The executive`s powers in a state of emergency
On 23 June 2020, the Constitutional Court delivered a Judgement on the constitutional review of some provisions of Law no. 212 of 24 June 2004 on the Regime of the State of Emergency, Siege and War and some provisions of Parliament Decision no. 55 of 17 March 2020 on declaring the state of emergency (Judgement no. 17 of 23.06.2020).
The authors of the application requested the Court to verify the constitutionality of some provisions of Law no. 212 of 24 June 2004 on the regime of the state of emergency, siege and war, and of the Parliament Decision no. 55 of 17 March 2020 on declaring a state of emergency. They claimed that the contested provisions did not meet the quality of law requirements, offers unlimited and unforeseen powers to the authorities responsible for managing the state of emergency, siege or war, allowed a disproportionate application of emergency measures and enabled the authorities to exercise both executive and the legislative prerogatives. The Court examined the complaints in the light of Articles 6, 20, 23, 54, 60 and 66 of the Constitution.
To determine whether the contested provisions comply with the standards of the Constitution, the Court examined the following problems:
a) Whether the contested provisions were foreseeable
On the compliance with the accessibility requirement, the Court noted therefore that the impugned provisions were published in the Official Gazette and, thus, accessible according to Article 23 of the Constitution.
On the compliance with the foreseeable requirement the Court noted that Article 2 para. 12) of Parliament Decision no. 55 of 17 March 2020 states that the contested provisions may be applied "only in order to prevent, mitigate and eliminate the consequences of the coronavirus pandemic (COVID-19)".
Also, taking into account the various emergency situations that may occur in the state of emergency, it was indispensable and inevitable for the legislator to use texts as “to apply other necessary measures”, “to exercise other necessary functions” or "to perform other necessary actions".
Authorities responsible for managing the state of emergency needed flexibility to be able to react promptly to various emergencies that may endanger the country. Using uptight wording or exhaustive description of the measures may limit the capacity of the executive branch to deal with the emergency situation it faces. Therefore, in a state of emergency, a flexible regulation of measures that may be taken by the authorities to deal with the state of emergency is acceptable and necessary.
b) Whether the contested provisions offered excessive powers to the executive in the context of the state of emergency
The Court noted that the Constitution does not provide many details on the state of emergency. The Basic Law stipulates that the Parliament declares the state of emergency, siege and war, that the regime of the state of emergency, siege and war is regulated by organic law, that during this period the Constitution cannot be revised and that Parliament cannot be dissolved. The Constitution thus does not establish what follows after declaring a state of emergency, or which authority is responsible to manage it, or the role of the Parliament, of the President and of the Government. Neither the Constitution does not provide whether the state of emergency increase or diminish the powers of this authorities.
In the absence of expressly mentioned exceptions in the Constitution, the Court held that both in ordinary situations and during the state of emergency, siege or war, the balance of powers must be the same. The constitutional organization of the Republic of Moldova, based on the checks- and balances principle, cannot be subject to modifications following declaring the state of emergency. Even in these exceptional circumstances, the Constitution does not allow for any derogation from this order and a fortiori does not allow to concentrate the branches of state power in a single authority. Given the country's historical past and the fact that most abuses are committed against the background of emergencies this clause was established by the constituent to prevent the emergence of dictatorship.
On the other hand, the Constitution does not prohibit the Parliament from conferring additional powers on the executive to deal with an emergency, within the limits of constitutional provisions. At the same time, in order to avoid abuse, it is necessary to have certain guarantees that could reconcile the balance of powers in the state, on the one hand, and the need to ensure state security, on the other.
Thus, in order to assess whether through the contested provisions the Parliament gave excessive powers to the executive, the Court examined the following issues: (i) whether the powers of the executive are limited in time; (ii) whether the powers of the executive have a limited scope; (iii) whether the law provides for a parliamentary scrutiny mechanism; and (iv) whether the executive's exceptional measures may be challenged.
(i) Whether the powers of the executive are limited in time
The Court noted that Article 18 of the Law on the Regime of the State of Emergency, Siege and War limits the state of emergency to 60 days at most and depending on the evolution of the situation it can be extended or reduced by the Parliament at the request of the President of the Republic or of the Government. The same Law provides that, after the lifting of the state of emergency, siege or war, the normative acts adopted for this period are repealed without special notice in this respect [Article 4 para. (3)]. The Court therefore held the powers of the executive are limited in time.
(ii) Whether the powers of the executive have a limited scope
The Court noted that Parliament had given increased powers to the authorities responsible for managing the state of emergency.
The authorities responsible for managing the state of emergency are, by their nature, part of the executive branch. Thus, even though the legislator used flexible wording to describe the measures that may be ordered by these authorities, the Court noted that they cannot go beyond the executive's competence, as the only powers they have in Parliament are executive. The contested legal texts do not contain provisions that would allow these authorities to take over from the attributions of the legislative power, i.e. to adopt, amend or repeal laws.
The Parliament, according to Article 60 para. (1) of the Constitution, remains in all cases the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the state. The Parliament cannot relinquish its constitutional status even in the state of emergency, and no other authority can change its status, otherwise it would undermine the sovereignty of the people.
If the authorities responsible for managing the emergency need to legislate in order to overcome an imminent danger, the Constitution offers them several alternatives. They may require the application of the exceptional legislative procedures provided in the Constitution, namely, they may require the Government to assume its responsibility for a draft law [Rule 1061] or they may require Parliament to empower the Government with the right to issue ordinances in fields outside the scope of organic laws [Article 1062]. Also, the draft laws presented by the Government, as well as the legislative proposals of the MPs accepted by it can be examined by the Parliament in the manner and according to the priorities set by the Government, including in the emergency procedure [Article 74 para. (3)].
The Court therefore concluded that the additional powers of the authorities responsible for managing the state of emergency are strictly limited by the reasons and objectives underlying the declaration of the state of emergency and cannot exceed the powers of public authorities established by the Constitution.
Given that the contested provisions may be applied only within the competence of the executive branch and that they are limited to the reasons and objectives underpinned the declaration of the state of emergency, the Court held that they are limited, concrete and strictly functional in scope.
(iii) Whether the law provides for a parliamentary scrutiny mechanism
In the view of the Venice Commission, parliamentary scrutiny of the acts and actions of the emergency authorities and the establishment of special procedures for such scrutiny are important for the rule of law and democracy.
The Court observed that the Law on the Regime of the State of Emergency, Siege and War only provides that the Parliament participates in the declaration [Article 12 para. (1)], extension [Article 15] and lifting of the state of emergency [Article 16 paras. (1) and (2)].
The Court reiterated that the purpose of any parliamentary scrutiny is to verify the acts and actions of the representatives of the executive branch in terms of compliance with the law, respect for human rights and freedoms, as well as compliance with the general interest of society.
The above-mentioned law does not establish sufficient mechanisms that would allow Parliament to verify whether the authorities responsible for managing the state of emergency act within the limits provided by law. In this regard, the Court noted that parliamentary scrutiny is necessary to compensate for the imbalance of power in the State created by giving the Executive increased powers and to ensure respect for the principle of the rule of law.
On the lack of effective parliamentary scrutiny, the Court held that the Constitution does not require the legislator to regulate this mechanism according to a certain model. For this reason, the Court issued a Request to Parliament in order to regulate an effective parliamentary control mechanism over the measures ordered by the Executive during the state of emergency.
(iv) Whether the executive's exceptional measures may be challenged
The Court reiterated that, together with Parliament, the judiciary plays a crucial role in controlling the prerogatives of the executive during the state of emergency, with common law judges verifying the legality of concrete emergency measures. The judiciary must ensure the right to a fair trial in these situations as well. The individuals should also have the right to an effective remedy if public authorities violate their fundamental rights through emergency measures.
The Court found that in Article 225 para. (3) of the Administrative Code, the legislator established that the notified courts may exercise judicial control only over a) the existence of the exceptional situation on the date on which the act was issued; b) the power of the public authority to issue the act; c) the existence of the public interest that justifies the issuance of the administrative act; d) the actual impossibility of the public authority to issue the act under normal conditions.
The Court held prima facie that the emergency measures of the authorities responsible for managing the state of emergency may be challenged before the courts. However, the judges are not allowed to examine whether the contested measures are “strictly required by the requirements of the emergency”, i.e. whether they are proportionate.
Thus, the control provided by the Administrative Code the on complaints of emergency measures is not sufficient and does not ensure its exercise before a tribunal with "full jurisdiction", as required by Article 20 of the Constitution.
(c) Whether the contested provisions are proportionate to the legitimate aim pursued
As it had to consider legislative measures with a very wide scope, the principle of proportionality requires the existence of guarantees which could compensate for the possible abusive application of the contested provisions. First, there must be a remedy in the form of judicial review against the abusive actions of public authorities in the event that they occur. Thus, the law must provide persons affected by the emergency measures of the executive during the state of emergency access to a court with "full jurisdiction".
As Article 225 para. (3) of the Administrative Code does not ensure a review by a court with "full jurisdiction", the Court held that the contested provisions are disproportionate.
The Court recognized as constitutional the contested provision of the Law no. 212 from 24 June 2004 on the state of emergency, siege and war regime and the text “other necessary actions” from Article 2 para. 12) of the Parliament Decision no. 55 of 17 March 2020 on the declaration of a state of emergency, insofar as:
(a) the authorities responsible for managing the state of emergency perform only the tasks, measures or actions necessary to achieve the objectives which were the basis for declaring the state of emergency;
(b) the tasks, measures and actions do not go beyond the scope of executive power, and
(c) the Parliament can exercise an effective control over the measures in question.
The Court also declared Article 225 para. (3) of the Administrative Code insofar as it limits the jurisdiction of the courts to control the proportionality of the measures ordered by the public authority.
The Court noted that until the Parliament amends the Administrative Code, in the case of challenging the measures taken by the authorities responsible for managing the state of emergency, the courts will have to assess whether the measure ordered by the public authority is proportionate to the situation that determined it.