IDFI Considers that the Government Must Provide a Clear Explanation Regarding the Legal Basis for Possible Restrictions

News | Statements 15 May 2020

In response to the crisis caused by the COVID-19, on March 21, 2020 Georgia declared the state of emergency, which was later extendeduntil May 22. Certain constitutional rights are restricted during the state of emergency.

 

On April 24, 2020 the government of Georgia presented the estimated terms for lifting coronavirus-related restrictions. According to the Anti-Crisis Plan of Georgia, restrictions related to economic activities will be lifted gradually and the interval between the stages will be two weeks on average. According to the above-mentioned plan, certain economic restrictions will continue after May 22, however, it is unknown, after the end of the state of emergency, under which legal ground will the freedom of enterprise be restricted. For instance, according to the presented plan, domestic tourism is planned to re-open from June 15, big shopping malls are planned to open at the 4th stage and so on.

 

According to the Constitution of Georgia, freedom of enterprise is recognized and guaranteed, which means that private business entities are allowed to operate freely and without interference.  During a state of emergency the above-mentioned right can be restricted by the decree of the President, which constitutes a legal ground for economic restrictions. However, after the end of the state of emergency, this legal basis will no longer exist.  

 

The Law of Georgia on Public Health, which determines the rights and duties of individuals and legal persons in the field of public health, does not impose clear sanctions for breaches of this law. It only provides general indication that non-compliance with this law shall be punishable under the legislation of Georgia, however, the legislation does not determine a specific sanction. Consequently, the current legal framework does not envisage the legal grounds for restricting economic activities and imposing sanctions.

 

It is therefore unclear, what legal grounds will be used to restrict entrepreneurial activities and what the government plans to do in this regard when the state of emergency expires. It should be noted that during the crisis informing the public about current events and future plans are of critical importance, but the government has not yet offered any clear explanation on this matter.

 

The main purpose of the state of emergency regime is to contain the development of the crisis and return, as quickly as possible, to normality. At the same time, it is critically important that restrictions are prolonged only for so long and to the extent that is required by the exigencies of the situation. It is also important to note that if the purpose can be achieved by less restrictive measures, the government should give preference to such measures.

 

According to the recommendation of the Council of Europe, after the end of the emergency situation it may be justified to apply certain specific, targeted measures, but such extension would fall within the competence of parliament through the ordinary procedures.

 

If the legislator proposes to impose penalties through amendments to administrative offences and criminal codes, this may have a long-term, disproportionate impact on entrepreneurship and economic freedom, becausethese norms will be in force after the end of the pandemic crisis and thus, will create the risks of their abuse in practice.

 

A less restrictive measure may be temporary regulation of this issue by the parliament without extending the state of emergency. The current legislation allows for adoption of a law for a limited period of time. According to Article 18 of the Organic Law of Georgia on Normative Acts, the normative act must indicate its date of entry into force and validity (if a normative act is adopted (issued) for a specific period of time).  Therefore, the Parliament can adopt a law for a limited period of time which may be considered as a less restrictive measure.

 

Ultimately, in order to adhere to the principles of legality and proportionality, it is important that the government provides a clear explanation regarding the legal basis for imposing restrictions after the state of emergency expires.

 

 

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This material has been financed by the Swedish International Development Cooperation Agency, Sida. Responsibility for the content rests entirely with the creator. Sida does not necessarily share the expressed views and interpretations.

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