Available in Russian
Author: Nataliya Varlamova
Keywords: abuse of emergency powers; constitutional order; COVID-19 pandemic; emergency; human rights limitations; state of emergency
The COVID-19 pandemic is certainly an emergency, it has affected almost all countries in the world and has a serious impact on the functioning of their authorities. In the current state of emergency, states have two strategies of action: to overcome it within the framework of the existing constitutional order and the current legal regulation, or to introduce a special legal regime. Today, the choice of these options for responding to the COVID-19 pandemic is being actively discussed by politicians and experts. Each of them has its pros and cons. In the event of a refusal to declare a state of emergency, the usual rules and procedures are used, which also allow the establishment of additional restrictions on human rights necessary in connection with the pandemic. This approach is attractive because it prevents the spread of panic and demonstrates that the state does not intend to resort to “draconian” measures. At the same time, a formal declaration of a state of emergency fosters awareness of the gravity of the situation and mobilizes society to combat it. Furthermore, this forces the state to openly declare what restrictions it is going to introduce, substantiate the actual existence of an emergency situation and the need for the measures used, and also indicate the time frame for this regime. This creates certain guarantees that the additional restrictions imposed on human rights will not apply to normal conditions. A state of emergency usually presupposes the concentration of public authority in the body (bodies) of executive power, often specially created for a given period, which in their activities largely replaces the parliament and regional authorities. However, in a pandemic, the “level of emergency” manifests itself differently in different regions of the country, which requires decentralization of governance, the involvement of regional authorities and civil society institutions. But the establishment of the necessary restrictive measures at the regional level very often contradicts the constitutional guarantees of human rights and freedoms, which cannot be corrected by the regional authorities, which “erodes” the constitutional order. The greatest danger is the abuse of emergency powers and their use for political purposes, as well as the preservation of certain emergency measures and the introduced legal regulation after the end of the emergency situation (actually existing or officially declared).
About the author: Nataliya Varlamova – Candidate of Sciences (Ph.D.) in Law, Associate Professor, Leading Research Fellow of the Human Rights Department, Institute of State and Law, Russian Academy of Sciences, Moscow, Russia.
Citation: Varlamova N. (2020) Pandemiya COVID-19 kak vyzov konstitutsionnomu pravoporyadku [COVID-19 pandemic as a challenge to constitutional legal order]. Sravnitel'noe konstitutsionnoe obozrenie, vol.29, no.6, pp.17–30. (In Russian).
Albert R. (2019) Constitutional Amendments: Making, Breaking, and Changing Constitutions, New York; Oxford: Oxford University Press.
Bjørnskov Ch., Voigt S. (2018) The Architecture of Emergency Constitutions. International Journal of Constitutional Law, vol.16, no.1, pp.101–127.
Cortés-Arbeláez A. (2020) Pandemic and States of Emergency: A Comparative Perspective. The Blog of the International Journal of Constitutional Law, 22 May. Available at: http://www.iconnectblog.com/2020/05/pandemic-and-states-of-emergency-acomparative-perspective/ (accessed: 04.11.2020).
Dixon R. (2007) Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited. International Journal of Constitutional Law, vol.5, no.3, pp.391–418.
Gardbaum S. (2013) The New Commonwealth Model of Constitutionalism: Theory and Practice, Cambridge; New York: Cambridge University Press.
Ginsburg T., Versteeg M. (2020) The Bound Executive: Emergency Powers During the Pandemic. Available at: https://ssrn.com/abstract=3608974 (accessed: 04.11.2020).
Ginsburg T., Versteeg M. (2020) COVID-19. States of Emergencies: Part I. Harvard Law Review Blog. Available at: https://blog.harvardlawreview.org/states-of-emergencies-part-i/ (accessed: 04.11.2020).
Greene A. (2020) Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If Not Now, When? Available at: https://ssrn.com/abstract=3593358 (accessed: 04.11.2020).
Halmai G. (2020) How COVID-19 Unveils the True Autocrats: Viktor Orbán’s Ermächtigungsgesetz. The Blog of the International Journal of Constitutional Law, 1 April. Available at: http://www.iconnectblog.com/2020/04/how-covid-19-unveils-the-true-autocrats-viktor-orbans-ermachtigungsgesetz/ (accessed: 04.11.2020).
Hickman T., Dixon E., Jones R. (2020) Coronavirus and Civil Liberties in the UK. Blackstone Chambers, 6 April. Available at: https://coronavirus.blackstonechambers.com/coronavirus-and-civil-liberties-uk/ (accessed: 04.11.2020).
Khramova T. (2020) Ispytanie pandemiey: ogranicheniya svobody sobraniy i slova v svete printsipa proportsional'nosti [The challenges of the pandemic:restrictions of freedoms of assembly and speech in the light of the proportionality principle]. Sravnitel'noe konstitutsionnoe obozrenie, vol.29, no.4, pp.36–54. (In Russian).
Kramer L.D. (2004) The People Themselves: Popular Constitutionalism and Judicial Review, New York; Oxford: Oxford University Press.
Paixão C., Zaiden Benvindo J. (2020) “Constitutional Dismemberment” and Strategic Deconstitutionalization in Times of Crisis: Beyond Emergency Powers. The Blog of the International Journal of Constitutional Law, 24 April. Available at: http://www.iconnectblog.com/2020/04/constitutional-dismemberment-and-strategic-deconstitutionalization-in-times-of-crisis-beyond-emergency-powers/ (accessed: 04.11.2020).
Posner E.A., Vermeule A. (2007) Terror in the Balance. Security, Liberty, and the Courts, Oxford; New York: Oxford University Press.
Scheinin M. (2020) COVID-19 Symposium: To Derogate or Not to Derogate? Opinio Juris, 6 April. Available at: https://opiniojuris.org/2020/04/06/covid-19-symposium-to-derogate-or-not-to-derogate/ (accessed: 04.11.2020).
Sigalet G., Webber G., Dixon R. (eds.) (2019) Constitutional Dialogue: Rights, Democracy, Institutions, Cambridge; New York; Port Melbourne; New Delhi; Singapore: Cambridge University Press.
St-Hilaire М. (2020) Are Quebec and Canada Having a “Schmittian” (or Iheringian) Moment? The Blog of the International Journal of Constitutional Law, 6 May. Available at: http://www.iconnectblog.com/2020/05/are-quebec-and-canada-having-a-schmittian-or-iheringian-moment/ (accessed: 04.11.2020).
Tapp P. (2019) To Derogate or Not to Derogate, That Is the Question: a Comparison of Derogation Provisions, Alternative Mechanisms and Their Implications for Human Rights. University of Chicago Law School. Chicago Unbound. International Immersion Program Papers. Available at: https://chicagounbound.uchicago.edu/international_immersion_program_papers (accessed: 04.11.2020).
Tushnet M. (2008) Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law, Princeton, NJ: Princeton University Press.
Whittington K.E. (1999) Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review, Lawrence, KS: University Press of Kansas.