Covid-19 and Sanctions: Systemic problem of constitutionality

News | Good Governance | Pressing Issues | Article 27 October 2020

Main Assessment

 

The Parliament of Georgiaundermines its constitutional mandate and thus puts the constitutionality of the measures of responsibility introduced for preventing the spread of Covid-19 under question.

 

Legal Basis of the Assessment – Brief Overview

 

By the end of the officially announced state of emergency, the Parliament of Georgia introduced minor amendments to a number of legal acts. Based on the amendments the executive branch was given fully-fledged leverages of introducing and enforcing restrictions linked with the new coronavirus, thus establishing a quasi state of emergency in the country.

 

According to the Constitution of Georgia, the scope and content of prohibited actions as well as relevant measures of responsibility must be determined by the Parliament of Georgia. This is not a privilege but rather a systemic constitutional obligation, arising from the principle of checks and balances.

 

The Parliament of Georgia granted the government with fully-fledged leverage of restricting any of the rights linked with Covid-19. Instead of imposing sanctions on specific violations, the Parliament of Georgia created a single, universal rule of liability that applies to virtually all violations of covid-19 regulations adopted by the executive branch. In other words, the Parliament of Georgia adopted an open-end liability, which automatically fits in the content of the prohibited actions introduced by the new governmental regulations. It is particularly problematic that the Government is entitled to introduce different regulations in any area and while doing so it is not limited by the normative requirements established by primary legislation (Legislative Acts).Moreover, in terms of regulative power, the executive branch was given wider discretion than during the state of emergency itself.

 

Two main legal acts adopted by the Government of Georgia fall within the auspices of the open-end content of Article 4210 of the Code on Administrative Offences, based on which legal and natural persons can be held responsible for committing actions listed in up to 500 paragraphs and sub-paragraphs. These regulations relate to various human rights and include all types of violations. Acting against these rules encompasses the administrative liability of fines amounting to 2000 and 10000 Gel while committing these actions again within the period of a year leads to criminal liability.   

 

It needs to be taken into consideration that the state needs flexible leverages of fighting against Covid-19 and the Parliament of Georgia might have been unable to regulate all technical details in the legal norms introducing various responsibilities. However, at the very least it had to take a political decision on the main prohibited actions and should have determined relevant and proportional responsibilities based on the nature of the misconduct (e.g. as it did in the case of the administrative liability on wearing face-covering).

 

The legislative branch adopted new blanket regulations of administrative and criminal responsibility, failing to regulate their content. Moreover, the Parliament released the executive branch from all legal requirements. By doing so the Parliament of Georgia waived its constitutional mandate and granted the government full leverages of determining illegal actions linked with the new coronavirus.  As a result of undermining its constitutional mandate of fighting Covid-19, the highest legislative authority put a question mark over the constitutionality of the new regulations with the formal requirements of the Constitution.  

 

It needs to be emphasized thatthe Venice Commission has adopted interim report on 8-9th of October 2020 where it considers lack or absence of proper political oversight of the parliament over government during Covid-19 crisis as threat to democracy.  In addition, 7 constitutional complaints are already registered at the Constitutional Court of Georgia, most of which either directly or indirectly questions the scope of authority transferred to the executive branch.  This further refers to the existing shortcomings of the Parliament to exercise its constitutional mandate.

 

IDFI finds that Articles 4210 of the Code of Administrative Offences and Article 2481 of the Criminal Code of Georgia, in conjunction with the first and second paragraphs of Article 453 of the Law of Georgia on Public Health, threaten the principle of checks and balances and pose a significant risk for legal certenity.

 

The assessment is based on the detailed legal analysis (attached). IDFI continues to work on the above—discussed legal issue. Relevant public information and minutes of administrative violations are requested from responsible public entities. After analyzing the practice of executing the norms of liability IDFI might consider filing aConstitutuional Complaint to the Constitutional Court of Georgia. 

 

Other Publications on This Issue