Balancing constitutional competing values
Panel formed with individual proposals.
The global COVID-19 pandemic has led many nations to resort to extensive emergency powers. Governments have adopted previously unimaginable measures, such as nationwide lockdowns, border closures, mandatory tracking and quarantine regimes. Drawing on social and constitutional theory, this papers offers an analysis of current responses to the pandemic and illuminates the dangers of the ‘mission creep‘ of emergency powers by situating COVID-19 response within the historical context of the ‘emergency paradigm‘ in India, South Africa and Chile. I track responses to other situations framed as emergencies, such as the disputes over Jammu and Kashmir in India, the apartheid regime in South Africa, and more recent pro-democracy protests in Chile. These experiences suggest a similar trajectory of overreach of emergency powers across political, cultural and legal contexts, and allows us to observe how COVID-19 response differ from measures to tackle crises in existent emergency literature.
This paper analyzes whether the government is obligated to compensate the business losses caused by the request for self-restraint order in Japan. Property right provision of the Constitution of Japan, requires specific damages for compensation. The Constitution believes that if burdens are widely and generally shared, then compensation should be shared among people, and compensation is unnecessary. If people change their minds about the fairness of compensating certain industries after discussing the nature of the special sacrifices, and if the perspective of society as a whole change, then parliament might create a provision to support the government in the Influenza Special Measure Act. This paper notes that compensation for property rights and financial support are two different issues. As a matter of policy, when the government supports the socio-economically vulnerable, it is not a matter of compensation for property rights, but a matter of social rights and a matter of policy.
During past year a new branch of public law aroused in many countries, the branch concentrated on a fight with coronavirus. Creating laws of which this branch consists can be considered from, at least, two perspectives: the perspective of social sciences researching the decision-making, and of the jurisprudence. The first premise, on which I base my paper, is that in the second realm, the realm of legal application of constitutional norms in liberal-democratic legal systems, the public health as one among many constitutional values dominated the rest. The second premise of my paper is that the public health shall have such, dominating, position only exceptionally, because its constant domination would supress other values, including those even more important for liberal democracy. The conclusion is that – if as some claim such pandemics happen often in the future – our legal answer to them shall be more modest in regard of the restriction of other fundamental constitutional values.
A Constitution might have different impacts on the economic activity within a country. The Brazilian Constitution, for example, states in its article 170 the General Principles of the Economic Activity, which represents the concerns that the constituent power had towards the economy. In the last years, the impact of the Constitutional Jurisdiction on Brazilian society has increased greatly. Therefore, it is important to know the content of those economic principles, especially when some of them might, at first sight, seem contradictory. Free enterprise, free competition and the social function of property are the basics of the Brazilian constitutional economic order, and they must coexist, even if they seem to have opposite meanings. Consequently, this paper aims to analyze the case-law of the Brazilian Federal Supreme Court regarding the economic order, focusing mainly on the article 170 of the Constitution, while using social and economic sources complementary with the legal analyze.