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31 Const. F. 1 (2022)

handle is hein.journals/consfo31 and id is 1 raw text is: 

           Covid, Courts, Communists and

                            Common Sense

                               David M. Beatty*

Covid-19  is a serial killer. In less than two years it has taken the lives of over five million peo-
ple. It preys on the vulnerable and the elderly. Seniors in long term care facilities are a favorite

    Governments  have reacted differently to the threat. Some, including China and Australia,
have adopted an aggressive, no-nonsense approach, locking down major cities for months at
a time. Others, including Sweden and Brazil were, at least initially, more restrained and laissez
faire, allowing their citizens to move about freely and letting the virus run its natural course.
Countries also differed in the extent to which the general public was engaged in deciding
which  approach to adopt. In some the public were very active; in others not at all. In China,
public debate and criticism were prohibited. Decisions were made by senior members of the
Communist   Party from behind closed doors and policies were presented as a fait accompli.
In Europe and the United States, members of the general public were much more vocal and
outspoken. Citizens who disagreed with their governments organized large protests and dem-
onstrations and, when they were not listened to, took their political masters to court.

    Superficially the two approaches look and sound very different. Loud and boisterous
in Paris and Washington; silence in Tiananmen Square in Beijing. But appearances can be
deceiving. On closer inspection, the difference in how much influence the public actually has
in shaping Covid policy turns out to be quite small. Shouts on the street are rarely heard in
the back rooms where deals are done and are categorically out of order inside a court. When
courts have the final say in deciding the best way to fight Covid-19, it is difficult for members
of the public to participate in a meaningful way because the manner in which judges talk and
justify their decisions effectively excludes them from the conversation. They need lawyers to

  *  Emeritus professor in the Faculty of Law at the University of Toronto. His book, Faith, Force and Reason:
     An Armchair History of the Rule of Law will be released by University of Toronto Press this spring.

Constitutional Forum constitutionnel


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