Covid-19, risk of backsliding and response of the Constitutional Courts: a contrast between Italy and Brazil

Abstract

This article presents the Covid-19 pandemic as a de facto phenomenon that potentially produces risks of democratic backsliding regarding the concentration of political power, potentially leading to the over-strengthening of government functions and the reduction of existing constitutional guarantees. The problem of the present research is to find out what role the (Supreme or) Constitutional Court should play in order to avoid violations of the rule of law by the branches of state in the scenario of the mentioned pandemic. It is hypothesized that the possibility of the constitutional justice exercising a stronger or more expansive jurisdictional power temporarily increases when the fact of the pandemic threatens the balance of powers and the fundamental rights protection. This research will take as reference the legal systems of Italy and Brazil, which, despite the differences in terms of government system and state form, adopt the liberal constitutional democracy regime and have their respective constitutional courts – namely the Italian Constitutional Court and the Brazilian Supreme Federal Court – in a stage of increasing valorization before the framework of state institutions. The methodology used in this research is guided by the theoretical foundations, areas of comparison and research procedures, which support the choice of the comparative method.