The Croatian government has, much like any other, struggled to find an adequate response to the pandemic of COVID-19. “Dancing with the virus” for the last year entailed introducing, relaxing and re-introducing more or less stringent measures limiting constitutional rights and individual liberties based on epidemiologic developments and political priorities of the day, or season. The measures have ranged from almost a full lockdown in early 2020 when our numbers of infections were amongst the lowest ones in Europe, to a (far too) lenient regime during the tourist season in summer and fall 2020, when the budgetary, economic and political concerns prevailed over the need to address the serious worsening of our epidemiologic parameters. Even today, in the midst of the ‘third wave’, Croatia has quite a moderate set of measures. Masks are required only indoors, and there never was a curfew. All but university-level education generally functions in person, switching online only temporarily and regionally. Most of the commercial, religious and cultural activities do operate, subject to epidemiologic precautions such as visitor numbers, outdoor serving, mask wearing and/or distancing. Measures are in principle renewed or updated every two weeks. Recently, more weight is given to regional specifics. Epidemiologic restrictions of rights and liberties simply become the “new normal”.
An effective institutional command over the pandemic, upholding constitutional rights of citizens as much as possible while simultaneously protecting public health, is not easy to achieve. The extent of the challenge requires that governmental attempts to adequately respond to the pandemic are analyzed with due deference, also due caution. To that extent, particular epidemiologic measures may certainly be subject to scrutiny taking into account the requisite constitutional standards of proportionality or rationality of governmental action. This contribution, however, will not deal with peculiarities of individual measures, but will remain confined to assessing the overall institutional response to the pandemic in Croatia in light of structural constitutional principles and the rule of law values.
Rule of Law and Institutional Disbalance
In constitutional democracies, especially in times of (public health) crises, certain core values of the rule of law may not be up for discussion. Such a pivotal requirement of the rule of law is to maintain a balance between the majoritarian rule and the effectiveness of countermajoritarian mechanisms. The Croatian authorities are, in maintaining that fine balance, walking on thin ice. And indeed, looking at the year in retrospect, the Croatian response to the pandemic of COVID-19 may best be characterized by the ruling majority’s overwhelming and exclusive influence in crisis management to the detriment of counter-majoritarian safeguards envisaged by our Constitution. In other words, the pandemic in Croatia resulted in a rising centralization of powers in the hands of the ruling majority.
Such developments are not entirely unexpected. Crises situations tend to facilitate a concentration of powers in hands of the executive to the detriment of other branches of government. It is thus imperative in emergencies to maintain the system of checks and balances over the executive, particularly legislative oversight and judicial review. Here is where I see red flags in analyzing Croatian response to COVID-19. Managing the pandemic resulted in a worrisome level of convergence between the three branches of Croatian government maintaining the majoritarian regime.
The executive management of the pandemic seems much too arbitrary for true constitutional governance. Legal bases for restrictive epidemiologic action are either open-ended, or retroactively legitimized by statutory amendments. The decision-making processes lack transparency, both in terms of procedural rules and substantive standards (or empirical underpinnings) for introducing a certain level of restrictions. Our epidemiologic regime is essentially left to the ruling majority’s political evaluation. At the same time, the parliamentary role and oversight over executive action is entirely marginalized, while the Constitutional Court was deferential to the ruling majority to such an extent that it either denied judicial review over executive and parliamentary action altogether or distorted the requisite standards of judicial scrutiny to be able to legitimize severe epidemiologic limitations of constitutional rights. This lack of parliamentary and judicial control of executive action will now be analyzed, in turn.
An Emergency or Not? Circumventing the Enhanced Parliamentary Control
Assessing the Croatian response to the pandemic of COVID-19 from a rule of law perspective, particularly checks and balances, in large depends on an important preliminary issue of how to constitutionally qualify a pandemic. In addition to two classic emergency categories of a state of war and siege, our Constitution contains a category of a ‘natural disaster’. The prevailing expert position is that, due to its natural causes and the scale of its consequences, the pandemic of COVID-19 does qualify as such. Still, the Government decided not to resort to this constitutional emergency regime but, rather, to operate within the existing (although significantly amended) statutory framework on civil protection and prevention of infectious diseases. Whether this was a right political choice or not depends on how this decision affects the balance of powers between the branches of our government.
In the specific Croatian constitutional setting, not activating the emergency framework should not be praised as avoiding a transfer of unfettered emergency prerogatives to the executive, a scenario which occurred in many other countries. To the contrary, our Constitution offers quite an ingenious mechanism of maintaining checks and balances in emergency situations.
For as long as the Parliament is capable of assembling and performing its constitutional duties, the executive is not entrusted with any emergency powers exceeding its regular mandate. Elaborating on human rights may not even be subject to a parliamentary delegation of quasi-legislative powers to the government. In curtailing constitutional rights in emergency situations, the Parliament is awarded a central role.
Article 17 of the Constitution stipulates that “in the event of any natural disaster” curtailment of individual freedoms and rights “shall be decided upon by the Croatian Parliament by a two-thirds majority of all representatives”. The qualified majority vote allows the Parliament to limit constitutional rights more extensively, providing that such restrictions are suitable to the nature of the threat.
By contrast, Article 16 of the Constitution, which is applicable in regular circumstances, sets a higher threshold by requiring measures to be proportionate to the nature of the need in each particular case, curtailing constitutional rights in the least restrictive way possible. Juxtaposing these two articles and their requisite standards of scrutiny means that, in case of an emergency and subject to a qualified majority vote, the Parliament enjoys wider discretion in limiting constitutional rights. Put differently, when drastic curtailment of individual rights is essential to effectively respond to an irregular set of circumstances, our Constitution emphasizes the need for a wider societal consensus. A qualified majority vote essentially entails a heightened parliamentary oversight over executive action, ensuring the government’s emergency regime transgresses political preferences of the ruling majority.
The very beginnings of the pandemic were a demonstration of such parliamentary unity. By an overwhelming majority of 108 to 1, on 19 March 2020, the Parliament in an expedited procedure passed an amendment of the Civil Protection System Act authorizing the national Civil Protection Headquarters (HQ) to take action against the incoming threat of COVID-19. The first set of epidemiologic measures followed the next day.
The hasty procedure, however, resulted in problematic statutory loopholes and ambiguities in institutional competence to manage the pandemic. In proscribing no more or less than that the HQ “renders decisions and guidelines … to protect the lives and health of citizens”, the amendment was harshly criticized by legal experts for giving the HQ an unlimited scope of powers, defying basic constitutional requirements of legal certainty and limitation of governmental power provided for by law. At the same time, the epidemiologic restrictions (such as quarantines and restricting citizens’ movement) were at that point simply not envisaged within the civil protection system. Rather, they formed part of another piece of legislation which set up a different institutional framework. The Protection Against Infectious Diseases Act provided that epidemiologic measures are enacted by the minister of health on the proposal of the Croatian Institute for Public Health. The HQ, in contrast, had neither such direct legal mandate nor professional competence to introduce epidemiologic restrictions, especially those amounting to a national lockdown. The HQ is a collective body composed of various representatives of government ministries and national civil protection units, with not a single representative of the medical sector.
In response to expert criticisms, the Government soon amended the Infectious Diseases Act authorising the HQ to enact epidemiologic measures ‘in cooperation’ with the Ministry of Health and the Croatian Institute for Public Health, ‘under direct supervision’ of the Government. The amendment, enacted in Parliament in late April 2020, also added onto the list of epidemiologic measures (self)isolation, which was, as a significant restriction of individuals’ free movement, enforced for more than a month without a direct statutory basis.
This time around, the amendment was passed by a regular majority. Parliamentary opposition refused to fall in line, accusing the government of retroactively legitimizing measures rendered by the HQ for over a month. They also requested stronger parliamentary control over managing the pandemic. The HQ’s was, quite rightly, criticized for a lack of direct democratic legitimacy and accountability. It maintained a public image of an expert, non-governmental body managing the pandemic, while its composition was determined by the executive and made of direct or indirect governmental appointees with no epidemiologic or medical expertise. Moreover, after the new amendments, the HQ acts under unclear parameters of “direct supervision” of the Government, with unclear methods of “cooperation” with the minister of health – whose own competence to enact epidemiologic measures was left untouched by the amendments. Such parallel institutional frameworks for epidemiologic decision-making, one by the HQ and one by the minister of health, even if the latter one is not being used, is evidently problematic in terms of legality and legal certainty.
Furthermore, the HQ’s decision-making procedures are entirely untransparent and, by a sub-legislative act, left to the discretion of the minister of the interior who chairs the HQ. Even the substantive standards for applying epidemiological measures have not been made public, unlike in many other countries which introduced a so-called ‘traffic-light system’. The authorities rarely provide empirically substantiated rationale for introducing (or not introducing in due time) a certain level of restrictions, instead invoking much too generalized tendencies, such as an obvious rise or a lowering in COVID-19 numbers. Epidemiologic rule over the country is left to the HQ’s discretion and political evaluation on a rolling basis.
The ruling majority continued rejecting all calls of the opposition to pass the legislation relevant for crisis management by a 2/3 majority. Much like the first round of amendments of the Infectious Diseases Act from April, the Parliament passed the second round of amendments in December 2020 also with regular majority. Obligatory mask wearing and limiting public or private gatherings were added to the list of epidemiologic restrictions, months after being enforced in practice. Statutory basis was once again provided post-facto.
Over time, the lack of transparency and accountability generated public mistrust in the HQ, leading to accusations of it being politicised, calculative and favouring particular priorities of the ruling majority over its duty to enact adequate and timely epidemiologic measures to protect public health. And while such accusations should always be approached with caution, many HQ’s actions do entail a disproportionately favourable treatment of events politically important to the centre-right ruling majority, such as the war memorial day, religious gatherings and even funerals of public figures, instead of maintaining an epidemiologic regime that is applied timely, consistently and equally to all.
Constitutional Court Joining the Debate & Legitimizing the Majority Rule
Having received constitutional challenges to a whole range of epidemiologic measures, as well as the parliamentary decision not to activate the emergency voting mechanism, the Constitutional Court issued two sets of judgments in September 2020 and February 2021. Instead of vindicating the rule of law, unfortunately, the judgments raise a number of concerns.
The Court saw no problems with retroactivity of specific epidemiologic measures, proclaiming that legislative amendments merely sought to “define the legal nature” of the HQ’s general competence to protect public health already established by the Civil Protection System Act.
The Court also considered the Parliament’s refusal to apply the emergency voting requirements is constitutional, rejecting calls for enhanced parliamentary oversight over the executive. The Court, with no further argument, declared that
“deciding whether [epidemiologic measures] are enacted by applying Article 16 or Article 17 of the Constitution is within the exclusive domain of the Croatian Parliament…The Constitutional Court is not authorised to impose to the Croatian Parliament which of the two constitutional possibilities of limiting human rights and fundamental freedoms to choose.”
Essentially, the Court refused to exercise judicial review over the decision not to act under the emergency regime. Application of this constitutional provision (whose very purpose was to transgress the majoritarian principle) was left to the discretion of the ruling majority.
The Court was obviously extremely deferential. On the face of it, the decision might even seem reasonable because institutional consensus is often a prerequisite to an effective emergency response. In such circumstances, a certain degree of judicial deference to the legislature could be warranted. The Court’s decision (although not framed with such doctrinal eloquence) might even resemble the ‘political question doctrine’ commonly used by constitutional courts to avoid judicial interference with partisan or ideological political conflicts to be resolved by the legislature having the requisite democratic legitimacy. And indeed, comparative practice demonstrates that activating an emergency regime, under national constitutions or Article 15 of the ECHR, is often a matter of political choice of the authorised decisionmakers.
However, the matter must be approached much more cautiously given the specific balance of powers in the Croatian constitutional setting. The problem is not so much in the merits of the question does the pandemic qualify as a ‘natural disaster’ or who gets to define it. The concern pertains to the ease by which the Constitutional Court approved the majority’s decision to exclude the vote of the opposition. By refusing to exercise judicial review over the question on the emergency regime, the Court gives a carte blanche to the majoritarian rule in managing the pandemic, effectively eliminating the enhanced system of checks and balances our Constitution envisaged for emergency situations. The judgment allows a mere parliamentary majority to exclude or not to exclude of its own volition a countermajoritarian regime envisaged by the Constitution, which defies the very essence of liberal constitutionalism. In simpler terms, the Parliament was given ‘competence-competence’ to draw the exact contours of its own powers, eliminating judicial review as a constitutional mechanism to preserve the system of limited powers of government. To that extent, our constitutional judiciary failed to live up to the promise of being “the bulwarks of a limited Constitution against legislative encroachments.”
The rest of the Court’s decisions were likewise extremely deferential to the ruling majority. All but two epidemiologic measures – prohibition of Sunday work and limiting participation of MPs in parliamentary sessions – were declared as constitutional and proportionate in line with Article 16 of the Constitution, or dismissed on procedural grounds.
This brings me to my final point:
By refusing to recourse to the emergency framework under Article 17, the Court also could not apply (at least not formally) its less stringent standard of scrutiny requiring that epidemiologic measures are merely suitable to protect public health. In justifying the measures, the Court likewise failed to resort to the precautionary principle, commonly used in EU law to enhance legislative discretion in making regulatory choices permeated with scientific uncertainties, which may then be scrutinized under the standard of reasonableness.
The Court’s reasoning remains confined to ‘ordinary’ limitations of fundamental rights subject to proportionality, claiming that scrutinized measures are necessary to protect public health. Consistently applied, proportionality entails insisting on measures least restrictive on individual rights. No such stringency in the Court’s analyses was applied.
Dissenting opinions harshly criticised the majority for using a whole range of unpersuasive ‘pseudoarguments’ to be able to uphold the constitutionality of the challenged epidemiologic measures, ‘watering-down’ the principle of proportionality to mere rationality. And indeed, many epidemiologic measures might have been the government’s reasonable choice to protect public health but would highly unlikely be the least restrictive options considering the alternatives.
For example, the challenged measure of limiting religious gatherings in churches (or funerals) to 25 persons could have easily been replaced by a rule applicable to shopping malls and commercial facilities of securing indoor space of 7m2 per person, an option much less restrictive on religious freedoms. Similar rationale could have been used for closing restaurants and cafes, fitness and sporting centers or prohibiting (even individual) amateur trainings indoors.
The Court’s majority simply ignores the calls of the minority to be consistent and scrutinize the proportionality of measures which stems from applying the ‘regular’ Article 16 of the Constitution. To uphold the majority’s epidemiologic regime, the Court distorted the constitutionally required levels of judicial scrutiny for limiting individual rights. Legitimizing government’s measures came at the cost of losing coherence in constitutional doctrine.
This blog series demonstrates that all countries struggle with constitutional adequacy of measures implemented to fight the pandemic. Croatia is no exception. The overall response to the pandemic in Croatia raises doubts whether our political and judicial elites care enough about (or truly understand) the crucial requisites of the rule of law – particularly checks and balances, judicial review over executive and legislative action, and (minimal requirements of) transparency, legality and legal certainty as guarantees against executive arbitrariness. Facing the challenges imposed by the pandemic of COVID-19, all three branches of government have simply sidelined the counter-majoritarian safeguards our Constitution envisaged precisely for situations like the one we are currently facing. Let us only hope such an institutional practice will remained confined to this particular (“not an”) emergency regime.