Covid-19 and states of emergency in some eastern european countries Reflection from a rule of law perspective Covid-19 and states of emergency in some eastern european countries Reflection from a rule of law perspective
Trang 1C0VID-19 AND STATES OF EMERGENCY IN SOME EASTERN EUROPEAN COUNTRIES: REFLECTION FROM A RULE OF LAW PERSPECTIVE
Xuan Loc Dang’ Abstract: COVID-79 has already been the most serious crisis facing the world since The World War Il Following the confirmation of the World Health Organization, till the end of 5 May 2020, there are 215 countries and territories with more than 6 million people with coronavirus infection and nearly 400 thousand people died This invisible dangerous force is a terrible threat, made long-standing institutions of the European have to promulgate the State of Emergency that has led to the instability of the rule of law as well as social conflicts Besides, for some Eastern European countries with background young democracy and the fledgling Rule-of-Law state was rebuilt after the 1990s, this is the first time these countries have promulgate a State of Emergency and it is also the first time most countries in the region as well as internationally have all promulgated a state of emergency in the same period of time
This article focuses on listing, analyzing the effects of the COVID-19 pandemic, which has led to the serial-promulgation of the State of Emergency in Europe and in the World, at the same time as well as the assessment the reality impacts of the State of Emergency to the Rule-of-Law in some Eastern European countries over the past period On that basis, recommendations were made to minimize the negative impacts caused by declaration of the State of Emergency on the current Rule-of-Law
Keywords: Covid-79, Rule of Law, State of emergency
INTRODUCTION
During the late 1980s and early 1990s, the world had had structural and global changes It was the end of the Cold War after more than 40 years, which led to the breakup of the Soviet Union, followed by the crisis and collapse of the socialist regime in Eastern European countries (East Germany, Poland, Czech, Slovakia, Bulgaria, Hungary, Romania ) In this area, basic and radical changes have been shown in the rebuilding of a similar structure in the Constitution in the ideological system of the rule of law system with a very specific and clear assignment of power, as well as a mechanism to control state power over all branches of power from insight into power system
1 This paper is a part of PhD Thesis titled “Xây dựng nhà nước pháp quyền trong bếi cảnh
Đổi mới ở Đông Âu và Việt Nam” (Building the state based on rule of law in the renovation perspective in Vietnam and Eastern European countries) that the author is working on at the Hanoi University of Law, Vietnam
2 http://chnm.gmu,edu/1989/exhibits/intro/1989revolutions accessed on 25.05.2020
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Only when constitution and the law’s respect is ensured, the society is governed by the rule of law, then in all relations between the authorities; citizens and individuals will be harmonious It’s what Eastern European countries have recognized after having spent more than 40 years of ideological influence due to the unique heritage of the old state model This was followed by the fall of the Berlin Wall, a series of revolutionary waves occurred in Eastern European countries that caused instability, even leading to violence application in Romania After this century incident, after the loss due to the change from the foundations of the state, after realizing a clear shift in the value of the
integration of the united German State, including both theoretical and practical terms,
Eastern European countries have affirmed their determination to strive to build a rule of law state and all aim to become member states of the European Union ,
New member states before being allowed to join the European Union’ must fulfill the conditions of the rule of law to achieve democracy, the right of freedoms and institutions, as well as the law respect This is a legal system with common standards applied to all countries in the European Union to strengthen coopération and harmonize national laws step by step
1 THE STATE OF EMERGENCY AND THE RULE OF LAW 1.1.The Rule of Law
As we all know, the idea of the rule of law state has existed since the ancient Greek-Roman state and it has always been associated with the thought of democratic development expressed in the views of thinkers such as: Solon (638-559 BC) on a democratic basis through elections and the integration of state power and the law;
Socrate (469-399 BC) reflects a view of justice in compliance with the law, fairness
must go along with the legalization; Plato (427-347 BC) presents in the works “The Republic” and “The Laws”, including the thesis “where the law is not valid and under the power of someone in there, the state will collapse quickly’; Aristotle (384-322 BC) wrote “The Constitution of Athens” and other important works such as “The Politics”, “The Ethics”, “The Rhetoric” to point out the views on the existence of common, nature law is higher than the specific law issued by the state; morality must serve the law; fair action means acting following the law, condemning the rulers not to obey the law, attempting to dominate with violence and requiring decentralization in state
organizations; Cicero (106-43 BC) with famous works such as “On Government”, “On
the Laws” and “On duties” He had progressive ideas about the rule of law, there has a particularly famous view: “Everyone is under the force of the law and the people must regard the law as their refuge.”
The Rule-of-Law ideology was further developed into increasingly complete
theories in the medieval, near and modern times with political and legal thinkers such
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as N.Machiavelli (1469-1527) with “Le Prince” includes the idea that the state has equal dominance then can eliminate the monarchy; Thomas Hobbes (1588-1679) the English philosopher with the work “Leviathan”; John Locke (1632-1704) with the work “The Second Treatise on Government” showed the viewpoint that limiting state power must be organized on the principle of decentralization if not be restricted and controlled, the most obvious consequence is the violation of human rights and freedoms C Montesquieu (1689-1755) with the classic work “The spirit of the law” has outlined the basic features of civil society and the rule of law as well as clearly analyzed the
theory of the three rights of isolation; J.J.Rousseau (1712-1788) with the work “Social
contract”, he advocated the idea of democracy, social contracting, then found political solutions about a republic The legislative power always belongs to the people, so the monarchy will shift to a republic of elected officials; A V.Dicey (1835-1922) famous English legislator with “Introduction to the Study of the Law of the Constitution” refers to the Rule-of-Law with 8 basic characteristics that must be followed Next, many other
legalists and thinkers such as Kant, G.W.Hegel, M.James, T Jefferson, A.Hamilton also
contributed to the development of the idea of the Rule-of-Law as well as a new legal worldview
Nowadays, the Rule-of-law is one of the most discussed concepts of constitutional law and is unquestionably related to the transition from the state law to the rule of law The concept of the rule of law is a constitutional reality whose foundation is found
in the mechanisms of the exercise of state power, in the relations between power and
liberty of every individual of society and in the application of the principle of legality to the entire state activity, but also in the behaviour of each member of society.The rule of law has formed and spread over three major models!:
1 The English model of “Rule of Law” is characterized by the limitation of the monarch’s power and preserving the power of the parliament
2 The German concept emphasizes the need to ensure the legality of the
3 The French concept regards the rule of law as a legal state, proclaiming and maintaining the principle of legality
Initially formed and developed in these Western European countries, the rule of law theory was gradually imported, popularized to other countries and regions, step by step internationalized and recognized as a principle, standard for adjusting relations between countries
Traditionally, the rule of law has been viewed as the domain of lawyers and judges But everyday issues of safety, rights, justice, and governance affect us all;
1 Lác Heuschling, Etat de droit: Rechtsstaat: Rule of Law, Dalloz Sirey Publishing, 2002.
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everyone is a stakeholder in the rule of law Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small It is the foundation for communities of justice, opportunity, and peace underpinning development, accountable government, and respect for fundamental rights According to an independent organization to promote the rule of law around the world - WJP' there are four universal principles constituted a working definition of the rule of law They were developed in accordance with internationally accepted standards and norms, and were tested and refined in consultation with a wide variety
of experts worldwide The rule of law is a durable system of laws, institutions, norms,
and community commitment that delivers:
- Accountability, the government as well as private actors are accountable under the law
- Just Laws, the laws are clear, publicized, and stable; are applied evenly; and protect fundamental rights, including the security of persons and contract, property, and human rights
~ Open Government, the processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient
- Accessible Justice, justice is delivered timely by competent, ethical, and
independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve
The universality of the rule of law is apparently admitted everywhere as an indispensable reference system for countries, which shows that the rule of law
has become a common standard for the whole world Nevertheless, in practically
applications, it is essential to consider whether this reference system is real applied or not There is possibly that still exists in some countries, the statement of recognizing the rule of law is only theoretical and formal, more like a political slogan than a legal one
1.2 The State of Emergency
Recognizing a state of emergency or enclosure status origins from Roman times”
The term “Justitium” is derived from the Latin term “Juris statio” isa concept in which
parliament can make a final decree (senatus Consultum ultimum) without having to discuss, approve and vote Some scholars also regard it as an exception state, derived from the required state* It involved suspending civil activities, including the court,
} https://worldjusticeproject.org/about-ts/overview/what-rule-law, accessed on 25.05.2020 2 David Kretzmer (Israel), State of Emergency, Max Planck Encyclopedias of International Law 2008 * Eraydin, Ayda; Frey, Klaus Politics and Conflict in Governance and Planning: Theory and
Practice New York Routledge Pub 2019.
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treasury and the Senate, was ordered by senior Roman judges Or after the death of a leader of the country, during the period of instability, the void when handing over the power “interregnum” can be applied for a longer period of time like when being invaded Justitium was first recorded in 465 B.C, due to the panic tighten the city about the imminent invasion of Aequi
These measures are applied only temporarily and only exist until there are no more threats then the State must return to the state of law and normal legal order The state of emergency in factis a situation in which the government is empoweted to take actions or impose policies that wouldnot be normally permitted A government may
declare such a situation when a natural disaster, civil unrest, armed conflict, medical
pandemic or epidemic occurs, as well as other biosecurity risks These declarations force citizens to change their normal behaviors and order government agencies to implement emergency plans Cases of emergency can also be used as a reason to suspend freedoms guaranteed under a country’s constitutional or fundamental laws Although seldom happens in democracies, but dictatorial regimes often declare an emergency that lasts indefinitely for their rule, or takes longer to gain the legal basis applying acts of human rights violations on its own citizens, especially the absolute rights protected by international conventions on civil rights and politics
About the state of emergency in legal theory, Dicey says that in an emergency situation public officials might find themselves compelled to act outside the law and Parliament might then indemnify them But an Act of Indemnity does not make what the officials did legal — Parliament has ‘legalised illegality” Rather, it places them ina zone uncontrolled by law — a legal black hole, to use the current term His point is that political power can be exercised in a brute fashion, permitting those who wield it to break free of the constraints of constitutionality and legality
It might, Dicey thinks, be at times justified to do this because without illegal action the state and thus law itself might have been overthrown But it would be far better if Parliament were to delegate in advance the resources to public officials to deal with the emergency
The state of emergency is widely recognized both in legal science worldwide as well as in global political - legal instruments Typically, Article 4 of the International Covenant on Civil and Political Rights (CCPR)? of 1966 states: “In the event of an emergency which threatens national survival and has been formally declared, Member States may take measures to restrict the rights stated in this Convention, in moderation due to the urgent need of the situation, provided that these measures are not inconsistent with the other obligations
1 Dyzenhaus, D (2005) “The state of emergency in legal theory,” in Ramraj, V V., Hor, M., and Roach, K (eds) Global Anti-Terrorism Law and Policy Cambridge: Cambridge University Press, pp 65-89 > https://www.ohchrorg/en/professionalinterest/pages/ccpraspx accessed on 25.05.2020
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of that country resulted from international law and do not contain any racial discrimination race, color, gender, language, religion, or social background.” The exception to this provision is that certain rights cannot be restricted by the ICCPR 1966 such as the right to life (article 6), the right not to be tortured, treated and punished cruelly (article 7), the right not to be enslaved (article 8)
The current state of emergency caused by the COVID19 pandemic is one of a kind of emergency that all countries with different the rule of law state platforms have not faced until now Its impact leads to a health crisis but at the same time leads to a crisis about the rule of law and the economy
1.3 Impact of the State of Emergency on the Rule of Law
In theory, an emergency situation is.a temporary disruption of the status incurred froma number of trigger events and is expected to come toa clear end Cases of emergency are often distinguished by scale and classified by three broad headings:
- Violent situations, including wars (whether from foreign aggression or civil war),
terrorism, domestic rebellion or civil rebellion and conflict
- Calamity, natural disasters including storms, tornadoes, tsunamis, earthquakes,
landslides, volcanic eruptions and other extreme events mentioned in the law under
the concept of force majeure such as famine, pandemic and threat to public health - Economic crisis, collapse of financial system, hyperinflation and economic recession
Of the three titles mentioned above, war is still a typical example of a state of emergency, deeply affecting the thinking about the urgency, legality, and legitimacy of government as well as public support for the government's response and justification for the use of prohibited measures This was mentioned by Cicero: “Silent leges inter arma ~- In times of war, the law falls silent”,
The greatest impact of the last century of the State of Emergency on the Rule
of Law must be the notorious abuse of Nazi Germany in Article 48 of the Weimar
Constitution that gave the German president unspecified authority to enact urgent orders This makes the Weimar Constitution invalid when laws are enacted without the legislative parties This exceptional state of emergency was legalized for 14 years until the Weimar Republic fell
Nowadays, states of emergency have a direct impact on citizenship due to the excessive power of governments, even beyond the control of the legislature and the judiciary From this point can lead to an easy increase in corruption in law enforcement The previous democratic elections are now delayed or held but lack the objective
? https://openlibrary.org/works/OL67538W/Pro_Milone accessed on 26.05.2020
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conditions of assurance Furthermore, the basic human rights are also seriously
affected such as privacy, freedom of movement, gathering, non-discrimination and then there are serious vulnerabilities in approaching justice
2 COVID-19 IN RELATION TO THE STATE OF EMERGENCY
Throughout the history of mankind, until now stat of emergency have been declared because of violent or war situations that still have to be applied the most and the most widely However, with the emergence of the first COVID-19 case outbreak in China in December 2019 and the spread rate exponentially by the end of March 2020 there were 1 million and 6 million by the end of May In front of the threats posed by Covid-19 to many countries, a number of governments’ methods to prevent the spread of this pandemic and prevent the health system from being able to “resist” are emergency decision making of a state of emergency This requires governments to measure and assess the extent of Covid-19's influence in relation to all aspects of social life, thereby taking into account the minimum time limit to ensure urgent measures are applied, yet bring about the best effect, with the aim of restoring the normal state as soon as possible
The triple crisis of public health, the Rule-of- Law and economics cause significant restrictions on equality rights, the right to life, liberty, and physical safety as well as health care mentioned in the International Declaration on Human Rights! in 1948 In Italy, for example, when the health system is overloaded instead of accepting patients
on a first-come, first-served basis, doctors and nurses are advised to adopt a “difficult
choice” to focus on patients who have a better chance of recovery after intensive treatment Then there are other restrictions such as the right to free movement in
most countries, which limits the freedom of assembly; ruled out street protests The
right to vote and vote in elections is affected when candidates are unable to carry out election campaigning freely, especially when elections are held despite a pandemic or when elections are postponed to reduce risk of infection The right to access to justice is also affected when courts are operating slowly or temporarily closed Economic,
social and cultural rights are also affected, as many industries are practically closed, educational rights are hindered, cultural events are postponed or canceled
3 DECLARATION OF THE STATE OF EMERGENCY IN SOME EASTERN EUROPEAN COUNTRIES DURING COVID-19 PANDEMIC
Although originated from China’s Wuhan city, the corona virus has quickly spread to Europe and made the continent the focus of the world’s worst disease outbreak Geographically and economically tourism-oriented, Italy is the earliest country and
* https://www.un.org/en/universal-declaration-human-rights accessed on 28.05.2020
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has the worst effect by pandemic in the European Union On 9 March, the lockdown
orders were extended to the whole of Italy, effectively quarantining more than 60
million people From Italy, Covid-19 has quickly pervaded Western Europe from France, Germany, Austria, Belgium, England, Spain and massively moved to Eastern Europe because of the large number of migrants and working people coming back from Italy This has prompted a series of states to declare state of emergency such as the Hungarian government declared a state of emergency on 11 March; the Czech and Slovakia government declared a state of emergency on 12 March; Bulgarian Parliament voted unanimously to declare a state of emergency from 13 March; Poland has declared a state of emergency due to the risk of SARS-CoV-2 (COViD-19) epidemic The state of epidemic emergency came into force on 14 March 2020 and will remain until further
notice; On 16 March, President Iohannis issued the decree establishing the state of
emergency in Romania for a period of 30 days
The characteristics of Eastern European countries are their young economy and the rule of law foundation The unexpected pandemic situation caused many controversies among the parties in the Parliament, helplessness of the executive, the imperfect legal corridor The health systems of many Eastern European countries have always been overloaded, making the number of deaths in Eastern European countries much higher than the death rate reported by the World Health Organization However, the first requirement is that EU member states must meet the requirement to activate Article 15 of the European Convention on Human Rights!, allowing the use of this article for purposes of exemption from international law enforcement, in the condition of declaring a state of emergency as a result of the Corona virus pandemic
4 IMPACT OF THE STATE OF EMERGENCY ON THE RULE OF LAW IN SOME EASTERN EUROPEAN COUNTRIES DURING COVID-19 PANDEMIC
In an effort to flatten the curve of the COVID-19 chart and to limit or prevent the spread of disease, national governments in the European Union have suspended the freedom right of movement of people, restricted on information freedom, and the
closed schools, businesses and places of worship under public safety reasons After
being allowed to activate Article 15 of the European Convention on Human Rights, States signed the Convention are exempt from some certain rights enforcement guaranteed by the Convention during “wars or another community emergency that threatens the life of the nation” time All measures must be due to “the strict requirements of the urgent needs of the situation”, and must conform to another
national obligation under international law In addition to the above requirements,
the exemption of certain rights must be in line with procedure, there must be some
1 https:/Awww.echr.coe.int/Documents/Convention_ENG.pdf accessed on 28.05.2020
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formal notices regarding the exemption and duration of exemption, the cancel of exemption must be notified to the Secretary-General of the European Commission
Hungary is an example of using emergency declaration to achieve political aimbition beyond combating the COVID-19 epidemic The Hungarian parliament on March 30 passed the Coronavirus Act with 138 votes and 53 votes against, enabling the Hungarian government to take one more step and again gain full power of the state in the hands during the time state of emergency exists The passage of the Coronavirus Act enabled the Hungarian government to receive Parliamentary mandate indefinitely Besides, the state of emergency was declared on March 11 by the Hungarian government and was authorized to extend it until they felt it was necessary It allows the government to run the country through coercive decrees, which even may not need to comply with laws' Owning more than two-thirds of the representatives in Congress, the law was easily passed by the ruling coalition and ratified immediately by the President within two hours, which has never happened in Hungary’s story
In 2018, the European Parliament, in an unprecedented move, triggered Hungarian sanctions following Article 7 of the EU Treaty on the grounds that it created a “systematic threat” to the core value of the union bloc Although Hungary is now facing legal proceedings, they have not changed their approach’ Already ina not really good relations with the EU, in response to the European Union response to the Hungarian government's threat to the rule of law and democracy, the Hungarian Prime Minister said in the situation of Covid-19 epidemic still in complicated movements, the government blockade indefinitely throughout the country so they have no time to deal with these criticisms
Bulgaria is also one of the examples of using emergency declarations to achieve political ambition beyond fighting COVID-19 The first case was confirmed on March 8, 2020 After the number of patients in the country reached 23, Bulgaria’s Parliament voted unanimously to declare a state of emergency from March 13 to April 13 With the continuous increase of infections, on April 1, the Bulgarian government asked Congress to extend the state of emergency until May 13 During this time, a leader and his founder of the Revival Party, a leftist political party in Bulgaria that has been charged in Sofia with spreading false information about coronavirus that could cause panic Prosecutors said the suspect had made false allegations about a lack of
1 https://www.dw.com/en/coronavirus-rule-of-law-under-attack-in-southeast- europe/a-52905150 accessed on 29.05.2020
2 https://www.europarl.europa.eu/news/en/press-room/20200512IPR78917/hungary-s- emergency-measures-meps-ask-eu-to-impose-sanctions-and-stop-payments accessed on
29.05.2020
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emergency supplies in the reserve and not enough medical resources to meet the needs of Bulgarian government hospitalized patients At the same time, he stated that emergency public health measures in Bulgaria were “propaganda for the diversion and not for the benefit of the people.”
This ‘unfortunate incident occurred during a state of emergency in which the public were concerned about the Bulgarian Ruling Party abusing its power to eliminate The leader and his Revival Party Is this coincidence due to a history of closer ties between him and Moscow that has campaigned to move Bulgaria away from the European Union as well as NATO ?
On 17 April 2020, the European Parliament Conference issued a resolution on EU joint action to combat the COVID-19 pandemic and its consequences In the section “Protection of the rule of law, democracy and fundamental rights” article 46 of this resolution mentioned that the Charter of the basic rights of the European Union and the compliance with the law must continue to apply, and in the context of emergency measures, the government must ensure that everyone has the same rights and protections All measures taken at the national or EU level must be in accordance with the law, proportional with emergency situations, clearly related to the ongoing health crisis, limited on time and subject to regular supervision The.decree also stressed that the Hungarian government's decision to extend the emergency indefinitely, allowed the Government to rule by decree with no time limit, and weakened the emergency supervision of Parliamentary it completely inconsistent with the core values of the European Union
It was followed by the deviation of the Polish government when the decision to amend the election? law was illegal and the organization of presidential elections in the middle of a pandemic was completely incompatible with the values that Europe respected The Law and Justice Party (PiS), in power in Poland, proposed a constitutional amendment to extend the President's term by two years due to threats from the coronavirus pandemic Earlier, the same party had suggested that the election would be held according to the original schedule, on May 10, but by introducing voting by mail instead of holding polling stations in the form of transmission systems to reduce the tisk of infecting voters The changing of the Polish Government election law is the act against the decision of the Constitutional Court and the provisions set by the law The presidential election held in the middle of a pandemic with objective obstacles and subjective purposes of the group could jeopardize the lives of Polish
+ hitps://www.europarl.europa.eu/doceo/document/TA-9-2020-0054_EN.html accessed ơn 30.05.2020
? https://www.euronews.com/2020/04/15/first-hungary-now-poland-time-for-europeans-to- speak-out-against-covid-19-power-grabs-view accessed on 31.05.2020