Constitutional Law

Abdulai, Emmanuel Saffa, ‘Constitutional Theories, International Legal Doctrines and Jurisprudential Foundation for State of Emergency’ (2021) 8(1: Covid Special Issue) IALS Student Law Review 3–18
Abstract: The conceptualisation of a state of emergency has emerged in the discourse of politics, international human rights and constitutional law as the most potent threat to the full realisation and implementation of constitutional and international human rights. During the ongoing COVID-19 pandemic, state of emergency has become a tool for the violation of fundamental human rights not only in the West African region, but globally. This article seeks to examine the concept of state of emergency in international law and constitutional jurisprudence in order to understand whether recent claims of many governments declaring states of emergency can be justified. This article analyses and reviews the constitutional history of the use of state of emergency in Europe, United States and eventually three West Africa counties in Ghana, Nigeria and Sierra Leone.

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.

András, Karácsony and Nagypál Szabolcs, ‘The Rule of Law and the Extraordinary Situation’ (2021) 6(1) Public Governance, Administration and Finances Law Review 65–72
Abstract: The various legal theorists dealing with the operation and effect of law have mostly examined situations that can be described as occurring in the usual, regular, normal state of social life. Over the last half century, and particularly since the formation and later enlargement of the European Union, the requirement of the rule of law has emerged as a key topic. The test of the rule of law is as follows: it is necessary to examine in an abnormal situation or, as it were, in an extraordinary situation exactly how it is possible to take political decisions that are of fundamental importance to society while also guaranteeing that these decisions remain within the rule of law at all times.The aim of this study is to investigate how and by what constitutional mandate the Hungarian Government deviated from the normal constitutional situation in 2020. The ‘state of exception’ theorised by Carl Schmitt and Giorgio Agamben means the suspension of the law. It is important to understand their views in order to see that the Hungarian situation in 2020 is utterly dissimilar to such a state of exception. In short, we need to distinguish a state of exception from an extraordinary situation, because the latter does not imply the suspension of law in general or, more specifically, the suspension of the rule of law, but that parliamentary and government decisions remain within it. The special legal order applied in an extraordinary situation is not in fact a suspension of democracy, still less of the rule of law. On the contrary, it actually falls within both: in a state of national crisis, this situation is democracy itself and the rule of law itself, and – accordingly – strict laws (both democratic and imposed within the rule of law), or rather laws of cardinal importance, make its conditions and its functioning possible and regulate it.

Andreoli, Enrico, ‘The Rule of Law under the Threat of the Pandemic. Echoes from the African Constitutional Justice’ (2021) 46(1) DPCE Online 1445–1554
Extract: The ACB & Ors v Prime Minister & Ors case deals with a case of prorogation of Parliament of Lesotho made by the Prime Minister, which was an obvious attempt to avoid a vote of no-confidence. And such attempt was cautiously hidden behind a claim to be protecting human lives from the threat posed by the spread of Covid-19.

Angelos, Claudia et al, ‘Diploma Privilege and the Constitution’ (2020) 73 SMU Law Review Forum 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, ‘The Failing Federation: Why Canada Is Ineffective at COVID-19’ (2020) 11(1) Journal of National Security Law & Policy 229–246
Abstract: In exploring how Canada’s Constitution has affected its response to COVID-19, Amir Attaran explains how the legal and political contours of Canadian federalism have become a brake on the country’s response to the pandemic. Unlike what Canadians may believe, the black letter law of their Constitution is not the cause of the problem, it is the federalism and the struggles between the federal government and provinces that has caused issues. Worries about inflaming provinces and secession coupled with a federal government that only rarely seeks to assert its full constitutional authority has led to an ineffective response that is arguably the greatest cause of lives lost during the pandemic. The problem is not the constitution, but rather the self-neutering political disinclination of the federal government to act. Attaran therefore identifies reforms that could be put into place and highlights Australia, Germany, and Switzerland as models for consideration.

Attaran, Amir and Adam R Houston, ‘Pandemic Data Sharing: How the Canadian Constitution Has Turned into a Suicide Pact’ in Colleen M Flood et al (eds), Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 91
Abstract: For decades, public health professionals, scholars, and on multiple occasions, the Auditor General of Canada have raised warnings about Canada’s dysfunctional system of public health data sharing. Current, timely, and complete epidemiological data are an absolutely necessary, but not sufficient, precursor to developing an effective response to the pandemic. Nonetheless, it remains true that nearly two decades after data sharing proved a catastrophic failure in the 2003 SARS epidemic, epidemiological data still are not shared between the provinces and the federal government. This is largely due to a baseless and erroneous belief that health falls purely within the jurisdiction of the provinces, despite the Supreme Court of Canada’s clear conclusions to the contrary, which has misled Canada to rely on voluntary data sharing agreements with the provinces that are not merely ineffective, but actually inhibit data sharing. As outlined in this chapter, there is no reason for this to be the case, since Canada already possesses statutory powers, under the Statistics Act and the Public Health Agency of Canada Act, to oblige provinces to share critical epidemiological data in a timely manner. It must exercise those powers, both in response to COVID-19 and against the foreseeable certainty of even more serious public health emergencies in the future.

Austin, Lisa M et al, ‘Test, Trace, and Isolate: COVID-19 and the Canadian Constitution’ (Osgoode Legal Studies Research Paper, 22 May 2020)
Abstract: Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen COVID-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s ‘test, trace, and isolate’ strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to COVID-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider how the privacy impacts of contact tracing apps could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests. We argue that so long as apps are carefully constructed and the information they reveal is appropriately safeguarded, tracing apps may have a role to play in the response of a free and democratic society to the Covid 19 pandemic.

Ayala Corao, Carlos, ‘Venezuela: COVID-19 + Dictatorship + Complex Humanitarian Emergency’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 75-88
Extract from Introduction: Currently, Venezuela is simultaneously subject to two states of emergency: a state of alarm and a state of economic emergency. In effect, the new state of alarm in response to COVID-19 was added to the state of economic emergency that the Maduro regime decreed in 2018 and that is still in force. This state of economic emergency has been intermittently used to issue executive orders on economic matters, despite the fact that this is one of the subject matters and competencies constitutionally reserved for the National Assembly.

Ayers, Samantha R, ‘Vaccinations and Fundamental Rights: The Need for Federal Vaccination Legislation’ (2021) 52(2) University of Toledo Law Review 261–287
Extract from Introduction: This note focuses on the interaction between fundamental rights and the consequences of parental refusal to vaccinate their minor children. Whereas parents have the right to raise their children,10 and a right to religious freedom, those rights are restricted by a governmental interest in protecting public health, child welfare, and promoting uniformity among the several states in the country. The note aims to explore different rights afforded to citizens by the Constitution and explain situations in which it is necessary, and constitutional, for the government to regulate behaviors and limit rights of the people, to protect the country as a whole. Section I of this note explores fundamental rights that have been granted to individuals by the Supreme Court of the United States through their interpretations of the Constitution and the Equal Protection and Due Process Clauses. Through those fundamental rights, individuals have been protected heavily from governmental intrusion into their lives. The rights granted, however, are not unqualified, and are subject to government regulation in some circumstances.
Section II of this note outlines when states are able to regulate the scope of fundamental rights. Specifically, this section discusses governmental regulation in cases of possible medical abuse or neglect, which makes it possible for the refusal to vaccinate a child to be considered medical neglect, although it has not yet been held to do so.
Section III of this note explains specific instances and reasons that the state has to intervene with, and overcome, individuals’ fundamental rights. The section aims to explain when the government is able to infringe upon an individual’s ability to choose whether to vaccinate, although it could interfere with fundamental rights that have been recognized and protected under the Constitution. Courts have continuously upheld the rights of the state governments to override parental decisions when it comes to public health and safety concerns during an outbreak.
Section IV of this note discusses the main reason a why many parents refuse to vaccinate their children: religious beliefs. It goes on to explore multiple instances in which the court has determined that although individuals have religious freedoms, the government is able to regulate their conduct when it comes to furthering important interests.
Section V provides an argument describing why there should be federal legislation regarding childhood vaccinations to promote uniformity among the states regarding the issue, as well as to promote protections of public safety and child welfare. It also proposes a possible federal law, allowing for only a medical exemption to mandatory vaccinations for minor children. There is also discussion and explanation of why federal legislation would survive multiple levels of Supreme Court review.

Babie, Paul T and Charles J Russo, ‘If Beer and Wrestling Are “Essential,” So Is Easter: COVID-19, Freedom of Religion or Belief, and Public Health in Australia and the United States—Why Rights Matter’ (2020) 55 New England Law Review 45
Abstract: This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions is to balance the need to preserve public health while respecting the right to FoRB for all. Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government.

Bateman, Selena and Adrienne Stone, ‘Australia: COVID-19 and Constitutional Law’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 223-232
Introduction: The Commonwealth of Australia is a federal parliamentary democracy established by the Constitution of 1901. For the most part this constitutional system has appeared to function well during the COVID-19 pandemic and the response has inspired some innovations which may prove to be permanent. However, the pandemic has placed stress on federal relations and revealed weaknesses notably in parliamentary oversight of the executive and, to some extent, in rights protection.

Bechtold, Eliza, ‘Has the United States’ Response to the COVID-19 Pandemic Exposed the Marketplace of Ideas as a Failed Experiment?’ (2020) 25(3) Communications Law 150–160
Abstract: Considers whether the Trump Administration’s handling of the coronavirus pandemic, as well as the public opinions voiced by certain high-profile individuals, corporations and political action committees, has revealed the marketplace of ideas, on which the principle of freedom of speech under the First Amendment to the US Constitution is founded, to be a failed experiment.

Bence, Gát, ‘Coronavirus Test of the European Union’s Policy on the Rule of Law’ (2021) 6(1) Public Governance, Administration and Finances Law Review 19–33
Abstract: The issue of the rule of law has been on the European Union’s (EU) agenda since the beginning of the 2010s. The legal history of the EU shows that the EU’s approach to the topic of the rule of law underwent significant changes. Initially, the Member States called for guarantees of fundamental rights in EU institutions. This trend began to change in the late 1990s and early 2000s, when the possibility of European rule of law control over Member States and the predecessor of the current Article 7 of the Treaty on European Union (TEU) were introduced by the Treaty of Amsterdam. However, the idea that the EU institutions can constantly monitor the Member States in the name of the rule of law has only emerged and started dominating the European political agenda since the early 2010s. Over the last decade, the EU institutions have continuously expanded their toolkit for monitoring Member States in this regard. Following calls from some Member States and the European Parliament, in 2014 the Commission set up the new EU framework to strengthen the rule of law. In the same year, the European Council introduced an annual rule of law dialogue. In 2016, the European Parliament proposed the establishment of an annual rule of law report that monitors all Member States. At first, the European Commission was reluctant to accept this idea, but finally it introduced an annual rule of law report in 2020. However, the EU’s policy on the rule of law suffers from fundamental shortcomings, which were especially visible during the first wave of the coronavirus crisis in the spring of 2020. In the pandemic situation, it has become even more apparent that the EU’s policy on the rule of law raises a significant issue of EU institutions exceeding their competences and stands on a questionable legal basis. Criticisms formulated against Hungary during the pandemic have revealed that the EU institutions do not provide sufficient guarantees for an objective examination of the situation of the rule of law in the Member States. The situation brought about by the coronavirus has also raised a number of questions regarding the lawful functioning of EU institutions, which shows the need for a rule of law mechanism capable of verifying that the EU institutions themselves also properly respect the rule of law.

Bender, Matt, ‘Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System’ (2021) 66 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.

Boersig, J, J Campbell and S Carmichael, ‘Accused Stripped of the Power to Elect to Have Trials before a Jury of Their Peers’ (2021) 33(1) Current Issues in Criminal Justice 69–75
Abstract: On 2 April 2020, the COVID-19 Emergency Response Act 2020 (ACT) made amendments to address the ongoing – and, at that stage, escalating – COVID-19 outbreak. Amongst its provisions, the Act amended the Supreme Court Act 1933 (ACT) to allow judge-alone trials on indictable offences, at the election of a judge. This article assesses the rationale for this amendment, finding that the concerns expressed by the Australian Capital Territory (ACT) legislature that delay in justice would have negative ramifications are merited. The evidence demonstrates that delay in trial proceedings can negatively affect witness memory, prolong victim and witness trauma, and harm defendants through indeterminate incarceration. However, the authors express reticence about the constitutional legality of waiving such a fundamental right through territory legislation. There are multiple constitutional grounds on which the legislation can be challenged, with this article exploring the possible implications of the Kable Doctrine. The authors’ comparison to New South Wales (NSW) and Victoria shows that there were more appropriate measures that balanced the swift execution of justice and interests of an accused. The right to trial by a jury of peers is a bedrock of Australian law and the decision to abrogate that right represents a dangerous precedent.

Boyer, Cynthia, ‘Abortion Restrictions During a Pandemic at the Intersection of the 13th Amendment and Electoral Legislation’ (2021) 19(2) The University of New Hampshire Law Review 423-449
Jurisdiction: USA
Abstract: The current pandemic is intensifying restrictions on a wide range of fundamental rights which form a key pillar of the rule of law, it includes access to reproductive rights. Some states have moved forward with their ideological quest of control and infringement of constitutional rights in order to ban or limit abortion what is a fundamental attack on constitutional rights and in particular those associated with the Thirteenth Amendment. These restrictions on abortion resulting from the proclamation of a state of emergency follow the path already taken by certain states to reinforce their coercive measures. They raise major legal and political questions with regard to reproductive rights and individual freedom. As the state continues to impose and exercise strong and unequal constraints on women’s bodies through anti-abortion laws and pandemic restrictions through an instrumentalization of the health crisis, it establishes a system of involuntary servitude and subordination for procreation which breaches the 13th Amendment.

Brandes, Tamar Hostovsky, ‘Solidarity as a Constitutional ValueBuffalo 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.

Brink, Ton van den and Matteo Gargantini, ‘Models of Solidarity in the EMU: The Impact of COVID-19 After Weiss’ (2021) 17(3) Utrecht Law Review 80–102
Abstract: Right in the middle of the Covid-19 pandemic, the German federal constitutional court (Bundesverfassungsgericht – FCC) issued a ruling that sent massive shockwaves through the continent. Not only did the Court question the legality of the European Central Bank’s bond buying program PSPP (Public Sector Purchase Program), but it also rejected the earlier decision by the CJEU in which this latter had found that program to respect EU law. The ruling is as such not directly concerned with Covid-19 measures, but it may have nonetheless important consequences thereon. In this contribution we will explore what those consequences may be. Apart from the direct effects on the ECB’s pandemic emergency purchase programme (PEPP), we zoom in on the ruling’s indirect consequences on the broader question of how to arrange solidarity in EMU. With regard to the latter, we contend that Weiss and the Covid-19 crises combined will test the basic models of solidarity the EMU relies upon: the models of individual fiscal responsibility, ECB based solidarity and the model of fiscal union. These models are assessed from economic, constitutional and democratic perspectives.

Burris, Scott, ‘Individual Liberty, Public Health, and the Battle for the Nation’s SoulThe Regulatory Review (Blog Post, 7 June 2021)
Abstract: This essay examines the legacy of the US Supreme Court case Jacobson v. Massachusetts in the context of the COVID-19 pandemic. The author contends that the vision set by Jacobson — one of coexistence and cooperation in a democratic commonwealth — is in jeopardy as courts in recent COVID-19 constitutional cases have unveiled a new view based less on the social contract than on a strong form of libertarianism.

Capíková, Silvia, Eduard Burda and Mária Nováková, ‘Measures Introduced in the Slovak Republic in Response to the Public Health Crisis Caused by the COVID-19 Pandemic’ (2021) 14(2) Medicine, Law & Society 321–350
Abstract: The SARS-Cov-2 pandemic outbreak in the Slovak Republic in March 2020 required rapid legal response to protect lives and health of inhabitants and new complex challenges emerged. The objective of this paper is an analysis and critical assessment of measures adopted in the field of health law. As most significant problem fields in Slovakia arose: 1/ Legality and hierarchy of measures limiting everyday life and exercise of citizen rights and freedoms; 2/ the scope, proportionality, extent and duration of measures; 3/ adherence to the measures by the public and law enforcement issues. The pandemic unraveled need to innovate the legal framework of contagious diseases control, for example, constitutional emergency regimen, or powers of the Public Health Authority. Established rule of law framework served to safeguarding against some disproportionate or unwanted effects of anti-pandemic measures, however, future development of more sophisticated legal tools to control the pandemic is needed.

Cavalcanti, Maria Francesca and Matthijs Jan Terstegge, ‘The COVID-19 Emergency in the Netherlands: A Constitutional Law Perspective’ 43(2) DPCE Online 2037–6677
Abstract: With the Covid-19 (the Coronavirus) outbreak in Europe, starting at the beginning of February 2020, the Dutch government was forced to take drastic measures to control it. These measures impacted the social and economic life of the people living the Netherlands as well as their businesses in a severe way. These measures limited inter alia some of the fundamental rights as protected by the Dutch Constitution. This article describes the juridical framework in which the measures to combat Covid-19 are taken. More specifically, it focuses on the way in which the Dutch state is organised and the division of power between the higher and lower authorities and the legal instruments these various authorities have. In addition, a brief overview is given of the various measures taken by the authorities.

Cercel, Cosmin, ‘Law, Politics, and the Military: Towards a Theory of Authoritarian Adjudication’ (2021) 22(7) German Law Journal 1192–1208
Abstract: This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.

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.

Chopko, Mark, ‘The Constitutionality of Providing Public Funds for U.S. Houses of Worship during the Coronavirus’ (2021) 10(1) Laws Article 8
Abstract: U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching public interest, such as health care or social services, but does not involve the Government in advancing religion per se. Moreover, the most recent U.S. Supreme Court cases hold that it is a violation of the First Amendment to exclude a religious actor, solely because it is religious, from a general public program and funding on equal terms with secular actors. Pandemic relief from the federal government has been made available to houses of worship (churches, mosques, synagogues, etc.) to mitigate the economic impact of government lockdown orders and public health restrictions on assembly, by offsetting loss of revenue and avoiding the suspension or termination of employees. The extension of such relief sits precisely at the crossroads of debated legal questions about whether such assistance is aid to religion—prohibited—or neutral disaster relief on equal terms with other community-serving entities—permitted. This article concludes that the inclusion of houses of worship is constitutional, given the trend and direction of U.S. law, although the matter will continue to be debated as the effects of the pandemic recede.

Civitarese Matteucci, Stefano, ‘Italy - The Italian Response to Coronavirus Was Constitutionally Legitimate: Was It Suitable as Well?’ [2020] (October) Public Law 796–798
Abstract: Assesses whether the measures introduced by Italy in response to the coronavirus pandemic were constitutionally justified. Examines whether such Governmental powers were legitimate, the considerations of necessity and urgency, and the proportionality test. Discusses the limited role of Parliament, the confusing level of regulations issued, the tentative nature of some decisions and whether creeping privatisation of health services is likely.

Cogan, John, ‘Congress Has Already Ruled in California v. Texas’ (2021) 62(9) Boston College Law Review Electronic Supplement, Article 2
Abstract: In California v. Texas, opponents of the Affordable Care Act (ACA) have asked the Supreme Court to invalidate the statute. Relying on a 2017 legislative change to the ACA’s individual mandate, the challengers argue that the mandate is unconstitutional. They then assert that the mandate is inseverable from the rest of the ACA, thus the entire statute must fall. Earlier this year, however, Congress said otherwise. Last March, Congress passed the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act. The two statutes amend and expand provisions of the ACA, thereby overriding Texas v. United States, the district court decision that underlies California v. Texas. In short, Congress has already ruled, via an override, on the severability question at issue in California v. Texas. The ACA stands, even with an unconstitutional individual mandate.

Conditions of Confinement, COVID-19, and the CDC’ 134(6) Harvard Law Review 2233–2256
Extract from Introduction: Section A surveys recent cases in the Eighth Amendment and Fourteenth Amendment conditions of confinement sphere to show that courts are giving excessive deference to Centers for Disease Control and Prevention (CDC) guidance and sometimes ceding the constitutional inquiry to the CDC altogether. Section B then argues that this level of deference is inappropriate given established principles of administrative and constitutional law. The CDC’s guidance represents the most informal of agency actions — it was promulgated with little process and involves details of prison administration outside the CDC’s expertise. Administrative law instructs courts to provide this sort of agency action little to no deference. Here, courts have done the opposite. Further, by inserting the CDC into constitutional cases, courts are abdicating a duty that is fundamentally theirs: to answer questions about what our society is willing to accept in the name of punishment. In fact, courts are deferring to CDC guidance which itself seems to subjugate the best public health advice to penological interests of incarceration. This results in a double deference of sorts: courts defer to the CDC which in turn defers to prison officials. Both public health and constitutional rights get lost along the way.

Conklin, Michael, ‘“The Most Demanding Test Known to Constitutional Law”: Do Coronavirus Bans on Church Services Satisfy Religious Freedom Restoration Act Requirements?’ [2020] Washburn Law Journal (forthcoming)
Abstract: On March 29, Houston Pastor Juan Bustamante was warned that he could face fines and imprisonment for continuing to hold in-person church services. The next day he filed an Emergency Petition for Writ of Mandamus in the Texas Supreme Court. This Article evaluates his case, which could have broad implications because—like many states—Texas has a Religious Freedom Restoration Act (RFRA) that closely mirrors the federal RFRA. Arguments from both sides are analyzed to determine if such government action limiting religious practice is likely to overcome what the Supreme Court has identified as ‘the most demanding test known to constitutional law.’ City of Boerne v. Flores, [1997] USSC 68; 521 U.S. 507, 534 (1997).

Connors, Kyle J, ‘Symposium: Pandemics and the Constitution: Federalism and Contagion: Reevaluating the Role of the CDC’ (2020) 12(1) ConLawNOW 75–94
Abstract: The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of public locally-focused CDC recommendations. Second, this essay argues for greater federal influence over public health measures such as quarantine and isolation for a more uniform national response. As the law now exists, federal authority over everything but international border quarantines is somewhat ambiguous. State and local governments have exercised quarantine authority inconsistently, and may not possess the institutional knowledge to weigh the costs and benefits of confinement actions. Inevitably during a severe pandemic, localities may also push the limits of their authority to quarantine, potentially in opposition to federal government policy, hindering a nationwide pandemic response. Implicit in this recommendation is a call for greater statutory authorization for the CDC. Finally, the potential constitutional questions that arise from the suggested policy alterations are considered. Government officials are always in a challenging position when responding to a pandemic. This challenge is magnified when federal authority over the matter is unclear. The United States system of public health federalism must be rebalanced in some areas, to gain an effective uniform response to an outbreak of disease.

Corbin, Caroline Mala, ‘Religious Liberty in a Pandemic’ (SSRN Scholarly Paper No ID 3634084, 23 June 2020)
Abstract: The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.

Corradetti, Claudio and Oreste Pollicino, ‘The “War” Against Covid-19: State of Exception, State of Siege, or (Constitutional) Emergency Powers?: The Italian Case in Comparative Perspective’ (2021) 22(6) German Law Journal 1060–1071
Abstract: Is the Covid-19 pandemic changing the constitutional-power structures of our democracies? Is this centennial public health emergency irreversibly constraining our liberties? The paper examines recent state-measures of containment during the initial phase of spread of the Covid-19 crisis. It compares primarily the Italian scenario with the Chinese and the American one. It asks whether the measures adopted particularly in the Italian case (known as DPCMs) amount to a state of exception or to a use of emergency powers. Cognizant of the authoritarian risks in severed enjoyments of constitutional rights, the authors conclude that this is not what occurred in the case of solid democracies. At the level of governmental analysis, the ‘decree’ strategy of the Italian DPCMs allude to paternalistic forms of power-exercise that empty the self-determining prerogative of the parliament.

Da Silva, Michael and Maxime St-Hilaire, ‘Towards a New Intergovernmental Agreement on Early Pandemic Management’ [2021] (COVID-19 Special Issue) National Journal of Constitutional Law (forthcoming)
Abstract: The Canadian response to COVID-19 produced several problems that are at least partially attributable to a lack of coordination between the federal and provincial governments. The federal government has not taken on a strong coordinating role. Many provinces have ‘gone their own way’ even where uniform standards are necessary to minimize public health threats. While some believe the federal government should use its existing powers to coordinate a response, the federal government alone cannot address all possible concerns and there are strong political incentives for federal government not to unilaterally take a stronger role in pandemic management. This article accordingly motivates an intergovernmental agreement on pandemic preparedness and early pandemic responsiveness (viz., early pandemic management). An intergovernmental agreement is a more promising tool for securing the coordination necessary for good pandemic management than unilateral federal action or the status quo. A detailed agreement that clearly sets out who will do what when a pandemic is imminent/when a pandemic begins will clarify expectations in early pandemic management and incentivize compliance therewith, helping to secure much-needed coordination. Developing it in non-pandemic conditions should also ensure a more rational approach to pandemic management that improves health outcomes and better fulfills Canada’s moral and international legal obligations.

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.

Deva, Surya, ‘COVID-19’s Impact on Civil and Political Rights: Reflections from Hong Kong’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 91-97
Introduction: Covid-19 and the government responses to it – e.g., social distancing or quarantine norms, mandatory mask wearing rules and compulsory lockdowns – have raised a range of constitutional questions all over the world.1 China is no exception. However, these questions are unlikely to enter courts (or even public discourse) in mainland China for three reasons. First, the 1982 Constitution of the People’s Republic of China has no direct effect: despite the Constitution containing a long list of fundamental rights, no citizen could rely on these – in the absence of a law – in court proceedings to challenge a government action or inaction. Second, Chinese courts do not enjoy the power of judicial review. Third, the Chinese government strictly controls discussion about politically sensitive issues, and issues surrounding Covid-19 falls into this category.

‘Devolution’ (2020) July Public Law 554–557
Abstract: Reviews devolution-related developments, including: the powers granted to devolved Ministers by the Coronavirus Act 2020; the Northern Ireland Executive’s legislative programme and the coronavirus-related legislation passed by the Assembly; key provisions of the Coronavirus (Scotland) Act 2020 and accompanying health protection regulations; and coronavirus-related regulations passed by the Welsh Assembly.

Di Bari, Michele, ‘Let Judges Speak for Themselves: Can Comparative Constitutional Case Law Help Conceptualize Universal Standards in the Fight against COVID-19?’ [2021] (1) 200–221
Abstract: This contribution provides an examination of recent constitutional case law concerning the judicial review of emergency measures adopted in the fight against the COVID-19 pandemic. In particular, the aim of this comparative analysis is twofold: On the one hand, its purpose is to verify whether Supreme Courts were able to engage with the limitation of fundamental rights without being too deferential as it could be expected during emergencies; on the other hand, it attempts, to demonstrate that it is possible to conceptualize universal standards for the protection of fundamental rights during health emergencies through what is called comparative constitutional case law (CCCL). The analyzed case law belongs to different legal orders, namely, Kenya, Kosovo, and Slovenia; however, all the cases concern freedom of movement and its legitimate (possible) limitations. The analyses of different cases are provided separately, and in the last paragraph some conclusive hypotheses have been drawn and left open for a future debate.

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.

Drinóczi, Tímea and Agnieszka Bień-Kacała, ‘COVID-19 in Hungary and Poland: Extraordinary Situation and Illiberal Constitutionalism’ (2020) 8(1–2) The Theory and Practice of Legislation 171–192
Abstract: Hungary and Poland have started their illiberal remodelling in 2010 and 2015 respectively. Both governments routinely apply the illiberal version of the Rule of Law (illiberal legality), which involves that every situation has the potential to be exploited for political gain. Both states opportunistically apply their constitutions and selectively invoke favourable constitutional provisions. And yet, this paper claims that the Hungarian Fundamental Law and the Polish Constitution are equipped with adequate emergency measures to provide for a proper framework for emergency legislation. In illiberal emergency constitutionalism, Hungary uses and abuses its Fundamental Law, while Poland is disregarding its binding 1997 Constitution and, at the same time, creates its new invisible illiberal constitution. This paper explores how it is done during the current human pandemic crisis by focusing on, first, the emergency regimes the constitutions provide for and their (non-)application. Second, it compares the operation of the parliaments as the Sejm chaotically passes crisis management related omnibus legislation and amendments on the presidential election during the extra-constitutional ‘state of epidemic’. The Hungarian Parliament operates under the ‘danger of crisis’. Yet, it still delivers regular legislative activities, as the emergency ‘legislation’ is done through governmental decree as per the Coronavirus Act 2020, which is unconstitutional. These phenomena necessitate an in-depth inquiry about the nature, form, and content of the Hungarian and Polish emergency legislation and governmental decrees. It is concluded that, under normal circumstances, the Hungarian and Polish constitutional measures set for guiding the authorities in emergencies are adequate. In the current political and constitutional setting and COVID-19 crisis, the form and the content of some essential Hungarian and Polish emergency measures stay below standards. It is a further warning sign for the European community to take Hungarian and Poland illiberal constitutionalism seriously. Their pushing the envelope will not end by itself.

Dubey, Uttam, ‘Right to Emergency Medical Services In India’ (SSRN Scholarly Paper No ID 3639124, 30 May 2020)
Abstract: The onslaught of the Novel Corona Virus (COVID-19) pandemic has awakened the individuals and governments globally from the delusion of possessing an efficient public health care system to the worst of the nightmares. The nightmare of people from most advanced countries dying on the streets due to non-availability of beds in hospitals is turning into reality during this pandemic. Although the intellectuals worldwide are busy painting the post-COVID-19 scenario, it is difficult for anyone to paint a conclusive picture of pandemic aftermath. Nonetheless, this pandemic has white-washed the farce created by the States in providing efficient healthcare to its citizens.The situation in India is much grave. Developed countries worldwide became helpless at the peak of the pandemic as the number of patients exceeded the public health care infrastructure. However, in India, the helplessness in providing adequate medical care is imposed on the citizens due to non-cooperation from private hospitals. During the pandemic, the private Hospitals, on the one hand, refused to treat non- COVID 19 patients by mandating a COVID 19 negative certificate and on the other hand did not open up their infrastructure for the COVID-19 patients by citing health concerns of its negative patients. This non-cooperation of private hospitals was precipitated by inaction of the government in enforcing their writ on these hospitals.These dire circumstances compel everyone to ponder upon a pertinent question related to emergency medical care in India. Whether as an Indian citizen, do we have any right to emergency medical care and whether the authorities are doing enough to ensure such right is not violated due to whims of management of private hospitals?The question is as tricky as any question related to rights of Indian citizens enshrined in Constitution of India as it provides a dream of utopian State for its citizens, like the delusion of the efficient public health care system as stated above. However, Indians most often wake to the reality of their rights trampled upon without any redress by institutions created under the Constitution.

Durojaye, Ebenezer and Robert Doya Nanima, ‘From Muhammed and Others to De Beer and Others: Striking the Balance between Public Health Measures and Human Rights during Covid-19 Era in South Africa’ (2021) 47(1) Commonwealth Law Bulletin 175–194
Abstract: This article evaluates the approach by the South African Courts concerning the constitutionality of the declaration of national disaster and the Covid-19 regulations. It sets the tone by evaluating the approach in Kenya in contrast with the South Africa position. A look at the rising tensions between human rights protection and public law informs this exercise. While Kenya uses a precautionary approach to uphold the constitutionality of the Curfew order, South Africa seems to oscillate between the proportionality and the rationality test. A call for clarity in the Court’s reasoning on rationality is proposed.

Earley, Brady, ‘Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics’ (SSRN Scholarly Paper ID 3908624, 20 August 2021)
Abstract: This article undertakes a comparison of legal restrictions on religious gatherings in the United States during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied upon proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 models a better way. Instead of using proportionality or equality, these local officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, fewer deaths, and fewer cases during the 1918 pandemic and offers a useful precedent for government officials currently managing the religious freedom concerns of COVID-19.

Ejima, Akiko, ‘Constitutional Oversight Mechanism for Government Decision Making in an Era with COVID-19’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 107-114
Introduction: Since COVID-19 pandemic spread all over the world, we frequently compare countries by number of infections and deaths. Why did some countries manage to keep the virus under control and others not? Moreover, why did some governments respond to the situation swiftly and effectively, and others not? Why did some governments take more drastic measures and others not? The decision-makings by governments is a result produced from a particular constitutional mechanism. It is time to compare not only decisionmakings but also constitutional mechanisms in which government decisions are made.

Esen, Selin, ‘Impacts of the COVID-19 Pandamic on the Constitutional Rights in Turkey’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 209-220
Introduction: The Covid-19 outbreak has multidimensional effects on individuals, communities and states. Therefore, this global pandemic not only directly affects basic constitutional rights and freedoms, such as life, health, movement, expression, worship, association, assembly, privacy, property, and access to justice, but also it has visible impacts on economy, politics and culture. Some measures taken due to eliminate the pandemic are so drastic that raised the question of their compability with the Constitution, democratic norms and rule of law in many countries. The Covid-19 pandemic has profoundly affected Turkey, as it has adverse impacts on almost every country around the globe. Below, I will discuss some of the constitutional questions on countring Covid-19 in Turkey.

Farber, Daniel A, ‘The Long Shadow of Jacobson v. Massachusetts: Epidemics, Fundamental Rights, and the Courts’ (SSRN Scholarly Paper No ID 3635740, 25 June 2020)
Jurisdiction: USA
Abstract: When emergency health measures have impinged on constitutional rights, judges have often turned to a 1905 Supreme Court case decision, Jacobson v. Massachusetts, which upheld a state law requiring smallpox vaccination. Courts are all over the map on how to apply Jacobson.. Some have viewed Jacobson as providing a special constitutional standard during epidemics. As this paper shows, history doesn’t support that view. Other judges have used ‘business as usual’ constitutional analysis that ignore the crisis conditions under which the government must contend with today. During a pandemic, the government confronts a fast-changing situation presenting risks of catastrophic loss of life, under conditions of uncertainty. Similar conditions prevail in national security cases. There, courts apply the normal constitutional tests but give extra deference to the government. Many though not all of the reasons are similar to the coronavirus situation. The lesson would be to utilize the usual tests, but with allowances for the government’s need to take precautionary actions despite high uncertainty.
Note: in Jacobson v Massachusetts, 197 U.S. 11 (1905), the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.

Figueiredo, Marcelo, ‘COVID-19 and the Brazilian Reaction’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 41-51
Extract from Introduction: The objective of this text is to briefly address the most relevant constitutional and legal issues involving the COVID-19 pandemic, especially the measures adopted by the authorities and powers constituted in Brazil to face this enormous public health challenge…. In Brazil, it is the President of the Republic’s competence to decree both states (of defense and of siege), submitting them to the National Congress. Very few voices have advocated these states to be enacted with the coming of the pandemic to the Brazilian territory. In fact, in our opinion, it is not even the case of its application, except for a complicated and unwanted hermeneutic acrobatics of the constitutional text. Nevertheless, as a member of the United Nations (UN), World Health Organization (WHO) and other international and regional organizations, Brazil maintains constant international contact (good institutional relationship) with such entities for the defense of peace, life and human health, having a human rights friendly Constitution, as the so-called citizen Constitution of 1988 is known. It is important to point out that several Constitutions of the 1980s, as well as the Brazilian one, reinstalled the democratic life in different Latin American countries, in general, after long periods of dictatorship and authoritarianism that lasted on average twenty years.

Fifth Circuit Upholds Abortion Restrictions During COVID-19 Pandemic: In Re Abbott 954 F.3d 772 (5th Cir. 2020)’ (2021) 134(3) Harvard Law Review 1228–1235
Abstract: The article focuses on the decision of the U.S. Court of Appeals for the Fifth Circuit in the case In re Abbott in which court upheld GA-09, a Texas executive order that temporarily postponed all nonessential medical procedures, including abortions, in response to the COVID-19 pandemic. It mentions court relied on principles central to common-good constitutionalism, potentially indicating that this judicial philosophy is gaining traction on emergency powers.

Figueroa, Daniel, ‘Diminishing Religious Liberties: COVID Under the First Amendment’ (SSRN Scholarly Paper ID 3753678, Social Science Research Network, 22 December 2020)
Abstract: The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.

Fisher, James C, ‘“All i Can Do Is Ask”: COVID-19, Lockdowns without Law, and Constitutionalism in Japan’ [2021] (2) Public Law 251–261
Abstract: The 2016 Japanese creature-feature ‘Shin Godzilla’ failed to replicate abroad its domestic commercial and critical triumph. Superficially, it reheats a time-honoured formula: giant reptile flattens Tokyo. But the real antagonist in this franchise reboot is not the eponymous lizard, but Japanese government. In its defining scenes, Japan’s political order fails tragicomically to handle a crisis. This made cathartic viewing for a Japanese audience still nursing the trauma of 2011’s natural and nuclear disasters-and anger at the official response. Its force was, it seems, somewhat lost on international viewers lacking this intuitive understanding of the story’s real villain. The institutions and conventions of Japanese public power have been tested afresh by the COVID-19 pandemic and, in the opinion of most Japanese and international observers, have again been found wanting. The sudden resignation of Japanese Prime Minister Abe Shinzo-ostensibly on grounds of ill health-came as support for his administration neared its historic low. Paradoxically though, for most of 2020, Japan’s health outcomes resembled those of widely applauded jurisdictions such as Taiwan, Singapore and the Republic of Korea. Clearly, the government has been judged not directly on health outcomes, but on its general handling of this major crisis. Japan has controversially declined to follow comparable jurisdictions into mandatory ‘lockdown’. Some work is needed to contextualise and assess Japan’s distinctive non-coercive response, which concerns the relationship between extra-legal guidance and positive law, and invites reflection on wider trajectories of Japanese constitutionalism.

Flynn, Alexandra et al, ‘Municipal Power and Democratic Legitimacy in the Time of COVID-19’ in Vulnerable: The Law, Policy and Ethics of COVID-19 (University of Ottawa Press, 2020) 91
Abstract: As COVID-19 swept through Canada, cities were at the front lines in curbing its spread. From March 2020, municipalities introduced such measures as restricting park access, ticketing those lingering in public places, and enforcing physical distancing requirements. Local governments have also supplemented housing for the vulnerable and given support to local ‘main street’ businesses. Citizens expected their local governments to respond to the pandemic, but few people know how constrained the powers of municipalities are in Canadian law. Municipalities are a curious legal construct in Canadian federalism. Under the Constitution, they are considered to be nothing more than ‘creatures of the province.’ However, courts have decided in many cases that local decisions are often considered governmental and given deference. This chapter focuses on the tensions in this contradictory role when it comes to municipal responses to COVID-19, particularly when those responses take the form of closure of public spaces, increased policing by by-law officers, and fines. I conclude that municipalities serve an important role in pandemic responses, alongside provincial and federal governments. Provincial law should be amended to capture the important role of municipalities in Canadian federalism, especially in the area of municipal finance.

Flynn, Tom, ‘Crisis, Opportunism, and Opportunity: How the Pandemic Has Exacerbated Pre-Existing Constitutional Tensions in the European Union’ in Carla Ferstman and Andrew Fagan (eds), COVID-19 Law and Human Rights: Essex Dialogues (School of Law and Human RIghts, University of Essex, 2020) 51–61
Extract from Introduction: The global Covid-19 pandemic arrived at a time of pre-existing and overlapping constitutional crises in the European Union, and exacerbated them. Two are the particular subjects of this contribution. First, several Member States had been sliding into authoritarianism long before the pandemic hit. The rise of ‘post-fascism’ in Hungary in particular was already a matter of serious concern, as was the EU’s failure to respond to it. Covid-19 has made this crisis worse, as Hungary has responded with a law suspending its Constitution and allowing the government to rule by decree, while the EU has continued to merely wag its finger. This calls into question the Union’s commitment to its claimed foundational values, amongst which are democracy and the rule of law. Secondly, tensions between ‘northern’ and ‘southern’ Member States over fiscal discipline and economic solidarity have remained unresolved since the last Eurozone crisis. The EU’s response to the crisis beginning in 2008 revealed the deep conflicts between the debtor and creditor states of Europe, and raised complex legal and political questions as to how the Union could and should assist Member States in financial distress. These questions have now resurfaced in the context of Covid-19, with ill-tempered arguments between the so-called ‘frugal four’ (Austria, Denmark, the Netherlands, and Sweden) and hard-hit states such as Italy and Spain as to how the Union should respond to the pandemic in monetary, financial, and economic terms. … This contribution therefore seeks to place the Covid-19 crisis in the context of a Union well-used to crisis, and already dealing with at least two when the pandemic hit. Will the Union muddle through as it has historically done, or do the structural tensions at work mean that a more radical rethink is needed?

Fombad, Charles Manga and Lukman Adebisi Abdulrauf, ‘Comparative Overview of the Constitutional Framework for Controlling the Exercise of Emergency Powers in Africa’ (2020) 20(2) African Human Rights Law Journal 376–411
Abstract: The need to act swiftly in times of emergency gives governments a reason to exercise emergency powers. This is a legally valid and accepted practice in modern democracies. Post-independence African constitutions contained provisions that sought to regulate states of emergency, placing the emphasis on who could make such declarations and what measures could be taken, but paid scant attention to the safeguards that were needed to ensure that the enormous powers that governments were allowed to accrue and exercise in dealing with emergencies were not abused. As a result, these broad powers were regularly used to abuse fundamental human rights and suppress opponents of the government. In the post-1990 wave of constitutional reforms in Africa, some attempts were made to introduce safeguards against the misuse of emergency powers. This article undertakes a comparative assessment of the extent to which these reforms have reduced the risk that the exercise of emergency powers poses to human rights and progress towards constitutionalism and respect for the rule of law, especially in times of global pandemics such as COVID-19. Indeed, the COVID-19 pandemic has exposed the weaknesses of the constitutional reforms designed to check against the abuse of emergency powers. In most African countries, governments in dealing with the virus decided to act within the legislative framework, which subjects them to few checks rather than rely on the constitutional frameworks which in most cases provide for more elaborate checks. It is clear from the experiences of the past few months that most African constitutions never anticipated an emergency of such magnitude. The article concludes by arguing that one of the major lessons of the COVID-19 pandemic is that there is a need to review the constitutional and regulatory framework for the exercise of emergency powers to better prepare for future pandemics.

Foran, Michael, ‘The Emergency Paradox: Constitutional Interpretation in Times of Crisis’ (2021) 25(1) Edinburgh Law Review 118–124 [unpublished version on SSRN]
Abstract: The COVID-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This paper explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law.

Fradella, Henry, ‘Symposium: Pandemics and the Constitution: Why the Special Needs Doctrine Is the Most Appropriate Fourth Amendment Theory for Justifying Police Stops to Enforce COVID-19 Stay-at-Home Orders’ (2020) 12(1) ConLawNOW 1–14
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.

Gárdos-Orosz, Fruzsina, ‘COVID-19 and The Responsiveness of the Hungarian Constitutional System’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 157-165
Extract from Introduction: This report analyses the constitutional framework of the Hungarian government’s use of emergency powers to control the COVID-19 pandemic. I will focus here on the most debated issues of public law.

Gatter, Robert, ‘Reviving Focused Scrutiny in the Constitutional Review of Public Health Measures’ (2021) 64(1) Washington University Journal of Law & Policy 151–166
Abstract: State and local officials have issued public health orders aiming to prevent or slow the spread of COVID-19. As a result, constitutional challenges have been brought claiming that certain measures (stay-at-home orders, mask mandates, etc.) violate the right to free exercise of religion, the right to free assembly, and the right to due process. This Article acknowledges the highly deferential standard applied when assessing whether a government’s public health action, during a public health emergency, violates the due process clause. Gatter encourages judges to adopt ‘focused scrutiny’ in these cases, further constraining judicial review by a scientific focus. This review can be applied to any standard. Courts applying focused scrutiny focus their attention to the known science of the infectious disease as well as evidence of the efficacy of the government’s public heath measure. When both the government’s public health action and the constitutional review of the action occur during a declared emergency, Gatter argues this method is necessary to off-set the risk of judicial rubber stamping, defend against public health policy driven by fear or politics, and to strengthen the scientific basis of public health measures taken during the pandemic.

Geddis, Andrew and Alex Latu, ‘Unlawful Commands, Bills of Rights, and the Common Law’ (SSRN Scholarly Paper ID 3711775, 14 October 2020)
Abstract: In Borrowdale v Director General of Health [2020] NZHC 2090, a full bench of the High Court issued a declaration that a series of governmental commands issued during the first 9 days of New Zealand’s ‘lockdown’ response to COVID 19 were ‘not prescribed by law and was therefore contrary to the New Zealand Bill of Rights Act.’ This declaration formally records the Court’s conclusion that for more than a week New Zealanders’ statutorily guaranteed rights and freedoms were limited without legal basis. In this comment we explain both why this was so, and why the Court was right to recognise that fact by way of a declaration. We also examine the Court’s finding that these limits did not constitute a suspension of either laws or their execution in terms of the Bill of Rights Act 1688. Finally, we suggest that the High Court missed an opportunity to clearly elucidate the constitutional limits on the executive’s power to promulgate apparently coercive directives in the absence of any legal authority. The impending appeal of the High Court’s judgment to the Court of Appeal perhaps provides an opportunity to revisit that last matter.
Note: link to Borrowdale v Director-General of Health [2020] NZHC 2090 (19 August 2020) on NZLII.

Gentithes, Michael and Harold J Krent, ‘Symposium: Pandemics and the Constitution: Pandemic Surveillance: The New Predictive Policing’ (2020) 12(1) ConLawNOW 57–74
Abstract: As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it. To assess the privacy impact of such policies, we first examine the growth of predictive policing, which similarly treats some individuals differently based on the likelihood that they will either commit or be the victim of a crime. Although predictive policing has generated much social benefit, concluding that someone is likely to commit a crime should not justify either a stop and frisk or, worse, an increased sentence if a crime is in fact committed. We should be wary of depriving individuals of freedom solely on the statistical probability that they will commit a crime in the future. We then examine whether the increased public health surveillance that is likely to be launched can comport with our constitutionally-protected fundamental liberties. As with predictive policing, if the government focuses traditional data collection efforts on those most likely to contract the virus, no constitutional issue arises. But, if the government restricts the freedoms of those who may have been exposed to the virus, and if the government restricts the freedoms of those who are least likely to be immune thereafter, courts must balance the government’s public health interest against the constitutional infringement on the fundamental rights to work and travel. We argue that governments can only justify such actions based on a strong showing of public health necessity and must afford anyone subject to such serious restrictions some limited opportunity to challenge the government’s classification, which would leave them stripped of the right to travel and possibly their ability to pursue a livelihood. Given that the balance between governmental power and individual rights tips towards the government in times of crisis, we end by suggesting the constraints that the government should respect when casting such a wide surveillance net.

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.

Ginsburg, Tom, ‘COVID-19 and the US Constitution’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 69-74
Extract from Introduction: Despite all its messiness, and its poor policy outcome, the coronavirus response in the United States has been successful in responding to the preferences of the public. This public is highly misinformed and distrustful of expertise. It important to remember that the United States is in something of an epistemic crisis, in which large segment of the population believes in conspiracy theories and distrusts science as a matter of course. We also have a longstanding libertarian tradition distrustful of all government as a matter of principle. From a public health perspective these people should be ignored. But from a democratic perspective they should not. The United States has had an extended constitutional conversation, involving state governments, courts at both states and the federal level, legislatures, and the public itself, about the response, and it surely is not a very good advertisement.

Golia, Angelo et al, ‘Constitutions and Contagion. European Constitutional Systems and the COVID-19 Pandemic’ (Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No 2020–42, 9 November 2020)
Abstract: The COVID-19 pandemic has posed an unprecedented governance challenge, with governments resorting to very different (legal) strategies to respond to the health emergency. A rich literature is already dedicated to measures adopted in individual States. This article adds an original comparative contribution to that literature by exploring the influence of specific constitutional features on the legal response to the pandemic and how, in turn, these responses have the potential to reconfigure the institutional frameworks in place. Our analysis shows that both constitutional contexts and legal traditions significantly matter in pandemic times, in particular when it comes to the rule of law credentials of measures adopted.We focus our study on measures taken during first six months of the pandemic (the ‘first wave’) in four European jurisdictions with significantly different constitutional settlements; namely France, Germany, Italy, and the United Kingdom. Following a contextual approach, the comparative analysis concentrates on four macro-issues: 1) the legal bases of adopted measures; 2) the horizontal allocation of power; 3) the vertical allocation of power; and 4) the role of the judiciary, especially in terms of fundamental rights protection. Across all four analytical categories, constitutional and institutional factors – such as the respective forms of government, vertical power conflicts, presence of pre-existing emergency schemes or legal doctrines, and the structure of the judicial systems – significantly impacted the (legal) path taken in the four jurisdictions under scrutiny and, importantly, reinforced pre-existing patterns of institutional shifts or social and political tensions. In particular, the role of two institutional features generally overlooked in the literature on the matter emerged: the concrete functioning of the vertical allocation of power and the reciprocal relationships between different jursdictions within judicial systems. By these means, this article aims to broaden and enrich the analytical toolkit of the literature concerning the relationship between states of emergency and specific forms of constitutional government and State.

Goyal, Gourish and Srinidhi Boora, ‘An Outlook on the Constitutionality of State Amendments on Labour Laws during Pandemic’ (SSRN Scholarly Paper ID 3824582, 8 January 2021)
Jurisdiction: India
Abstract: Ubi Jus Ibi Remedium - Where a right is vested, there is a remedy. A right from the beginning of work is a right till the end of work until suspended. Constitutional rights of the labourers can be described under Articles 14-16, 19 (1)(c), 21, 23, 38, 39 and 41-43, 51 and these rights directly concern the labourers. When COVID-19 Pandemic has hit the public health and economic crisis severely, Labourers are most affected due to this pandemic. The Nationwide Lockdown has hit the Companies, factories and Businesses directly and led to huge losses and affected labourers all over the country as they work on a daily basis. Labourers across the country have been battling with the social, political and economic challenges. Both the Central and State Governments were negligent in handling the labourers during the pandemic. Migrant crises have arisen and change of labour laws by states violates the constitutional rights of labourers. This Article will further define in detail about Violation of Constitutional Rights - Media and Reports - History Involved - Dilution of the Labour Laws by the State Government’s - Protection of Labours Rights - Issues Involved and the steps taken by the Supreme Court of India.

Graver, Hans Petter, ‘COVID-19 Regulation in Norway and State of Exception’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 167-173
Extract from Introduction: Norwegian Prime Minister Erna Solberg held a press conference on March 12, 2020. Here she announced, “the strongest and most comprehensive measures we have had in Norway in peacetime”.1 This, and subsequent measures to deal with the pandemic, challenged the basic constitutional rules of Norway on the state’s exercise of authority in several ways. The decision to shut down the country on March 12, 2020 was formally taken by the Norwegian Directorate of Health and overlooked the Constitution’s requirement that it is the cabinet that must make such decisions. The rules of the Disease Prevention Act (1995) were subsequently stretched to the extreme, both by state and local authorities. A Corona Act was prepared in secrecy. The bill proposed a transfer of authority to the government, which at best was at the very edge of what the Constitution allows, with scant provision for parliamentary and judicial control. Use by the authorities of both legal regulation and recommendations and advice, partly in regulatory form, for example on social gatherings and social distancing, created uncertainty about the state of the law.

Greene, Alan, ‘Closing Places of Worship and COVID-19: Towards a Culture of Justification?’ (2021) 25(3) Edinburgh Law Review 393–400
Introduction: In Reverend Dr William JU Philip and others for Judicial Review of the closure of places of worship in Scotland (Philip), Lord Braid in the Court of Session upheld a challenge by the leaders of several Christian denominations to the Scottish Government’s COVID-19 regulations that required the closure of all churches for congregational worship and private prayer. The closures were in response to increasing COVID-19 cases and the particular risk posed by the new B117 variant which emerged in late 2020. The petitioners raised two distinct issues: firstly, that the respondents lacked any constitutional power to restrict the right to worship in Scotland; and secondly, that even if it did have that power, the closure was nevertheless an unjustified infringement of their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (‘ECHR’) and to associate with others under Article 11 ECHR. As to the first question regarding the constitutionality of the measures, the applicants highlighted the separation between church and state as affirmed in the Acts of Union and Article IV of the Declaratory Articles appended to the Church of Scotland Act 1921. This was dismissed by the court, noting that if the state’s civil power could allow for a more draconian interference with worship such as the imposition of a curfew, then logically, a less draconian interference must also be permissible. The principal question for the court therefore was not whether to draw a clear demarcating line between church and state but rather a question of proportionality as to where the line must be drawn. Here, the court assessed the proportionality of the measures’ impact on the petitioners’ right to manifest their religious beliefs under Article 9 read in conjunction with their right to associate with others under Article 11 ECHR. The court found that these measures were a disproportionate interference with the right to freedom of religion under Article 9 ECHR as the Government failed to show that no less intrusive means other than the closure of places of worship were available to address the legitimate aim of reducing the risk of the spread of COVID-19 by a significant extent. On its face, this looks like a victory for human rights enforced by a muscular judiciary scrutinising closely the justifications proffered by the political branches of government; yet overall, the judgment is unsettling as to the conception of human rights and the rule of law being protected.

Guruparan, Kumaravadivel, ‘The Sri Lankan Experience with COVID-19: Strengthening Rule by Executive’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 115-120
Extract from Introduction: Sri Lanka’s constitutional governance in the post-war context was already taking an authoritarian turn when COVID 19 stuck in February 2020. The country had just elected its war-time Defence Secretary, Gotabaya Rajapaksa, a former army soldier as its President in November 2019. President Rajapaksa came into power promising to repeal reforms enacted in 2015 that took away some powers from the disproportionately powerful Executive Presidency and to make the Presidency strong again. The Government that came into power in 2015 promised to abolish the Executive Presidency but settled for a reformed Presidency unable and unwilling to muster support for a wholesome reform effort. President Rajapaksa has very conveniently instrumentalised the COVID19 pandemic to justify and further expand the powers of the Executive at the expense of the other two forms of Government. This short article will focus on three aspects of how COVID19 has impacted on matters relating to constitutional governance.

Hering, Laura, ‘COVID-19 and Constitutional Law: The Case of Germany’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 149-156
Extract from Introduction: Four main constitutional issues emerged during the first weeks of the pandemic: the Federalist system, the functioning of parliament under epidemic circumstances, the adequacy of the adopted measures’ legal basis, and their proportionality. Besides these specific constitutional issues, which will be discussed below, the first weeks of the pandemic also revealed much about German constitutional culture as a whole. This phase demonstrated that German society has great respect for constitutional law, using it as a medium of reflection and a means of solving societal problems. The public debate regarding the Covid-19 measures was conducted in a highly legalistic manner and employed the categories of constitutional law, which is not a matter of course. For the most part, these debates were carried out in the major daily newspapers as well as in online platforms such as the “Verfassungsblog”.2 Nevertheless, this mode of reflection was not formalistic but extremely considered and responsive, impacting the choice of concrete measures. It allowed politicians to develop solutions that they would not have been able to reach without this reflection process. Consequently, the crisis has also revealed the degree to which constitutional law guides political processes in Germany. This close interaction with German constitutional law has contributed significantly to the successful management of the first weeks of the pandemic in Germany.

Hickman, Tom, ‘Abracadabra Law-Making and Accountability to Parliament for the Coronavirus Regulations’ (SSRN Scholarly Paper ID 3732097, 17 November 2020)
Jurisdiction: UK
Abstract: Since 26 March 2020 the day-to-day life of every person in the country has been regulated and restricted to an exceptionally high degree by criminal laws made by regulations that have intruded deeply into the heart of individual liberty, regulating the purposes for which people can leave their homes, their ability to socialise and meet family members and their ability to work. The regulations have been made under the Public Health (Control of Disease) Act 1984. Disquiet about the development of a modern form of government by proclamation gradually built-up in Parliament over the summer of 2020. This paper examines this issue. It identifies the two functions of Parliament in relation to delegated legislation as (a) accountability and (b) transparency. It concludes that in the period 26 March 2020 to 12 October 2020 Parliament was unable to perform these functions adequately. Regulations were produced at the last minute, shortly before they came into effect, and parliamentary scrutiny and debate of the measures, if it occurred at all, was belated, restricted and stale. It is suggested that far from being merely a product of an exceptional period, the experience highlights structural weaknesses in the regime for scrutiny of delegated legislation which need to be urgently addressed.

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 Dáil following the general election, and no other candidate for that office is elected on that day? What is the scope of powers afforded to a caretaker Taoiseach and his Ministers? Is the Seanad validly constituted if a new Taoiseach has not nominated eleven members? If not, can the Oireachtas continue to pass legislation over which the Seanad has a more limited role? Many of these questions assumed new relevance in the context of the actions taken by the acting Government during the Covid-19 pandemic.

Hostovsky Brandes, Tamar, ‘Constitutionalism and Social Solidarity: A Theoretical and Comparative AnalysisBuffalo 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-à-vis criminal liability of migrant worker under Indian Penal Code, 1860. This article is dealing with the international and national commitment of Government towards Migrant worker’s Rights and criminality of actions of migrant workers in breaking the Governmental orders to restrict the spread of deadly disease like COVID-19. The purpose of the article is to find out whether exodus or reverse migration is because of the failure of the government machinery in securing migrant workers’ rights or failure of migrant workers in observance of Governmental orders. To achieve this purpose, the author has analyzed three factors - firstly, India’s commitment towards fundamental International principles on migrant worker’s rights; secondly, interpretation of principles protecting rights of worker guaranteed under the Constitution of India and statute on migrant worker’s rights in India and thirdly violation of lockdown rules by the migrant workers with reference to Sections 269, 270, 271 of Indian Penal Code 1860. The research methodology used is descriptive, doctrinal and based on secondary resources like United Nation`s instruments entrusting responsibility on Governments of State Parties, Constitution of India,1950, The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, Newspaper reports, WHO reports and the Indian Penal Code,1860.

Jonung, Lars, ‘Sweden’s Constitution Decides Its COVID-19 Exceptionalism’ (SSRN Scholarly Paper ID 3796848, 10 June 2020)
Abstract: The Swedish policy response to covid-19 stands out as exceptional in international comparisons. The approach adopted is fundamentally determined by the Swedish constitution. Three articles of the constitution are central for this explanation. The first one guarantees the freedom of movement for Swedish citizens, thus ruling out the use of nation-wide lockdowns as an instrument in peacetime. The second one establishes independence for public agencies, allowing them to design and administer the policy response to the pandemic with a minimal interference by the central government. The third one reserves exceptional powers to local government, making a central response to the pandemic difficult to implement. In addition, the Swedish approach is fostered by strong trust by the public in the government, in public authorities and in the workings of the political system.

Kabira, Nkatha and Robert Kibugi, ‘Saving the Soul of an African Constitution: Learning from Kenya’s Experience with Constitutionalism during COVID-19’ (2020) 20(2) African Human Rights Law Journal 436–461
Abstract: On 27 August 2010 Kenyans celebrated the promulgation of a new Constitution. This Constitution aimed at fundamentally transforming the governance framework through far-reaching institutional, administrative, legal and policy reforms. Ten years later this Constitution was put to the test when the government of Kenya reported the first COVID-19 case. In this article the authors argue that even though Kenya put in place a transformative Constitution intended to consolidate the rule of law, democracy, human rights and governance, the government’s response to the COVID-19 pandemic questioned the transformative character of the Constitution and exposed inherent contradictions embodied in the Constitution. The article demonstrates that the Constitution is a double-edged sword, a site of tension and contradiction, on the one hand, and a site of hope and transformation, on the other.

Kabumba, Busingye, ‘The 1995 Constitution and COVID-19’ [2020] 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.

Khan, Md Saif Ali, ‘Fundamental Right to Oxygen and Life: A Judicial Obligation in the Second Wave of Covid 19 Pandemic’ (2021) 24 Supremo Amicus Journal (unpaginated)
Abstract: Right to life is the most important right under any legal system of the world and Indian constitution guaranteed right to life under article 21 of the constitution of India which guarantee right to life and personal liberty. Indian judiciary while interpretation of article 21 provides number of rights which make life possible or complete court further provides a concept of dignified life and interpreted the article 21 and gives wider interpretation which includes all the essential requirement which makes life possible. However, Second wave of covid 19 hits India and large number of loss of life. and number of covid patient died due to want of essential medical aid including life savings medicine, Beds in Hospital. non supply of oxygen leads to number of deaths all over the country as well as national capital, Hence, it is the constitutional court take sou motu cognizance of non-supply of oxygen and emergency medical aid and direct the centre and state for the same. this paper critically analysis the judicial creativity in order to wider the scope of right to life and further paper also deal the judicial activism in second wave of covid 19.

Kharel, Tara, ‘Local Governments in Managing COVID-19 Pandemic in Nepal: Beyond the Constitutional and Legal Limit’ (2021) 2(1) International Journal of Natural and Human Sciences 34–40
Abstract: This paper aims to analyze the constitutional and legal provision of public health in Nepal. Furthermore, this paper tries to analyze the role of local governments on COVID-19 management and tries to compare its constitutional jurisdiction elaborating the importance of the local governments in federal structure. This study tried to analyze the health-related provisions on the Constitution of Nepal, Infectious Disease Act, 1964 and the Public Health Service Act, 2018 comparing it to the practice by the local governments while fighting with the COVID-19 pandemic. The desk review research methods used in the study included the review of the literatures from different sources based on secondary sources of data collection (including media reporting) only. Firstly, this paper identifies the need of drafting a new act to control the epidemic situation. Secondly, this paper identifies the fact that the local governments are not confined within the constitutional jurisdiction only during corona virus crisis management, hence, redefining the power and authority under schedule 8 of the Constitution of Nepal is also important. Thirdly, this paper identifies that the effective role of local governments to fight COVID-19 pandemic illustrating local governments as the heart of the federalism.

Klinge, Sune et al, ‘COVID-19 and Constitutional Law in Denmark’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 131-139
Introduction: Unlike other Western European constitutions, the Danish constitution does not have a general constitutional provision on the state of emergency and only one special Article on state of emergency namely Art. 23, which allows the government to issue provisional Acts if it is not possible to convene Parliament. Such provisional Acts may not violate the Constitution and they must be submitted for Parliament’s approval or rejection as soon as Parliament are able to convene again. Exceptional (and unconstitutional) measures can be enacted without formally proclaiming a state of emergency under the concept of constitutional necessity. Constitutional necessity is recognized in constitutional scholarship and in case law e.g. from the legal aftermath after the German occupation of Denmark under World War II. While the Danish authorities reacted promptly after the first Danish COVID-19 case with restrictions on fundamental rights, in particular the freedom of assembly, the constitutional civil and political rights were considered sufficiently flexible to accommodate for the measures taken in response to the COVID-19 crisis. This may be why the Danish government apparently never considered to invoke constitutional necessity.

Knauer, Nancy J, ‘The COVID-19 Pandemic and Federalism’ (SSRN Scholarly Paper ID 3599239, 9 May 2020)
Abstract: The COVID-19 pandemic is an unprecedented public health crisis that has prompted an unprecedented response. Drastic and previously unthinkable steps have been taken to ‘flatten the curve’ and avoid overwhelming our health systems. In the absence of a coordinated national response to the crisis, the pandemic has underscored both the promise and limits of the Tenth Amendment. As state and local actors have scrambled to adopt policies to protect their residents and minimize the loss of life, the result has been a patchwork of advisories and orders that reveal stark regional disparities and some confounding inconsistencies. The reliance on state and local actors has produced many innovative programs and novel attempts at regional coordination, but it has also led to direct competition between and among jurisdictions as they vie for desperately needed resources. Moreover, it has elevated the friction between the federal government and state and local leaders to alarming levels. This essay examines the role of federalism in the early days of the COVID-19 pandemic in the United States. It explores the dangers that arise when disaster relief is politicized and proposes failsafe mechanisms to prevent key institutions from abdicating their responsibility to the American people. The first section reviews our current preparedness and response policy, which is grounded on a strong vision of cooperative federalism where a response is federally supported, state run, and locally executed. The second section uses the lens of comparative institutional analysis to evaluate the shortcomings of this approach, specifically in the context of pandemic planning. By addressing three core institutional considerations – competency, political responsiveness, and stability – it maps out potential gaps that have the potential to compromise response efforts. The third section discusses failsafe provisions to ensure that disaster relief does not fall victim to partisan wrangling. A brief conclusion notes that the reliance on state and local actors in this pandemic has been a pragmatic, but also imperfect, institutional choice because state and local level initiatives are by their nature partial and porous. They are necessarily hampered by the lack of uniformity and certainty that could come from a federal pandemic response and, unfortunately, they are ill-suited to stop a novel virus in search of its next host.

Knight, Dean R, ‘New Zealand, COVID-19 and the Constitution: an Effective Lockdown and Muted Rule of Law Concerns’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 233-241
Extract from Introduction: While the health response was pretty effective, New Zealand did not manage to dodge constitutional issues in its emergency response. Perennial issues arose: rule-of-law concerns, restrictions on rights, institutional decision-making challenges, enforcement discretion and so forth. However, the depth of concern about these issues was much more muted than in other countries – especially as New Zealand quickly emerged from significant and ongoing restriction. And parliamentary and judicial processes, while attenuated for a period, continued to provide oversight over the government’s response to the virus.

Koltay, András, ‘The Punishment of Scaremongering in the Hungarian Legal System. Freedom of Speech in the Times of the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3735867, 23 November 2020)
Abstract: Scaremongering is restrained by criminal law as a limitation to freedom of speech in Hungarian law. Without relevant case law, free speech commentators had rarely discussed the provision until the government’s actions taken in order to step up against the COVID-19 pandemic, and the following amendment of the Criminal Code in Spring 2020 brought the subject back into the field of public debates. The article analyses the constitutional issues related to the limitation of scaremongering, and takes the two constitutional court decisions in this subject as guideline.

Kritzman-Amir, Tally Amir, ‘Flattening the Curve, Constitutional Crisis and Immigrants’ Rights Protections: The Case of Israel’ (2020) 2 Frontiers in Political Science Article 592150
Abstract: Despite being a small and relatively secluded country, managing the COVID-19 pandemic has so far been quite a challenge for Israel. This contribution seeks to explain how Israel had managed migration and the pandemic amidst a constitutional crisis between February and July 2020.

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.

Kustra Rogatka, Aleksandra, ‘Freedom of Assembly and the Right to Protest in Times of COVID19: The Case of Poland’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 81

Lachmayer, Konrad, ‘Judging, Fast and Slow: Constitutional Adjudication in Times of COVID-19’ in Saša Zagorc and Samo Bardutzky (eds), Constitution at the Brink of a State of Emergency: Celebrating Thirty Years of the Constitution of Republic of Slovenia (1991-2021) (University of Ljubljana, Faculty of Law, forthcoming 2022)
Abstract: During an emergency, time is of the essence. While the executive branch may make quick decisions, courts in general, and supreme and constitutional courts in particular, seem to act relatively slowly. Nevertheless, the function of constitutional review becomes even more important when emergency measures introduced by the executive infringe fundamental rights, violate the rule of law or undermine democracy. The following paper analyses the potential, possibilities and perspectives of fast-track constitutional adjudication and contrasts it with slower forms of judicial review. Recent developments during the COVID-19 crisis serve as an example.

Lakshmi, Ritansha, ‘Constitutional Framework During COVID-19’ (SSRN Scholarly Paper ID 3764869, 12 November 2020)
Jurisdiction: India
Abstract: This Paper dealt with the novel coronavirus and its stages of transmission. How this become Public Health Emergency and How the Indian government combat this deadly virus with the help of lockdown. And the legality of lockdown. This paper also dealt with the constitutional framework such as Tracing patients: Surveillance vs Right to Privacy and Quarantine vs Right to freedom of movement.

Landa, César, ‘Fundamental Rights During the Coronavirus Pandemic in Peru’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 63-68
Extract from Introduction: Following an exponential increase in the number of patients with symptoms of COVID-19, the government issued Supreme Decree (Decreto Supremo) 044-2020-PCM on March 15, declaring a nationwide fifteen-day state of emergency due to the public health disaster. This decree suspended the right to personal freedom, freedom of movement, inviolability of the home, and the right to assembly, in accordance with Section 137- 1 of the Constitution. The decree has since been extended multiple times, with the current, fifth extension lasting through June 30…. Ever since, daily life in the country has been radically transformed: the exercise of our rights—not only personal freedoms, but social rights, too— has been limited and restricted by the authorities’ decisions, as well as the actions of the police and military, as we will see below.

Larkin, Paul J, ‘Federal Constitutional Challenges to the OSHA COVID-19 Vaccination Mandate’ (SSRN Scholarly Paper ID 3962522, 12 November 2021)
Abstract: Despite the development of vaccines against once-widespread, potentially fatal diseases such as smallpox and polio, the United States has never had a general federal vaccination mandate. Yet in September 2021, President Joe Biden directed the Occupational Safety and Health Administration (OSHA) to promulgate a mandatory vaccination requirement—known as an ‘emergency temporary standard’—under the Occupational Safety and Health Act of 1970 If OSHA has the authority to adopt such a rule (which is doubtful), the federal courts will soon decide what, if any constitutional limitations exist on the federal government’s vaccination authority. The most likely challenges will rest on one (or more) of four provisions: the Article I Commerce Clause, the Fifth Amendment Due Process Clause, the First Amendment Free Exercise Clause, and the Fourth Amendment. Despite a host of Supreme Court decisions filling out the Commerce, Due Process, and Free Exercise Clauses, as well as the Fourth Amendment, the Court’s 1905 decision Jacobson casts a long shadow over contemporary constitutional law. Unless and until the Court overrules Jacobson, no constitutional challenge to an otherwise lawful mandatory vaccination requirement is likely to succeed, other than possibly the Commerce Clause. The bottom line is this: It is unlikely that the Constitution would stand in a state’s or Congress’s way were it to adopt a mandatory vaccination requirement.

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.

Li, Victor WT and Trevor TW Wan, ‘COVID-19 Control and Preventive Measures: A Medico-Legal Analysis’ (2021) 27 Hong Kong Medical Journal (advance article, published 11 June 2021)
Abstract: Extract from Introduction: The coronavirus disease 2019 (COVID-19) pandemic has compelled governments around the world to deploy preventive and control measures of unprecedented stringency and scale. In Hong Kong, the Chief Executive-in-Council has invoked extensive powers under Section 8 of the Prevention and Control of Disease Ordinance (Cap 599) and adopted a series of subsidiary regulations in an attempt to control the spread of COVID-19. Such extensive power is subject to judicial scrutiny using a four-stage proportionality inquiry tailored for evaluating whether rights and freedomsderogating laws and measures are consistent with the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383). In the context of a public health emergency, it has to be shown that such laws and measures pursue legitimate aims that are required by the ‘exigencies of the public health situation’ and are rationally connected to them. They should also be no more than reasonably necessary to achieve these aims without imposing an unacceptably harsh burden upon the individual. Drawing upon the framework of the proportionality inquiry, we seek to explore the medical and constitutional justifications underlying three of such regulations: compulsory use of face masks, group gatherings ban, and compulsory testing for high-risk groups. Furthermore, we will comment on the potential mandatory use of the ‘LeaveHomeSafe’ application in public facilities for contact tracing purposes, as well as compulsory vaccination for healthcare workers.

Mengie, Legesse Tigabu, ‘COVID-19 and Elections in Ethiopia: Exploring Constitutional Interpretation by the House of the Federation as an Exit Strategy’ (2021) 25(1) Law, Democracy & Development 64–89
Abstract: Over 60 countries have postponed their elections due to COVID-19. As an election is the primary means by which government power is assumed in constitutional democracies, the postponement of elections has posed this question: what exit mechanisms do constitutional systems have to address a power vacuum caused by unforeseen circumstances like COVID-19? In other words, how can a legitimate government that adheres to the rule of law, a constitution more specifically, be ensured when elections cannot be held? While some countries held elections amid COVID-19 with precautions, others postponed them. Ethiopia is one of those countries which have postponed their elections. The postponement of Ethiopia’s general elections sparked a debate about how the power vacuum caused by the pandemic should be addressed. After deliberating on the matter, Ethiopia’s lower house approved constitutional interpretation by the upper house as the best solution. The upper house, through interpreting the Constitution, extended the term limits of the federal and regional governments. This article intends to address the question posed above by examining constitutional interpretation by the upper house as an exit strategy. It explores constitutional interpretation by this house and its implications for the rule of law and legitimacy of government. I conclude that comprehensive understanding of the Constitution offers an answer to the conundrum. The upper house has adopted a holistic interpretation approach and that is commendable. However, the ruling that allows the government to stay in power for an unknown time and the partiality inherent in the house compromise the merit of its interpretation.

Mudau, Paul, ‘Has the COVID-19 Pandemic Exposed the Fragility of South Africa’s Constitutional Democracy?’ (SSRN Scholarly Paper No ID 3821643, 23 July 2020)
Abstract: On 15 March 2020, and while owing to medical and scientific advice and with the aim of controlling and managing the invasion and the spread of the invisible enemy, the Coronavirus (COVID-19) pandemic, the President of South Africa Cyril Ramaphosa introduced extraordinary legal measures, placed the country under a nationwide lockdown and sealed its international borders. The lockdown took effect from 27 March 2020. The President simultaneously declared a national state of disaster in terms of section 27 of the Disaster Management Act (52 of 2002). Apart from the 1996 Constitution, the Disaster Management Act is applicable during lockdown together with other relevant statutes such as the Criminal Procedure Act 51 of 1977 and Prevention of Combating and Torture of Persons Act 13 of 2013. It is worrisome that with a sheer declaration of a national state of disaster under the Disaster Management Act, the National Coronavirus Command Council mysteriously emerged as a super-commanding body that governs the affairs of a liberal constitutional state with unprecedented concentration of powers, devoid of transparent legal mechanisms that could sanitise its existence and powers. Additionally, while enforcing lockdown Regulations and Directives, the security forces have been reigning on terror and violating human rights. A follow-up concern emanates from the imagination of what could then transpire in future circumstances where a state of emergency is declared in terms of section 37 of the 1996 Constitution. This is because the State of Emergency Act curtails people’s human rights further, as opposed to the Disaster Management Act. Accordingly, it sounds reasonable to ponder if the COVID-19 pandemic might have exposed the fragility of South Africa’s constitutional democracy.

Malecki, Mikolaj and Marek Slawinski, ‘The Repressive Nature of Selected COVID-19 Regulations in the Polish Legal System’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: The subject of this paper is the question of the constitutionality of the sanctions for violation of restrictions and prohibitions introduced during the outbreak of the SARS-CoV-2 coronavirus epidemic in Poland. The starting point for our considerations is the distinction made by the Polish Constitution between extraordinary and ordinary measures in dealing with dangers. Extraordinary measures (which include, inter alia, the state of a natural disaster) allow for more severe limitations of constitutional rights and freedoms than is permitted by the ordinary ones. The state of epidemic introduced in Poland on March 31, 2020, is an ordinary measure. However, the comparison between sanctions used during this state, and sanctions that are possible to be imposed during the extraordinary state of natural disaster shows that the former are more severe than the latter. This observation leads to the conclusion that the sanctions of the state of epidemic are in breach of one of the basic rules that govern the limitation of constitutional rights and freedoms in the Polish Constitution, that is the proportionality rule.

Manga Fombad, Charles and Gatsi Tazo, ‘Cameroon’s Response to the COVID-19 Pandemic: Combating a Deadly Pandemic Within a Weak Rule of Law Framework’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 3-12
Extract from Introduction: Prior to 1990, emergency powers in Cameroon had largely been used to perpetuate an authoritarian system noted for its regular violations of human rights. A new framework for regulating declarations of states of emergency was introduced in the revised Cameroonian Constitution of 1996. The responses to the COVID-19 pandemic gives us today an opportunity to assess whether these reforms succeeded. This raises two main issues. First, the effectiveness of legal framework for exercising emergency powers and secondly the effectiveness of their implementation. In examining Cameroon’s response to the pandemic, the next section of this chapter will provide a general overview of the constitutional and regulatory framework for dealing with such emergencies. This is followed by section 3, which examines some of the main measures put in place by the Government to control the spread of the virus. Section 4 takes a critical look at the Government’s response. In concluding, it is contended that for a deadly pandemic like this, the weak measures put in place by the Cameroonian government have been compounded by the generally weak framework for constitutionalism and respect for the rule of law.

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.

Mariner, Wendy K, ‘Shifting Standards of Judicial Review During the Coronavirus Pandemic in the United States’ (2021) 22(6) German Law Journal 1039–1059
Abstract: Emergencies are exceptions to the rule. Laws that respond to emergencies can create exceptions to rules that protect human rights. In long lasting emergencies, these exceptions can become the rule, diluting human rights and eroding the rule of law. In the United States, the COVID-19 pandemic prompted states to change rules governing commercial and personal activities to prevent the spread of the coronavirus. Many governors’ executive orders were challenged as violations of the constitutionally protected rights of those affected. Judges are deciding whether emergencies can justify more restrictions than would be permitted in normal circumstances and whether some rights deserve more protection than others, even in an emergency. This article analyzes ongoing litigation involving emergency restrictions on religious freedom and access to reproductive health services. These cases suggest that some judges are altering the standards of judicial review of the state’s emergency powers in ways that could permanently strengthen some rights and dilute others in normal circumstances.

Massa, Michele, ‘A General and Constitutional Outline of Italy’s Efforts against COVID-19: With the Best Face On’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: During the COVID-19 pandemic, in Italy no aspect of individual and social life remained untouched, nor did the legal system. Several constitutional problems arose, concerning all the principles which form the core of the republican form of State. After an overview of the COVID-19 outbreak and the main legal tools employed to face it in Italy, some of these problems are surveyed. In brief, at the peak of the emergency, democracy, rights of the human person and regional and local autonomy have been put to the test, but not breached. However, in the aftermath, during the recovery phase, the solidarity and internationalism principles face particularly difficult challenges, in which the destiny of Italy and the European Union are intertwined.

Massaro, Toni M, Justin R Pidot and Marvin 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.

Meierhenrich, Jens, ‘Constitutional Dictatorships, from Colonialism to Covid-19’ (2021) 17 Annual Review of Law and Social Science 411–439
Abstract: In this article, I use the concept of constitutional dictatorship as a heuristic, as a way of thinking more explicitly about constitutional violence than is customary in comparative constitutional law. Constitutional dictatorship is an epic concept. It is capable of illuminating—and retelling—epic histories of constitutional law, of alerting us to commonalities in constitutional practices of domination—and thus of violence—that would otherwise remain shrouded in legal orientalism. The analysis aspires to make constitutional law strange again. To this end, I trace nomoi and narratives of constitutional dictatorship from colonialism to the coronavirus pandemic. Arguing against emergency scripts, I relate the idea of ‘emergency’ to the everyday and both to coloniality. Mine is a rudimentary conceptual history—a Begriffsgeschichte—of constitutional dictatorship. I think of the empirical vignettes about crisis government in the colony/postcolony on which my comparative historical analysis is based as prolegomena to a critical theory of constitutional dictatorship.

Mengie, Legesse, ‘COVID-19 and Elections in Ethiopia: Exploring Constitutional Interpretation by the House of the Federation as An Exit Strategy’ (2021) 25(1) Law, Democracy & Development 64–89
Abstract: Over 60 countries have postponed their elections due to COVID-19. As an election is the primary means by which government power is assumed in constitutional democracies, the postponement of elections has posed this question: what exit mechanisms do constitutional systems have to address a power vacuum caused by unforeseen circumstances like COVID-19? In other words, how can a legitimate government that adheres to the rule of law, a constitution more specifically, be ensured when elections cannot be held? While some countries held elections amid COVID-19 with precautions, others postponed them. Ethiopia is one of those countries which have postponed their elections. The postponement of Ethiopia’s general elections sparked a debate about how the power vacuum caused by the pandemic should be addressed. After deliberating on the matter, Ethiopia’s lower house approved constitutional interpretation by the upper house as the best solution. The upper house, through interpreting the Constitution, extended the term limits of the federal and regional governments. This article intends to address the question posed above by examining constitutional interpretation by the upper house as an exit strategy. It explores constitutional interpretation by this house and its implications for the rule of law and legitimacy of government. I conclude that comprehensive understanding of the Constitution offers an answer to the conundrum. The upper house has adopted a holistic interpretation approach and that is commendable. However, the ruling that allows the government to stay in power for an unknown time and the partiality inherent in the house compromise the merit of its interpretation.

Merris, Amos, ‘COVID-19 and Constitutional Law in the United Kingdom’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 199-205
Introduction: The COVID-19 Pandemic has had, and continues to have, a devastating impact in the United Kingdom (UK). At the time of writing, the Government’s figure for the total number of COVID-19 associated UK deaths (where there has been a positive test result) is 44,220 although the figure provided by the Office of National Statistics (where COVID-19 is mentioned on the death certificate) for just England and Wales is 49,371. A number of pressing constitutional and human rights questions have arisen and new problems continue to emerge. The purpose of this note is to provide a brief overview of the most important issues to date.

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.

Mok, Kenny and Eric A Posner, ‘Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic’ (SSRN Scholarly Paper ID 3897441, 1 August 2021)
Abstract: We examine federal judicial cases involving non-religious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic to June 29, 2021. Consistent with the tradition of judicial deference toward the state during emergencies, we find a high level of success for governments. However, governments did lose in 13.7% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers when they brought claims based on gun rights and property rights, while Democratic-appointed judges were more likely to rule in favor of challengers when they brought claims based on abortion rights. We conclude by arguing that courts should exercise greater deference to public health orders issued during emergencies.

Moonen, Toon, ‘Questions of Constitutional Law in the Belgian Fight against COVID-19’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 123-130
Extract from Introduction: In this overview, the focus is on three constitutionally relevant concerns: (II) confinement measures and their impact on fundamental rights; (III) the granting of ‘special powers’ to the executive and its impact on democratic control; and (IV) the distribution of powers between the federal state and the federated entities. I conclude that these seem to correspond to concerns raised elsewhere, even if some features of the Belgian architecture may have complicated matters more than necessary (V).

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.

Oliva, Javier Garcia and Helen Hall, ‘Public Gatherings during the Covid-19 Crisis: Responses from Public and Private Law in England’ in Andrades Navarro Agustin (ed), Derecho y Pandemia Desde Una Perspectiva Global / Law and Pandemic From a Global Perspective (Thomson Reuters, 2021) 169–192
Abstract: This chapter discusses the responses from public authorities in the United Kingdom to public gatherings during the Covid-19 crisis in England. The authors focus on both Public (particularly the restrictions on freedom of association) and Private Law issues, and approach these legal challenges from the perspective of the English Constitutional Culture.

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.

Parajuli, Karuna, ‘Unprepared and Unlawful: Nepal’s Continued Failure to Realize the Right to Health during the COVID-19 Pandemic’ (International Commission of Jurists, Briefing Paper, September 2021)
Extract from Executive Summary: The COVID-19 pandemic has brought immense challenges to public authorities in nearly every country in the world, and Nepal is no exception. The serious strain on scarce public resources in a difficult economic and developmental environment, gross failures of wealthier States to fulfil their obligations of international cooperation, and the incoherence of international responses must be taken into account in any assessment of Nepal’s performance in discharging its human rights obligations. This paper should therefore be understood and read in this broader context, some of which is detailed in ICJ’s September 2020 report Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses. 1 Within this context, Nepal, like other States, has and international legal obligation to respect, protect and fulfill the right to health, obligation that is reflected and reinforced in its Constitution. This briefing paper assesses Nepal’s compliance with these and other applications human rights obligations in its responses to the COVID-19 pandemic from early 2020 through August 2021.

Parmet, Wendy E, ‘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, Sébastien, ‘Reinventing the Wheel … and Rolling over Fundamental Freedoms? The Covid-19 Epidemic in France and the ‘State of Health Emergency’ (2020) 8(3) The Theory and Practice of Legislation 293–309
Abstract: In order to cope with the Covid-19 crisis, the French Parliament has adopted an Act creating a new emergency powers regime, dubbed state of health emergency, which is currently in force. The present paper aims at analysing and providing a critical appraisal of this regime. In particular, it will be demonstrated that this regime is rather imbalanced in that it confers important powers to the executive with limited checks and balances. It will also be contended that the creation of a new regime was not necessary, and that it would have been wiser to amend the existing state of emergency.

Rainer, Arnold, ‘Pandemia and Constitutional Law: Some Reflections on the German Experience’ (2020) 22(1) Studii Juridice şi Administrative / Legal and Administrative Studies 33–52
Abstract: The fight against the Covid 19 pandemia in Germany can be regarded, until now, as rather successful. Serious, large-scale restrictions of fundamental rights have been temporarily imposed on the population. A quick and efficient response to the infection risk was indispensable; the institutional and organizational measures taken for this purpose have stimulated the discussion how far the rule of law exigencies have been observed.

Raposo, Vera Lucia, ‘Portugal: Fighting COVID-19 in the Edge of Europe’ [2020] (1S) BioLaw Journal / Revista di BioDiritto 723–730
Extracts from Introduction: Portugal has been praised, amongst its European pairs and outside Europe, for its answer to the COVID-19 pandemic. The key – or one of the keys – for the Portuguese (moderate) success was the timely declaration of the state of emergency, done in a moment in which the country was not yet in a real public health crisis.… Basically, a large set of acts have been issued, not all of them clear enough, making it difficult to assess the regime under the State of Emergency in Portugal. The decision to impose the state of emergency was very debated among Portuguese constitutionalists. Some argued that the Constitution does not provide legal grounds to impose compulsory isolation and compulsory quarantine, therefore, such measures could only be imposed under the state of emergency…The necessity to impose the state of emergency in Portugal had a very clear purpose: to provide legal grounds for the suspension of some individual rights and liberties, as required to deal with the pandemic.

Rattey, Justin D, ‘Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana’ [2020] Penn State Law Review (forthcoming)
Abstract: Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s ‘construction zone.’ The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.

Reinke, Benedikt, 'Introduction' in Günter Frankenberg et al, ‘The End of Globalization?: Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy’ (TLI Think! Paper No 22/2020, 7 December 2020)
Extract: before we turn to the three papers at the core of this publication, and indeed to appreciate more fully the important contribution they make, I propose that we need to ask the democracy question with regard to the current pandemic: How is the pandemic handled by democratic governments and why does this matter? More specifically, how does it matter for an exploration of “resurging nationalism, authoritarian constitutionalism and the uncertain futures of democracy”? ... Like the articles of our three contributors, my introductory considerations thus engage with a pressing issue of legal governance and its relationship to, and impact upon, social, political and constitutional developments. More specifically, I will discuss a selection of current legal restrictions put in place in response to Covid-19 that may illustrate the very fine line between legitimate state authority in times of (natural) disaster and the danger of abusing emergency powers which constitutes a fundamental threat to any democratic system. This contested line, I will argue, is acutely relevant to this special issue’s core theme: where does democracy end and autocracy begin – and what lies in-between?
Note: This special issue arises from a Focus Seminar on ‘‘The End of Globalization? - Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy” held at the Transnational Law Institute of King’s College London in 2019. Inspired by the discussions at the Focus Seminar, it brings together legal scholars Günter Frankenberg, Jiří Přibáň and William Partlett, to address complex challenges to democracy, the rule of law and human rights.

Riberi, Pablo, ‘When the Center Lies Outside the Figure: Republic, Imbalance of Powers and Emergencies’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 33-40
Introduction: No normative system is as capable of controlling human behavior as Law. In this context, transboundary law has become a necessary, rational, and sensible feature for civilized life. Here and now, we are immersed in complex settings where Law is permeates and indeed attributes meaning to multiple relationships in civil societies. Law spreads to every corner of the world while vigilant States are overzealous and willing to regulate all aspects of human life. We live within Law-saturated societies.1 A fundamental question in constitutional theory, then, is whether there are actual limits to Law.2 In other words, does Law encompass everything? Can the rules of law foresee and regulate every extraordinary event?

Robertson, Christopher T and Michael Shammas, ‘The Jury Trial Reinvented’ (Boston University School of Law, Public Law Research Paper No 21-05, 1 March 2021)
Abstract: The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood. Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable, but spurred some courts to begin using technology to transcend time and place restrictions. These reforms inspire more profound changes. Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments, and facilitating secretive deliberations infected by implicit bias. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement; better fostering civic education and democratic deliberation; improving accuracy in sorting truth from falsehood; and enhancing efficiency in terms of both time and cost.

Robitaille, David, ‘COVID-19 in Canada: The Division of Powers over Quarantine and BordersNational 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(5) American University Law Review 1511–1576
Abstract: The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap. Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious-disease outbreaks. Part II explains how the ‘special needs’ exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a ‘special needs with bite’ standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.

Seamon, Richard H, ‘How the U.S. Constitution Connects with COVID-19’ (2021) 64(9) Advocate 20–23
Extract: In the following, I discuss the federal residential eviction moratorium. The moratorium arguably exceeds the federal government’s statutory and constitutional powers. I hope the discussion shows the continuing vitality and central relevance of the U.S. Constitution to the challenges that confront our country today.

Sepaha, Priya, ‘COVID-19 Lockdown as a National Emergency: A Constitutional and Legal Perspective’ (2021) 1(2) Law Colloquy Journal of Legal Studies (LCJLS) 1–13
Jurisdiction: India
Abstract: The COVID-19 pandemic has wreaked havoc across the world and one year into the pandemic. It is essential to look back into the ‘national emergency’ situation that prevailed during March, April and May in 2020. The pandemic came as a shock to the entire nation putting administration as the whole set up of the country into shambles, considering that India had never seen such a situation earlier since the birth of the constitution. The Government of India was in a fix to understand the situation that the country was in to remedy the situation and ensure that law and order are maintained. The lockdown was one means to control the spread of the disease, but what needs to be answered is the legal and constitutional justification of the same. Analysing the lockdown from a Constitutional standpoint, the relevant articles of the Constitution are Article 352 and Article 360, respectively. Article 352 speaks about the power of the President to declare an emergency when he is satisfied that the security of India on any part of its territory is threatened by war, external aggression or armed rebellion, and Article 360 provides for the declaration of a financial emergency when the President is satisfied that ‘the financial stability or credit of India or of any part of the territory thereof is threatened’. This paper provides a detailed constitutional perspective of the lockdown and the pandemic. The paper brings forth a right to health perspective and emphasises the need to incorporate the right to health as an absolute fundamental right in the Indian Constitution. This research study is purely qualitative, with a doctrinal methodology being adopted. A review of secondary material is of prime consideration in terms of obtaining inputs for addressing the research questions elucidated above.

Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) OPEN ACCESS
Summary: The purpose of this book is to trace a very broad map of the different constitutional issues that are being debated in different parts of the world in the context of the pandemic. In view of this, scholars of 26 countries were invited to submit a short commentary on which constitutional issues are of concern in their part of the world, in the context of the COVID-19 crisis. This “mapping” will hopefully be the basis for conducting deeper analysis in future research projects in the field of comparative constitutional law, in connection with crisis derived from pandemics.
Note: this book and its individual chapters are listed in the Constitutional Law section of this bibliography, and in other sections if relevant. The book’s contributions are in English and French. Following our practice of only including works in English, we have only listed the English contributions in other sections of the bibliography.
Contents :
Serowaniec, Maciej, ‘The (Extra)Ordinary State of COVID19 Pandemic in Poland’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021) 9
Abstract: In connection with the need to take measures aimed at preventing the spread of COVID-19 disease in Poland, legislators applied legal mechanisms available, which provide for the introduction, through secondary legislation, of a number of restrictions upon rights and freedoms. The purpose of this paper is to seek an answer to an important constitutional question, namely to determine whether the measures introduced by public authorities in Poland with the aim to prevent, counteract and combat COVID-19 were conformant with the constitutionally accepted standards or not? Were they based on due legal grounds? Were they necessary and proportional?

Severin, Adrian, ‘Protection of Religious Freedom in Romanian and International Law, with Special Reference to the Case Of The Romanian Orthodox Church’ (2020) 14 Conferința Internațională Educație și Creativitate pentru o Societate Bazată pe Cunoaștere - DREPT 10–21
Abstract: The establishment of the state of emergency, followed by the state of alert, in Romania, amid the Covid 19 pandemic, raised the issue of the relationship between the state and the church, as well as that of the legal regime of religious freedom in Romania. In this context, several key questions were asked. What is the distinction between right and its exercise, given that, at most, the exercise can be limited? Who establishes the content of the right to practice a religious cult? The church or the state? Is a law that requires the modification of religious beliefs, even if only in their outward expression, compatible with the principle of religious freedom? May church hierarchs be required to cooperate in enforcing such a law? What are the procedural and substantive conditions regarding the regulation of religious activity? May religious freedom be restricted in some way? If the direct limitation is not allowed, according to the Constitution, could indirect limitations be accepted? This study attempts to answer all of these questions. In essence, the answer is that the state has a wide margin of maneuver in establishing the framework for the manifestation of religious freedom, including the hygienic-sanitary measures imposed by the fight against a pandemic, but it has strict limits. In any case, religious freedom cannot be restricted in any way.

Shammas, Michael and Michael Pressman, ‘Advocacy through the Computer Screen: The Permissibility & Constitutionality of Jury Trial by Video Conference’ (SSRN Scholarly Paper ID 3664014, 30 July 2020)
Jurisdiction: USA
Abstract: The coronavirus pandemic has uprooted life as we know it. No institution is immune. As a result of the crisis, trials in every state (jury and bench, criminal and civil) have been continued until later dates. But must they be continued? Can they be constitutionally conducted over remote videoconferencing platforms like Zoom? And can they be conducted digitally even absent the consent of one (or both) parties? While due process concerns may render a digital jury trial unconstitutional in criminal cases, applying a balancing test to our current public health crisis weighs in favor of allowing videoconference jury trials in civil cases. In fact, the right to a civil jury trial by Zoom may be not only permissible but necessary in order to actualize the Seventh Amendment’s protections, especially if the Covid-19 pandemic continues longer than expected. If courts eventually allow digital jury trials, certain pitfalls—such as the possibility of someone recording the proceedings—must be clearly communicated to the parties in advance.

Shankar, Uday, ‘COVID-19 and the Court in India’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 99-105
Extract from Introduction: The chapter builds on the intervention made by the judiciary on the issues surfaced during the time of pandemic that affected the general public. It enquires into the response on the selected issues during the global pandemic. In conclusion, it brings out the significance of access to the judicial forum and the court’s promptness to intervene in issues of public importance to save the institutional credibility.

Shrivastava, Anujay and Abhijeet Shrivastava, ‘Judicial Appointments, Collegium System, and Unresolved Constitutional Enigmas in India: Proposing an “Emergency Collegium” and the “Automatic Elevation Alternative”’ (2021) 1(4) Jus Corpus Law Journal 290–304
Abstract: From the constitutional history of Judicial Appointments in India, it is well-known that the manner and procedure in which Judicial Appointments happen today, is starkly different from the original Judicial Appointments procedure contemplated under the Indian Constitution. Originally, Judicial Appointments to the Higher Judiciary (including appointments to the Supreme Court of India under Article 124 of the Constitution) were primarily the task of the Executive, where the Judiciary had no real say in the appointments to Higher Judiciary. This dynamic saw a stark shift after the Second Judges’ Case and subsequent precedents, which tilted the power dynamics around Judicial Appointments to Higher Judiciary (i.e. Supreme Court and various High Courts) in favour of the Supreme Court, and also established a ‘Collegium System’ to govern such Judicial Appointments. However, a Constitutional Enigma revolving around Judicial Appointments still persists. Should the Supreme Court be bereaved of most of its sitting Judges and the total strength of the court reduce to less than five sitting Judges, the Collegium propounded by the Third Judges’ Case would come to a collapse. If such a scenario arises in wake of calamities such as the devastating effects of the ongoing COVID-19 pandemic, how would Judicial Appointments to the Higher Judiciary be made? In this article, we seek to address this Constitutional Enigma, which is an unlikely but not an impossible or too remote a reality. We highlight the lacunae in the present judicially created law concerning Judicial Appointments. Moving forward, we propose the idea of an ‘Emergency Collegium’ and lay out its modalities. Subsequently, we highlight an alternative of ‘automatic elevation’ of pan-India senior-most High Court Judges and also forward criticisms against such an alternative. Finally, we conclude by highlighting the necessity for a constitutional amendment or a ‘Fifth Judges’ Case’ to address this unresolved Constitutional Enigma.

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.

Stefanovska, Vesna, ‘Divergences from the Separation of Powers in Times of Emergency With Special Emphasis to the Republic of North Macedonia’ (2021) 6(3) Journal of Liberty and International Affairs 52–61
Abstract: The worldwide pandemic caused by the coronavirus has disturbed the pure conception of the separation of powers. States forced by the newly established situation, declared a state of emergency, thus the Republic of North Macedonia was not an exception. This paper will focus on the divergences from the separation of powers in the countries from the Western Balkans and across Europe whose departure in the well-established system of checks and balances intrigued the media. The case of North Macedonia was maybe the most interesting because in time of declaring the state of emergency by the President of the Republic, the legislative branch of power – the Assembly was dissolute which meant that the already difficult situation became more complicated to establish a balance between the branches of power to function in protecting the general health of the citizens and the fundamental human rights and freedoms.

Stollsteiner, Gabriel, ‘France-COVID-Related Organic Law Ruled Valid despite Breach of Constitutional Provisions’ [2021] (2) Public Law 432–435
Abstract: Basing its decision on the ‘particular circumstances’ of the COVID crisis, the French Constitutional Council’s decision n 2020-799 DC of 26 March 2020 ruled valid an emergency law enacted in apparent contravention of art.46 of the French Constitution. Article 46 requires that 15 days pass between the introduction of an organic law (termed ‘Institutional Acts’ in the Constitution’s official translation) and its first discussion in Parliament. The Institutional Act suspended deadlines for the Constitutional Court’s preliminary review of constitutionality.

Tanasescu, Elena-Simina, ‘COVID-19 and Constitutional Law: Romania’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 191-197
Introduction: Although essentially a sanitary crisis, in Romania the COVID 19 pandemic has triggered the institution of emergency measures that helped concealing an on-going political and constitutional crisis. The legal regime of restrictions to the exercise of fundamental rights has been the focus of constitutional debates and it has allowed the Constitutional Court to display a rather formalistic approach of the Constitution.

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® 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’.

Toth Jr., Robert J, ‘Revisiting Jacobson v. Massachusetts: The Covid Cases’ (2021) 54(4) Creighton Law Review 559–604
Abstract: How should the political branches of state and local governments cooperate with one another to promulgate emergency public health legislation? And how much deference should the judiciary allocate state executives and legislatures when reviewing such legislation? This Note proposes a local application of the War Powers Resolution’s ‘sliding scale of deference’ in an effort to strike a constitutional balance between state executives and state legislatures. A local application of this fluid system of checks and balances would protect against unnecessarily burdening emergency executive orders by allowing state legislatures to recalibrate hurried emergency orders. Subsequently, this Note proposes replacing the Jacobson standard with heightened rational basis review when scrutinizing emergency executive orders. This process extends an additional layer of security to public health and fundamental rights in light of a declared emergency. In sum, granting state legislatures more deference in redressing emergency public health orders and mandating the judiciary scrutinize such orders under heightened rational basis review offers better protection to public health and fundamental rights during declared emergencies.

Trstenjakin, Verica, ‘The Corona Crisis and Fundamental Rights from the Point View of EU Law’ in Ewoud et al Hondius (ed), Coronavirus and the Law in Europe (Intersentia, 2020)
Abstract: In 2020, the world was surprised by the so-called Corona crisis, which has adverse effects in several areas. Although initially it appeared only as a major public health emergency, it turned into a crisis of solidarity, economic and also legal crisis. The Corona crisis also highlighted some other problems in the EU, in particular the issue of solidarity and the effectiveness of adoption of legal acts and decision-making. The issue of fundamental rights violations was often raised. The Member States have adopted specific measures, which have also restricted fundamental rights in certain cases. In practice, the protection of public health has almost always been balanced against all fundamental rights, which were at least partially restricted. There were restrictions based on considerations for public health such as: restriction of free movement, infringements of protection of data protection, and restriction of free economic activities and enterprise (e.g. compulsory closure of shops). Against this background, this contribution provides a protection of fundamental rights in the EU, their possible limitations and restrictions, and discusses key Charter’s fundamental rights during the Corona crisis.

Trstenjakin, Verica, ‘Law and Medicine: The Influence of Fundamental Rights on the Corona-Crisis and the Influence of the Corona-Crisis on Fundamental Rights in the EU’ (2021) 14(2) Medicine, Law & Society 351–370
Abstract: The article deals with the intersection of law and medicine, especially in the time of the Corona-crisis. It analyses restrictions of human/fundamental rights in the time of the Corona-crisis at the EU level. Conditions for restrictions of fundamental rights are provided by Article 52(1) of the EU Charter of Fundamental Rights. The case-law of the Court of Justice of the EU concerning the restrictions of fundamental rights in connection with health protection is also analysed. The last part provides an overview of some decisions of constitutional courts of EU Member States concerning the justifications of restrictions of fundamental rights during the Corona-crisis.

Tsuji, Yuichiro, ‘Japanese Government Actions Against Covid-19 Under the Directives of Constitutional and Administrative Law’ (2020) 4(1) Cardozo International & Comparative Law Review 1–34
Abstract: This paper further elucidates the actions of the Japanese government against COVID-19 during the first five months of 2020. On May 25, 2020, the government lifted the emergency declaration passed under the amended Art. 49(2) of the amended Influenza Special Measures Act (ISMA). This paper argues that the effects of the Japanese government action is not unique, but is instead similar to those of other countries. In 2012, the Japanese government had passed ISMA against severe acute respiratory syndrome (SARS), not COVID-19. The Government hesitated to use ISMA against COVID-19 for political reasons. The government opened advisory boards and chose a policy judgment If a delay in governmental actions led to an increase in the number of serious patients, the governmental inaction was subjected to the State Redress Act and the people of Japan could, through the election process, change the government in the next election. The emergence of COVID-19 has compelled Japanese scholars to question the validity of legal principles. Outside of Japan, the New York Times argues that the Japanese constitution should be amended to cope with such an emergency. This paper is vigilant of the governmental interventions that are carried out in the name of emergency and keeps legal principle under the rule of law. An emergency does not allow us to ignore the law; nor does it put the administration above the law. If the emergency is predicted, we can prepare and prevent resulting distress with the use of law. If an emergency occurs, we can mitigate damages and recover by interpreting or amending the existing statutes. The lessons from the actions undertaken by the Japanese government should be shared with other countries that have democratic constitutions. When we start a constitutional and administrative law analysis, the legal and political responsibilities should be distinguished.

Twomey, Anne, ‘Federal and State Powers to Deal with Pandemics: Cooperation, Conflict and Confusion’ in Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021)

van Staden, Martin, ‘Constitutional Rights and Their Limitations: A Critical Appraisal of the COVID-19 Lockdown in South Africa’ (2020) 20(2) African Human Rights Law Journal 484–511
Abstract: The purpose of the rule of law, entrenched as supreme in section 1(c) of the South African Constitution, is to guard against tyranny. If the rule of law is conceptualised as a meta-legal doctrine that is meant to permeate all law in the promotion of certainty, predictability and accessibility, in the interests of safeguarding constitutional rights, this makes sense. Yet, the COVID-19 pandemic has seen the reach of state power expand at the expense of these rights. South Africa’s COVID-19 lockdown, and within at least its first five months carrying the endorsement of the courts, has made a mockery of the rule of law so conceived. This article considers the constitutionality of South Africa’s COVID-19 lockdown against the backdrop of the constitutional rights limitation regime within the broader theoretical framework of constitutionalism and the rule of law. This analysis is conducted in the context of some early challenges brought against the lockdown in four High Court cases. The article concludes that the South African government, with the partial endorsement of the courts, has strayed beyond the bounds of the Constitution and engaged in unjustified violations of constitutional rights.

Wei Liang Wang, Daniel, Gabriela Moribe and Ana Luiza Gajardoni de M. Arruda, ‘Is Mandatory Vaccination for COVID-19 Constitutional under Brazilian Law?’ (2021) 23(1) Health and Human Rights Journal 163–174
Abstract: Mandatory vaccination for COVID-19 has been the object of heated debate in Brazil. This article discusses the legality and constitutionality of such a policy. First, it analyzes the laws, regulations, and Supreme Court decisions that provide for the possibility of mandatory COVID-19 vaccination. Subsequently, it analyzes the constitutionality of a mandatory vaccination policy through the proportionality method to address the conflict between, on one side, the right to individual autonomy, which includes the right to refuse a medical intervention, and, on the other, health policies that interfere with individual autonomy to protect the rights to life and health. The application of this method allows for the identification of key questions that need to be answered to determine the constitutionality of a mandatory vaccination program. These questions cannot be answered a priori and in the abstract because they depend on the concrete circumstances of the pandemic, on the characteristics of the vaccine(s) against COVID-19, and on how a mandatory vaccination policy might be designed and implemented by authorities.

Wetter, Sarah and Eric A Friedman, ‘US Withdrawal from the World Heath Organisation: Unconstitutional and Unhealthy’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 83–88
Abstract: On May 29, 2020, during the same week that U.S. deaths from COVID-19 topped 100,000, President Trump announced that the United States would end relations with the World Health Organization (WHO). In the beginning of July, the administration formally notified the United Nations of the decision to withdraw. Withdrawing the United States from the WHO would threaten both national and global health interests. The loss of U.S. funding would derail WHO’s ability to detect and respond to emergencies like COVID-19, and could reverse hard-won progress in combatting infectious and noncommunicable diseases, and addressing the social determinants of health globally. The United States also would cede its position as a global health leader, curtailing its ability to engage in global health diplomacy. Yet President Trump’s apparent attempt to unilaterally withdraw the United States from the WHO raises major constitutional implications, and Congress must not let the move go unchallenged. As the United States entered the WHO through a joint congressional resolution, the same process should be required to exit the WHO. That joint resolution also imposes withdrawal requirements of one year’s notice and full payment of dues for that year. These two conditions indicate Congress’ intent to maintain a role in any decision to vacate the WHO. Congress must now step into that role and prevent the president from ending WHO membership and funding.

Wickramaratne, Jayampathy, ‘Doctrine of Necessity: Stumbling Against the Same Stone in Pakistan - A Mistake Not to Be Emulated in Sri Lanka’ (SSRN Scholarly Paper No ID 3598986, 12 May 2020)
Abstract: The doctrine of necessity was first expounded as a criminal law principle: ‘that which is otherwise not lawful is made lawful by necessity’. Dangers of applying the doctrine in constitutional law were seen in Pakistan where several military coups were validated using it. In Sri Lanka Parliament was dissolved on 02 March 2020. As elections have been postponed due to the COVID-19 pandemic, Parliament will not be able to meet before 02 June, within the maximum period of three months permitted by the Constitution for the country to be governed without Parliament. The country being governed without Parliament means in effect that it would be governed only by the President, without the institution to which the he is constitutionally accountable functioning. The dissolved Parliament can be recalled in several ways: (1) withdrawal of the Proclamation of dissolution; (2) declaration of an emergency under the Public Security Ordinance which will trigger the summoning of Parliament; and (3) summoning of Parliament by the President without recourse to the said Ordinance in an emergency. That there is an emergency situation today cannot be denied. However, it has been suggested that the country can go on without Parliament by invoking the doctrine of necessity. This paper argues that where there are alternatives possible under the Constitution, the doctrine cannot be invoked. In any case, learning from the Pakistani experience, Sri Lanka should not use the doctrine in matters of constitutional law.

Wiley, Lindsay F, ‘Federalism in Pandemic Prevention and Response’ in Scott Burris et al (eds), Assessing Legal Responses to COVID-19 (Public Health Law Watch, 2020) 65–70
Abstract: Federal-state conflicts over business regulations, controls on personal movement, and financial support and coordination of supply chains have dominated headlines during the coronavirus pandemic. States hold the reins on most community mitigation measures (e.g., quarantine and isolation, physical distancing, and mask wearing), which may vary depending on local conditions. The federal government has authority to promulgate national guidelines and surveillance capabilities that states rely on when implementing, modifying, and easing community mitigation measures, but these guidelines have been inconsistent or absent. The federal government has provided limited financial support and coordination of supply chains to provide a foundation for state and local implementation of more targeted mitigation measures, which depend on widespread testing and disease surveillance. Federal-state conflicts have stymied efforts to ramp up and coordinate need-based distribution of resources for: 1) implementing widespread testing, tracing, and supported isolation and quarantine of individuals; 2) ensuring widespread availability of adequate personal protective equipment for health workers, other essential workers, and the general public; and 3) ensuring widespread access to therapeutics and vaccination based on equitable and public health-based criteria.

Wiley, Lindsay F and Stephen I Vladeck, ‘Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review’ (2020) 133(9) Harvard Law Review Forum 179–198
Abstract: For obvious reasons, local and state orders designed to help ‘flatten the curve’ of novel coronavirus infections (and conserve health care capacity to treat coronavirus disease) have provoked a series of constitutional objections — and a growing number of lawsuits attempting to have those orders modified or overturned. Like the coronavirus crisis itself, much of that litigation remains ongoing as we write this Essay. But even in these early days, the emerging body of case law has rather elegantly teed up what we have previously described as “the central (and long-running) normative debate over emergency powers: Should constitutional constraints on government action be suspended in times of emergency (because emergencies are ‘extraconstitutional’), or do constitutional doctrines forged in calmer times adequately accommodate exigent circumstances?

Williamson, Myra, ‘A Stress-Test for Democracy: Analysing the New Zealand Government’s Response to the COVID-19 Pandemic from a Constitutional Perspective’ (2020) 8(6) Kuwait International Law School Journal 55–105
Abstract: This article explores the New Zealand Government’s response to the COVID-19 coronavirus pandemic through a legal and constitutional lens. It adopts an essentially doctrinal analysis in describing the response but intertwines a comparative law thread, to draw selected comparisons with how other governments have responded. It offers some political, demographical and historical insights to provide background information for non-New Zealand readers. The article aims to provide a comprehensive view of New Zealand’s constitutional arrangements and how they have impacted on the Government’s response to COVID-19 as well as a critical analysis of that response by assessing the effectiveness of various measures adopted by the New Zealand Government. The article consists of six sections. Section one provides an introduction to New Zealand’s constitutional framework including some demographic information for non-New Zealand readers. Section two describes the New Zealand Government’s overall response to the COVID-19 pandemic. Section three discusses the declaration of a national state of emergency. Section four examines the Parliamentary oversight mechanism known as the ‘Epidemic Response Committee’. Section five explores the role of the media and the importance of upholding the right to freedom of expression when responding to the pandemic. Finally, section six draws out some overall recommendations for New Zealand and other countries to consider when moving forward and preparing for the next pandemic. :

Wróblewska, Iwona and Wojciech Włoch, ‘Accommodation Through Regulations: Limitation of Constitutional Freedoms in Poland During the Covid-19 Pandemic and Its Impact on Polish Constitutional Identity’ in Frydrych-Depka, Anna, Maciej Serowaniec and Zbigniew Witkowski (eds), Pandemic Poland: Impacts of Covid-19 on Polish Law (Vandenhoeck & Ruprecht, 2021)39
Abstract: “Legislative accommodation“ makes it possible to establish extraordinary limitations on freedoms and rights that formally have the “normal“ democratic legitimacy, since the state of emergency has not been introduced and the “normal“ constitutional means of legislative regulation have been employed. However, it would appear that the Polish case is not so much about legislative accommodation as it is about “accommodation through regulations“. In the cases discussed, the statutory basis for restrictions does not meet the conditions for a detailed and substantive settlement of the regulated issue. General and imprecise statutory norms are clarified in regulations, which should serve as strictly implementing acts. This may lead to the conclusion that there has been a certain disruption in the development of the Polish constitutional identity.

Zahari, Luke, ‘Retroactive COVID-19 “Immunity”: Useless for Patients, Devastating for Plaintiffs’ (SSRN Scholarly Paper ID 3791463, 1 February 2021)
Abstract: This Note argues that the retroactivity provision of Iowa’s COVID-19 Response and Back-to-Business Limited Liability Act violates the due-process protections belonging to Iowans under both the U.S. and Iowa Constitutions. Passed in response to the challenges faced by Iowa businesses in reopening following the advent of the novel coronavirus, the Act expressly extinguishes civil causes of action already accrued under the common law. Generally, the rule against retroactivity prohibits legislatures from extinguishing rights in such a retroactive fashion. Moreover, despite Iowa jurisprudence contemplating that emergency conditions might validate retroactive laws that would otherwise be unconstitutional, the effects of COVID-19 in Iowa do not rise to a level that would warrant such a dramatic relaxation of the judicial check on legislative power. The Iowa Supreme Court should hold the retroactivity provision of the Act unconstitutional and eliminate the emergency exception to the ordinary rule against retroactivity both to bolster the constitutional protections for the rights of individual Iowans and to maintain the separation of powers that is integral to limited government.

Zubik, Marek and Dominik Łukowiak, ‘COVID-19 and Constitutional Law: the Case of Poland’ in Serna de la Garza, José María (coordinator), Covid-19 and Constitutional Law (Universidad Nacional Autónoma de México, 2020) 175-180
Extract from Introduction: The key problem with which the Polish government had to struggle in the face of the coronavirus disease pandemic was the establishment of an appropriate legal regime of the management of public affairs in a situation of ‘emergency’. From this point of view, the activity of public authorities can be divided into three periods. The first one, which lasted until mid-March 2020, was based on the increasing activity of administrative bodies, yet without adopting broad restrictions on constitutional freedoms and rights. The reactions of state authorities were undertaken on the basis of the Act of 5 December 2008 on the prevention and combating of infections and infectious diseases (hereinafter: the Act of 2008), and then on the basis of the newly adopted Act of 2 March 2020 on special solutions related to the prevention, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (hereinafter: the Act of 2020). The second period, which lasted until mid-May, was related to the introduction of the state of epidemic on the territory of Poland, on the basis of the Act of 2008, which enabled the government to impose far-reaching restrictions and limitations on the exercise of human rights. The third stage, which started in mid-May and lasts until today, involves the gradual lifting of the existing restrictions.

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