Challenging absolute executive powers in times of corona: re-examining constitutional courts and the collective right to public contestation as instruments of institutional control

Abstract

Purpose The CoViD-19 pandemic has brought about a panoply of institutional challenges both domestically and in the international arena. Classical constitutional theory thereby underwent a reinvention by the executive for the sake of speedy policy action and to the detriment of institutional control while favouring authoritarian forms of governance. This paper concerns itself with institutional responses to such developments, placing emphasis on the role of the judiciary and people*s in contesting emergency decrees and other executive orders, especially where fundamental rights are infringed upon. The paper aims to explore the difficulties arising with exerting absolute executive powers during the health crisis, the respective role assumed by constitutional courts and the impact of the new governance paradigm on forms of public contestation, also as a means of quasi institutional control. Design/methodology/approach Indeed, the right to health may be translated into political discourse and become foundational to security and public interest paradigms. This may result in a shrinking public space given the constraints to the freedom of movement. In the name of public safety, the (collective) right to assembly, expression and protest have been submitted to major limitations in that regard. Findings Ultimately, this re-opens debates on the meaning of absolute rights and contextualities of derogations, as well as the reconcilability of civil and political rights and economic, social and cultural rights. It also exposes social inequalities, social justice dimensions and vulnerabilities, often exacerbated by the health crisis; migrant rights demonstrably face particularly severe and intersectional forms of violations. Originality/value Particular values lie with the interdisciplinary approach embraced in this paper; the authors draw on a variety of social sciences disciplines to shed light on this very current issue. Both theoretical and empirical methods are used and combined here, making sense of the underlying logic of virus governance and its impacts on fundamental rights.