Box 4.4: The role of the judiciary in mediating conflicts between national and local governments

Outdoor temperature check-point at a Thai street market to detect fever, Bangkok, Thailand © Shutterstock

The cases of Spain and Italy demonstrate that the tensions and even conflicts that have arisen during the pandemic have deeper roots that can be traced back to the uncertainty of the legal framework related to the decentralization process in these two countries. The crisis is only reflecting existing fractures which highlight, now more than ever, an urgent need for resolution: the need to clarify and strengthen the legal frameworks regulating the decentralization process and the allocation of institutional responsibilities. Although a single workable solution for all cities cannot exist, good governance responses should be based on dialogue, cohesion and coordination between different levels of governments, pursuing a multi-level governance system that does not fail in taking into account the various local situations. To this end, local governments should have the powers to address the health emergency according to their needs without taking illegal courses of action. At the same time, however, when local governments are not able to protect their own citizens or when they are not adequately equipped to cope with a crisis such as the COVID-19 pandemic, the central government should be allowed to assume the lead and exercise extraordinary powers to ensure a rapid and fluid response to the emergency. In the current context, as these dilemmas have been brought into sharper focus, the importance of the judiciary to resolve these disputes has increased (Box 4.4).

Box 4.4: The role of the judiciary in mediating conflicts between national and local governments

In the context of COVID-19 and the many difficult decisions it has raised, the judiciary has been playing a crucial role in balancing the three branches of government during the pandemic. The separation of powers directly affects the scope of their rights, the powers that each of them has, as well as efficiency in decision-making. The role of the judicial branch of government, among other things, is also aimed at resolving disputes between the other two branches, as well as between the executive bodies of the state on the local level. A brief survey of selected countries across the world demonstrates the significant and wide-ranging impacts that judiciaries have had in determining the powers and responsibilities of national, regional and local governments in their response.

In Brazil, at the beginning of the pandemic the Federal Supreme Court allowed states and municipalities to decide on the implementation of measures like social distancing, quarantine and suspension of public activities, unequivocally granting more power to governors and mayors on health-related public policies. At the same time, they also imposed obligations on local authorities: for instance, in April 2020 the Maranhão court ordered Maranhão State Government to impose lockdown restrictions.76 Subsequently, following debate around the scope for regional and local governments to plan and roll out their own vaccination programmes in the absence of a clear national strategy, in December 2020 the Supreme Court ruled that states and municipalities also had the authority to implement these themselves.77

Another federal state, the US, saw a number of judicial challenges in relation to COVID-19: the Wisconsin Supreme Court was the first to issue a judgment that annulled the imposition of a statewide “Safer at Home” order,78 followed in Michigan by the Supreme Court’s ruling that the governor lacks the authority to extend or declare states of emergency in relation to the COVID-19 pandemic79 and in New York by the Supreme Court’s blocking of restrictions on houses of worship imposed by the governor.80 But the courts do not always oppose local authorities: for example, in Pennsylvania the governor’s restrictions were overruled as constitutional by the federal appellate court after being declared unconstitutional by the lower court decision. In Kansas, meanwhile, the Supreme Court ruled that a Republican-dominated legislative panel exceeded its authority when it tried to overturn the Democratic governor’s executive order banning religious and funeral services of more than 10 people during the coronavirus pandemic.81

In Europe, the courts also emerged later in the year as a key arena for disputes between central governments and regional or local authorities over their respective mandates. In October 2020 the court in Madrid court struck down the government’s lockdown of the Spanish capital and nine satellite cities as an interference in the “fundamental rights” of residents.82 In Germany, a number of cases highlighted the key role that judicial decisions could play in local responses: in July a state-sanctioned lockdown in Gütersloh was lifted early after a German court ruled that the measures were disproportionate,83 for example, a decision echoed by a court ruling in Baden-Württemberg that overturned the state government’s ban on hotel stays.84 In May, Romania’s Constitutional Court also ruled that the government’s emergency ordinance was unconstitutional and that the increased fines used to penalize non-compliance should be annulled.85

With respect to Africa, the High Court of Malawi86 temporarily suspended the implementation of the lockdown issued by the Minister of Health in April 2020, pending judicial review. Subsequently, the Constitutional Court declared the lockdown unconstitutional and criticized the government’s proposals for the adverse effects they would have on the country’s population.87 South Africa has seen the highest number of judiciary cases in relation to the lockdown since March 2020, when the President announced a national state of disaster. In one case, the applicants accused the government of not doing enough to protect the lives of citizens by easing lockdown restrictions, with the court finding that that there should be a balance between the government’s response in protecting the lives of citizens as well avoiding economic catastrophe: according to the court, a strict lockdown could not be retained indefinitely and some measure of relaxation to allow the reopening of the economy would also safeguard other fundamental rights.88 In another case, the court found that a number of regulations put in place to limit transmission of the virus, such as a ban on alcohol sales, were irrational and thus unconstitutional.89 On another occasion, the court issued an order for the Minister of Basic Education and the Members of the Executive of eight provinces in South Africa to resume the government’s programme of daily meals for school age children during the pandemic, even those who were not able to attend school in person.90

In Asia, the Indian example stands out: since the onset of the COVID-19 pandemic, multiple High Courts in several states have, along with the Supreme Court of India, delivered numerous judgments:91 some were directed to support vulnerable groups (like those instructing state authorities to distribute essential commodities for transgender communities), while others were adopted from high courts in various states to review the functioning of health care infrastructure across the country (such as those that ordered the expansion of COVID-19 testing capacities). It is important to highlight some overlaps in the multiple judgments delivered across several High Courts and the Supreme Court of India, as well as some interference of the judiciary in the decisions taken by state governments. For example, Delhi had seen serious interventions by the High Court of Delhi and the Supreme Court of India that attest to the presence of a multi-tier governance system and an often overlapping division of responsibilities between state and federal government. For example, the state government’s decision on 12 September 2020 to reserve 80 per cent of intensive care unit beds at 33 private hospitals across the city was immediately challenged by the Association of Healthcare Providers and was stayed by the High Court of Delhi until 12 November, with the case subsequently adjourned on 8 January 2021.92 In February the Association of Healthcare Providers withdrew their petition after the Delhi government reduced the quota of allocated beds to 25 per cent of the total.93