Wednesday, 5 August 2020

Legal certainty in the otherwise uncertain times of coronavirus

By Eliska Ludvova | Prague Daily Monitor |
27 April 2020

In the latest Coronavirus case that landed in the Czech courts, the Czech lawyer, Ondřej Dostál, contested the ordinances issued by the Ministry of Health circumscribing fundamental rights and freedoms. It was not the content of the measures or their effectiveness, which was in dispute, but rather the manner in which the government decided to act. As I have mentioned in my previous article, the government, instead of restricting citizens’ freedoms under the 1998 Emergency Law, took action on the grounds of Law on Protection of Health. Thereby the government deprived people of any legal entitlement to financial compensation for losses incurred as a result. On Thursday, the Municipal Court in Prague agreed with Dostál and declared four Ministerial Ordinances void. As a result, since 27th of April 2020 (Monday), the decrees will, in the eyes of the law, be treated as if they never existed.

The court showed its willingness to uphold the rule of law principles and fundamental values of a democratic state. It has been made clear that the court respects the government’s reasons for declaring the emergency and accepted effectiveness of its steps. However, the danger to life and death, the judges ruled, does not warrant state institutions – the government, to act according to its whim. It must follow the rules of the game. The court proclaimed that the Czech Emergency Law sets clear rules on how the state institutions should act if the basic conditions of human existence are endangered. Thus, once the state of emergency has been declared, the government should have issued all the rules limiting fundamental rights and freedoms under the Emergency Law.

The Ordinances at hand closed shops and restricted freedom of movement – Czech citizens apart from those who worked in essential industries abroad were not allowed to cross the borders. Consequences of these measures are costly. However, in a democratic rule of law state, the government should not have exploited a loop in the law just to save money. From the legal point of view, if the executive had concluded that the compensation overburdens the state budget, it could have laid an exceptional constitutional law before the Parliament asking for its permission to deny the compensation. The problem is that the government did not want to admit taking unpopular measures publicly and opted for acting in disguise instead.

The case shows at least two positive things. Firstly, there is at least one lawyer in the Czech Republic, who went to great lengths and questioned the government’s actions in court. Other lawyers and legal experts merely expressed their disapproval with the government avoiding the duty to pay compensation. While the latter, helped at least some section of the public understand, what the government was doing wrong, only the former stopped the government and put it back on the path of the rule of law state. Dostál’s behaviour would be taken for granted in many western European countries. Here, it should not be. The Czech Republic, a post-communist country, should praise anyone, who officially, publicly and constructively questions the actions of the state. Only in this way we will strengthen civic society and involvement – a cornerstone of any democratic state. The court’s openness to putting limits on the executive is another positive message.

Eliška Ludvová is a law student and a future human rights lawyer. Apart from expressing her opinions about politics, she also enjoys hiking and travelling.