CYIL vol. 12 (2021)
CYIL 12 (2021) JUDICIAL OVERSIGHT IN TIMES OF A PANDEMIC The risk that law will not be well able to handle quick developments in objective circumstances is inherent in any profound changes in environment or technology. Contagious diseases have always accompanied us. Epidemic outbursts significantly threatening health of large population groups have always had the potential to shake humankind to its core, disrupt normal life and exacerbate our existential fears. While Covid-19 is, fortunately, not comparable in mortality to some previous pandemics, it has had no small impact on the way we live, work, buy things or spend free time. In times like this, it is obvious that most governments cannot remain inactive.Their citizens expect them to act in order to keep the health system working and prevent destabilisation of society and economy as a whole. 1 Whether in democratic or non-democratic countries, governments do not wish to be seen as not doing enough. Even when it is not clear which measures are truly working and which are not, sooner or later at least some restrictions are put in place. In countries whose constitutional system is based on rule of law, restrictions are bound to be challenged and courts come into play. The position in which courts find themselves when called upon to review rules introduced by the executive and legislative branches is not particularly enviable. An epidemic outburst of a novel disease is a fine example of rapid development of a new dangerous situation with limited information how to best react. Any judicial ruling in such matters is fraught with risk that it will make the situation demonstrably worse. When courts intervene to block or quash regulations made by other branches of the government, they may get viciously attacked for weakening the country’s response to an imminent threat. When they refrain from intervening, they may be giving up their most important role of guardians of individual rights. Acute fear and protection of individual freedoms are hard to reconcile. Traditionally, a court is expected to obtain a solid factual basis for the eventual decision, and to do so through a standardised and thoroughly regulated process of fact-finding. During a crisis, there may not be time for that and the facts themselves may simply be unavailable, e.g. due to lack of scientific knowledge and consensus. With respect to Covid-19, experts have actually been able to discover the nature of the threat and to develop effective response (including vaccination) comparatively quickly, but it still has taken many months rather than days or weeks. This paper discusses how courts deal with such complicated situation. It is highly selective and limits the focus to several illustrative decisions, leaving various other cases unmentioned. This is due to two main reasons. One is that it would be simply impossible to try to exhaustively cover this field in the allowed space. The other, more important one is that the point is not to describe each and every ruling courts have issued in this regard, but rather consider whether courts – and by extension the law – are able to handle a sudden crisis. 1. Constitutional Situation In an approach similar to many other countries, Czech government adopted numerous restrictions on ordinary activities in order to limit the spread of Covid-19 and keep it, hopefully, in manageable scope, especially as regards health care facilities’ capacity. These 1 For a discussion on the challenges of Covid-19 pandemic for national health systems cf. ŠOLC, Martin. The Pandemic and the Law: Challenges of Covid-19 to the Ethical and Legal Paradigm of Health Care; and ŠUSTEK, Petr. Czech Expert Statements on Patient Prioritisation in the Covid-19 Pandemic in International Comparison; both in this volume of the Czech Yearbook of International Public & Private Law , 2021.
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