By Babacar Kanté, Ph.D.
Former Constitutional Court Judge, Senegal
Former Professor and Dean, Faculty of Law, University of Gaston Berger
According to many experts, the new coronavirus which emerged in December 2019 is no more serious than other pandemics mankind already experienced. Nevertheless, it is unprecedented, both in terms of its brutal and speedy spread, as well as its wide-ranging political, economic, social, cultural and environmental impact. By April 2020, four months after its emergence, it had affected two hundred and four (204) countries and territories, that is more than the total United Nations membership, and the death toll standing at 364,000 as of 30 May 2020. In this chaotic situation, governments are endeavoring to provide emergency responses, in almost every aspect of public and private life, giving at times the impression of muddling through rather than implementing a well-thought-out strategy.
Among the measures taken, legal acts account for a quantitatively and qualitatively important place. Indeed, a series of legislative and regulatory acts have been taken, in order to establish a state of health emergency and thus provide legal basis for the various measures envisaged. These decisions put legal doctrine into a terrible state. These measures trigger various reactions because, while their objective— the right to health, is given a constitutional rank, they carry the risk, whether real or potential, of infringing on fundamental rights or civil liberties. Such violations deserve all the more consideration since measures such as the lockdown or closure of public places, applied on a very large scale, relate to fundamental rights such as freedom of movement or assembly, concern sometimes the entire population of countries where they are applied and in some cases cover the entire national territory of the States where they are in force.
The observations of the doctrine are commensurate with the importance of the special measures taken by government authorities. Their conclusions are often skeptical, sometimes critical and rarely positive. The issue with the matters covered relate to consideration of the legality and expediency upon which the legal acts are based. But it is important to recall the background, and the factors in the light of which the authorities act. Indeed, solid analysis of these elements is required in order to take the hubris out of the debate and assess "objective subjectivity."
The fundamental question is whether, and to what extent, the law can or should be conceived as part of the strategy to combat the new coronavirus and not as an instrument to repress people through the exceptional circumstances of the health crisis? It is particularly sensitive because it means evaluating the trade-off between a sanitary requirement and a constitutional one. The authorities are thus reduced to attempting to reconcile apparently conflicting requirements such as focusing on effectiveness and respect for the rule of law.
Assessing the expediency and constitutionality of laws and administrative acts taken by government authorities faces several challenges, one of the most important being their adequacy. Answering the question ultimately implies conducting a proportionality test on them. It covers their compliance with the judicial theory of exceptional circumstances.
The challenge facing administrative police measures, even in the context of a health crisis, is to avoid shifting from limitation to restriction on freedoms. As much as limitation is necessary to prevent disruptions of public order, restriction that deprives freedom of its meaning is unacceptable. One of the legality requirements of such measures is to comply with this balance. This review is well known under administrative law; however, the sensitivity of health matters makes its application particularly delicate. Even in the case of pandemic-related measures, its terms and conditions remain the same. They can be briefly recalled. They should consist in ensuring that they are not only necessary but also adapted to pursuing continued satisfaction of public interest.
1. Necessary Nature of the Measures Taken
In order to be legal, the measures taken must be necessary. But in the context of the new coronavirus, where scientists and politicians are caught off guard and learn daily about the virus on an urgent basis, sometimes by improvising, it is not easy to appreciate the necessary nature of the freedom-restricting measures that are taken. There is no unanimity on either the characteristics or the evolution of the pandemic, which could serve as a criterion for assessment. What discretion then does the lawyer have to assess the legality of these measures in relation to this classic legality requirement? Prudence and humility are required.
2. Adequate Nature of the Measures Taken
Measures taken in response to the pandemic have, in principle, a public health purpose. But, in a situation of scientific uncertainty such as the one created by the new coronavirus, how can we judge, beyond sensitivities, anxieties and fears, the adequacy of the measures taken in relation to the objective of preventing infections? It needs to be recalled that the favorite domain of application of the proportionality principle remains the administrative police, which aims at preventing disruptions to public order. The definition of public order is essentially within the purview of the constitutional or administrative judge. Will the new coronavirus be an opportunity to give new content to this concept? Unfortunately, a definitive answer seems premature.
There is a great deal of concern in the legal doctrine. The fear is that governments, under the pretext of combating the pandemic, will take legal acts that infringe on the rights and freedoms of citizens and surreptitiously pass them into the general law. However, it is to be hoped that, when they emerge from the lockdown, constitutional and administrative courts will resume, under normal conditions, their role as watchdog and guarantor of the rule of law, which will then emerge strengthened from this health crisis.
Professor Babacar Kanté is currently a Visiting Researcher at the Institute for Advanced Studies (IMÉRA) AIX- MARSEILLE UNIVERSITE where he is working on "Structural Transformations and Structural Dynamics in Francophonie."