Tuesday, 2 June 2020

Parliament rightly cautious when extending the state of emergency

By Eliska Ludvova | Prague Daily Monitor |
9 April 2020

The government has declared the state of emergency on the 12th of March this year. Objectively speaking there was a reason for it. The pandemic that has hit the old continent is indisputably the biggest crisis in decades. So, the condition of existence of danger to lives, foreseen by Article 5 of the Constitutional Law on Security, was undeniably present.
 
Moreover, the current situation differs from what we and the generations before us have experienced. After all, in all the previous conflicts, it was clear who the enemy was. In the Second World War, we fought Nazi Germany and the remaining two countries of the Axis, when the soldiers of Warsaw pact invaded Czechoslovakia in 1968, the Soviet Union was to blame, and the Velvet Revolution also had its tangible target – the Communists.  
 
On Tuesday the Chamber of Deputies voted in favour of extending the state of emergency for 14 more days. Despite the uniqueness of the current situation MPs were right not to give the government a blank cheque for another 30 days. After all, when the government declared the state of emergency in March, it did so for the longest time possible (30 days). Now it has requested extension for another 30 days. One could claim that the uncharted waters the government is entering together with the need to intervene as quickly as possible warrant the government the room for manoeuvre which the state of emergency offers. After all, this is for the sake of public good. 
 
However, given the government’s chaotic behaviour, the opposition parties were right not to allow the government to have its way. While the government has delivered on its principal task, i.e. it has prevented the Italian scenario, it has made serious mistakes. The failure to protect the most vulnerable is one of them. Although the Minister of Health banned visitors in care and nursing homes, at the same time, the government failed to secure sufficient amount of medical equipment for its employees, who take care of this vulnerable group. As a result, many of these institutions have been severely affected. The Czech Republic is, of course, not the only country to suffer from medical equipment shortages, so blaming it all on those who are trying to help might appear too harsh. However, problems with securing the material are only the tip of the iceberg. 
 
While the Ministers should have at their disposal as many tools as possible for achieving the common good – protecting people’s lives – the government is no longer justified in employing this mechanism when people are no longer at risk or when other less drastic means are an option. This begs the question as to whether the danger persists and at the same time, amounts to an exceptional situation justifying the state of emergency. Well, the government failed to point to at least one such instance, which would give the basis for at least one sound argument as to why the Parliament should extend the period until mid-May. The central claim in the five pages long document the government submitted to Parliament together with the request for an extension was that the state of emergency enables it to take most of the critical measures. 
 
Yet, many of the rules circumscribing fundamental rights to solve the crisis were taken under ordinary rather than emergency laws. For example, at the very beginning, the government invoked the 1998 Constitutional Law on Security to declare the state of emergency. One would expect rules, especially those circumscribing fundamental rights, to be issued under the government emergency powers. Measures such as the limit on freedom of movement or the ability to travel abroad have been declared by the Ministry of Health and grounded in the Law on Protection of Health, with the government merely acknowledging them. Constitutional lawyer, Jan Kysela, has in an interview for the Czech DenikN contemplated whether that was not the government’s way of escaping the duty to pay compensation for losses suffered as a result of these rules. The latter law offers no such compensation. The main problem lies in the government being too keen on cherry-picking which laws to use, and when disregarding the detrimental effect, it has on people. 
 
Moreover, Kysela has suggested that the government changes rules quickly to prevent any court claims practically leaving the content of the people’s fundamental rights void. One could only speculate to what extent the emergency status concealed the government’s mismanagement. In the wake of a catastrophe, a very few of us could have ever imagined we were right to put our trust in the government. After all mid-March, we majority of the people have not yet appreciated the severity of the issue. Today, in light of government’s actions in the last 30 days we should more readily ask whether we still need the state of emergency tomorrow. 
 
After all, the government has attempted to take advantage of the current situation in the Prime Ministers favour. It has put forward a draft version of a law on partners of the public sectors which would be more favourable to the Prime Minister Babiš. The law as such could enable the public to learn who the real owners of companies doing business with the state are and thus reveal that Andrej Babis remains the sole de facto beneficiary of his holding. This was, however, not an isolated incident. The Minister of Defence has also put forward documents, which if approved would allow the Prime Minister and the government to declare a state of danger or state of war without the mandatory approval by the Chamber of Deputies within a fixed period (the law today requires 30 days).
 
The examples listed above are far from isolated incidents excusable by the government’s lack of experience when facing the unknown. They create a pattern of behaviour that points to the fact that despite the gravity of the current situation, the government should remain accountable to the Chamber of Deputies. Granting the government 14 rather than 30 more days of emergency status allows for such, yet still somewhat limited, accountability. In this way, the opposition can, as they already have pushed the government to work on a structured plan of the steps the government will take and when. This would also enable the citizens to become more familiar with the situation and made the government more accountable. 
 
Although we are fighting the virus, and as the Minister of Interior, Mr Hamáček, said only the virus knows what its plans are, the government cannot dictate what is and is not allowed from one day to another. The principle of predictability of the law should be upheld even at the most difficult of times. The state of emergency is the last resort mechanism, and the government should do its best to relax such a regime as soon as possible.  

Eliska Ludvova is a student with keen interest in politics and English language.