GEO

It is unconstitutional to impose restrictions without a state of emergency

20 May, 2020

 

According to the draft law registered in the Parliament, the restriction of fundamental human rights will be possible through quarantine measures without the need of a state of emergency. The rules of use and scope of the restrictions will be defined by the Government. The draft law goes against the Constitution of Georgia and it envisages the restriction of fundamental human rights that, according to the Constitution, can be restricted only during a state of emergency and with the approval of the Parliament.

A legislative initiative on Amendments to the Law on Public Health was registered in the Parliament by the members of the ruling party (Dimitri Khundadze, Ilia Nakashidze, Vladimer Kakhadze, Zurab Khachidze, Dimitri Mkheidze, Koba Nakaidze). The initiators demanded to fast-track the legislation.

  1. Non-compliance of the draft law with the Constitution of Georgia

According to the draft law, the following can be restricted through quarantine measures:

  • The right of activity of public institutions;
  • The right to movement;
  • The right to property, labor, professional or economic activity;
  • Freedom of assembly in public spaces.

These rights, according to the Constitution of Georgia, represent fundamental human rights and the basis and rules for their restriction are defined by the Constitution. For example, the freedom of labor, professional and economic activity and assembly can be restricted only during a state of emergency through a Presidential Decree, which is approved by the Parliament. The Constitution does not recognize another basis for the restriction. Therefore, it is unconstitutional to restrict these rights without a state of emergency.

  1. Equating quarantine measures to the state of emergency

According to the draft law, the concept of the quarantine measures are expanded in a manner that it is practically equated with the state of emergency and covers the work of public institutions, movement of persons, labor, property, professional and economic activity, illegal migration/international security, regulating freedom of assembly differently from the legislation, including imposing respective restrictions. The rules of use of quarantine measures will be defined by the Government.

Restricting fundamental human rights in this scope should be permitted only in emergency situation and this is exactly why the Constitution envisages restrictions on freedom of assembly, labor, professional and economy activity only during a state of emergency or war.

  1. Ignoring the role of the Parliament in the restriction of fundamental human rights

The Parliament plays a crucial role in the declaration of a state of emergency. In a parliamentary republic, it is exactly the authority of the elected legislature to approve a state of emergency and define the scope of restrictions.

The practice of parliamentary oversight is important during a state of emergency as there are more risks of disproportional restrictions of human rights. It should unfortunately be noted that the legislature has practically not carried out parliamentary control or deliberated on the proportionality of the restrictions of human rights following the declaration of the state of emergency on March 21, 2020.

The draft law completely excludes the possibility of engaging the Parliament in this process. The Government defines the quarantine measures without the Parliament and the restriction of human rights, without any additional control or procedures, becomes a discretion of the Government.

The protection of public health is an important legitimate goal. Nevertheless, this cannot be used as a justification for unconstitutionally restricting human rights. It is not justified to adopt an unconstitutional law on the pretext of fighting the pandemic, which jeopardizes the country’s democracy and increases the authority of the Government at the expense of the legislature. The role of the Parliament is particularly important in a emergency situation and the illegal transfer of powers defined by the Constitution to the Government puts the democratic development of the country at considerable risk.

The pandemic, just as any other emergency, is used by undemocratic countries to unjustly undermine human rights. If the draft law is adopted, Georgia will become one of these countries. It should also be noted that it is extremely important to maintain human rights, in particular the freedom of movement and assembly, during the election year.

We call on the Parliament of Georgia to vote against the draft law as it will jeopardize the democratic development of the country, as well as unconstitutionally restrict fundamental rights and freedoms in violation of the Constitution of Georgia and international agreements.

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