Constitutions vs. COVID-19: CrowdLaw as an Alternative in Crisis and Recovery

Abstract

Coronavirus has activated the main constitutional mechanisms set in place to face exceptional circumstances in all countries that can be considered consolidated democracies. Constitutional systems make it possible for constituent powers to limit fundamental rights that are the cornerstone for the full exercise of citizenship in a democracy. Thus, for example, lockdowns and limitations on gatherings, de iure and de facto , limit or eliminate the right to assembly. Exception—constitutional instruments, that also allow for the transfer of parliamentary functions to the Executive power, are mostly designed, and many times thought to be exclusively used in extreme circumstances: wars or natural disasters that have an immediate impact on millions of people (causing death, the loss of the home or massive displacement, etc.). In these cases, it is assumed that parliaments and citizens must enter survival mode, and because of that, there is no reason to think that any type of citizen participation is possible. However, despite the gravity of COVID-19, the situation does not conform to the pattern I have just described. Most citizens, surely those that tend to participate in the ordinary democratic process, have been able to adapt their lives to the confines of their own homes thanks to civic responsibility and technology: work, education, socialization, shopping, etc. If this is so, why has the decision-making process not been able to adapt to the COVID pandemic? Furthermore, if citizen input is essential to control the situation and social distancing is a must, why is technology not the cornerstone of citizen's data recollection? This work analyzes the existing constitutional framework and the main governmental measures (norms and actions) adopted, in order to detect in which stages (out of the five basic policy and law-making stages) citizen participation could have been integrated, and how CrowdLaw might have helped to make participation more effective, and if CrowdLaw can help palliate the constitutional impact resulting from a pandemic, particularly in regard to the exercise of citizen participation, and in improving the quality and effectiveness of any measure that has been adopted. I argue that constitutional norms are compatible with CrowdLaw because they do not rule out the activation of CrowdLaw procedures neither in normal nor in exceptional circumstances.