Divergent Legal Responses to Covid-19 in Central and Eastern Europe

 

Beatrice Monciunskaite, Dublin City University

  

In the last decade, Hungary and Poland have continued to attract international attention for their drastic departure from the rule of law and democratic principles. Now, observers are criticising these countries for using the COVID-19 pandemic as an excuse to further entrench their political power. In Hungary, Prime Minister Viktor Orbán used legislation intended to deal with the health crisis to further centralise political power in the executive, while in Poland, the government used lockdown measures to their advantage in the Polish presidential elections, resulting in another victory for President Andrzej Duda. 

 

However, not all legal responses to COVID-19 in Central and Eastern Europe have been characterised by authoritarian power grabs. In Latvia and Lithuania, the story is very different, where bona fide attempts to preserve the economy and public health have been accompanied by considerable care to not seem overly authoritarian. As part of a joint statement, Lithuania and Latvia declared that legal measures taken in response to COVID-19 should be “limited to what is strictly necessary, should be proportionate and temporary in nature [and] subject to regular scrutiny”.

 

On March 11^th, Hungary declared a ‘state of danger’ under Article 53(1) of the Hungarian Constitution, which allows the government to adopt appropriate legal measures in the event of a natural disaster. Pursuant to this, the most controversial legal measure adopted so far, the Coronavirus Defence Act, came into effect on 1^st April.  This Act removed the time limit for emergency measures—fifteen days unless the government, with parliamentary permission, extends them—meaning that the government can rule by decree. The only remaining safeguard against abuse of power is judicial review by the Constitutional Court, but with the Court now packed with Fidesz loyalists, this safeguard lacks teeth.

 

In Poland, rather than declaring an emergency under the Constitution, the government used legislation to combat COVID-19. Article 31(3) of the Polish Constitution does allow for the limitation of human rights in the absence of an emergency as long as measures follow proportionality rules. However, this choice of means has proven controversial. Article 232 of the Constitution provides that an emergency may be declared in the event of a natural disaster, which is arguably applicable to the health crisis Poland faces now. The government insists it is avoiding an emergency declaration as they do not want to encroach on human rights, but observers have suggested that this choice is more likely the result of a political calculation.

 

An emergency declaration under the Polish Constitution would have postponed the May presidential elections until ninety days after the emergency ceased. This would have been an inconvenience for the ruling Law and Justice government, which sought to benefit from indications that their candidate, President Andrzej Duda, was an early favourite to win. Furthermore, as President Duda was still in office he was allowed to engage in televised self-promotion under the façade of performing presidential duties. The rest of the candidates were banned from campaigning due to social distancing restrictions.

 

Lithuania, similarly to Poland, chose to regulate COVID-19 through legislation rather than a constitutional state of emergency. However, rather than avoiding apt constitutional provisions for political gain, Lithuania’s choices seem to be justified.

First, Article 144 of the Lithuanian Constitution provides that a state of emergency may be called when there is a threat of a constitutional crisis or civil unrest. There is no provision to deal with a natural disaster. In late February, the Lithuanian government adopted Decree No. 152 which declared an extreme situation under the Law on Civil Protection. The government adopted the position that COVID-19 was not an immediate threat to the constitutional order or peace, so a declaration under Article 144 would have been inappropriate. The government’s decision was challenged by the parliamentary opposition and sent to the parliament’s legal department, which confirmed that the government’s response was indeed correct. In mid-March, the Lithuanian government introduced Decree No. 207 which introduced quarantine in Lithuania under the Law on the Prevention and Control of Communicable Diseases in Humans. With no mass protests, and the virus in check, the government’s decision is proving to be the correct one.

Second, the government has a sufficient constitutional mandate to limit certain constitutional rights to protect public health. Constitutional rights such as the freedom of movement under Article 32 and freedom of assembly under Article 36 were limited by Decree No. 207. However, the textual protection of these rights allows for their limitation by law in the interest of public health. Article 53 of the Constitution further confers a duty on the State to protect the health of the people.

Third, for the most part, Decree No.207 conformed to the rule of law. There were no attempts by the government to remove time limitations on emergency powers or expand government competencies. Decree No.207 was implemented on 16^th March and extended five times by the parliament until the 16^th of June. It was replaced by Decree No. 588 which ended quarantine and introduced a less stringent regime.

 

Fourth, some commentators argue that the Lithuanian government did have discretion in deciding whether to deal with COVID-19 through legislation or the constitution. However, with a general election looming in October 2020, the ruling Peasants and Greens Union seemed extremely wary of imposing a constitutional emergency due to the connotations this would have with authoritarianism. The Lithuanian polity might be unnerved by an emergency regime, as seen under the rule of Antanas Smetona in the interwar years or their recent history of Soviet occupation. It is very interesting to see that the Lithuanian government may have had an opportunity of a power-grab, but they refrained from taking it and even avoided the appearance of taking it.

The Latvian Constitution also does not provide a provision to deal with an emergency caused by a natural disaster. An emergency under Article 62 of the Latvian Constitution may be declared if there is a threat of an “external enemy” or an “internal insurrection”. Therefore, the Latvian government also dealt with COVID-19 through ordinary law. On 18^th April, the Latvian parliament introduced an amendment to the main law governing the emergency situation to allow the state of emergency to be renewed repeatedly, once parliament consents. Previously, the state of emergency could be declared for a maximum of three months, with the possibility of a further three months extension. Considering that medical experts are warning that a second wave of infection may be inevitable, this change seems necessary.

Latvia’s President, Egils Levits, has suggested resurrecting Article 81 of the Latvian Constitution, which allowed the government to enact emergency legislation between sittings of the parliament that could be later approved by parliament. This was removed in 2007 for fear of abuse. For now at least, the resurrection of this provision is unlikely as there is little enthusiasm for it.

 

While so much scholarly attention is cast on Hungary and Poland for their violations of democratic and rule of law values, nearby countries have a very different story. Although the pandemic creates opportunities for a power-grab in Lithuania and Latvia, these countries still hold on to rule of law and democratic principles.

 

Beatrice Monciunskaite is a PhD candidate at the School of Law and Government, Dublin City University.

 

Suggested citation: Beatrice Monciunskaite, 'Divergent Legal Responses to Covid-19 in Central and Eastern Europe' COVID-19 Law and Human Rights Observatory Blog (27 July 2020) https://tcdlaw.blogspot.com/2020/07/divergent-legal-responses-to-covid-19.html

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