The Constitutional Court of Georgia upheld in its landmark ruling yesterday most of the legal procedures allowing executive authorities to maintain COVID-19 pandemic-related restrictions and largely approved rule by decree.
A number of appeals filed in May-June last year contested the constitutionality of laws and decrees approved for public health crisis management purposes, which allow the executive to limit property rights, freedom of movement, freedom of assembly, and freedom of labor and enact new regulations in defiance of existing laws.
Appellants claimed the laws did not meet the formal constitutional standards for restricting such fundamental rights and freedoms as the Parliament failed to undergo prior necessary procedures for delegating respective authority to the executive. This way, the transferred authority could give the government a free hand to announce arbitrary measures such as the current “de facto” curfew, claimants argued.
Besides, the freedom of the individual can be intensively restricted only through the control by the judicial authority, contrary to the current government practices with regard to quarantine and isolation procedures, appellants claimed.
The Court did not share most arguments of the claimants, arguing that the isolation of persons as foreseen by the May 2020 Government Decree does not amount to the restriction of the constitutionally guaranteed individual freedom. The arguments of the judges included that restrictions on certain freedoms for quarantined individuals were made less intense due to the access to communication tools, including the internet, as well as lack of control on part of the authorities.
Neither does the imposition of temporary distinctive rules to protect public health, including those affecting the freedom of movement, freedom of assembly, or property rights, constitute the issue “of fundamental significance” for it to require legislative decisions, the Court argued.
The Court, however, found it unconstitutional to allow the executive to restrict labor rights, arguing that such change should have happened through amending the organic law (Labor Code of Georgia), rather than over the law on Public Health.
Dissent: Risks for Democratic Principles
Judge Giorgi Kverenchkhiladze issued a dissenting opinion for the part where the Court allowed restrictions on property rights and freedom of movement and assembly constitutional. The judge said the delegation of this authority to the executive went against the Constitution as the parliament failed to define forms, contents, and limits of the authorized restrictions clearly enough.
This step runs a risk of disregarding principles of democratic governance and separation of powers and creates “favorable conditions for arbitrary decisions,” he said.
Eduard Marikashvili, a Georgian lawyer who was one of the appellants in the case, shares Judge Kverenchkhiladze’s arguments, noting that the Court reversed earlier “firm and consistent” practice defining the standards of the delegation of authority.
According to the lawyer, the reluctance by the board of judges to strictly assess the decisions of the authorities also “raises doubts” about potential influences and loyalties. The outcome of the ruling may be linked to the controversial and untransparent appointments of two board members – Judge Vasil Roinishvili and Judge Khvicha Kikilashvili in the past year, Marikashvili told Civil.ge.
The government of Georgia has introduced restrictions to contain the spread of the virus, including through stricter lockdown measures, since March 2020, lifting or tightening them from time to time depending on the epidemiological situation.