In response to the coronavirus pandemic, most countries have declared a state of emergency, introduced quarantine regime and imposed accompanying restrictions. The state of emergency boosts governments’ authority and empowers them to invoke measures that could not be raised under common circumstances.
States' exercise of emergency powers might result in important consequences for the enjoyment of the rights and freedoms guaranteed under constitutions. Under the given circumstances, parliaments have crucial role to ensure effective parliamentary oversight and check the necessity as well as proportionality of suspending the rights of individuals.
Large-scale social and behavioral changes in terms of COVID-19 pandemic also influences working process of the parliaments around the world, however, it is essential for the legislatures to adapt to the new reality. Dealing with the crisis created by the pandemic requires states to mobilize additional resources. Budget reserves and international aid are directed to strengthening healthcare sectors and social services. Therefore, it is necessary to ensure a high standard of parliamentary control over government activities in order to prevent risks of public fund mismanagement.
At the same time, it is highly important to ensure compatibility of actions taken in response to the crisis with international human rights standards. The main purpose of preventing the spread of the virus and protecting the fundamental human right - the right to health - should not result in undesirable indirect influences in the form of an unlawful restriction of social and economic rights. The adopted regulations and the response measures against the pandemic must be in accordance with a law and proportion to the existing threat.
IDFI has assessed the key challenges facing the rule of law and the protection of human rights during the COVID 19 crisis. Detailed information on the main problematic issues related to safeguarding international standards and guaranteeing provision of fundamental rights and freedoms without unlawful interference can be found in the mentioned study.
The role of Parliaments towards safeguarding compliance of the restrictions imposed by governments with international human rights standards under the pandemic
The regulations introduced by the government for the protection of public health and prevention of the spread of the coronavirus should be in accordance with the following principles:1. limitations on the rights recognized under constitution and international legal framework should be provided by law / national legislation; 2. Restrictive regulations should be universal, based on the principle of equality, prohibit any discrimination and guarantee equal and effective treatment to all persons; 3. Restrictions imposed by the state should be proportionate and in the interests of legitimate public purposes, in this concrete case, should safeguard universal health care. In addition, it is important the restrictions imposed by the authorities to be temporary in nature.
Particularly in terms of the state of emergency, it is primary duty of the highest representative body, legislative organ, to uphold the above mentioned principles and ensure the openness and transparency of the measures taken by the authorities.
Therefore, it is important to assess how the COVID-19 pandemic is changing the way legislatures work in different countries, how effectively parliamentary oversight as well as principles of open governance are implemented by parliaments.
It is noteworthy that the executive branch is responsible for the implementation of institutional actions against COVID-19 in most states, although effective parliamentary control over government is still ongoing.
One of the best examples of parliamentary oversight over the steps taken by executive authorities is the Corona Act, adopted by the Norwegian Parliament. Under the Corona Act, the government was empowered to amend legislation or suspend certain legislative norms in the event of an emergency during the fight against the pandemic. However, in accordance with the Act adopted by Parliament and the Constitution of Norway, any similar decision taken by the Government must be approved by Parliament. The purpose of adopting the Corona Act was to prevent disruption to normal public life and to reduce the damage to the economy as a result of the pandemic.
Hereby, the Storting (Norwegian legislative body) amended the rules of procedure of the Parliament; In particular, a new article (§50a) has been added to the regulations specifying the obligation of the government to submit any such ruling immediately to the Storting. According to the new article, n the event if 1/3 of the full composition of the Storting does not support the regulation submitted by the Government, a declaration of problematic issues shall be sent to the Storting Presidium, which is obliged to notify the Government. The Act also obliges the authorities to immediately repeal the regulations set out in the Declaration. Against the background of the crisis, the fact that the Norwegian legislature has set up a special committee to discuss urgent issues related to the Coronavirus crisis is an additional indication of the active work of the Storting. The above proves the example of effective parliamentary control and oversight of the measures taken by the government within the pandemic.
The modifications were also spread to the work of the committees, in particular, a resolution was approved by the Storting, according to which personal attendance of deputies on the committees was temporarily suspended and committee discussions are held through video conferences or in written correspondence. Involvement of citizens in the activities of the Storting is guaranteed by the online broadcast of current sessions, at the same time, in order to ensure accountability, documentation and publication of any decision made during remote discussions is carried out.
In response to COVID-19, number of states have implemented electronic mechanisms to identify and control movements of the infected individuals / their contacts. In order to meet the standard of necessity and proportionality, under the given circumstances, it is essential such types of supervision and monitoring to be associated with the specific aim of healthcare and the scope of the use of such tools be strictly regulated. In order to prevent the government from interfering in the right to privacy, the Israeli legislature has taken effective steps. In Israel, similar to other states, anti-Coronavirus actions are being carried out by the executive branch, although strict parliamentary oversight of government decisions is in progress.
For example, Israel's Supreme Court has banned its intelligence agency from tracing the phone location, credit card activity and other digital information of those infected with Covid-19, until passing relevant laws and required the government to put in place parliamentary oversight by the special committee if it was to continue to rely on the regulations to conduct electronic surveillance. The court ruled that the government lacked authority to continue surveillance under the regulations on its own authority without explicit statutory authorization. The Court held that it was essential such surveillance to be have a legal basis for, approved by the Parliament, and that effective parliamentary control over the enforcement and the scope of such regulation should be exercised.
Under the cause of protecting the right to privacy, Knesset (Israel's parliament) at the initial stage, suspended the use of mobile phone data to monitor individuals, which is a clear example of parliamentary oversight. According to the decision of May 5, the Subcommittee on Intelligence, Secret Services and Captive and Missing Persons of Knesset approved three-week extension of coronavirus surveillance instead of the six-week extension of the measure, as requested by the government.
The Swiss legislature is also an example of the best practices of parliamentary involvement and parliamentary oversight in the fight against the crisis caused by Coronavirus. According to the law, oth the Swiss government and the Swiss parliament are empowered to issue emergency orders and decrees to take action against Coronavirus. However, if the government's orders are not approved by parliament, they will be automatically suspended from 6 months after publication. Due to the high legitimacy of the parliament, the special ordinances adopted by the legislature have the predominant power over the ordinances of the government. At the same time, the adoption of regulations by the parliament increases the capacity and efficiency of parliamentary control.
Importantly, in March, the Swiss parliament decided to suspend parliamentary work for several weeks. At the same time, a number of civil engagement mechanisms have been restricted, in particular, the right to vote and collect signatures of citizens. However, as soon as the parliament convened, the Swiss Federal Assembly took significant steps to revise the government's decisions. Parliament has considered it necessary for the government to make elaborate legislative amendments while processing personal data by means of the electronic application to identify contacts of the infected individuals. The Assembly ruled that the use of the application should be voluntary and that consideration of centralized collection of personal data is completely inadmissible. The need to adopt relevant legislative changes was determined by the Parliament precisely due to the increased risk of interference with the realization of fundamental rights and did not conclude that the Government's declaration and reference to urgent necessity sufficient. The Federal Assembly refused to comply with the government's motion and found that the proposed regulations did not meet the principles of necessity and proportionality. Therefore, the Assembly elaborated and suggested a recommendation for the federal government, through the ongoing and the upcoming year to exempt from taxes the companies, the work and income of which were hindered amid to the crisis caused by the coronavirus.
Scope of Human Rights Derogations in Times of a Public Health Emergency under Pandemic
As already mentioned, it is inevitable that like many other crises, the current health crisis and large-scale, universal restrictions imposed by the government in response to the Covid-19 will leave a trace on the exercise of human rights in everyday life.While working in an emergency regime, the prevention of the negative impact of restrictions, the correct assessment of the circumstances and the elimination of legal scarcities should be the main priority of the legislatures.
Bearing in mind the current circumstances, effective parliamentary oversight can be ensured by: initiating electronic mechanisms to continue working process; involving relevant parliamentary committees in consultations; setting up specially designated parliamentary committees and conducting thematic parliamentary inquiries in order to oversee the measures taken by the government against the pandemic.
For instance, following the initiative of the UK Parliament’s Human Rights Committee the inquiry has been launched to assess the results of the Government’s actions and imposed restrictions and their compliance with human rights standards.
The best practice of parliamentary oversight has also been reinforced by the New Zealand Parliament, in particular by setting up temporary Epidemic Response Committee, involving the representatives of government as well as the members of the parliamentary opposition, with the purpose to control the activities of the government bodies during pandemic.
The meetings of the Committees are held in a remote mode and the involvement of experts, representatives of private sector stakeholders and civil society representatives is ensured in the discussions. The decision of the New Zealand Parliament corresponds to the initiative of the Open Government Partnership to launch a campaign - "Open Response, Open Rehabilitation" in the context of elaborating long-term reform to overcome the crisis caused by the Coronavirus.
Restrictive protocols preventing spread of the COVID-19 above all, have a huge negative impact on and mitigate the socio-economic development of states. The regulations adopted with the purpose of safeguarding public health, in fact, directly threaten the right to an adequate standard of living. Governments have the primary political responsibility to provide appropriate social conditions and ensure 'an existence worthy of human dignity'. The practice of taking effective steps towards mobilization of social assistance and benefits by a number of parliaments is also significant.
Number of legislature, including the parliaments of Canada, Denmark, Ecuador, Latvia, New Zealand, and Switzerland, have adopted relevant legal amendments to mitigate the negative socio-economic effects of the crisis. In particular, sick leave guarantees, extended benefits for non-income earners and / or business by means of restructuring tax arrears and loan debts and direct financial relief packages.
Singapore's parliament has passed three laws in the wake of the crisis to ensure the realization of economic and social rights. In particular, the amendments to the law provide assistance to persons who are unable to fulfill their contractual obligations, including bills relating to tenants. The bills also apply to tenants as well as to the individuals under the risk of poverty.
The parliaments of Luxembourg and Slovenia have approved stimulus packages to ensure employees’ leave, taking into account the salary supplement. At the same time, temporary basic income was introduced for self-employed people left without income. Hereby, tax liabilities were postponed and utility bills were suspended.
The Parliament of Ukraine has taken measures to strengthen the guarantees of social security for medical staff. In particular, the salaries of medical staff have been tripled and doctors have been exempted from income tax.
The Australian Parliament adopted regulations to impose additional financial assistance for unemployed youth, parents and farmers, and has accelerated the timing of social benefits, while simplifying procedures for applying for certain social reimbursements.
Besides the role to oversee the measures imposed by the government and to exercise effective parliamentary control, legislative organs have crucial importance towards leading information campaign in terms of the state of emergency.
An essential part of declaring a state of emergency is the public declaration of a state of emergency. Most of the legal systems ensure participation of the Parliament in the process of declaring and approving a state of emergency after the relevant decision has been taken by the executive branch. However, the role of the Parliament in conducting communication policy is essential, which implies the obligation of the Parliament to provide timely and appropriate information to the population on the limitations established within the state of emergency, the mechanisms available for exercising their rights and the opportunities still in force towards the involvement in decision-making processes. Parliamentarians that continue to work remotely disseminate updated information concerning recent decisions through official websites and social networks.
Following the example of the Parliament of Georgia, it can be stated that the Parliament is taking part in the process of declaring a state of emergency by authorizing the Presidential Decree co-signed by Prime Minister over the State of Emergency. On the basis of Decree No 1 of 21 March 2020 of the President of Georgia on ‘Measures to be implemented in connection with the Declaration of a State of Emergency throughout the Whole Territory of Georgia’, the Government of Georgia has been authorized to take appropriate actions and make relevant decisions against Coronavirus. However, in the event of an emergency session, parliamentary oversight of government-approved resolutions and measures taken by executive bodies has apparently debilitated. This fact poses an important challenge to the Parliament of Georgia as it stands as the supreme representative body of the Parliamentary Republic. Therefore, ineffectiveness of parliamentary oversight increases the risks of disproportionate interference with the rights protected under constitution.
It is noteworthy that based on Georgia’s constitutional reform and transition to a model of full parliamentary rule, the Parliament of Georgia adopted the new Rules of Procedure in 2018. The amendments to the Rules of Procedure of the Parliament of Georgia were aimed at strengthening parliamentary oversight and raising the accountability of the supreme representative authority.
The rules of parliament’s controlling activity are separately set out in the Rules of Procedure of the Parliament of Georgia, though, the part regulating the controlling functions of parliament does not include indication concerning the supervisory role and powers of the Georgian Legislature within the framework of the extraordinary session.
Ensuring parliamentary oversight of the executive branch of authority is essential for any democratic state. Effective control of the bodies accountable to the Parliament is particularly important from the perspective of good governance within the Parliamentary Republic. Given the broad powers granted to the government under the state of emergency, the role of parliament and its effective work is becoming even more crucial.
In view of all the above, IDFI calls on the Parliament of Georgia to reconsider the challenges facing the Parliament and its supervisory powers during the state of emergency and to develop legislative amendments directed at strengthening controlling functions of the parliament in the frames of the extraordinary session.
This article is published with the support of the project – Promoting Open Governance Principles at the Parliament of Georgia and Supreme Council of Ajara (SCA). This project is a part of a broader initiative of the EU and UNDP project “Consolidating Parliamentary Democracy in Georgia”.
Views expressed in this publication are those of the authors. They do not purport to reflect the opinions or views of EU and UNDP.
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