Review of Public Law_ _Abstract: Measures to combat the coronavirus pandemic have limited a number of fundamental rights. Here, however, lies the great danger of the gradual consolidation of a constitutional mithridatism, which will make us addicted to the idea of losing our fundamental rights for the sake of protecting superior legally protected rights. In this context, two points should be stressed: first, the recent measures are justified to protect the health of a large number of our fellow citizens, but they are an exceptional case that cannot be repeated. And, second, even in dealing with the pandemic, the rule of law sets inviolable limits. This paper intends to deal with the following questions: Can the suspension of fundamental rights in order to tackle the coronavirus pandemic threaten the health of democracy? How do we defend our legal culture?
Wei Liang Wang, Daniel, Gabriela Moribe and Ana Luiza Gajardoni de M. Arruda, ‘Is Mandatory Vaccination for COVID-19 Constitutional under Brazilian Law?’ (2021) 23(1) Health and Human Rights Journal 163–174 Abstract: Mandatory vaccination for COVID-19 has been the object of heated debate in Brazil. This article discusses the legality and constitutionality of such a policy. First, it analyzes the laws, regulations, and Supreme Court decisions that provide for the possibility of mandatory COVID-19 vaccination. Subsequently, it analyzes the constitutionality of a mandatory vaccination policy through the proportionality method to address the conflict between, on one side, the right to individual autonomy, which includes the right to refuse a medical intervention, and, on the other, health policies that interfere with individual autonomy to protect the rights to life and health. The application of this method allows for the identification of key questions that need to be answered to determine the constitutionality of a mandatory vaccination program. These questions cannot be answered a priori and in the abstract because they depend on the concrete circumstances of the pandemic, on the characteristics of the vaccine(s) against COVID-19, and on how a mandatory vaccination policy might be designed and implemented by authorities.
Wetter, Sarah and Eric A Friedman, ‘US Withdrawal from the World Heath Organisation: Unconstitutional and Unhealthy’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 83–88 Abstract: On May 29, 2020, during the same week that U.S. deaths from COVID-19 topped 100,000, President Trump announced that the United States would end relations with the World Health Organization (WHO). In the beginning of July, the administration formally notified the United Nations of the decision to withdraw. Withdrawing the United States from the WHO would threaten both national and global health interests. The loss of U.S. funding would derail WHO’s ability to detect and respond to emergencies like COVID-19, and could reverse hard-won progress in combatting infectious and noncommunicable diseases, and addressing the social determinants of health globally. The United States also would cede its position as a global health leader, curtailing its ability to engage in global health diplomacy. Yet President Trump’s apparent attempt to unilaterally withdraw the United States from the WHO raises major constitutional implications, and Congress must not let the move go unchallenged. As the United States entered the WHO through a joint congressional resolution, the same process should be required to exit the WHO. That joint resolution also imposes withdrawal requirements of one year’s notice and full payment of dues for that year. These two conditions indicate Congress’ intent to maintain a role in any decision to vacate the WHO. Congress must now step into that role and prevent the president from ending WHO membership and funding.
Wickramaratne, Jayampathy, ‘Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to Be Emulated in Sri Lanka’ (SSRN Scholarly Paper No ID 3598986, 12 May 2020) Abstract: The doctrine of necessity was first expounded as a criminal law principle: ‘that which is otherwise not lawful is made lawful by necessity’. Dangers of applying the doctrine in constitutional law were seen in Pakistan where several military coups were validated using it. In Sri Lanka Parliament was dissolved on 02 March 2020. As elections have been postponed due to the COVID-19 pandemic, Parliament will not be able to meet before 02 June, within the maximum period of three months permitted by the Constitution for the country to be governed without Parliament. The country being governed without Parliament means in effect that it would be governed only by the President, without the institution to which the he is constitutionally accountable functioning. The dissolved Parliament can be recalled in several ways: (1) withdrawal of the Proclamation of dissolution; (2) declaration of an emergency under the Public Security Ordinance which will trigger the summoning of Parliament; and (3) summoning of Parliament by the President without recourse to the said Ordinance in an emergency. That there is an emergency situation today cannot be denied. However, it has been suggested that the country can go on without Parliament by invoking the doctrine of necessity. This paper argues that where there are alternatives possible under the Constitution, the doctrine cannot be invoked. In any case, learning from the Pakistani experience, Sri Lanka should not use the doctrine in matters of constitutional law.
Wiley, Lindsay F, ‘Federalism in Pandemic Prevention and Response’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 65–70 Abstract: Federal-state conflicts over business regulations, controls on personal movement, and financial support and coordination of supply chains have dominated headlines during the coronavirus pandemic. States hold the reins on most community mitigation measures (e.g., quarantine and isolation, physical distancing, and mask wearing), which may vary depending on local conditions. The federal government has authority to promulgate national guidelines and surveillance capabilities that states rely on when implementing, modifying, and easing community mitigation measures, but these guidelines have been inconsistent or absent. The federal government has provided limited financial support and coordination of supply chains to provide a foundation for state and local implementation of more targeted mitigation measures, which depend on widespread testing and disease surveillance. Federal-state conflicts have stymied efforts to ramp up and coordinate need-based distribution of resources for: 1) implementing widespread testing, tracing, and supported isolation and quarantine of individuals; 2) ensuring widespread availability of adequate personal protective equipment for health workers, other essential workers, and the general public; and 3) ensuring widespread access to therapeutics and vaccination based on equitable and public health-based criteria.
Wiley, Lindsay F, ‘The Jacobson Question: Individual Rights, Expertise, and Public Health Necessity’ in Glenn I Cohen et al (eds), COVID-19 and the Law: Disruption, Impact and Legacy (Cambridge University Press, 2023) 206–218 Abstract: From the earliest weeks of the pandemic, courts and commentators turned to Jacobson v. Massachusetts for guidance. The 1905 Supreme Court case upheld a statute authorizing local boards of health to make smallpox vaccination compulsory if, in the board’s opinion, it was necessary for the public health. Led by the Fifth Circuit, many courts interpreted Jacobson as dictating a highly deferential ‘suspension’ standard for judicial review of public health emergency orders – a throwback to the standard commonly applied to any constitutional violation in 1905. Judges relied on Jacobson to uphold infringements upon abortion rights, voting rights, and freedoms of worship, assembly, association, and movement. In a November 2020 decision, the Supreme Court majority apparently rejected the Jacobson suspension standard, at least for Fourteenth Amendment claims. This chapter parses the fractured opinions in Roman Catholic Diocese of Brooklyn v. Cuomo and subsequent lower court opinions for indications of Jacobson’s continued vitality as a lodestar for public health powers. The chapter rejects the Jacobson suspension doctrine in favor of a broader reading that provides guidance for judicial review on separation of powers and federalism questions as well as individual rights. Jacobson offers enduring and flexible guidance on the two tensions at the heart of public health law and policy, which have been brought into stark relief by the pandemic but will continue to be litigated long after the COVID-19 threat has subsided: first, the tension between individual rights and the common good; and second, the tension between bureaucratic expertise and democratic accountability.
Wiley, Lindsay F and Stephen I Vladeck, ‘Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review’ (2020) 133(9) Harvard Law Review Forum 179–198 Abstract: For obvious reasons, local and state orders designed to help ‘flatten the curve’ of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?
Williams, Brendan, ‘COVID-19, Constitutional Law, and Catastrophe’ (2021) 20(1) The University of New Hampshire Law Review 153–193 Abstract: This article examines common actions states took to mitigate the spread of COVID-19 and court actions associated with those unprecedented measures. It begins by examining the seminal 1905 U.S. Supreme Court case recognizing the right of government to exercise its police power in matters of public health, which was invoked in many cases involving state action relative to COVID-19. It then addresses state restrictions —sometimes pejoratively referred to as ‘lockdowns’ — on activities and movement, including gatherings, that were employed as a means of reducing the risk of respiratory virus spread. It moves on to focus on the convoluted U.S. Supreme Court treatment of restrictions upon religious services. It details one of the cultural clashes engendered by the pandemic — particularly over mandates that citizens wear masks — as well as general challenges to local control where states refused to act. Finally, it concludes by commenting upon a public health failure of an unprecedented magnitude.
Williamson, Myra, ‘A Stress-Test for Democracy: Analysing the New Zealand Government’s Response to the COVID-19 Pandemic from a Constitutional Perspective’ (2020) 8(6) Kuwait International Law School Journal 55–105 Abstract: This article explores the New Zealand Government’s response to the COVID-19 coronavirus pandemic through a legal and constitutional lens. It adopts an essentially doctrinal analysis in describing the response but intertwines a comparative law thread, to draw selected comparisons with how other governments have responded. It offers some political, demographical and historical insights to provide background information for non-New Zealand readers. The article aims to provide a comprehensive view of New Zealand’s constitutional arrangements and how they have impacted on the Government’s response to COVID-19 as well as a critical analysis of that response by assessing the effectiveness of various measures adopted by the New Zealand Government. The article consists of six sections. Section one provides an introduction to New Zealand’s constitutional framework including some demographic information for non-New Zealand readers. Section two describes the New Zealand Government’s overall response to the COVID-19 pandemic. Section three discusses the declaration of a national state of emergency. Section four examines the Parliamentary oversight mechanism known as the ‘Epidemic Response Committee’. Section five explores the role of the media and the importance of upholding the right to freedom of expression when responding to the pandemic. Finally, section six draws out some overall recommendations for New Zealand and other countries to consider when moving forward and preparing for the next pandemic. :
Wróblewska, Iwona and Wojciech Włoch, ‘Accommodation Through Regulations: Limitation of Constitutional Freedoms in Poland During the Covid-19 Pandemic and Its Impact on Polish Constitutional Identity’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021)39 Abstract: “Legislative accommodation“ makes it possible to establish extraordinary limitations on freedoms and rights that formally have the “normal“ democratic legitimacy, since the state of emergency has not been introduced and the “normal“ constitutional means of legislative regulation have been employed. However, it would appear that the Polish case is not so much about legislative accommodation as it is about “accommodation through regulations“. In the cases discussed, the statutory basis for restrictions does not meet the conditions for a detailed and substantive settlement of the regulated issue. General and imprecise statutory norms are clarified in regulations, which should serve as strictly implementing acts. This may lead to the conclusion that there has been a certain disruption in the development of the Polish constitutional identity.
Wurman, Ilan, ‘Constitutional Laboratories: Some Reflections on COVID-19 Litigation in Arizona’ (2022) NYU Journal of Law & Liberty (forthcoming) Abstract: In federal court case after federal court case, plaintiffs challenging COVID-19 restrictions lost. The reason is obvious. Under modern equal protection and substantive due process doctrine, states receive enormous deference when restricting rights that federal courts do not consider to be fundamental. State cases that raised issues of state law fared, on the whole, better. Reflecting on my own litigation in Arizona, this Essay makes the case that in several areas of law—nondelegation, judicial review of executive acts, state ‘equal privileges or immunities’ clauses, and the obligations of contract—state constitutional law provides more fruitful grounds for future challenges for at least some kinds of assertions of emergency authority, and that the independent development of state constitutional law in these areas should be encouraged. Of course, not all government measures will be unconstitutional under state law, and many will be necessary and desirable. But some assertions of authority might be unconstitutional under state law even if constitutional under modern federal doctrine.
Zahari, Luke, ‘Retroactive COVID-19 “Immunity”: Useless for Patients, Devastating for Plaintiffs’ (SSRN Scholarly Paper ID 3791463, 1 February 2021) Abstract: This Note argues that the retroactivity provision of Iowa’s COVID-19 Response and Back-to-Business Limited Liability Act violates the due-process protections belonging to Iowans under both the U.S. and Iowa Constitutions. Passed in response to the challenges faced by Iowa businesses in reopening following the advent of the novel coronavirus, the Act expressly extinguishes civil causes of action already accrued under the common law. Generally, the rule against retroactivity prohibits legislatures from extinguishing rights in such a retroactive fashion. Moreover, despite Iowa jurisprudence contemplating that emergency conditions might validate retroactive laws that would otherwise be unconstitutional, the effects of COVID-19 in Iowa do not rise to a level that would warrant such a dramatic relaxation of the judicial check on legislative power. The Iowa Supreme Court should hold the retroactivity provision of the Act unconstitutional and eliminate the emergency exception to the ordinary rule against retroactivity both to bolster the constitutional protections for the rights of individual Iowans and to maintain the separation of powers that is integral to limited government.
Zamboni, Mauro, ‘The COVID-19 Crisis in Sweden: Political Constitutionalism Is Back!’ (SSRN Scholarly Paper No 4311970, 26 December 2022) Abstract: As in every country around the world, the COVID-19 crisis had a rather strong impact on the constitutional discourse of Sweden. However, as this works attempts to show, the effect of the crisis, in contrast to other Western legal realities, was in the direction of turning back the clock, or at least halting the development achieved in recent decades. Since the 1990s Sweden has seen its constitutional discourse shift from the idea of political constitutionalism as its main attribute, moving closer to the features that typify legal constitutionalism. However, the social, political, and economic emergencies ignited by the COVID-19 pandemic brought back to the surface the deeper and traditional Swedish feature of political constitutionalism as the backbone of the constitutional discourse: a culture where the legal actors tend to be somewhat marginalized, relegated mainly to playing operational roles in relation to the decisions taken by the political actors.
Zubik, Marek and Dominik Łukowiak, ‘COVID-19 and Constitutional Law: the Case of Poland’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 175-180 Extract from Introduction: The key problem with which the Polish government had to struggle in the face of the coronavirus disease pandemic was the establishment of an appropriate legal regime of the management of public affairs in a situation of ‘emergency’. From this point of view, the activity of public authorities can be divided into three periods. The first one, which lasted until mid-March 2020, was based on the increasing activity of administrative bodies, yet without adopting broad restrictions on constitutional freedoms and rights. The reactions of state authorities were undertaken on the basis of the Act of 5 December 2008 on the prevention and combating of infections and infectious diseases (hereinafter: the Act of 2008), and then on the basis of the newly adopted Act of 2 March 2020 on special solutions related to the prevention, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (hereinafter: the Act of 2020). The second period, which lasted until mid-May, was related to the introduction of the state of epidemic on the territory of Poland, on the basis of the Act of 2008, which enabled the government to impose far-reaching restrictions and limitations on the exercise of human rights. The third stage, which started in mid-May and lasts until today, involves the gradual lifting of the existing restrictions.
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