The COVID-19 emergency in the age of executive aggrandizement: what role for legislative and judicial checks?

Abstract

ABSTRACT Extraordinary limitation of certain fundamental rights seems necessary in fighting the COVID-19 pandemic. Many countries have declared a state of emergency for that purpose. Yet, there is also a risk of misusing the emergency for power grabbing, especially in the current era of executive aggrandizement, democratic decay and abusive populist constitutionalism. In this setting the legislative and judicial checks on the executive create a dilemma. Their standard operation in the state of emergency could control the executive, but might also impair its capacity to fight the pandemic effectively. This article therefore focuses on the desired role of the legislature and the judiciary in COVID-19 emergencies. Although many constitutions address emergencies, they are often vague and leave considerable room for the involved actors themselves to adjust their behaviour. This article asks how parliaments and courts should use this de facto room. I argue that they should show some deference to the executive, its level depending on the stage and severity of the crisis, but should not clear the field for governments. They must modify their activities but not suspend them. My main argument is that the deliberative and scrutiny functions of the legislature and the dispute-resolution function of courts are crucial not only for preventing the abuse of emergency measures, but also for increasing the effectiveness of emergency measures by improving conditions necessary for compliance. The legislature and courts can contribute to the higher feasibility and legitimacy of the emergency measures and thereby increase voluntary compliance, which is crucial for tackling the spread of the new coronavirus. The article illustrates these issues by way of the case study of the Czech Republic – a country experiencing its first nationwide state of emergency amid tendencies towards democratic decay and managerial populism.