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Human Rights Restricted Vaguely

April 19, 2021
Giorgi Kakubava

After the wide and rapid spread of the new Coronavirus (COVID-19), number of countries all over the world, including Georgia faced the hardest challenges both in terms of economy and human rights. 

At the special briefing of the Minister of Health held on February 26, 2020, the public was informed that the first case of the Coronavirus was identified in Georgia. Along with the increase in the number of individual cases of the infection with the virus, the issue of declaring the state of emergency became relevant. 

On March 21, 2020, at the regular sitting of the extraordinary session, the Parliament of Georgia of the 9th convocation approved with 115 votes against 2 Order N1 of the President from March 21, 2020, and also approved with 115 votes the draft Resolution of the Parliament approving Decree N1 of the President of Georgia from March 21, 2020 on the Measures to be taken in Relation to the State of Emergency Declared on the Whole Territory of Georgia. 

Initially, the state of emergency was declared through April 21, 2020. The Presidential Decree restricted the fundamental human rights enshrined in Chapter 2 of the Constitution of Georgia, in particular, the right to liberty, the freedom of movement, the right to family and private life, the right to fair administrative proceedings, the right to property, the right to assembly and labor.  

The legitimate goal of restricting the above constitutional rights was that the State could exercise its constitutional duties without obstacles and take care of public security, reducing expected threats to the life and health of the society, and managing the situation in the country. 

Taking into account the epidemiological situation, on April 22, 2020, the Parliament of Georgia supported the extension of the state of emergency with a term of additional one month. With the same term the Decree issued by the President was also extended. Noteworthy is the fact that no questions were raised with regard to the lawfulness of the measures adopted for the fight against COVID-19.  

In the fight against the pandemic, the strict observance of human rights remains a difficult task for many countries including Georgia.

As May 22, 2020 approached, the issue was actively discussed about the need of introducing restrictive measures without involving the Parliament and without declaring the State of Emergency. On May 13, six MPs from Georgian Dream registered the package of draft amendments to the Law of Georgia on Public Health requesting the expedited procedure for the adoption of the amendments.  The initiated draft law was exposed to harsh criticism on the part of civil society on the grounds that the introduction of restrictive measures without declaring the state of emergency was against the Constitution of Georgia. Nevertheless, on May 22, 2020, the Parliament of Georgia voted in favor of the adoption of the draft law amending the Law on Public Health. As a substantiation the following reasons were brought: the need for improving the norms in the legislation that, - taking into account the challenges faced by the country in terms of maintaining the achievements reached so far in the fight against the virus, - are related to the application of quarantine measures, and to the management of the pandemic and the epidemic extremely dangerous for human health. Further, another necessity was named: the availability of the corresponding legislative base, the regulations and the possibility to take the measures providing to the State the levers to tackle the disease promptly and efficiently.  

According to the amendments introduced to the law, the Government of Georgia was authorised to carry out restrictive policies also after May 22, 2020 without the consent of the Parliament. However, following such a legislative regulation, the Government was granted the right to restrict without the parliamentary control the fundamental rights guaranteed by the Constitution. In accordance with the Law of Georgia on Public Health, the Government of Georgia was authorised to adopt the regulations on the issues of isolation of the infected persons and those in contact with the infected persons, on one hand, and with the purpose of preventing the spread of the virus in general, to adopt the regulations on the issues of movements, properties, labor, professional and economic activities and/or gatherings of individuals with a purpose of holding social events, on the other hand. 

The delegation of such authorities to the Government caused heterogeneous assessments among the lawyers.  

The legal analysis of the amendments introduced to the law makes evident that the Parliament of Georgia had not defined the scope of the powers delegated to the Government.  It is evident that the Parliament had not delegated the powers for the execution of the law, but had delegated the powers to the executive branch allowing the latter to create a legislative space different from the existing one. In legal circles, it is often admitted that “by delegating the legislative powers, the Parliament not only refused to exercise its own powers, but also restricted the most significant mechanism of the judiciary that is to control the executive branch”.

The vagueness of the above issue and some ambiguous approach is further confirmed by the judgment of the Constitutional Court from February 11, 2021 where Giorgi Kverenchkhiladze, a member to the Constitutional Court expressed his dissenting opinion and concluded that the executive branch was granted with unlimited legislative powers so that the Parliament of Georgia had not made principal decisions regarding political and legal issues. According to the judge, the delegation of legislative powers does not constitute the means of enforcement of the law, but the granting to the Government of Georgia the authority to create a new legislative base.  Such delegation is equal to the failure by the legislative body to exercise own constitutional powers which is incompatible with the Constitution of Georgia and the principles enshrined therein. 

In contrary to the above, the First Panel of the Constitutional Court of Georgia held that the delegation of the rights to the Government was carried out in compliance with the standards provided for by the Constitution of Georgia. Meaning, in particular, that the Parliament of Georgia had not delegated to the executive branch the authority to regulate fundamental issues and, moreover, the Parliament had adequately defined the substance, objective and scope of the delegated powers. Furthermore, in assessing the fundamental nature of the delegated powers, the Constitutional Court of Georgia emphasized two aspects i.e. the temporariness and less intensity of the delegation, concluding afterwards that the Parliament of Georgia had not delegated to the executive branch the powers to regulate fundamental issues. According to the Constitutional Court, the introduction of such restrictions within the delegated powers that concern the types of movement, the allowed numbers of persons attending various gatherings or number of persons in cars and similar issues do not constitute such an intensive interference into the rights that would require involvement of various political actors and wider group of persons in the decision making process.
The judgment by the Constitutional Court as well as the scope of powers delegated by the Parliament of Georgia to the Government of Georgia raises questions, as from the judgment of the Constitutional Court it is not clear namely within what scope of powers the executive branch may restrict the fundamental rights. For instance, it is not clear whether the Government may restrict the freedom of movement in full or partially. 

The dissenting opinion expressed by the judge of the Constitutional Court is also interesting from the perspective that the Constitutional Court in adopting the judgment should have assessed the scale of delegation of the legislative powers to the executive branch, and the risks of concentrating the above powers in the executive branch even during the pandemic, epidemic and other situations of crisis.  

Today, when the timeframe of the new Coronavirus is not known, many countries including Georgia face the hardest challenges to take actions and fight COVID-19 in the manner that fundamental human rights guaranteed by Constitution are not violated.  

The article is prepared by Human Rights Center within the project “The Situation regarding the Right to Peaceful Assembly and other Civil Rights during Covid-19 Pandemic in Georgia”. The project is supported by the European Center for Non-for-Profit Law (ECNL) under the Inspires Program, which is made possible through the International Center for Non-for-profit Law (ICNL) with the financial support of USAID.