Proportionality, Exception, and Transformation in Times of Pandemics: Expanding the Spectrum of Constitutional Relevance

As the literature on authoritarian constitutionalism and democratic decay has repeatedly remarked, there are several factors that distinguish the wave of neo-authoritarianism that currently travels the world from earlier instantiations of the genre. One of them is the fact that contemporary neo-authoritarians do not outlaw the opposition, cancel elections, shut down the media, or violently repress social discontent, but rather use softer and often legally admissible ways of advancing their agenda – generating patterns of gradual but sustained and ever deeper democratic erosion, instead of sudden collapse. A second distinguishing factor is that the current authoritarian wave affects as much “new” democracies that have experienced rule-of-law and democratic-quality problems for long, as prestigious constitutional democracies we considered to be exceedingly consolidated. There is a sort of unexpected levelling-down, “equalization-in-the-bad” component to current developments.

The situation generated by the 2020 pandemics has only deepened the tendencies each country was already traversing. And governmental reactions to it have, again, homogenized countries that we were not accustomed to bunch together. But then, maybe an unexpected positive prospect opens up: the possibility that the tools we might want to vindicate as appropriate to address the situation might come not from the so-called “constitutionalism of the north,” but rather from the “constitutionalism of the south,” which has ample experience in coping with the sort of problems and tendencies that are now globalizing.

Many of the staples of contemporary Latin American constitutionalism, for instance, seem just immediately relevant in view of the developments we have witnessed over the past two months. The undisputed enforceability of social rights – including an abundant experience with regards to the judicial guarantee of the right to health; the almost total absorption into every-day legal practice of the theory of state obligations regarding rights (obligations to respect, protect and fulfill rights, and to prevent, investigate, sanction, and repair their violations); the generalized acceptance and regular constitutional enshrinement of the efficacy of fundamental rights in the private realm (horizontal efficacy, Drittwirkung); the accumulated experience, in several countries, around structural rulings, on the basis of standing rules that facilitate collective and public interest litigation; the familiarity of judges with cautionary measures and remedial powers that break the classic molds; the record in terms of exercises of dialogic judicial review, in whose context judges seek to preserve space for the legislative branch while forcing it out of inaction, and subjecting it to parameters and time limits; the receptivity to claims that become fundamental rights because of “connexity” with those explicitly listed in treaties and constitutions; the regional circulation of doctrines like the right to the “vital minimum,” understood as an innominate right that draws together entitlements spread out along the constitution; the application of intense scrutiny when public action seemingly violates the prohibition of retrogression or has an impact on disadvantaged groups; the continuous interpretive insistence on the interdependence and non-divisibility of all rights; among others.[1] This capacious scenario echoes many of the urgent measures that governments, judges or administrative agencies in North-Atlantic democracies have had to rustle up amid the pandemics without previous experience, or under constitutional frames that are silent or actually incompatible with them – something that has forced their (formal or informal) resort to exception powers.

We find a particularly representative projection of this in the domain of proportionality analysis. While over the past decades many people in the academia have associated proportionality to the allegedly slow-motion, irenistic, even boring constitutional every-day life characteristic of the sort of legal constitutionalism that is now under neo-populist attack, the 2020 pandemics has made it regain center stage. It has confirmed its permanent centrality in legal analysis, and its status as an essential tool for the control of power and the guarantee of basic fairness. And again, the current situation seems to engage dimensions of proportionality analysis that have been distinctively developed, precisely, in non-central democracies – such as those of Latin America.

Colombia, for instance, offers priceless guidance with regards the juridification of states of exception. Against a backdrop of abusive historical resort to this figure, the Constitution of 1991 contemplates three situations of exception: international war, internal commotion, and state of emergency based on economic, social or environmental reasons, and deploys a very complete system addressed to guarantee its full subjection to political and judicial control. In its context, the Constitutional Court assesses the regularity both of the decrees that declare the existence of a particular emergency and that of the measures adopted during its period of validity, on the basis of strict necessity criteria. While much current Covid-19-related debate assumes that countries are pretty much trapped in the dichotomy of either declaring the state of emergency – thus dramatically reducing the scope of judicial and political control –, or proceeding under ordinary constitutional dynamics – with the risk of having a large number of rights-constraining measures declared invalid on procedural or substantive grounds –, Colombian practice points to an intermediate model that assumes that in many cases the difference between normality and abnormality is not easy to tell, and that consequently guarantees that political and judicial supervision is always present, giving government space of maneuver while putting on its shoulders a qualified duty to provide reinforced justification. It also provides the example of a Constitutional Court that has developed an impressive body of case law with regards states of exception, using proportionality both to police respect for the division of powers during emergencies and to assure that rights limitations stay within acceptable confines.

A second development that we find in several countries, and that is now immediately relevant, is the use of proportionality to denounce insufficient state action. While in its classic liberal use proportionality operates as a tool to constrain excessive, over- stepping public action that damages rights, contemporary constitutionalism is full of provisions that make positive state action imperative: fundamental rights are no longer conceived as mandates of abstention, but as entitlements that rely on a closely interconnected bundle of public and private actions and abstentions, and States have assumed legal responsibility for preventing rights violations and for setting the conditions for their full enjoyment – something that requires a permanent ex officio deployment of action. In the context of the Covid-19 pandemics, problems have often derived from excessive and disproportionate Government actions, but also from irresponsible inaction. As Kim Lane Scheppele has observed, the Trump Administration management of the crisis is appalling for many reasons, but prominently for failing to adopt basic measures (testing, generation and provision of medical supplies, etc.) to limit the effects of the pandemics amidst an objectively exceptional situation. Similarly, the reaction of the Mexican Federal government (especially the attitude of the President) has been aptly described as “sluggish” and “reluctant,” not only with regards to health-related measures, but also to those necessary to protect the population from massive economic distress. Not to mention the reckless “negationist” strategy adopted by the Brazilian president Jair Bolsonaro.[2] Independently of how we all emerge from the current crisis, State obligations to protect and guarantee rights, and to prevent their infringement, are likely to gain increasing prominence. Which all brings to mind Latin American courts’ use of proportionality to assess rights violations by defect or insufficient action, famously applied in the domain of abortion in Colombia and Chile, but also, in Argentina and other Latin American countries, to evaluate public policy with regards to housing, social security, health coverage or water distribution.

A third development that is apposite in view of what the world is currently facing is the use of proportionality in the domain of social rights adjudication, often in connection with two sorts of now very relevant constitutional provisions: mandates of special protection for disadvantaged or vulnerable groups, and the general mandate of progressivity and non-retrogression in the enjoyment of rights. When a negative impact along those lines is detected, courts in Argentina or Colombia apply a modality of proportionality scrutiny that is typically more intense. Impact on disadvantaged groups weights in the evaluation of “necessity”, in the inventory of what is gained and lost when assessing proportionality in the narrow sense, or plays a distintive role in the examination of the reasons the State must provide to justify the impossibility of maintaining or further expanding rights enjoyment levels.

It would be an error to overestimate the impact of these trends and developments – and there is a sophisticated academic debate about its transformative successes and failures among Latin American socio-legal scholars. But it would be an equally serious one to dismiss them. The very asymmetric internal fabric of “global” constitutional law is gradually giving way to a more inclusive scenario where developments from all venues enter stage and are evaluated by a more diverse community of knowledge. The 2020 pandemics has revealed unexpected commonalities among countries, not only in terms of health risks, but also in terms of economic and political ones. The fact that some countries have already some experience in dealing by constitutional means with at least some of the problems we all now face should be part of the foundations on which to build common efforts to find ways forward.


References

[1] For panoramic views about Latin American constitutionalism, covering design, interpretation, and general performance, see Conrado HĂĽbner Mendes and Roberto Gargarella, eds., Handbook of Constitutional Law in Latin America (OUP, 2021); Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso Sierra, eds., Handbook of Law and Society in Latin America (Routledge, 2019); Rosalind Dixon and Tom Ginsburg, eds., Comparative Constitutional Law in Latin America (Edward Elgar, 2017).

[2] About inaction more generally, see also Kouroutakis, Antonios, Inaction as a State Response to the Coronavirus Outbreak, IACL-AIDC Blog (24 March 2020).


As Visiting Researcher at the WZB Center for Global Constitutionalism from December 2019 to February 2020, Francisca Pou Giménez worked on a collective research project on proportionality in Latin America which she is coordinating together with Laura Clérico and Esteban Restrepo Saldarriaga. This article pertains to some of the issues addressed in this research project.

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Francisca Pou Giménez is Associate Professor of Law at the Instituto Tecnológico Autónomo de México (ITAM). She was Visiting Researcher at the Center for Global Constitutionalism from December 2019 to February 2020.
Website at ITAM

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