[Article] Global constitutionalism and fundamental rights at risk of the covid pandemic : some thoughts for further reflections
The Covid-19 pandemic has raised daunting challenges for constitutional law and legal scholars across the world. This paper aims to critically analyse the often-dangerous implications of emergency measures taken by governments and the ever-more concerted action required for protection of pre-existing constitutional guarantees of fundamental rights for the preservation and strengthening of liberal democracies. The state of constitutional mechanisms, with a specific focus on judicial scrutiny in the context of the Covid-19 pandemic, is analysed from a comparative law and global perspective, making pinpointed and purposeful comparison between European and Indian legal frameworks in particular. The paper ends with some key takeaways and considerations for future research and policy scrutiny.
Par Pratyush Kumar et Emeric Prévost
I. Introduction
As this article is being written, Covid-19 restrictions have been lifted progressively (at least in liberal democracies) across the world. Time will say, however, whether the lifting of restrictions is only temporary or not. Serious doubts may arise from the fact that the virus is still spreading actively, despite it being now of a lesser lethal effect. Yet, time is ripe to take a step back and assess the long term constitutional consequences from a global perspective. If History teaches us anything, it is perhaps that crises prompt changes that are sometimes for the best, and sometimes for the worst. This contribution humbly aims to point out the dangers of government’s reactions to the pandemic for constitutional liberal democracies. Caution and strict scrutiny are indeed required to prevent authoritarian reflexes from entering by the backdoor.
The legal analysis developed in this paper does not hold ambition, however, to provide exhaustive or definitive answers to the complex and multifaceted issues raised by the Covid-19 pandemic. Yet, the article provides some key critical observations centring around well-defined liberal constitutional principles and their practice which should be kept in mind for any further reflections. Said key observations follow from core findings revealed by pinpointed comparisons between various legal systems. The main legal systems scrutinized for such purpose are the European and Indian ones, mainly because of the nature and kinship of their political and legal frameworks based upon fundamental rights protection and democratic guarantees.
The paper thus starts with taking stock of the multitude of measures taken by governments to counter the spreading and effects of the Covid-19 virus (II). The threats and challenges posed to the constitutional equilibrium of liberal democracies are then highlighted (III). The paper goes on to outline the basic principles on which state of emergency regimes should rely according to international standards (IV). The use and necessity of derogations to fundamental rights is then questioned (V), and, in turn, limitations to the exercise of fundamental rights in emergency situations are scrutinized (VI). The paper finally ends with some concluding remarks and key takeaways that should be kept in mind for the future (VII).
II. Myriad of measures
The first reaction to the surge of Covid-19 cases was driven by a sense of urgency and panic that led to locking down people. The measure is radical and is undoubtedly the result of a combination of unpreparedness and lack of knowledge. Lockdowns or quarantines are time-tested and well known tools against epidemics that develop beyond human control. Literature is rich on such dramatic situations, if one thinks for instance about La Peste by Albert Camus or I promessi sposi by Alessandro Manzoni or Kulli Bhat by Suryakant Tripathi Nirala or Pahalwan ki Dholak by Phanishwar Nath Renu. On the other side of the spectrum of measures, the obligation to wear a mask indoor as well as outdoor – if and when necessary – appear to be a lesser interference with individual freedoms. In-between lockdowns and face mask measures, governments introduced an impressive range of other measures, including curfews, the obligation to take antigens or molecular tests, sanitary or “green” passes, travel restrictions, and in some instances obligations to get vaccinated (e.g. in Austria for the entire population,[1] and in Italy for people over 50 years of age[2]).
The striking features of such measures lay in the sanctions in case of breach, which generally consist in relatively high criminal or administrative fines and even imprisonment. Thus, alternatives to lockdowns have been found, but many questions arise nevertheless from a legal and constitutional law standpoint. Not only the freedoms of movement and assembly are at stake, but also many other fundamental rights and freedoms, and notably: the right to respect for private life (e.g. compulsory vaccination), the right to work (e.g. green pass restrictions, public transport shutdowns, compulsory testing and vaccination), the right to education (e.g. green pass restrictions, compulsory distance education, compulsory vaccination or testing), the right to freely participate and enjoy social and cultural life (e.g. green passes restrictions), the right to non-discrimination (e.g. enhanced green pass restrictions imposing vaccination or recovery), the right to property, the right to data protection (e.g. contact-tracing mobile applications), the freedom to conduct business (e.g. compulsory shutdowns), the right to access justice and fair trial, and the right to effective remedies. As the right to have one’s health protected by the State is explicitly recognised by most liberal democracies as a fundamental right of the individual (either in the body of the Constitution itself or in constitutional jurisprudence),[3] the challenge is thus to strike a fair balance between the duty to preserve public health (thereby also ensuring the effectivity of the individual right to health and increasing fundamental rights effectiveness, as per Peter Häberle’s usage in constitutional law), on the one hand, and all the other potentially conflicting rights and freedoms, on the other hand (as, otherwise, it would undercut fundamental rights effectiveness, and may violate constitutionally guaranteed and justiciable fundamental rights).
III. The invisible enemy
Perhaps the first core issue relates to the standard of control of governmental actions in times of crisis. In other words, what should be the checks in place to ensure that executive powers do not go overboard and irremediably undermine the ground principles of constitutional liberal democracies? Here it should first be recalled that an epidemic or pandemic is not war, nor civil unrest, nor a terrorist threat. The manner in which governments have addressed the Covid-19 outbreak is in this respect all the more confusing. While the French President in his 2020 address to the Nation clearly qualified the fight against the Covid-19 pandemic as a “war”,[4] other governments adopted another stance. German officials for instance did not resort to warlike vocabulary and imagery (Paulus, 2020).
The issue, however, is not only one of terminology or metaphor. Politically, the issue is sensitive, as war or “enemy other” have a historical baggage of catastrophic content for the liberal and democratic public and for most of its leaders. Rhetoric also conveys legal consequences. While both the state of war (or civil unrest) and an epidemic are emergencies, an epidemic does not require to impose martial law. Art. 116 of the Spanish Constitution, for instance, clearly distinguishes between the state of alarm, the state of emergency, and the state of siege (martial law) as three varying degrees of exceptional constitutional regimes. Arguably, a one-size-fits-all exceptional regime approach would not be adequate and not even desirable for democracies. The necessity in some countries such as France (cf. Law no. 2020-290 of 23 March 2020)[5] to pass specific legislation to legally frame a sanitary state of emergency to address the challenges of the Covid-19 pandemic also speaks for the need to differentiate an epidemic from the already generally foreseen state of war or national security state of emergency.
The point also arose before the Italian Constitutional Court, where doubts were raised as to whether the powers entrusted and assumed by the Italian head of government (The President of the Council of Ministers) amounted to an unconstitutional conferral of legislative powers and circumvention of the “state of war” regime, in breach of Art. 78 of the Constitution (Constitutional Court, Decision no. 198/2021 of 23 September 2021). The Italian Court found no violation of the constitutional framework, and no circumvention whatsoever of the state of war powers, as the measures (including the administrative fines in case of breach) introduced by the executive via decree-laws (i.e. decrees subject to later confirmation by the Parliament) were time-limited, justiciable, and subject to an adequacy and proportionality test (Constitutional Court, Decision no. 198/2021 of 23 September 2021, §§ 6.1 and 6.2). Similar considerations may also arise under Art. 352 of the Indian Constitution which deals with “National Emergency” situations without, however, any special consideration for epidemics.[6] This being said, the work and reflections notably prompted by the Covid-19 crisis have shown that any constitutional regime for times of emergency must abide by some common basic principles.
IV. Common basic principles of states of emergency
No state of emergency shall lead to an enduring constitutional state of exception. The distinction is here again paramount, as any over-lasting or permanent state of exception would lead to an unjustified suspension of the constitutional system of checks and balances of powers (Agamben, 2020 & 2003). Any freeze of the rule of law principle in the Schmittian sense of the concept of the state of exception would constitute a fertile ground for the greed of one or a very few to grow at the detriment of the constitutional order of any liberal democracy. Schmitt writes in the opening lines of his work Political Theology: “Sovereign is he who decides on the exception. […] Only this definition can do justice to a borderline concept. Contrary to the imprecise terminology that is found in popular literature, a borderline concept is not a vague concept, but one pertaining to the outermost sphere. This definition of sovereignty must therefore be associated with a borderline case and not with routine. It will soon become clear that the exception is to be understood to refer to a general concept in the theory of the state, and not merely to a construct applied to any emergency decree or state of siege (Schmitt, 2005, p. 5).” If sovereignty rests with the people as citizens, and not the more amorphous undefined metaphysical identity as people[7], which it must exist in a liberal constitutional democracy, then the “decision” on exception rests with the citizens as exemplified by the balance of structure and competence of the constitutional state, with a sentinel in the form of the constitutional court (despite its democratic limitations, and perhaps even sometimes with democratic legitimacy, when it acts as a bulwark against populism) and the free press exemplifying free speech (the fourth estate). Intuitively, this constitutes an antithesis of Schmitt and his critique of liberal parliamentary democracy (Schmitt, 2000), but nevertheless represents a constant lurking danger, a sword of Democles, on democracy in a constitutional state. Constitutionalism based on, and centred around citizens standing as self-determined atoms of sovereignty becomes the self-perpetuating myth, i.e. a symbol of democracy, and a powerful antidote to Schmitt, which turns the Schmittian “enemy other” into an “adversary” in the peaceful discourse of a liberal constitutional democracy.
Article 16 of the 1789 Declaration of the Rights of Man and of the Citizens already beautifully set out that “any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution”. Any unbridled imbalance of powers, especially to the benefit of the executive in case of emergency, would thus put at risk both the guarantees of individual rights and freedoms as well as the very existence of any constitutional order. This is also why the so-called “Rule of Law Checklist” (Venice Commission Rule of Law Checklist, 2016) developed by the Venice Commission of the Council of Europe contains a section specifically dedicated to constitutional state of emergency regimes. The Venice commission further detailed in a 2020 report the guiding principles on which any derogatory regime shall rely upon (Venice Commission Report, 2020); these principles include the preservation of the rule of law at all times, the loyal cooperation between state institutions, as well as the necessity, proportionality, temporariness, predictability, and effective parliamentary and judicial scrutiny of any emergency measure. It is worth noting that under the principle of predictability, the Venice Commission clearly recommends that derogatory regimes be framed at the constitutional level. Many States, and amongst which France and Italy, should therefore ideally amend their constitutions to align them with the standards of the Council of Europe, thereby also avoiding the urgency and fury to pass laws aimed at establishing ad hoc and temporary sanitary emergency regimes deprived of any overarching and tailored constitutional framework.[8]
The Parliamentary Assembly of the Council of Europe (PACE) further stressed the need to strengthen a rights-based approach as well as parliamentary and judicial oversight in case of health emergencies (e.g. PACE Resolution 2329 (2020); and, PACE Resolution 2337 (2020)). Thorough analyses of state of emergency constitutional frameworks must therefore be conducted both in abstracto and in concreto by public bodies and scholars alike (e.g. The Observatory of emergency situations in the Venice Commission member states is one good example of a public supranational body undertaking ongoing monitoring work) (Corradetti & Pollicino, 2021). Even in case of emergency, the fundamental purpose of liberal democracies is therefore to pursue and further, as Peter Häberle puts it, the “fundamental rights effectiveness”. In that sense, constitutionalism is a tool to address the challenges put to the rule of law, democracy and fundamental rights. One such challenge in a pandemic consists in the need for – and the extent of – derogations to fundamental rights.
There is greater convergence of these broader constitutional principles despite a more nuanced understanding and acknowledgement of the existence of variegated societal constitutionalisms (Teubner, 2012) even within specific liberal constitutional democracies; not to mention the more apparent differences across different state systems, and the different systems of communication media (Vesting, 2018) which get encrypted in laws and constitutions in the dynamic location of law as a social system (Luhmann, 2008). The convergence of principles with respect to India and other European legal systems considered in this article may be outlined as follows: all these states are liberal democracies with constitutionally guaranteed separation of powers, rule of law, fundamental rights, including – and to cite only a few – freedom of speech and expression, freedom of movement and peaceful assembly, proportionality/balancing principles, and welfare commitments. Some divergences yet remain. One could think for instance of: (1) the methods, implementation processes, constitutional challenges, judicial review standards, and the possibility for constitutional courts to strike down legislative/executive decisions/legislations when transgressing constitutional boundaries; and (2) the obvious cultural and economic differences which limit/expand political understanding or mobilization with respect to a “constitutionalized citizenry” creating unique cultural constitutionalisms for each individual State based on its own unique sociologies of existence.
The differences in sociological facts impacting the functioning of the legal system is the dynamic location of the sociology of law. All the respectively different social systems with their own societal constitutionalisms constitute the environment of the legal system (like the societal constitutionalism of religion got recognised by the Lateran pacts in Italy; or how the state and Christian religion are interlinked in Germany much unlike a complete constitutional abstinence called “laïcité” in France). Societal constitutionalisms often predate state constitutionalisms (whether one reads it since the Treaty of Westphalia in 1648; or the Magna Carta for the British Isles; or the Manu Smriti or Ashokan Edicts for India) and modern state constitutionalism is only making a belated and grudging acceptance of their presence (this is not to discount the emergence of new corporate constitutionalism, social media constitutionalism or an emerging constitutionalism of artificial intelligence).[9] The social facts have their own autopoietic systems of functioning which through their communication media[10] and binary codes get encrypted into the specific legal system as part of its constitutional law and practice. To give a concrete illustration, depending on the sociological realities/facts of a specific timeframe and its representation in the bench of a specific constitutional court, abortion could be held to be both constitutional and then later on held to be unconstitutional. It is within this broad convergence of framework of basic principles governing liberal constitutional democracies that their emergency provisions need to be examined in times of societal constitutionalism of severe, virulent and life-threatening epidemic social conditions/systems.
V. Derogations to fundamental rights
Measures taken in the context of a state of emergency evidently entail interferences with various protected fundamental rights. The question posed is, however, whether such interferences are of the kind to require clear-cut derogations (i.e. temporary suspension of normally applicable standards), or whether, on the contrary, the said inevitable interferences may be dealt with on a “business as usual” basis. Derogations are, for instance, explicitly provided for (and limited) by Art. 55 of the Spanish Constitution, and depend on which of the state of alarm, emergency or siege has been declared. Under the Hungarian Constitution, Art. 54(1) expressly allows derogations from protected fundamental rights when a “special legal order” has been declared in case of a “state of national crisis” or a “state of emergency”. However, while the Hungarian constitution extensively details the constitutional regimes applicable in emergency circumstances, their focus is on national defence rather than epidemic situations. In the context of the Covid-19 crisis, as much as in the context of the “immigration crisis”, the Hungarian government expanded the scope of the emergency regimes set out in the Constitution via the general provision of its Art. 15(1) granting competence to the Government to act in all matters not expressly attributed to another state institution (Kovács, 2020). Such distortion of the balance of powers that ultimately allows to derogate from protected fundamental rights, as the case of Hungary shows, is manifestly possible only thanks to a loose framing and poor oversight of constitutional emergency regimes.
In the “National Emergency” provision under the Constitution of India (Art. 352), there is no provision for a “health emergency”; it is restricted to war, external aggression or armed rebellion.[11] Whether it is a “war” against “pandemic situations” or not, would be part of an evolving jurisprudence, though it is not settled and such an expanded and transformed definition of “war” has not been reached by the Supreme Court of India so far. At any rate, even with the declaration of emergency, justiciable and constitutionally protected fundamental rights as guaranteed under Part III of the Constitution of India are protected and cannot be suspended even during the pendency of such emergency (specially articles 14, 19, 21 and 22 of the Constitution of India), constituting part of the “basic structure” of the Constitution of India.[12]
Fundamental rights, including the right to equality before law and equal protection of law (Art. 14, Constitution of India including “habeas corpus”), the right to free movement of people (Art. 19(d), Constitution of India), the right to livelihood (which encompasses migrant and daily wage earners in millions; Art. 19 (g), Constitution of India), and the right to life (for daily wage earners who are in a hand to mouth situation; Art. 21, Constitution of India) have all been held to be part of the “basic structure” of the Indian Constitution by the Supreme Court of India, and are thus non-derogable rights and cannot be suspended under any circumstances, including under the “national emergency” provisions, which, however, does not include epidemics.
So, the complete lockdown, even when done under a special and unique circumstance of a pandemic, and specially without any advanced notice and without making prior arrangements for vulnerable groups like migrants and daily-wage earners, for example, is in direct contravention of the provisions of the Constitution of India. Making public arrangements and providing ameliorative measures to vulnerable groups cannot and should not be a response to public outcry and judicial intervention. Such swift planning and action is an intrinsic part of governance including that of executive, bureaucracy and other stakeholders in framing and implementing policies. Executive orders and guidelines cannot be a substitute to the legislature in a parliamentary democracy (as it would be a violation of the “separation of powers” principle, which is part of the “basic structure” of the constitution which cannot be anyhow derogated from). Even for such “extreme health situations”, a proper legislation needed to be enacted for democratic propriety and accountability.[13] Executive orders cannot substitute legislative enactment in a liberal parliamentary democracy. If done, it calls into question under what competence such executive orders for complete lockdowns were given, suspending not just the federal structure and framework of the constitution, but also the protected, inalienable and justiciable fundamental rights. It appears unconstitutional on the face of it.
The Supreme Court of India also did not live up to its reputation of a robust practice of judicial review. It’s intervention for the sake of migrant workers was too little, too late, given the surmounting crisis.[14] It is much too specious in a “common law” jurisdiction like India, where the rationale of complete lockdown measures themselves were neither constitutionally challenged nor did the Supreme Court of India took suo motu cognizance of those lockdown measures and did not gave its definitive decision with constitutionally binding effect across the country (especially when such lockdown measures severely curtailed constitutionally guaranteed fundamental rights) leaving it open for interpretation by constitutional observers (with a certain degree of certainty and predictability). Though there were some important High Court decisions during this period which related to providing healthcare facilities[15] while the epidemic was on (especially the devastating second wave starting somewhere around April, 2021), there is still an undecided Gujarat High Court decision challenging the lockdown measures themselves as “unconstitutional and ultra vires on account of it being illegal, arbitrary, unjust.”[16] The High Courts confined itself to both making healthcare facilities more widely available and on guiding measures to contain the epidemic: “During the second wave, more than a dozen high courts dealt with issues ranging from the lack of availability of beds, the impropriety of holding political rallies during the pandemic, the shortage of liquid medical oxygen at hospitals across the country, and so on (Shivshankar, 2022, p. 89).”
Derogations from normally protected fundamental rights is not only observable at the national level, but also at the supranational level. States may indeed simply declare their intent to derogate from conventionally protected Human Rights (e.g. Art. 15 ECHR and Art. 27 of the Inter-American Convention on Human Rights), except for those rights deemed to be absolute (e.g. pursuant to Art. 15 ECHR: the right to life, save for lawful killings resulting from acts of war; the right not to be tortured; the right not to be enslaved; and the principle nullum crimen, nulla poena sine lege). Despite some requirements as to the temporariness and factual motivation of derogations, the striking feature is the wide discretion left to states to derogate from conventional protections. Although local circumstances may vary, it is particularly interesting to note that only 10 out of the 47 States parties to the ECHR have filed a declaration of derogation under Art. 15 ECHR, and among these 10 states most have withdrawn their declaration by the end of 2020 while the pandemic was by no account over (Council of Europe, Covid 19 Derogations, 2022). One may thus rightfully question whether there was any need at all to derogate from the guarantees applicable in “normal times” in the first place. Unpreparedness should not be a sufficient ground.
Too much leeway to the “Prince” should be of great concern for any right-based approach to epidemics at both national and international levels, as derogations especially imply reduced and more lenient scrutiny from the courts. In this respect, strengthening the power and scope of the judicial review (i.e. the ECtHR for the ECHR) to assess on an ongoing basis the necessity of any derogation to fundamental rights would be advisable (ECHR Guide on Art. 15, 2021). Any abuse of the faculty or right of States to derogate should also be condemned (e.g. Art. 17 ECHR on the prohibition of abuse of rights should in this respect apply to the right of derogation afforded to States by Art. 15 ECHR). Although the need for States to derogate or not from the ECHR triggered some scholarly debate (Greene, 2020; Surdre, 2020; Touzé, 2020), going through the Covid-19 pandemic has undeniably showed that derogations are not absolutely required. Yet, states’ margin of appreciation may need to be widened to take into account the specific circumstances inherent to pandemic situations.
VI. Limitations to fundamental rights
If outright derogations may not be appropriate to address epidemics such as the Covid-19, some limitations to fundamental rights may still be necessary. The difference, however, is that courts keep scrutinizing measures under the same standards of “normalcy”. Any thoughtful protection of fundamental rights and freedoms is indeed a dynamic assessment process. Many rights and freedoms may be restricted, provided that restrictions are: contemplated by law; adequate to fulfil a legitimate aim such as the protection and preservation of public health; necessary in a democratic society; and proportionate. Despite formulistic variations, the same guarantees and conditions generally apply at the international, regional and national levels. For example, in the case of the right to freedom of movement and assembly, the protection is multi-layered and range from universal instruments such as the 1948 Universal Declaration of Human Rights (Art. 13 and Art. 20), to regional instruments such as the European Convention of Human Rights (ECHR) (Art. 2 Protocol 4 and Art. 11) and the African Charter of Human and People’s Rights (Art. 12 and Art. 11), and down to national constitutions (e.g. Art. 16 and Art. 17 of the Italian Constitution; Article 19(1)(b),(d), and (e) of the Indian Constitution; Art. 11 and Art. 8 of the German Basic Law).
The Covid-19 related case-law that starts to emerge shows the importance to keep high standards of fundamental rights protection even in the context of a pandemic. The European Court of Human Right (ECtHR) has recently sanctioned Switzerland for a breach of Art. 11 (freedom of assembly) ECHR, as it held that the public authorities’ prohibition to assembly during the pandemic was disproportionate in light of the general character of the measure, its extreme duration, the criminal nature and severity of sanctions, and the lack of effective remedies (CGAS v. Switzerland). Some commentators restrict the scope of the above decision to the specific case of Switzerland, where effective remedies where in fact lacking (Letteron, 2022), but the ratio decidendi followed by the ECtHR is actually broader and includes notably the chilling effect due to the severity of the potential sanctions (up to 3 years imprisonment) and the consideration that in any case the necessity test is not met as the Swiss government did not discharge its burden to prove that less restrictive measures were unavailable. It is also worth noting that the ECtHR could reach such a decision since Switzerland did not derogate from Art. 11 ECHR, as Art. 15 ECHR would have allowed it to do (CGAS v. Switzerland, § 90), thereby showing that a stronger standard of scrutiny apply (as it should), even in the context of an epidemic emergency, when fundamental rights and freedoms have not been formally derogated from.
In another case, however, the ECtHR declared inadmissible a claim that alleged that a compulsory lockdown in Romania amounted to a deprivation of liberty contrary to Art. 5(1) ECHR (Terheş v. Romania). The Court distinguished between “deprivation” and “restriction” of liberty, arguing that the protection of Art. 5(1) applies solely in case of “deprivation”, i.e. where a measure specifically targets one individual, in contrast with lockdown measures that affect everybody. Concerns have been raised as to the restrictive threshold established by the ECtHR to trigger Art. 5(1) ECHR that would apply not only during pandemics but also in times of “normalcy”, since Romania did not derogate from the ECHR (Greene, 2021). The Court however clearly alluded to the fact that a different decision may have been reached pursuant to Art. 2 Protocol 4 protecting the freedom of movement (Terheş v. Romania, §38). Choosing the right cause of action is indeed fundamental, and a mistaken judicial strategy should not call into question the conclusion that fundamental rights and liberal democracies are better protected in times of an epidemic emergency in the absence of any derogation.
Thus, keeping a proficient judicial scrutiny from a fundamental rights’ perspective allows to assess measures taken by governmental authorities through the lens of all applicable rights and freedoms, including the principle of non-discrimination. PACE resolutions have clearly restated the need for states to comply with the non-discrimination principle to the fuller extent, including between persons who are vaccinated and those who cannot or do not want to get vaccinated (cf. PACE Resolution 2329 (2020) and PACE Resolution 2337 (2020)). Such consideration is also explicit in the EU Regulation 2021/953[17] establishing the EU Digital Covid Certificate or so-called “green pass”.[18] In terms of interference with right to the respect of one’s private life and freedom to decide which medical treatment to undertake, the ECtHR held that children compulsory vaccination imposed by law for public health reasons generally fall within states’ margin of appreciation (Vavřička v. the Czech Republic). Yet, compulsory vaccination against the Covid-19 has only been decided by a few states to date. Austria is the case in point in Europe. The Constitutional Court of Austria recently ruled that mandatory vaccination was constitutional and proportionate to the aim of protecting public health under the circumstances at the time the individual recourse was introduced.[19] As the Austrian legislator has constitutionalized the ECHR, the Constitutional Court conducted its constitutionality assessment in light of the requirements of Art. 8 ECHR (i.e. the right to respect for private and family life, which includes the right to health and bodily integrity). This notwithstanding, and as already mentioned above, the Austrian government has now waived the vaccination obligation given the lower fatality rate of the newest Covid-19 variants.[20] The short-lived vaccination obligation for the general population over 18 years of age as showcased by Austria ultimately questions the legitimacy, validity and appropriateness of such a measure, let alone the restricted conditions of its acceptability from a constitutional and fundamental rights viewpoint.
Yet more problematic is the nudging strategy (Thaler & Sunstein, 2008) pursued by most governments across the world where access to educational institutions, theatres, museums, public transport, and so on, were made conditional to a “green pass”, thereby restricting people’s fundamental rights. In practice, the enjoyment of fundamental rights is made subject either to onerous and frequent testing, or even to vaccination (every 4 to 6 months) or recovery from Covid-19 (every 6 months). Lower courts and even constitutional courts have generally validated the use of “green passes”, provided that some exceptions exist in case of urgency, notably, and so long as the epidemic situation so justifies. The issue of the intensity of the constitutional review should however be questioned. As one can hardly doubt that anti-Covid-19 measures do encroach upon various fundamental rights, the issue of the relevant standard of review thus becomes paramount at the stage of the proportionality test of any constitutional scrutiny. A case in point is, for instance, the decision no. 2022-835 of 21 January 2022 of the French Constitutional Council regarding the constitutionality of the law introducing further “green pass” restrictions. In said decision, the greens pass measures introduced in France were held to satisfy the proportionality test, as they were deemed to be not manifestly inadequate in light of the factual circumstances at hand and the objective pursued, i.e. the protection of health (Decision no. 2022-835 of 21 January 2022, §14).[21] A stronger standard would have been to require proof that no less restrictive measure was at the time available. Arguably though, and absent any formal declaration of derogation, such stronger proportionality standard would apply at a conventional level (see our comments above in relation to the ECHR case CGAS v. Switzerland). Some discrepancy may therefore exist between conventional and constitutional reviews. The strong proportionality standard mentioned above (consisting in requiring to discharge the burden to prove that no less restrictive measure was available) was as a matter of law expressly rejected by the French Constitutional Council, on the basis that a large margin of general appreciation must be left to the executive and legislative powers (Decision no. 2022-835 of 21 January 2022, §14 et seq.). One specific caveat was nevertheless subtly introduced in the reasoning: the necessary temporariness of the measures (Decision no. 2022-835 of 21 January 2022, §14). Such a caveat may yet be only a smoke-screen, as, according to the own words of the Constitutional Council, the power of appreciation of the necessity of the “green pass” measures primarily and principally belongs to the legislative and executive powers. There is in fact a high risk to see smoke-screen backstops plaguing constitutional courts’ case law in the absence of any dedicated and tailored constitutional regime setting clearly defined limits and standards of review.[22]
It is thus also not surprising to observe that many concerns have been raised by scholars in terms of non-discrimination and respect for fundamental rights (Fabre-Magnan, 2021; Agamben, 2021). The admission of such aggressive nudging strategies, even temporarily, represents a grave peril for constitutional liberal democracies and may well pave the way to authoritarianism if the normal system of checks and balances is deviated from (including in the form of a complacent judicial review). While judicial reviews, including constitutional ones, may have appeared at times rather weak and complacent in the eyes of the scholar or citizen, this has not always been the case in all jurisdictions and for all fundamental rights. To cite only one example, one may refer to two decisions of the Italian Constitutional Court (Decision no. 128/2021 of 9 June 2021; and Decision no. 213/2021 of 19 October 2021), which respectively declared unconstitutional the extension of moratoria prohibiting the seizure of dwellings and evictions on grounds of the continuing pandemic, thereby protecting particularly the fundamental right to property of creditors and landlords.
Limitations to fundamental rights cannot turn rights to be redundant; they can only place reasonable restrictions meeting the test of proportionality or balancing in order to meet the objectives of not spreading the pandemic. If legislations are inadequate or outdated, such as colonial era legislations for dealing with epidemics in countries like India, it offers an opportunity to update legislations through proper parliamentary procedure to have a legislation in place which would list out the details of the manner of restrictions on fundamental rights in cases of “epidemic/health emergencies” (Gowd, Veerababu and Reddy, 2021). Or else, a constitutional amendment can be initiated to include reasonable restrictions on fundamental rights during health emergencies (e.g. in Art. 352, the national emergency provisions of the Constitution of India). In the case of India, the reasonableness of legislations enacted to meet health emergency objectives, or even the constitutionality of a constitutional amendment providing for the same would be determined by India’s constitutional courts (High Courts and the highest Constitutional Court, i.e., the Supreme Court of India) based on India’s constitutional principles and practice. Similar approaches may be followed in other countries, where judicial review shall be at all times guaranteed.
VII. Conclusion: some takeaways for global constitutionalism
It must be highlighted how for liberal constitutional democracies furthering “fundamental rights effectiveness” (to paraphrase Peter Häberle), there are inalienable and justiciable (decided by an independent judiciary) constitutionally protected rights at all times, even under conditions of emergency. The potentially affected fundamental rights are various, including: freedom of assembly, freedom of trade and commerce (including pursuing livelihood of one’s choice), freedom of mobility and movement, as well as the right to life, which does not mean mere existence but a right to live with human dignity. It is the constitutional state’s responsibility to expand the frontiers of the right to life, which at any rate and under any circumstances includes the right to live with human dignity and not just bare existence, which would then mean the state’s positive responsibility to provide for health (including right to safe food, water and environment, not excluding the right against climate change, among others), education, public transport, maintenance of peace (or maintenance of law and order, on the other hand), national security and respect for international law. It is in this context, when there is a pandemic, and there are “reasonable” restrictions put in place, their “reasonableness” has to be tested on principles of proportionality and balancing. For instance, if a complete lockdown is imposed in a country like India, with still a significant percentage of people living in abject poverty, a daily wage earner would certainly die of hunger and privation, if not because of the pandemic.
The condition becomes more acute when the government/s (centre and states) do not have a well-planned and thought-out course of action, and the workers are left stranded at public transport depots because public transport is not running under such complete lockdown. In such a scenario, it becomes a grave violation of constitutionally protected right to free movement of people, right to livelihood affecting right to life itself. Situations such as those where hundreds of thousands of people are forced to walk back “home” (i.e., their places of origin) on foot covering hundreds of miles from metropolitan locations to rural hinterland in conditions of desperation (with some dying in the process) appear to be in direct contravention of constitutionally protected rights under the Indian constitution. Making arrangements for citizenry after the damage is done by a democratically elected government, or as a result of intervention by the constitutional court (i.e., the Supreme Court of India), is a serious lapse in constitutional propriety and responsibility. Sadly, it is not the case with India alone. Under different circumstances, the pandemic has put established democratic principles to severe tests and often strain in all liberal constitutional democracies. What revolutions could not do, the pandemic has done in importing aspects of authoritarianism from the back door. In the process, the “fight” is not just against the pandemic but also for liberal constitutional democracies based on pluralism and the basic structures of an open society.
The Covid-19 crisis has caught the world by surprise and brought up many challenges, indeed. Comparisons show though that liberal democracies are not all equally equipped from a constitutional law point of view. Yet, governments have generally taken very similar measures across the world, thereby highlighting material differences in terms of fundamental rights protection. The progressive development and furtherance of global constitutional standards on the backdrop of the Covid-19 pandemic, however, also show a welcome inter-systemic dialogue between jurisdictions with the aim of enhancing constitutional guarantees in times of emergency. Covid-19 also demonstrated, it is argued, that epidemics or pandemics are specific kind of emergencies that require specific constitutional responses in which, however, derogations from established fundamental rights at national, regional, and international levels should be avoided. On the other hand, parliamentary and judicial oversight should be strengthened and empowered, as separation of powers needs to remain firmly anchored in constitutional guarantee mechanisms to ensure the safe passage of liberal democracies though the storm of current and yet to come pandemics. Covid-19 may ultimately be viewed as an eye-opener and warning for constitutional law scholars, as well as citizens and the civil society as a whole, against potential backslidings of democracy and the rule of law. In other words, we must stay alert.
[1] The obligation has now been lifted since 23 June 2022 due to changes of the epidemic situation, see at : https://www.parlament.gv.at/PAKT/AKT/SCHLTHEM/SCHLAG/J2022/109Hauptausschuss.shtml# accessed 12 July 2022.
[2] The measure was introduced by the Decree-law of 1st January 2022, n°1, and applied up until the 15th of June 2022. The measure was not prolonged and does not apply anymore. Compulsory vaccination unconditioned to age has been maintained, however, for some specified professionals such as sanitary personnel.
[3] See e.g. Art. 32 Italian Constitution; Section 43 Spanish Constitution; French Constitutional Council, Decision no. 2022-835 of 21 January 2022, § 7, explicitly recognising the protection of health as a constitutional objective.
[4] BBC News, “Coronavirus: ‘We are at war’ – Macron”, 16 March 2020 <https://www.bbc.com/news/av/51917380> accessed 12 July 2022.
[5] Loi n° 2020-290 du 23 mars 2020 d’urgence pour faire face à l’épidémie de covid-19, JORF n°0072 of 24 March 2020.
[6] See infra n. 11.
[7] Peter Häberle writes, “As a constituted factor, a people operate universally, on many planes, on a multitude of occasions and in many forms, not least through the everyday application of fundamental rights. One ought not forget: a people is primarily a coalition of citizens. Democracy is “rule of the citizens”, not of a people in a Rousseauean sense. There is no way back to Rousseau. The citizen’s democracy is more realistic than the people’s democracy……A citizen’s democracy is closer to a concept that views democracy from the perspective of fundamental rights, than to those in which the people have merely replaced the monarch as sovereign. This view is a consequence of the qualification of the populist term people, a term all too easily misunderstood. Fundamental freedoms (pluralism), not “the people” thereby become the point of reference for a democratic constitution. This capitis diminution of the crypto-monarchical conception of a people is characterized by citizen’s freedoms and pluralism.” Cf. Häberle, 2018, pp. 147-148.
[8] In France, for instance, the sanitary emergency regime initially introduced by Law no. 2020-290 of 23 March 2020, and several times extended thereafter, was abolished by a recent Law no. 2022-1089 of 30 July 2022 (“Loi mettant fin aux régimes d’exception créés pour lutter contre l’épidémie liée à la covid-19”).
[9] Prof. Gunther Teubner, apart from identifying societal constitutionalisms lurking from the past, both within and without modern nation-states constitutionalisms, in its “classical liberal” format, is acutely aware of its newer avatars, like for example, the emerging challenges for constitutionalists with the rise of “global capital market constitutionalisms”, when he writes, “The uncontrollable dynamic of global capital markets, the obvious power of transnational corporations, and the dominance of epistemic communities with their non- legitimized ‘experts’ in the largely law- free spaces of globality, lead both advocates and opponents of transnational constitutionalism to the false assumption that the constitutional deficiencies of transnational institutions can for the most part be explained with reference to globalization. The weakness of international politics is said to be responsible for the disarray in global society. Three phenomena are prominent: (1) nation states are de- constitutionalized by the transfer of government functions to the transnational level and, at the same time, the partial assumption of these functions by non- state actors; (2) the extra- territorial effects of nation- state actions create a law without democratic legitimation; (3) there is no democratic mandate for transnational governance.” Cf. Teubner, 2012, p. 5.
[10] Prof. Thomas Vesting writes, “media theory places such strong emphasis on cultural and medial conditions of knowledge that one is almost compelled to speak of “cultural” or “medial” rather than “social” epistemology. In place of the supposition that there could exist such a thing as “pure” knowledge wholly independent of a given society’s cultural and medial conditions of reproduction, media theory proceeds from the hypothesis that knowledge is always already socially, culturally, and medially embedded, and that perception and society, cognition and culture, knowledge and media are always already entangled. Against the background of this initial hypothesis, this introductory chapter intends to demonstrate that there is an intrinsic connection between the rise of computers and the new culture and epistemology of the network. Since the 1960s, even the most divergent theories of both the human and natural sciences have all reacted – in a more or less reflexive mode – to the increasing use of computers and their increasingly decentralized connection in networks.” Cf. Vesting, 2018, p. 6.
[11] Art. 352. Proclamation of Emergency. — (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or [armed rebellion], he may, by Proclamation, make a declaration to that effect [in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.]
[12] “The basic structure doctrine was announced by the Supreme Court of India in Kesavananda Bharati v. State of Kerala (sic!, the actual name being ‘Bharathi’) in 1973 ((1973) 4 SCC 225). This doctrine places substantive limits on the amending power and has subsequently been applied to other forms of state action… basic structure review is an independent and distinct type of constitutional judicial review which applies to all forms of state action to ensure that such action does not ‘damage or destroy’ ‘basic features of the Constitution’. These basic features of the constitution are identified through a common law technique and are general constitutional rules which are supported by several provisions of the constitution (Krishnaswamy, 2010, p. x, preface).” “According to this doctrine of basic structure, the amendment power (of the legislature-parliament) is not unlimited; rather, it does not include the power to abrogate or change the identity of the constitution or its basic features…..Since Minerva Mills (Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789), the ‘Basic Structure Doctrine’ has been accepted and applied in various other cases, and is now an established constitutional principle in India. It now includes general features of a liberal democracy, such as the supremacy of the Constitution, the rule of law, separation of powers, judicial review, judicial independence, human dignity, national unity and integrity, free and fair elections, federalism and secularism (Roznai, 2017, pp. 42-47).”
[13] It is quite spectacular how Covid-19 was held to be a “natural disaster” under National Disaster Management Act, 2005 and a complete lockdown was effected under it by the union/central government whereas the colonial era Epidemic Diseases Act, 1897 was used by state governments for wide-ranging curtailment of fundamental rights and civil liberties. Additionally, at the local level, senior level police officials can and did curtail individual movement for Covid restrictions when it becomes a threat to “life, health or safety” under Code of Criminal Procedure, 1973. For more on this, in a generally critical note during the first wave of strict lockdown in India, without offering any concrete solutions to counter and tackle the raging pandemic or offering solutions to the state on how to meet proportionality requirements, See: Bhatia, 2020.
[14] Bandhua Mukti Morcha v. Union of India, In Re: Problems and Miseries of Migrant Labourers with Writ Petition (C) No. 916 of 2020 <https://main.sci.gov.in/supremecourt/2020/11706/11706_2020_36_1501_28166_Judgement_29-Jun-2021.pdf> accessed 12 July 2022. It is also interesting to note how in some cases, the Supreme Court has gone out of its way to hold court in odd hours to give immediate relief, whereas, in this case it took couple of weeks for it to realize how grave a situation it was affecting the rights of millions of India’s citizens.
[15] The exorbitant rates charged by private hospitals for reservation of bed or facilities at their hospitals or to even provide oxygen cylinders to desperate patients and driving their relatives and dependents to inconsolable sorrow was a common sight in India, especially during the second wave in 2021. Millions died in horrible conditions and many more of their living relatives were reduced to penuary. There is no greater proof required for showing how there cannot be a substitute to universal public healthcare and an immediate need for overhauling the entire public health facility in India right from the village upwards. It is in keeping with India’s constitutional commitments and it is also in keeping with Hindu values to provide public health (drawn from Vedas, Upanishads and Puranas, just to mention the main texts) which the present government often seems to publicly endear itself to. Not providing public health is both unconstitutional as well as anti-Hindu.
[16] Vishwas Sudanshu Bhamburkar v Union of India Writ Petition (PIL) No 77 of 2020 (Gujarat High Court). Cf. Shivshankar, 2022, p. 86.
[17] Regulation (EU) 2021/953 of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic, OJ L 211, 15.6.2021.
[18] Recital 36 of Regulation (EU) 2021/953 reads: “It is necessary to prevent direct or indirect discrimination against persons who are not vaccinated, for example because of medical reasons, because they are not part of the target group for which the COVID -19 vaccine is currently administered or allowed, such as children, or because they have not yet had the opportunity or chose not to be vaccinated. Therefore, possession of a vaccination certificate, or the possession of a vaccination certificate indicating a COVID-19 vaccine, should not be a pre-condition for the exercise of the right to free movement or for the use of cross-border passenger transport services such as airlines, trains, coaches or ferries or any other means of transport. In addition, this Regulation cannot be interpreted as establishing a right or obligation to be vaccinated.”.
[19] Austrian Constitutional Court (Verfassungsgerichthof), G 37/202222, V 173/2022, 23 June 2022.
[20] See supra n. 1.
[21] In that sense the referred decision of the Constitutional Council follows the consultative opinion of the French Council of State no. 404.676 of 26 December 2021.
[22] See e.g. the decision no. 2021-824 of 5 August 2021 of the French Constitutional Council, where (especially at § 53) readers may have thought that the constitutionality of the green pass restrictions scrutinized in light of the principle of equality may be subject to the free of charge character of the testing or vaccination required to obtain the so-called “green pass” certificates. Testing later became onerous (except under some limited circumstances), and yet “green pass” measures were still held constitutional (cf. French Constitutional Council, Decision no. 2022-835 of 21 January 2022).
AUTHORS’ REFERENCES:
Dr. Pratyush Kumar is Humboldt Stiftung Post-Doctoral Fellow at Goethe University, Frankfurt, Germany; a PhD in Public and Comparative Law from University of Eastern Piedmont, Alessandria, Italy; LLM (International and Comparative Law) from George Washington University Law School, George Washington University, Washington DC, USA (2009-2010) and BA, LLB (Hons.) from National Law University Jodhpur, India (2003-2008). He can be reached at: pratyush.kumar@uniupo.it or kumarpratyush2007@gmail.com.
Emeric Prévost is lecturer at Meiji University (Tokyo, Japan); University Assistant at the University of Vienna (Austria); and PhD candidate at the University of Strasbourg (France). He can be reached at: emeric.prevost@univie.ac.at or emeric.prevost.fr@gmail.com.
BIBLIOGRAPHY
Books and Articles:
Agamben, Giorgio, (2003), Stato di eccezione [State of exception], Bollati Boringhieri.
Corradetti, Claudio & Pollicino, Oreste, (2021), The “War” Against Covid-19: State of Exception, State of Siege, or (Constitutional) Emergency Powers?: The Italian Case in Comparative Perspective, German Law Journal 22(6), pp. 1060-1071.
Häberle, Peter, (2018), “The open society of constitutional interpreters” – A contribution to a pluralistic and “procedural” constitutional interpretation (originally published in 1975 as: “Die offene Gesellschaft der Verfassungsinterpreten” – translated from German by Stefan Theil, Postdoctoral Research Fellow, Bonavero Institute, Oxford University), In: Markus Kotzur (ed.), Peter Häberle On Constitutional Theory: Constitution as Culture And The Open Society Of Constitutional Interpreters, Baden Baden: Nomos.
Krishnaswamy, S., (2010), Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford University Press.
Luhmann, Niklas, (2008), Law as a Social System, Oxford University Press.
Roznai, Y., (2017), Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press.
Schmitt, Carl, (2005), Political Theology: Four Chapters on the Concept of Sovereignty (trans. with an introduction by George Schwab; foreword by Tracy B. Strong), Chicago: University of Chicago Press.
Schmitt, Carl, (2000), The Crisis of Parliamentary Democracy (trans. by Ellen Kennedy), Cambridge: MIT Press, 2000.
Shivshankar, Goutham, (2022), The Challenges of Administrative Law Review in the Covid-19 Pandemic: The Case of India, Australian Journal of Asian Law, 2022, Vol 22 No 2, Article 06: 75-97.
Teubner, Gunther, (2012) Constitutional Fragments : Societal Constitutionalism and Globalization, Oxford University Press.
Thaler, Richard H., & Sunstein, Cass R., (2008), Nudge: Improving decisions about health, wealth, and happiness, Yale University Press, New Haven, CT.
Vesting, Thomas, (2018), Legal Theory and the Media of Law, Edward Elgar.
Legislations, Reports & Guidelines:
Loi n° 2020-290 du 23 mars 2020 d’urgence pour faire face à l’épidémie de covid-19, JORF n°0072 of 24 March 2020.
Loi n° 2022-1089 du 30 juillet 2022 mettant fin aux régimes d’exception créés pour lutter contre l’épidémie liée à la covid-19, JORF n°0176 of 31 July 2022.
Venice Commission, Rule of Law Checklist (2016), adopted by the Venice Commission at its 106th Plenary Session (Venice, 11-12 March 2016), CDL-AD (2016)007-e.
Venice Commission, Report (2020), « Respect for Democracy Human Rights and Rule of Law during States of Emergency – Reflections », 26 May 2020, CDL-PI(2020)005rev-e.
PACE Resolution 2329 (2020), “Lessons for the future from an effective and rights-based response to the Covid-19 pandemic”.
PACE Resolution 2337 (2020), “Democracies facing the Covid-19 pandemic”.
Council of Europe, “Covid-19 Derogations”, last updated 3 January 2022, available at : <https://www.coe.int/en/web/conventions/derogations-covid-19> accessed 12 July 2022.
ECHR, Guide on Article 15, (2021) “Derogation in time of emergency”, updated 31 December 2021 <https://www.echr.coe.int/Documents/Guide_Art_15_ENG.pdf> accessed 12 July 2022.
EU Regulation 2021/953 (2021) of the European Parliament and of the Council of 14 June 2021 on a framework for the issuance, verification and acceptance of interoperable COVID-19 vaccination, test and recovery certificates (EU Digital COVID Certificate) to facilitate free movement during the COVID-19 pandemic, OJ L 211, 15.6.2021.
Online sources:
https://www.parlament.gv.at/PAKT/AKT/SCHLTHEM/SCHLAG/J2022/109Hauptausschuss.shtml# (last accessed: 12 July 2022).
Bhatia, Gautam, (2020), An Executive Emergency: India’s Reponse to Covid-19, Verfassungsblog, April 13, 2020, cf. https://verfassungsblog.de/an-executive-emergency-indias-response-to-covid-19/ (last accessed: 25 Sept., 2022).
“Coronavirus: ‘We are at war’ – Macron”, BBC News, 16 March 2020 <https://www.bbc.com/news/av/51917380> (last accessed: 12 July 2022).
Gowd, K.K., Veerababu, D., and Reddy, V.R., COVID – 19 and the Legislative Response in India: The need for a Comprehensive Healthcare Law, J Public Aff. 2021 Nov;21(4):e2669. doi: 10.1002/pa.2669. Epub 2021 Mar 21. Cf. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8250373/ (Last accessed: Sept. 25, 2022).
Paulus, Dagmar, (2020), “How politicians talk about coronavirus in Germany, where war metaphors are avoided”, The Conversation, 22 May 2020 <https://theconversation.com/how-politicians-talk-about-coronavirus-in-germany-where-war-metaphors-are-avoided-137427> (last accessed: 12 July 2022).
Agamben, Giorgio, (2020), Stato di eccezione e stato di emergenza [State of exception and state of emergency], 20 July 2020 < https://www.quodlibet.it/giorgio-agamben-stato-di-eccezione-e-stato-di-emergenza> (last accessed: 12 July 2022).
Fabre-Magnan, Muriel, (2021), “L’État de droit est-il malade du Covid-19 ?”, Figaro Vox, 21 December 2021 <https://www.lefigaro.fr/vox/societe/muriel-fabre-magnan-l-etat-de-droit-est-il-malade-du-covid-19-20211221> (last accessed: 12 July 2022).
Agamben, Giorgio, (2021), “Cittadini di seconda classe”, 16 July 2021 <https://www.quodlibet.it/giorgio-agamben-cittadini-di-seconda-classe> (last accessed: 12 July 2022).
Kovács, Kriszta, (2020), “Hungary’s Orbánistan: A Complete Arsenal of Emergency Powers”, Verfassungsblog, 6 April 2020 < https://verfassungsblog.de/hungarys-orbanistan-a-complete-arsenal-of-emergency-powers/> (last accessed: 12 July 2022).
Greene, Alan, (2020), “States should declare a state of emergency using article 15 ECHR to confront the coronavirus pandemic”, Strasbourg Observer, 1 April 2020 <https://strasbourgobservers.com/2020/04/01/states-should-declare-a-state-of-emergency-using-article-15-echr-to-confront-the-coronavirus-pandemic/> (last accessed: 12 July 2022).
Greene, Alan, (2021), “Falling at the first hurdle? Terheş v romania: lockdowns and normalising the exception”, Strasbourg Observer, 18 June 2021 https://strasbourgobservers.com/2021/06/18/falling-at-the-first-hurdle-terhes-v-romania-lockdowns-and-normalising-the-exception/ (last accessed 12 July 2022).
Sudre, Frédéric, (2020), “La mise en quarantaine de la Convention européenne des droits de l’homme”, Le Club des Juristes, 20 April 2020 <https://blog.leclubdesjuristes.com/la-mise-en-quarantaine-de-la-convention-europeenne-des-droits-de-lhomme/> (last accessed: 12 July 2022).
Touzé, Sébastien, (2020) “La restriction vaudra toujours mieux que la dérogation…”, Le Club des Juristes, 22 April 2020 < https://blog.leclubdesjuristes.com/la-restriction-vaudra-toujours-mieux-que-la-derogation/> (last accessed 12 July 2022).
Letteron, Roseline, (2022), “Covid : Atteinte à la liberté de manifester, en Suisse”, 19 March 2022 < https://libertescheries.blogspot.com/2022/03/covid-atteinte-la-liberte-de-manifester.html> (last accessed: 12 July 2022).
Cases:
Austrian Constitutional Court (Verfassungsgerichthof), G 37/202222, V 173/2022, 23 June 2022.
Bandhua Mukti Morcha v. Union of India, In Re: Problems and Miseries of Migrant Labourers with Writ Petition (C) No. 916 of 2020, <https://main.sci.gov.in/supremecourt/2020/11706/11706_2020_36_1501_28166_Judgement_29-Jun-2021.pdf> (Last accessed 12 July 2022).
CGAS v. Switzerland, ECtHR, 15 March 2022, no. 21881/20.
French Constitutional Council, 5 August 2021, Decision no. 2021-824.
French Council of State, 26 December 2021, Advisory opinion no. 404.676.
French Constitutional Council, 21 January 2022, Decision no. 2022-835.
Italian Constitutional Court, 9 June 2021, Decision no. 128/2021.
Italian Constitutional Court, 23 September 2021, Decision no. 198/2021.
Italian Constitutional Court, 19 October 2021, Decision no. 213/2021.
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
Minerva Mills (Minerva Mills Ltd. v. Union of India), AIR 1980 SC 1789.
Terheş v. Romania, ECtHR, 13 April 2021, no. 49933/20.
Vavřička v. the Czech Republic, ECtHR, 8 April 2021, no. 47621/13 and others.
Vishwas Sudanshu Bhamburkar v Union of India Writ Petition (PIL) No 77 of 2020 (Gujarat High Court).
