The balance between security and freedom is not permanent: the more you feel your security endangered, the more you are willing to sacrifice freedom. In the latest times this statement was verified; during the pandemic people gave up such a great part of their freedom they would not have believed earlier. How long should security last and where is the point where freedom becomes emphasised again? Using the example of the right of assembly, this paper examines the regulations some countries introduced, whether they had constitutionality control, and if so, what decisions the constitutional courts delivered. After that, the paper analyses how the regulation on emergency measures changed in Hungary.
Keywords: pandemic, state of emergency, freedom of assembly
According to the classic thoughts of Thomas Hobbes, by freedom in the original sense of the word we mean the absence of external obstacles. These obstacles often divert a part of a man's strength from what he wishes to do, but they cannot prevent him from using the remaining part of his strength according to the dictates of his judgment and reason.[2] He adds that freedom is not universal; some parts of freedom must be given up for the purpose of security.
The balance between security and freedom is not permanent: the more you feel your security endangered, the more you are willing to sacrifice freedom. In the latest times this statement was verified; during the pandemic people gave up such a great part of their freedom they would not have believed earlier. Agencies located individuals by tracking cell phone information,[3] Covid vaccination has practically become obligatory,[4] governments introduced curfews and took many other measures, which we could only read about in George Orwell's novels before. All of them were basically supported and approved by the vast majority of the public and the national constitutional courts - for the sake of security.
How long should security last and where is the point where freedom becomes emphasised again? Using the example of the right of assembly, this paper examines the regulations some countries introduced, whether they had constitutionality control, and if so, what decisions the constitutional courts delivered. After that, the paper analyses how the regulation on emergency measures changed in Hungary.
The pandemic has changed the thinking about the special legal order in several ways. First of all, before 2020 few people thought that despite the development of medical science, an epidemic could break out for which the health care system was so unprepared,[5] so emergency situations were not invented for epidemics either.[6]
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Another significant change seems to be the length of the state of emergency and the accompanying legal restrictions: while natural disasters (floods, earthquakes) only lasted for days and their consequences could be averted within weeks at most, the various waves of Covid were with us for years. It raises the problem of the normalisation of the state of emergency;[7] it proves to be a tempting instrument to maintain the special system for a lengthy period of time.[8] In addition, one should also consider the social and political factors: within the current legal analysis of the growing authoritarianism, the temptation to reduce the jurisprudential and historical analysis to a stable and reductive binary opposition between a longstanding and benign, even if at times limited, tradition of liberal constitutionalism and an exceptional, temporarily limited and historically illegitimate, authoritarian deviation, is increasingly growing.[9]
The practice of individual countries is diverse in how they reacted to the pandemic. Most countries introduced a state of emergency in the spring of 2020, when Covid appeared in Europe.[10] One exception is Slovenia which never declared a state of emergency in response to the pandemic,[11] all measures introduced were under the normal legal order. The state of emergency according to the constitution was not introduced in Poland either. In the Polish legal literature, it was disputed whether the special legal order should be introduced,[12] it is most likely that it was not introduced so that the presidential election scheduled for May 2020 could be held.[13] Poland introduced "the state of the epidemic", however this is an extra-constitutional term.
In those countries where a special legal order was introduced, the constitutional courts did not have a uniform approach to the question of whether the introduction itself can be reviewed. The Serbian Constitutional Court subjected the measure to a substantive examination and analysed at length whether the epidemic is a "public danger" that threatens the State and the lives of the citizens. It finally concluded: "this is a consequence of the nature of the event which triggered the declaration of a state of emergency, that is, its unpredictability, but also the necessity to leave a certain margin of appreciation for the competent public authority in deciding whether the conditions for the declaration of a state of emergency are fulfilled, in order to take urgent and effective actions". Consequently, the Court did not find the introduction of the emergency situation unconstitutional and refused the petition.[14]
The Constitutional Court of the Czech Republic had a different approach. It stated that "neither the constitutional order nor the Constitutional Court Act provides for a special procedural form of judicial review of the government's decision to declare a state of emergency. The unreviewability of the government's declaration of a state of emergency in the regime of administrative justice as well as in the regime of constitutional review is agreed upon in the commentary literature". The court added that "the absence of judicial review of the declaration of a state of emergency [is not] absolute, but at the same time [the Constitutional Court] must emphasise that the application in the present case does not fulfil the above conditions and therefore cannot lead and legitimise it to exceed its competence and jurisdiction".[15]
The position of the Constitutional Court of the Slovak Republic was some between and opted for "cautious supervision". It stated that the Court's "power to review the declaration of a state of emergency in a special type of proceedings is part of the constitutional precaution against states of emergency and similar situations. (...) The Constitutional Court must be suspicious in reviewing a state of emergency. It is obliged to be particularly sensitive to signs that would indicate an interference with the very fabric of constitutionality".[16]
In some countries, the assessment of who is entitled to introduce the restriction of the right was also controversial. In Georgia, according to the constitution, the president of the republic has the right to introduce special measures by means of a decree, but he "transferred" this right to the government, that introduced extraordinary measures and limited fundamental rights in a decree.[17] Georgian legal literature finds such a transfer dubious.[18] A similar but smaller-scale
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