Research article | Legal resilience in exceptional situations
Brunila, Tuukka; Värttö, Mikko & Salminen, Janne (2023): Oikeuden resilienssi poikkeuksellisissa oloissa –Perustuslakivaliokunnan rooli oikeuden ylläpitämisessä covid-19-pandemian aikana. Lakimies.
This article examines legal resilience during the COVID-19 pandemic. A key political character of emergencies is a shift in the balance of power towards the executive and away from other branches of government. As a consequence, a tension ensues both between the rule of law and effective emergency governance and between various human rights. These tensions challenge legal resilience as emergency governance requires flexibility from the legal system.
Our focus is on the role of legislative oversight in upholding legal resilience during emergencies. In the Finnish context, we analyse the role of the Finnish Constitutional Law Committee of Parliament in managing these tensions that challenged legal resilience during the COVID-19 pandemic. The Constitutional Law Committee, in upholding the rule of law, has had a role in overseeing the executive branch of government and ensuring the fulfillment of human rights during the exceptional situation. Furthermore, because the pandemic has required new laws and authorities, it is crucial that legislation does not threaten the resilience of the legal system. In a crisis, legislation without proper checks might be too hasty and threaten the rule of law. For this reason, legislative oversight needs to take place even during emergencies. During the pandemic, the Constitutional Law Committee has intervened in hurried legislative processes, in situations when the government has sidelined the parliament and in situations creating exceptions to human rights. We argue that all these interventions have been important in upholding legal resilience and democratic legitimacy.
The article begins with a theoretical discussion about legal resilience and its components. Next, we analyse how the Constitutional Law Committee has functioned during the pandemic. Then, we evaluate how its functioning has contributed to the resilience of the legal system. Finally, we discuss the aspects of emergency governance in Finland that require attention in further developing this resilience.
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