Judging in time of crisis: a comparative overview

Crisis situations reveal the resistance mechanisms of the rule of law. In France, in the face of a high concentration of powers in the hands of the executive, judicial review plays an important role. There are two procedures that allow judicial review of both legislative and regulatory measures in an emergency: a priori constitutional review and administrative référé procedure. During the health crisis, the emergency administrative judge played more than ever a role of filter between citizens and political authorities by developing a discourse in response to the crisis. In great demand, the référé judge tried to find a way between his desire not to judge the political appropriateness of the measures taken by the executive, and his requirement to give useful effect to his appeal by protecting fundamental rights. The result reveals the role of judges in crisis situations, torn between the reasons of necessity linked to the context and the protection of the rule of law.

The UK has a specific way of judging crises: public inquiries are set up in case of existence of “public concern“, in addition to or sometimes instead of judicial investigations. Contrary to other European countries, there is no specific legal responsibility for members of government in the UK, and during the pandemic, ordinary judges have exercised self-restraint vis-à-vis the executive power. Public inquiries are considered a more adapted way of judging public officials‘ decisions in times of crisis, while at the same time avoiding the difficulties of evaluating political action outside of Parliament in terms of separation of powers. Recently, two public inquiries have been initiated to respond to the political scandal “Partygate“ and the UK‘s response to the Covid-19 pandemic. Those two inquiries will be used as examples to introduce a framework for hybrid mechanisms of judging crisis, between law and politics, as public inquiries draw characters from both domains.

The Covid-19 pandemic has been a challenge for constitutional checks and balances and fundamental rights' protection mechanisms - Portugal has been no exception, and although the courts' supervisory role over emergency action remained intact throughout the pandemic, an interesting discussion about their role in judging public officials‘ decisions in times of emergency has been going on. Judicial review of emergency measures has been targeting different issues. From the application of several “emergency exceptions“ and judicial deadlines‘ suspensions in criminal cases, to the review of limitations on inter-municipal circulation and restrictions to freedom of assembly in administrative courts, the issues have been many. Mandatory confinements have been one of the most complex constitutional questions under scrutiny. These examples will be the basis for a reflection upon the role of courts in times of emergency, and the adequacy of judicial remedies in times of crisis.

Although the Italian authorities promulgated a huge number of acts aiming at containing the health crisis, the ICC delivered just two judgments concerning such emergency: decisions no. 37/2021 and no. 198/2021. This can sound strange when we consider the variety of constitutional rights affected by the emergency rules. But it is a consequence of the way our constitutional justice works: unlike other constitutional tribunal, the Italian court does not receive direct appeals from citizens and only judges on formal law. Nevertheless, the statements contained in the judgments mentioned allow a first reflection on the approach of the Italian Constitutional Court in time of crisis. The paper will discuss several issues stemming from the crisis case law: should the Constitutional Court assess the proportionality of the contested measures? Has the Court adequate investigative powers? What should be, according to the constitutional case-law, the role of experts in political decision making?

So far, the Spanish Constitutional Court has issued nearly a dozen rulings in relation to the covid-19 pandemic. Most of them have declared unconstitutional the measures adopted by the executive bodies. Of particular relevance were rulings 148/2021 of 14 July and 183/2021 of 27 October, which declared unconstitutional the restriction of freedom of movement for exceeding the limits of the state of alarm and the extension of the state of alarm to six months, respectively. Nor can we forget 168/2021, of 5 October, which annulled the suspension of the calculation of deadlines for processing all kinds of parliamentary initiatives without providing for exceptions. This paper will analyse the specifics of the limits of the Spanish right of exception as set out by the high constitutional interpreter on the occasion of the pandemic.