This book, one of the first of its kind, explores the impact of the COVID-19 pandemic on modern Western democracies from a comparative constitutional law and policy perspective. Through 11 scholarly contributions, it tackles cutting-edge topics for the liberal state, such as emergency legislation, judicial scrutiny of COVID-19 measures, parliamentarism and executive decision-making during the pandemic. The book examines these topics both from a microscopic national constitutional angle, with a focus on European states, and from a macroscopic regional and comparative angle, on par with the American example. The COVID-19 pandemic is thus treated as an international state of emergency that has enabled far-reaching restrictions on essential human rights, such as freedom of movement, freedom of religion or even major political rights, while giving rise to the ‘administrative state.’ This edited volume explores each of these pressing themes in this exceptional context and evaluates different liberal states’ responses to the pandemic. Were these responses reasonable, effective and democratic? Or is the COVID-19 pandemic just the beginning of a new era of global democratic backsliding? How can liberal democracies manage similar crises in future? What lessons have we learned? The institutional knowledge gained turns out to be the key for the future of the rule of law.
Author(s): Kostas Chrysogonos, Anna Tsiftsoglou
Edition: 1
Publisher: Springer
Year: 2022
Language: English
Commentary: TruePDF
Pages: 181
Tags: Private International Law; International And Foreign Law; Comparative Law; Constitutional Law; Human Rights; Politics And Human Rights; Public Law; Public International Law
Acknowledgments
Contents
Contributors
Part I: The COVID-19 Pandemic as a State of Exception?
The Pandemic as an Idiosyncratic Case of a State of Exception
1 Introduction
2 From ``War as Normality´´ to ``War as Exception´´: The Impact of Warfare on States´ Institutional Profile
3 The Gradual ``Normalization´´ of the ``Exception´´: ``Emergencies´´ Beyond Warfare
4 Evaluating the Potential Impact of COVID-19 on the Constitutional Acquis: The Pandemic as a Lesson for an Informed ``Institu...
4.1 Reassessing the ``Novelty´´ of the Pandemic Threat: An ``Ignored´´ Emergency
4.2 COVID-19 As a Reminder of the Omnipresent Risk of Abusing ``Emergency Situations´´
4.3 ``Efficiency´´ as a Factor of Trust Towards Democratic Political Institutions and as a Prerequisite for Maintaining Consti...
5 Conclusion
References
The COVID-19 Pandemic and the State of Emergency: Lessons from Portugal
1 Introduction
2 The Emergency Framework in Portugal
2.1 The Administrative Emergency
2.2 The Constitutional Exception
3 Coping with COVID-19 in Portugal: Between the Constitutional and the Administrative State of Emergency
3.1 The Constitutional State of Emergency
3.2 The Administrative State of Emergency
4 Oversight and Judicial Review
4.1 Parliamentary Scrutiny
4.2 Access to Courts and Judicial Review
5 Conclusion: The ``Hour of the Executive´´?
References
Part II: Executives and Parliaments in a Pandemic
Executives During the COVID-19 Pandemic: Contradictory Trends
1 Preliminary Remarks
2 The Limited Relevance of Emergency Clauses
3 A Stronger Position for Individual Members of the Executive
4 Response to the COVID-19 Threat in a Consensual Democracy
5 Concluding Assessment
References
Parliamentarism in the Pandemic: Contemporary Challenges
1 Introduction
2 Constitutional State of Emergency?
3 Sovereignty and Decision-Making Power
4 The Parliament´s Scope of Action
5 Elections as the Foundation of Parliamentarism
5.1 Postponement of Elections
5.2 Candidate Listing
5.3 Electoral Admission
5.4 Electoral Campaign
5.5 Electoral Act
6 Outlook
References
COVID-19 and the Federal State
1 Introduction
2 Federalism Under German Constitutional Law
3 The Federal Infectious Diseases Act (``FIDA´´, ``Infektionsschutzgesetz´´) and Its Implementation
3.1 The ``Federal Emergency Brake´´ and State Regulations
3.1.1 Direct Federal Implementation in Emergency Cases?
3.1.2 Reducing Complexity by Coordination?
3.1.3 Immigration Procedures Under COVID-19 as a Field of Reference
3.1.3.1 Restrictions: Quarantine
3.1.3.2 Vaccination Campaign
3.2 Tentative Conclusions
4 The Inadequacy of the German Approach
4.1 Federal Constitutions to the Rescue?
4.2 State Public Health Authorities: Under-Staffed, Under-Equipped
5 Summary and Outlook
References
The COVID-19 Pandemic in Cyprus: A Problematic Legal Regime, and the Potential of Rule of Law in Emergencies
1 Introduction
2 Restrictions on Rights Introduced by Secondary Legislation
2.1 The Quarantine Law
2.2 Conflict with the Case Law of the Supreme Constitutional Court
2.3 The Inactivity of the Parliament
2.4 A Problematic Court Ruling
3 An Emergency Within an Emergency
3.1 The Cypriot Version of the Doctrine of Necessity
3.2 Could Article 183 Have Been Activated Based on the Doctrine of Necessity?
3.3 Neither Black Nor Grey Holes, But Only an Irony
4 Conclusions
References
Part III: Balancing and Judicial Scrutiny in a Pandemic
American Lessons: The COVID-19 Pandemic and the US Supreme Court
1 The COVID-19 Pandemic and the US Supreme Court
2 The First Amendment: Freedom of Religion Cases
2.1 The First Wave of the Pandemic Cases (Summer 2020)
2.2 The Second Wave of the Pandemic Cases (2020 October Term)
3 The Compulsory Vaccination Cases (2021 October Term)
4 Conclusions: Lessons from the US Supreme Court in the Pandemic
References
The Rule of Law and Fundamental Rights in the Coronavirus Pandemic in Germany
1 Introduction
2 The COVID-19 Pandemic As a ``State of Emergency´´ Under the Basic Law?
3 The State´s Duty of Protection
3.1 Article 2(2) Sentence 1 of the Basic Law in Particular
3.2 Judicial Control
3.3 Expert Knowledge and the Parameter of Time
4 Fundamental Rights and Judicial Review During the Coronavirus Pandemic
4.1 General Freedom of Action
4.2 Freedom of Religion
4.3 Freedom of Assembly
4.4 Freedom of Occupation and Freedom of Property
4.5 Right to Equality
5 Rule of Law
6 Conclusion
References
The Impact of the Pandemic on the Greek Constitution
1 Introduction
2 The First Phase of the Pandemic and the Activation of the Law of Necessity
3 The Relationship Between Political Power and the Medical Scientific Community, and the Fading of Political Accountability
4 The Effects of the Pandemic on the Right of Assembly
5 The Issue of Compulsory Vaccination in the Second Phase of the Pandemic
6 Balancing Rights Against Each Other and Against the Public Interest: The Principle of Proportionality and the Return of the ...
7 The European Dimension
8 The Regulatory and Coordinating Role of Law in Greek Society
9 In Lieu of an Epilogue
References
Protecting Political Rights During the COVID-19 Pandemic: The Emergence of Strict Scrutiny in Spain
1 Introduction
2 Spanish Law of Exception Before the COVID-19 Crisis and the Judiciary´s Undefined Role
3 The State of Alarm During the COVID-19 Pandemic and Political Rights
4 The Judicial Response: Strict Scrutiny
5 Conclusions
References
Part IV: Conclusions: Liberal Democracy After COVID-19
Conclusions: Liberal Democracy After COVID-19: Challenges in Europe and Beyond
References
