Judicial review of public policies and measures against the pandemic
Panel formed with individual proposals.
The health crisis caused by COVID19 has severely affected the exercise of many fundamental rights. The authorities have been forced to adopt measures that restrict rights abruptly and unexpectedly, in many cases without sufficient legal coverage. In Spain there have already been some judicial decisions on these limitations that allow the extraction of certain guidelines. Our analysis has focused on the decisions of the ordinary courts of higher hierarchy on the affectation of the right to free movement, the right of assembly and the right to vote. We have found disparate and even contradictory decisions, but in any case the balancing and proportionality judgment have served to resolve the conflicts that have arisen. Pending a more enveloping pronouncement by the Constitutional Court, the guarantee and effectiveness of our rights is, today more than ever, in the hands of the judges.
This work presents initial findings of empirical research on the Brazilian Federal Supreme Court performance in the COVID-19 context, facing national and global challenges of public law, politics, and governance. Recently published studies on emergency powers in the pandemic reveal that courts in a wide array of countries have played a significant role, undermining an executive unbound perspective in the management of health challenges and favoring the exercise of a constitutional dialogue during the pandemic. This research investigates from a comparative perspective whether the Brazilian Court‘s case is also on this path. Given its massive decisions, we opted for an institutional cut, adopting the table of cases selected from the list of main rulings concerning the pandemic, prepared by the Court‘s Presidency. Through systematic documentary analysis, combining political and social science, we search for elements of convergence between these cases in terms of constitutional dialogue.
In response to COVID-19, New Zealand and Austria both imposed lockdowns in early 2020. We compare the two countries‘ responses and judicial review systems to examine how the lockdowns were communicated and challenged in the courts. The communication of these lockdowns was remarkably similar, as both governments communicated measures more stringent than those legally in place at the time. This divide between law and communication raised concerns for the rule of law as citizens struggled to understand their legal obligations during the crisis. In New Zealand, misleading government communications about the lockdown were successfully challenged as unlawful, while in Austria, government communications were not subject to judicial review. We conclude that systems capable of reviewing government miscommunication can better uphold the rule of law in the face of crisis.
In this paper we analyze the performance of the brazilian Supreme Federal Court (STF) in the control of acts of the federal executive power during the health emergency of Covid-19. In particular, submit to scrutiny the belief that in the period marked the STF would have acted endowed with legitimacy and effective capacity to act in defense of the democratic constitutional order and the federation, in a context in which the legislative power and other representative institutions lacked strength and/or interest to face a potentially authoritarian executive power. We suggest that this view be rejected in favor of a more “political“ constitutional perspective: the authority of the STF during the crisis is a variable essentially dependent on a previous and uncertain coalition of political forces outside the court, for which the executive powers of the states and “public opinion“ were decisive.