27 April 2020
Let’s not fool ourselves either!
I read with great interest the blogpost “Don’t be fooled by autocrats!”. However, to my great regret there are some factual errors in the text which require clarification and, consequently, the post’s very dire conclusion about the actual situation in Hungary shall be to a certain extent revised. Continue reading >>
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Eine Agenda unter Druck
In der internationalen Politik und Rechtssetzung rückt die geschlechtersensible Analyse von Krisensituationen stärker in den Fokus. Das Potential einer gleichberechtigten Einbindung von Frauen in der Krisenbewältigung wurde bisher nicht ausgeschöpft; ihrer Schutzbedürftigkeit ist nicht ausreichend Rechnung getragen worden. Der UN-Policy Brief vom 9. April 2020 zeigt, dass dies auch in der aktuellen Corona-Krise wieder der Fall ist. Missstände wie Gewalt gegen Frauen, prekäre Arbeitsbedingungen in Berufen wie der Pflegearbeit und mangelnde sexuelle und reproduktive Gesundheitsversorgung verschärfen sich unter den Bedingungen der Krise. Continue reading >>
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The Future of Handshaking
When asked about handshaking recently, the U.S.’s lead virologist Dr. Fauci said: ‘I don’t think we should ever shake hands again’, referring to how it would prevent both coronavirus and seasonal influenza. In Europe, where the topic of the handshake has been a landmine in recent years, this medical requirement can lead to a much-needed cultural shift. Continue reading >>Constitutionalism in a Time of Crisis: Botswana’s Reaction to the COVID-19 Pandemic
Botswana, a country with a population slightly over two million, has recently joined countries that took stringent measures necessary to contain the spread of COVID-19. On the 31 March 2020 President Dr. Mokgweetsi E. K. Masisi declared a state of public emergency. This was the second time a state of public emergency was declared since Botswana attained independence in 1966. Continue reading >>
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Response to COVID-19 in Ukraine: Legal Pragmatism or Constitutional Outbreak?
All legal measures limiting human rights in response to COVID-19 adopted by the Cabinet of Ministers of Ukraine are made pursuant with respective clauses of two specific legal acts: the Code of Civil Protection of Ukraine (art. 16) and Law “On the protection of the population from infectious diseases” (art. 3). The said legislation empowers the Cabinet of Ministers of Ukraine as a key body in the protection of the population against infectious diseases with a broad margin of appreciation. However, more importantly, is that the Ukrainian Constitution envisages a restriction on certain rights and freedoms if these restrictions are prescribed by law in the interests of protecting the health of the population. Ukrainian think tanks and NGOs express deep concern on unconstitutionality of limitations of human rights caused by the Government’s measures to fight COVID-19. Continue reading >>
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26 April 2020
Öffentlichkeit in Online-Gerichtsverhandlungen
Eine Initiative der Landesarbeitsgerichte will für die Arbeitsgerichtsbarkeit „Online-Gerichtsverhandlungen“ einführen, um den Herausforderungen der Corona-Krise zu begegnen. Dieser sog. Referentenentwurf wurde dem BMJV bereits vorgelegt und sieht vor, dass die Gerichtsverhandlung per Videokonferenz und unter Ausschluss der Öffentlichkeit stattfinden kann. Das soll die Begegnung im Gerichtssaal vermeiden und so der Ausbreitung des Corona-Virus vorbeugen. Verfassungsrechtlich steht der Referentenentwurf auf sehr wackligen Beinen. Nicht so sehr, weil er eine völlig neue Form der Gerichtsverhandlung vorsieht, sondern weil diese im Geheimen stattfinden soll. Continue reading >>
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Business as Usual, but to the Unusual Extremes: Slovenia and Covid-19
Since the Slovenian declaration of an epidemic on 12 March 2020, a number of measures have been proposed, adopted and rejected in order to stop the spreading of the disease. Importantly, a state of emergency has not been declared. Nevertheless, in the past 6 weeks, interpretations and amendments of the existing statutory framework have also caused concerns from the constitutional point of view. Continue reading >>
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Österreich setzt das Asylrecht aus
Österreich hat aufgrund der grassierenden Coronapandemie de facto einen Einreisestopp für Asylwerber*innen erlassen. Diese (völker-)rechtswidrige Vorgehensweise scheint für nicht viel Empörung zu sorgen, da in Österreich bekanntlich das Recht der Politik folgt. Dass dadurch aber ein EU-Mitgliedstaat die Genfer Flüchtlingskonvention mit Füßen tritt und das Asylrecht aussetzt, sollte – vor allem auch aus juristischen Kreisen – zu einem lauteren Aufschrei führen. In der Folge wird daher gezeigt, inwiefern die österreichische Praxis sowohl völkerrechtswidrig ist als auch dem nationalen Recht widerspricht. Continue reading >>Quarantine, State of Emergency, State of Enforcement, and the Pandemic in Peru
The COVID-19 pandemic and the restrictive measures adopted across Latin America have increased insecurity, suffering and hunger for millions across the region. Although restrictions on free transit, freedom of work, and freedom of assembly, among others, are legitimate – given that social distancing is the only weapon against this virus – we must be aware that millions of people in Latin America survive due to their work in the informal sector. It is unacceptable that for many, the only options during this pandemic are to be killed by hunger or by COVID-19. For this reason, following this emergency, the region must resume a debate about the relevance of a new social or welfare state, without corruption, that can provide basic public services including healthcare. Continue reading >>
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25 April 2020
The Green Pact and Rule of Law in the EU
The governments of 13 EU member states have signed a letter calling for a "green" way out of the COVID-19 crisis (although the Czech government has asked the EU to "forget" about its Green Pact). Interesting as this initiative may be, the EU must ensure that it does not become an instrument that undermines the fight for the rule of law in the EU. The history advises us to be vigilant because EU funds may become a useful instrument in hands of illiberal governments. Continue reading >>
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COVID-19 and the Need for a Holistic and Integral Approach to Human Rights Protection
While the pandemic is global, the challenges the individual regions are currently facing in their combat against COVID-19 are different and specific. In Latin America, the combat is embedded in a context of deep social and economic inequality, systematic violence and poverty. As the crisis is likely to exacerbate these structural inequalities it is clear that its implications must be examined in the light of human rights and in the light of intersectionality. Continue reading >>COVID-19 und der juristische Umgang mit Ungewissheit
Wer fragt nach dem Recht, wenn der Tod auf der Schwelle steht? Jurist*innen müssen das wohl tun, selbst wenn die Welt unterginge. Allerdings sollten sie sich auf Ungewissheit in globaler Ausbreitung und in bisher unbekanntem Ausmaße einstellen. Das Recht ist selten klüger als die Gesellschaft, deren Verhalten es reguliert. Solange es gelten will, muss es lernen. Continue reading >>International Human Rights Law and COVID-19 States of Emergency
As has been highlighted by other contributors to this Symposium, emergency decrees have already been used to achieve political ambitions beyond addressing COVID-19 in places like Hungary or Bulgaria. While states bear the responsibility of protecting their nations, modern day international human rights law is designed precisely to protect people from governments that abuse their powers. What limits does international human rights law impose on governments during emergencies? Can they be enforced? And how does COVID-19 fit in these conceptualizations? Continue reading >>
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24 April 2020
How Ecuador’s Constitutional Court is Keeping the Executive Accountable During the Pandemic
On 16 April 2020, the Ecuadorian Constitutional Court announced Decision No.1-20-EE/20, allowing it to monitor the impact of its previous judgments on the constitutionality of emergency powers granted to the President in the fight against Covid-19. This decision shows that a Constitutional Court can indeed play an essential role in a country’s response to a catastrophe, whose consequences are painfully obvious in Ecuador, one of the countries in Latin America worst hit by the pandemic. Continue reading >>It’s not about Bathroom Policies, it’s about Constitutional Principles
The United States Supreme Court is expected to soon deliver its judgment in the first transgender rights case before it. In the absence of federal laws protecting transgender persons from discrimination, the case revolves around the question whether the prohibition of discrimination ‘because of … sex’ transgender discrimination. The US Supreme Court appears to turn this into a question of political deliberation, bathroom policies and dress codes. The ECJ, on the other hand, instead of getting lost in policy discussions, has already in 1996 recognized the protection of transgender persons against discrimination based on the core constitutional principle of equality. The ECJ’s approach does in fact have a foothold under US case law and the US Supreme Court could seize the opportunity to bring transgender persons closer to enjoying the same rights as the general population. Continue reading >>
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The Iranian Legal Response to Covid-19: A Constitutional Analysis of Coronavirus Lockdown
In its early stages, the COVID-19 crisis in Iran looked nothing like a crisis. The initial reactions to the outbreak were met by skepticism by both the public and many of Iranian officials – despite the World Health Organization warning of the potential for a catastrophe for weeks. Indeed, in late February Iran’s deputy health minister – Iraj Harirchi who denied accusations that the government was downgrading the coronavirus outbreak in the country – has reportedly tested positive for the sickness. Continue reading >>
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The Law of the WHO, COVID-19 and the Multilateral World Order
A new virus, SARS-CoV-2, emerged in the Chinese city of Wuhan at the end of 2019. Infected persons developed an atypical form of pneumonia, later known as COVID-19. The pathogen created a pandemic, with fatalities throughout the world, and also led to the adoption of restrictive measures which were, until recently, unthinkable, as well as fostering new political conflicts. Even the path of the multilateral order in its current form is at stake. For a take on these issues under international law, the legal regime of the World Health Organization (WHO) and its response to the pandemic provides an insightful access. Continue reading >>
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An Emergency By Any Other Name? Measures Against the COVID-19 Pandemic in Poland
The measures introduced to prevent the spread of COVID-19 in Poland are among some of the most extensive and far-reaching, affecting many spheres of civil, political, economic, social and cultural rights. Few of these measures amount to recommendations and suggestions of specific behaviour, most of them are hard, legally enforceable orders and prohibitions and flouting them incurs the risk of severe financial punishment. Yet the legal framework for these measures causes a significant degree of controversy. This report aims to present a birds eye’s view on the measures in Poland and to highlight some issues legal scholars and experts have taken with both the substantive side of the measures and the means they were introduced. Continue reading >>
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23 April 2020
Effective but Constitutionally Dubious
Although the pandemic is far from over, Greece has been praised so far for its fast and firm response to the crisis. The country’s efforts to contain the dissemination of the virus seem to have achieved а flattening of the curve, i.e. the slowing of the spread so that fewer people need to seek treatment at any given time. Greece owes much of its – to date – accomplishment to a number of dubious applications of the rules laid down in the Constitution. Continue reading >>A “Marshall Plan” for Rule of Law in Europe
In the past weeks, the European judges have been confronted in multiple ways by the Covid19 crisis. The challenges for judiciary were exceptional: the willingness to serve our fellow citizens, providing solidarity and support, in times of plague; the duty to supervise, as broadly as permitted by political authorities, the lawfulness of emergency measures; the emergent call to deal with the negative consequences of judicial lockdowns for the efficiency of courts and, moreover, the anxiety arising from the need to look after one’s own health and that of others, in particular witnesses, litigants or other citizens present in court. Continue reading >>22 April 2020
Auf der Suche nach der europäischen Solidarität in der Corona-Krise
Mehr Solidarität? Am 23. April 2020 wollen die im Europäischen Rat versammelten Staats- und Regierungschefs über weitere Schritte in der Corona-Krise beraten. Wer Corona-Bonds fordert, muss aber auch über eine grundlegende Reform des Euroraums mit mehr europäischer Kontrolle sprechen. Continue reading >>Don’t Be Fooled by Autocrats!
On 9 April, Vera Jourová, Vice President of the European Commission for values and transparency with lead responsibility for rule of law, gave an interview to Euronews on democracy in the pandemic. A journalist asked whether she believes that Hungary still qualifies as a democracy after the Enabling Act creating an indefinite state of emergency was enacted by the Hungarian Parliament on 30 March. Her answer was not reassuring. Continue reading >>
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The US Supreme Court’s Activism in the Wisconsin Election
United States lawyers may wonder whether President Trump has captured its Supreme Court. One day before a presidential primary and local election in Wisconsin, the Court intervened in an extraordinary way to add a new voting restriction. The decision in Republican National Committee v. Democratic National Committee provides further evidence that the Court has abandoned its high court role in favor of unusual partisan interventions to effectuate results found congenial by its Republican majority. Furthermore, a Court usually sensitive to national security concerns reached its judgment about the Wisconsin election without taking the threat the coronavirus poses to democratic processes seriously. Continue reading >>Taiwan’s Proactive Prevention of COVID-19 under Constitutionalism
On December 31, 2019, the Taiwan Centers for Disease Control (CDC) sent the above message via email to the International Health Regulations (IHR) focal point under the World Health Organization (WHO). In the meantime, Taiwan also initiated COVID-19 epidemic prevention measures. This article endeavors to explain Taiwan’s emergency command and response system, to summarize Taiwan’s current regulatory actions against the epidemic outbreak, and to provide a few remarks on the emergency measures undertaken from the perspective of constitutionalism. Continue reading >>
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Rescuing Human Rights in Mauritius During the COVID 19 Tsunami
In the evening of 18 March 2020, Mauritians learnt the harsh news that their tropical heaven island of about 1.2 million people was also being swept by the coronavirus (COVID 19) tsunami, with three confirmed cases. As of 21 April 2020, the country has recorded a total of 328 cases, with 73 of them still being active and 9 deaths. Initially recording high increases in the confirmed number of COVID 19 cases, the country has been able to flatten its curve, without even a single case being recorded on some days. Depending on the trend of the spread, the government is working on a COVID 19 Bill that will gradually re-open the economy as from 4 May 2020. Continue reading >>21 April 2020
State of Emergency Through the Back Door
One of the problems for Indonesia’s government when dealing with the coronavirus crisis was its non-transparent approach towards the public. Not least because of that, many people in Indonesia do not trust the government when it comes to handling the pandemic. The government’s attempt to declare the civilian emergency status which would have enabled it to control the flow of information has failed due to public opposition. A move by its police chief, however, is now trying to introduce emergency powers through the back door and in blatant disregard of a Constitutional Court ruling. Continue reading >>The Constitution as a Bargaining Chip
Despite the ongoing COVID-19 pandemic, Poland’s government is refusing to announce an emergency state, presumably in order to go ahead with the Presidential election on 10 May. Instead, the ruling coalition in Poland has been presenting increasingly controversial proposals aimed at ensuring that the country’s PiS-aligned President will remain in office. The most recent one envisages a constitutional amendment which would extend the president’s term of office. This proposal is nothing but an attempt to blackmail the opposition: either vote for a constitutional change or be blamed for the consequences of holding a presidential election during the pandemic. Continue reading >>The Philippines’ Dalliance with Authoritarianism in Times of National Emergency
The Philippines is remarkably familiar with national emergencies, having faced just in the past three decades alone two global financial catastrophes, a number of coup attempts, a couple of destructive volcanic eruptions, a slew of ravaging typhoons, deadly terrorist attacks, and a devastating earthquake. Notably, the national response at these moments of crisis is to give the President “emergency powers”. Of course, this also comes with the admonition that citizens must fall in line and obey the commands of the government, which usually means temporarily “adjusting” adherence to human rights and respect for civil liberties. Continue reading >>Belgium and COVID-19: When a Health Crisis Replaces a Political Crisis
The COVID-19 health crisis is happening in the context of a political crisis in Belgium. As the virus was spreading in the EU in early March, political parties were still negotiating the formation of a federal government. The need to provide a unified and strong answer to the situation added another layer to the political crisis and seems to have put the main political disagreements on the backburner. Even though, many institutional and constitutional challenges have been solved without considerably affecting basic democratic principles. This is not true when it comes to fundamental rights, especially fundamental rights of vulnerable groups such as migrants and prisoners, female victims of violence etc. Continue reading >>
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Zwei Schritte vor, einer zurück
Am 16. April um 18 Uhr sollte in Hamburg eine Versammlung unter dem Titel „Abstand statt Notstand – Verwaltungsrechtler*innen gegen eine faktische Aussetzung der Versammlungsfreiheit“ stattfinden. Zu ihrer Zulässigkeit erließen Verwaltungsgericht (VG) und Oberverwaltungsgericht (OVG) jeweils Beschlüsse im einstweiligen Rechtsschutz. Unterschiedlicher hätten sie nicht ausfallen können, beide aber sind (auf ihre Art) bemerkenswert. Continue reading >>20 April 2020
Schmittian Instincts at Odds with Neoliberalism
Carl Schmitt is now regularly referenced in discussions of President Trump’s extraordinary and probably unprecedented claims to unchecked executive power. The President’s knee-jerk hostility to the administrative state, however, has helped spare Americans the worst consequences of his Schmittian legal instincts. Yet that hostility has come with its own high price. Continue reading >>
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Gegen obrigkeitsstaatliche Tendenzen in der Krise
Als Korrelat zur krisenbedingten Rechtfertigung von Grundrechtseingriffen ergibt sich aus dem Prinzipiencharakter der Grundrechte eine Schutzpflicht des Staates, im Rahmen des Möglichen und nach Maßgabe dessen, was erforderlich und verhältnismäßig ist, eine Situation herbeizuführen, in der die Beschränkungen wieder aufgehoben werden können. Wenn das richtig sein sollte, hat das auch wichtige Konsequenzen für die Art und Weise, in der Diskussionen über die Lockerung der Coronamaßnahmen geführt werden sollten und nach welchen Maßstäben die Arbeit der Regierung/en sinnvollerweise beurteilt wird. Continue reading >>Iceland’s Rule of Common Sense … and Law?
While Iceland is not under a lockdown, the borders have been closed and wide-ranging measures implemented concerning a ban on gathering, social distancing, closing down or restricting the operation of schools, hair salons, organized sports and so on. When this is written, the current version of the ban on gathering is destined to last until 4th of May but some measures will be in place throughout the summer and maybe even longer. Now, gatherings of more than 20 people are forbidden, including in workplaces, cafés, restaurants and shops but special rules apply to grocery shops and pharmacies. The so-called two metre rule applies in these places. Other places have been shut down completely, such as gyms, swimming pools and pubs. The economic situation is also dire. Businesses are struggling and unemployment is on the rise. The last big depression is still fresh in memory. In what follows, I will focus on measures concerning the health crisis. Continue reading >>
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19 April 2020
The State of Emergency Virus
The current pandemic is said to be the worst health crisis the world has experienced for a century. Beyond causing thousands to die and millions to lose their jobs, it has also caused more than ever before governments to declare a state of emergency and, thus, to considerably broaden their own competencies. Previous experience, however, has shown that governments do not use their additional powers to save lives but, rather, to make themselves better off. Considering that more than half of the world’s democracies have declared a state of emergency, the rule of law will be subject to a number of dangers in the following months. Continue reading >>Critique and Crisis: The German Struggle with Pandemic Control Measures and the State of Emergency
SARS-CoV-2 has hit Germany hard with (as of Easter 2020) more than 120,000 confirmed cases. The entire development of the pandemic has been accompanied by a critical debate about whether the Federal Government and the Länder (states) took the appropriate measures to fight the virus. The first objective of this post is to show which legal measures are available to the Federal Government and the Länder and to briefly report which of those have been applied to. It discusses whether extraordinary times are the right moment for constitutional amendments and why a critical reflection of the current legislative changes is not only necessary but essential for the understanding of our constitution. Continue reading >>Domestic Courts Pushing for a Workable Test to Protect the Rule of Law in the EU
On 17 February 2020, the Oberlandesgericht Karlsruhe passed a decision in a surrender case that we expect to shape the future of the LM-test. Its decision can be seen not only as a result of Luxembourg’s unworkable LM test but also as an acknowledgement of the effect of Poland’s muzzle law on the independence of its judiciary. Shortly after, Rechtbank Amsterdam engaged with this decision, thus making it more likely that the CJEU will have to move forward and develop its test into a more meaningful one. Continue reading >>18 April 2020
Europa als Haftungsunion – Europa scheitert an deutschen „Juristen“
Die aktuelle Diskussion um Coronabonds basiert auf der falschen Vorstellung, dass nationale Regierungen ihre Ausgaben durch den Verkauf von Anleihen an „die Märkte“ finanzieren. Während emotional „Solidarität“ eingefordert wird, haben EZB und EU die Weichen schon gestellt, damit sich eine Eurokrise mit Austeritätspolitik nicht wiederholt. Dies wird allerdings mittelfristig nicht ausreichen. Der Euro wird scheitern, wenn die Deutschen nicht einsehen, dass ihre „Juristen“ das Problem völlig verkennen – es geht nicht um Haftung. Continue reading >>Singapore’s Legislative Approach to the COVID-19 Public Health ‘Emergency’
Up till late March 2020, Singapore’s response to the COVID-19 pandemic was the envy of many nations. Its strategy of early testing, rapid contact tracing, and isolating cases and close contacts was praised for its effectiveness. Indeed, for some time, Singapore seemed to be successfully ‘flattening the curve’. And to top it off, the Singapore government managed to contain the spread of the disease while keeping workplaces, businesses, and schools open. This all, however, changed when a sudden spike in cases occurred in the latter half of March. Continue reading >>
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Testing the Limits of EU Health Emergency Power
Due to their inherent cross-border spillovers, many of the national responses to COVID-19 raise major concerns under EU law. Yet only a few of them have been timidly denounced by the EU Commission as the Guardian of the Treaty. How long will this last? Continue reading >>
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Luxembourg’s Unworkable Test to Protect the Rule of Law in the EU
A key rule of law case illustrating the conversation taking place between national judges and the Court of Justice about the how-to of rule of law protection is the CJEU’s LM ruling dealing with the implementation of the European Arrest Warrant. In it the CJEU developed a test to balance mutual trust and individual rights, particularly the right to a fair trial. The Rechtbank Amsterdam and the Karlsruhe Oberlandesgericht applied Luxembourg’s LM test with respect to Polish suspects in a series of recent (interlocutory) rulings. This national case-law is interesting both for its immediate outcome (suspension of surrenders) and its implicit message to Luxembourg: “Sorry, we tried, but your test is unworkable.” Continue reading >>
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17 April 2020
COVID, Crisis and Change in Global Governance
Crises facilitate change: they remove obstacles which, in normal times, favour the status quo. Crises often strengthen existing trends which may have been slowed down by institutional inertia or political resistance. An event of the magnitude of the COVID-19 crisis is likely to have serious consequences in domestic as well as international politics. What will it mean for global governance? Which tendencies is it going to reinforce, which ones will it weaken? Six conjectures. Continue reading >>
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Pandemie und Strafvollzug
Ein Ausbruch des Coronavirus hätte im Gefängnis schwerwiegende Folgen, weshalb unter anderem der Kontakt nach außen stark beschränkt wurde. Auch wenn all diese Einschränkungen dem Schutz der Gefangenen dienen, wirken sich diese für die Gefangenen und ihre Familien teilweise gravierend aus. Insbesondere ihre Rechte aus Art. 6 GG und das Recht auf Resozialisierung sind stark betroffen. Continue reading >>
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Legitimacy in the Time of Coronavirus
In this post, I want to focus on two issues of the many emergent themes in the constitutional politics of pandemic management: expertise and political accountability and the classic tension between legality and legitimacy in EU governance; and particularly what Max Weber, arguably the greatest theorists of political legitimacy, can teach us about these issues in the context of responses to the coronavirus pandemic. Continue reading >>Right Restriction or Restricting Rights? The UK Acts to Address COVID-19
The UK initially downplayed concerns arising from the spread of COVID-19: Prime Minister Boris Johnson suggesting Britain should ‘take it on the chin’, pursued a policy which introduced no significant measures beyond encouraging hand-washing for 20 seconds. This changed, abruptly, on 12 March. On the same day schools and businesses were shut in Ireland and France, and three days after Italy was locked down, Prime Minister Boris Johnson announced a move to the delay phase and advised, though did not direct, over-70s to stay home, and travellers to avoid cruises. People should ‘avoid pubs and restaurants’, but they would not be closed. Large gatherings, such as the Cheltenham Festival, would not be prevented from going ahead. On 19 March following the rapid spread of the virus, the government announced that there was ‘zero prospect’ of a lockdown in London which would place limits on peoples’ movement. Four days later, on 23 March, the capital entered lockdown along with the rest of the country. ‘Zero prospect’ had lasted less than four days. Continue reading >>Coronaresistenz der Versammlungsfreiheit?
Endlich. Erstmals zu Corona-Zeiten hat das Bundesverfassungsgericht zugunsten der Versammlungsfreiheit entschieden. Erstmals hat es, seit durch die Ausgangsbeschränkungen „der massivste kollektive Grundrechtseingrifff in der Geschichte der Bundesrepublik“ ins Werk gesetzt wurde, ein Grundrecht gegenüber einer damit verbundenen Maßnahme zur Geltung gebracht. Continue reading >>Pandemic and Executive Powers in Colombia: A Problem and a Modest Proposal
The way in which the events surrounding the pandemic in Colombia have unfolded, and the measures taken so far by the executive branch have led us, once again, to think about presidential powers: their scope, extent and limits. The first question we ask ourselves is: what kind of powers does the executive branch exercise when it orders measures such as national mandatory self-confinement? Perhaps in the midst of uncertainty and fear it seems natural to us that mayors, governors and ultimately the President have decided to confine us to our homes under threat of a fine if we don’t follow the precise guidelines of the various decrees and administrative acts. But such power and restriction of our freedom is a matter of concern that we must examine closely. We must also pay attention to the institutional mechanisms that are being deployed to deal with the crisis. In the current situation, not only does the what in the decision matter (i.e., mandatory self-confinement measures), but also the who and the how (i.e., whether the decisions are adopted by mayors, governors or the President – and, in the latter case, if the President does it through exceptional or ordinary powers). Continue reading >>16 April 2020
Von Theorie und Praxis
Viel ist hier bereits zu lesen gewesen, zu den grundsätzlichen Fragen, welche die gegenwärtige Corona-Gesetzgebungs- und -Verordnungspraxis aufwirft. Den fundierten theoretischen Erwägungen der Kolleg*innen sind aber auch Beobachtungen aus der Praxis zu den mittelbaren Auswirkungen der gegenwärtigen Situation zur Seite zu stellen: Für das Asyl- und Flüchtlingsrecht stellt die derzeitige Situation eine ganz eigene Herausforderung dar. Continue reading >>
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Is the Constitution Law for the Court Only?
According to Chancellor Kurz, this is not the time for juridical sophistry (juristische Spitzfindigkeiten). At the end of the day, it would be left to the Constitutional Court to decide on the legality of the COVID-19 measures which, when it will hand down a decision, will have been already revoked. These remarks betray a certain outlook on the authority of constitutional law. Putting the matter starkly, it suggests that the constitution is law for the Constitutional Court only. Continue reading >>
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