Equality and legality in fundamental rights protection: case studies

Name: Equality and legality in fundamental rights protection: case studies
Start: 2022-07-06T10:00:00+02:00
End: 2022-07-06T11:30:00+02:00
Location: Building C

Two of the overarching principles which compose a system of protection of fundamental rights are equality and legality. Equality as a tool to ensure an equitable and fair treatment for everyone, with no categories of subjects being unjustifiably singled out to have more or less favourable treatment and suffer discrimination. Legality as a means to ensure that fundamental rights limitations are enacted by the democratically elected legislator, and not by the administration, or at least have a democratic pedigree that makes it possible to still, albeit indirectly, in some way attribute them to the parliament. This panel is focused on these two dimensions of any fundamental rights order. Instead of a general approach which starts from a theoretical analytical perspective and solves concrete cases accordingly, a reverse approach will be used: different case studies will constitute the motto of the discussion to be held.

Benedita Menezes Queiroz / Marta VicenteAre women “offside“? Achieving gender parity in sports dispute settlement

The core of our study is the analysis of gender inequality in sports arbitration, in particular the rules for appointment of CAS arbitrators. The authors‘ standpoint is that while reviewing decisions taken by sports governing bodies, CAS performs regulatory functions that go beyond private law dispute settlement. However, not only recent research shows that the lack of women representation among CAS arbitrators is more concerning than in other international courts and tribunals, but also that these women were appointed less times in comparison with male arbitrators. Additionally, a significant share of the appointments was given to the same female arbitrators. The first proposal we put forward to reform the current appointment system of CAS arbitrators addresses the possibility of increasing the share of women panel presidents. Second, we propose abolishing party-appointments in sports arbitration.

Tiago Fidalgo de FreitasThe legality of the limitations to fundamental rights in the jurisprudence of the pandemic of the Portuguese Supreme Administrative Court

Unlike other European legal orders, Portugal does not have an Infectious Diseases Protection Act in force specifically tailored to enable the approval of administrative measures by the executive during a pandemic. Instead, the legislative framework in this regard is thinner, consisting of atomistic norms contained in the Health Framework Law, the Civil Protection Framework Law, and the Public Health Surveillance Act. During the COVID19 pandemic crisis, the Portuguese Government approved a set of limitations to fundamental rights via administrative regulations based on such legal norms. Their constitutionality – more specifically, their legality – was many times contested in the Supreme Administrative Court via fundamental rights injunctions and interim relief requests. This paper analyses the case-law of the Supreme Administrative Court in these matters.

Mariana Melo EgídioExecutive rule-making powers in a pandemic context -democracy with flaws?

It is by now evident that the COVID-19 pandemic posed new challenges to the foundations of Public Law, namely to the rule of law and separation of powers. Although the use of emergency powers by the Executive is not new to constitutional theory, in Portugal during these last two years the Government became the leading legislator in what concerns restrictions of fundamental rights. This provides food for thought concerning the extent and oversight of executive rule-making powers. Through an analysis of some relevant constitutional case-law, this paper aims to understand how the specific constitutional framework regarding fundamental rights restrictions as well as the measures adopted to contain the spread of Covid-19 (such as stay-at-home measures, curfews or social distancing) led the country to a fall from the category of 'fully democratic country' to 'democracy with flaws.', according to The Economist‘s Democracy Index 2020 and 2021 editions.

Chair(s): Afonso Brás

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