In all legal systems there is a law for dealing with emergency situations, a law that varies in substance and form, but usually has common elements [among the many projects devoted to the comparative study of political and legal responses to the health crisis, I would highlight this one, this one or this one]. Given the notes of immediacy and rapid reaction, the mechanisms established usually place governments in a preeminent position, since they are the ones with the instruments and personnel needed to act with agility and manage the corresponding budget with the human resources available. This does not preclude, on the contrary, the establishment of the appropriate controls, both political by the legislative bodies and legal by the courts. In general, emergency law modulates the actions of the executive and the legislature to adapt them to emergency situations, incorporating specific procedures and deadlines, altering, if necessary, rules of competence and developing various elements, such as the liability regime.
No provision is usually made for judicial control or control by the Constitutional Courts, i.e., no special procedure is introduced to provide these bodies with extraordinary means, to shorten time limits and to guarantee timely responses. Here, more than in any other situation, a late resolution can become a perfectly useless resolution from the point of view of the rights concerned.
Despite the above, the role of the courts and the Constitutional Court has been and is obvious in the crisis we are experiencing, both in our country and in others [I refer here to the work of the International Network of Judges and Scholars of the Covid-19 Litigation Project, coordinated by Professors Paola Iamiceli and Fabrizio Cafaggi]. Its function is to contribute to ensuring that the noun crisis is not also added, along with other adjectives, the adjective legal. However, as I pointed out, in general there are no extraordinary instruments for guarantee bodies to respond to these situations, and it does not help at all that decisions are not taken with the utmost urgency, but are delayed and made public once the rule or the corresponding measures are no longer in force. In practice, there is an asymmetry between the powers of the State, two of which are endowed with a singular and extraordinary regime, while the judiciary and the Constitutional Court have to operate or operate with the instruments of a longed-for normality in the terms indicated.
