The role of constitutional courts within a society depends on three equations: i) the political or democratic equation, ii) the normative equation and iii) the social equation. The first equation refers to the degree of development of the separation of powers and the proper functioning of democratic institutions. The second equation refers to the set of normative instruments established for the protection of human rights. The third equation analyzes the degree of development of social rights and the conditions of inequality. This paper states that in all Latin American countries there is a deep imbalance in the three equations. Furthermore, during the pandemic that imbalance deepened. For this reason, the role of the courts in contexts of democratic erosion must be to seek the balance of the three equations. In this task, the courts have great potential, but they also have strong limitations. That is why it is important to reinforce judicial activity with citizen defense of democracy.
The COVID-19 pandemic hit Brazil in a moment of serious political crisis: after the election of a populist leader, with authoritarian tendencies. Such authority responded to the pandemic by denying its seriousness and adopting measures which gave rise to important limitations on fundamental rights. The paper demonstrates that the protection of democracy, fundamental rights, and the fight against the pandemic, in Brazil, have been performed by the integrated work of institutional watchdogs, such as the legislative branch, the Brazilian Supreme Court and the states of the federation. It will also demonstrate that this defense was based on common international standards on the matter (“ius constitutionale comune”). Although the country's sanitary situation is critical, the case demonstrates that: (i) the cooperative work of institutional watchdogs and (ii) the guidance of common international standards can be powerful tools for the protection of democracy and fundamental rights.
The measures adopted to combat the spread of the Corona-virus in Germany impact many fundamental rights, sometimes completely suspending their exercise, to an extent up until now unthinkable in the post-war German legal system. This presentation analyses the reaction of the administrative and constitutional courts to the significant restrictions on fundamental rights in Germany. The focus will be on the judicial responses to the legal basis for enacting the Corona measures in the Infection Protection Act, as well as the enacted measures regarding freedom of religion and freedom of assembly. The analysis will show first, how the courts – after an initial cautious approach – later became increasingly critical of the measures taken; second, were also in a position to influence the legislature with their rulings (especially with regard to the legal basis) and finally, how the courts dealt with the problem of uncertainty and modified their test of proportionality as the pandemic progressed.
European Union Member States have adopted a wide range of emergency measures in response to the pandemic. Some have decided to declare an emergency state, whereas others have adopted the measures needed on the basis of ordinary public health laws or with accelerated legislative procedures already existing in the national legal system. Despite this variety of national situations, a common feature of the legal response to tackle the pandemic has been the shift in the competences of both the legislative and the executive powers. Such institutional shifts are usually considered justified if they are necessary to overcome the exceptional situation; they are proportional and limited in time; and if there is an effective judicial and parliamentary control. In this vein, the presentation will focus on the role of European parliaments and the judiciary during the crisis, aiming to determine whether those “institutional watchdogs” have properly controlled the executives during the pandemic.