Constitutional Law

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.

Angelos, Claudia et al, 'Diploma Privilege and the Constitution' (2020) 73 SMU Law Review Forum 168
Jurisdiction: 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.

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.

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.

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.

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 Villanova Law Review (forthcoming)
Jurisdiction: USA
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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

'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.

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.

Drinoczi, Timea and Agnieszka Bien-Kacala, '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.

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.

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.

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?

Foran, Michael P, 'The Emergency Paradox: Constitutional Interpretation in Times of Crisis' (SSRN Scholarly Paper No ID 3733010, 1 November 2020)
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 1-14
Jurisdiction: 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 558-560
Jurisdiction: 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.

Gatter, Robert, 'Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures' [2020] Washington University Journal of Law and Policy, (forthcoming)_
_Abstract: This article re-examines the 'focused scrutiny' standard proposed by Prof. Scott Burris in 1989 and argues for its application particularly during an infectious disease emergency such as the COVID-19 pandemic. Focused scrutiny seeks to tie judicial review of the constitutionality of public health measures closely to the facts of the particular disease and to evidence of the efficacy of each governmental action to prevent the spread of that disease, even when courts adopt rational basis testing.

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.

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.

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.

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.

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.

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 Dail 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.

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.

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

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-a-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.

Kabumba, Busingye, 'The 1995 Constitution and COVID-19' [2020] LawAfrica
Jurisdiction: 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.

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.

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.

Koltay, Andras, '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.

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.

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, 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.

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.

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.

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 Slepian, 'Constitutional Norms for Pandemic Policy' (Arizona Legal Studies Discussion Paper No 20-29, 25 June 2020)
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.

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.

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.

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

van Niekerk, Bouwer and Parveen Munga, 'COVID-19 and the Right to Freedom of Movement' (2020) 20(4) Without Prejudice 20-22
Jurisdiction: 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?

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.

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.

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.

Parmet, Wendy E, 'Rediscovering Jacobson in the Era of COVID-19' (SSRN Scholarly Paper No 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.

Platon, Sebastien, '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.

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 Gunter 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 Gunter Frankenberg, Jiri Priban and William Partlett, to address complex challenges to democracy, the rule of law and human rights.

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.

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 American University Law Review (forthcoming)
Abstract: Fighting the coronavirus pandemic will require 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 why disease surveillance will play a key role in responding to coronavirus and 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 teeth' standard--might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.

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.

Smith, Stephen, 'The Right to a Public Trial in the Time of COVID-19' (2020) 77(1) Washington & Lee Law Review Online Article 1
Jurisdiction: 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.

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.

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.

Thomas, Robert H, 'Hoist the Yellow Flag and Spam(r) 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, David, 'The Constitutional Challenge to End the COVID Border Closures' (2020) 71 LSJ: Law Society of NSW Journal 72-74
Jurisdiction: 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'.

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.

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.

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.

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