COVID-19 and the rule of law
An attempt to classify German Federal Government measures to combat the pandemic from a rule of law perspective
Alongside the legislative and executive branches, an independent judiciary is the third element that is of outstanding importance for the rule of law. This is especially true of the administrative jurisdiction, which is responsible for judicial oversight of state measures in connection with the fight against the pandemic and has the role of protecting the rights of the individual to freedom – to protect individuals against state intervention – on the one hand and, on the other, of ensuring the state's ability to function in accordance with the provisions of the Constitution and the law.
As a result, politics has been, and continues to be, faced with a complex, multifaceted and unwieldy mixture of uncertain scientific findings and many different goals affecting a large number of different areas of society. On the one hand, politicians must protect individuals and society, in particular from dangers to their health; on the other hand, individual measures involve massive intervention in the economy and employees’ livelihoods and in the education system, sometimes with huge social and psychological impact on children and parents, the position of women, the health system, and, for example, the situation of older people.
Friedrich-Joachim Mehmel, retired President of the Hamburg Constitutional and Higher Administrative Court, addresses the question of whether the measures taken to combat the pandemic in Germany meet the constitutional requirements of a democratic constitutional state and whether adequate legal protection is guaranteed by independent courts.