Venice Commission - Observatory on emergency situations
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Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Pursuant to Article 101 of the Constitution, the Council of Ministers, in case of need and urgency, under its responsibility, may issue normative acts that have the force of law, to take temporary measures. These normative acts are immediately sent to the Assembly, which convenes within 5 days if it is not convened. These acts lose their force from the beginning, if they are not approved by the Assembly within 45 days.
Article 5 of the Law on Legal Regime of State of Emergency states that the emergency situation is declared maximum for 30 days and maximum 60 days. If the factors underlying the emergency situation are still present after the expiration of the term the latter is subject to prolongation.
Although the Executive may enjoy additional powers in emergency situations, there is no formal derogation from the normal division of powers. Legislation and execution in the matters of public health fall within the competence of the Federation (Article 10 paragraph 1 lit 12 of the Federal Constitution). Implementation of the Epidemics Act and the COVID-19 Measures Act thus takes place in the form of indirect federal administration, which means that the Governor and the provincial authorities subordinate to him/her exercise the executive power of the Federation (Article 102 paragraph 1 of the Federal Constitution).
Under Article 11 of the Law on state of emergency, in order to ensure the state of emergency, the forces and resources of appropriate bodies of executive authority are used. However, Article 12 of the Law provides that in exceptional cases Ministry of Defense may in addition to the forces and resources stipulated under Article 11 of the Law engage the forces and resources of other appropriate bodies of executive authority with the approval of the Milli Majlis of the Republic of Azerbaijan.
The laws of March 27, 2020 granted special powers to the King for a period of three months. The legislator did not extend this period.
Article 81 of the Constitution of the Republika Srpska stipulates that during the state of war and state of emergency, the President of the Republic issues decrees with legal force on issues within the competence of the National Assembly and appoints and dismisses officials elected or dismissed by the National Assembly. The President of the Republic shall submit these decrees or decisions on appointment and dismissal to the National Assembly for confirmation as soon as it is able to convene. The National Assembly of the Republika Srpska held its 13th special session on 23 May 2020. confirmed the decrees of the President of the Republic issued during the state of emergency. In other legal acts that were listed in the previous answers as relevant to the issue of state of emergency or state of natural disaster, no more specific answers can be found to the question of time or some other limitation of the executive bodies in such situations.
Even in the exercise of its powers during extraordinary circumstances the Executive has to follow the principle of separation of powers proclaimed in Art. 8 of the Constitution.
The power of the executive to issue legislative acts in times of emergency is limited both in terms of content and of time : such acts relate to issues related to the exceptional and should not remain in force beyond the state of emergency. In other words, such measures are reviewed regularly based on needs and levels of emergency and are expected to undergo an adequate and robust proportionality test in due course, including through judicial scrutiny and exposure to the Rule of Law principles, especially if and when taken on the ground of emergency.
During the state of emergency, the government as well as various ministries and other State organs (the Czech National Bank, regions and municipalities, etc.) gets special emergency competences by virtue of the emergency legislation (the Constitutional Law on the Security of the Czech Republic and the Crisis Law). The competences are enumerated in the legislation and they are limited in scope? and time. The activities during the state of emergency should be coordinated by a special organ, the Central Crisis Staff (Úsřední krizový štáb), established ad hoc by the Prime Minister in an emergency situation. The Central Crisis Staff was established on 15 March 2020 and abolished on 11 June 2020. It was headed first by the vice-minister of health and later on by the minister of interior.
The more important powers conferred on the Executive specifically for the purpose of Covid-19 measures were limited in time in the sense that the relevant legislation will expire automatically on 1 March 2021 (unless repealed before). Additionally, all legislation underlines the principle of proportionality.
Only a statutory authorization based on Article 38 of the Constitution allows the executive branch to benefit from legislative powers. This division of powers is enshrined in Article 34 of the Constitution. The duration of the legislative mandate is set by law.
The German Basic Law provides no possibility for the Executive to derogate from the normal division of powers.
As mentioned above, Article 53 Paragraph (2) of the FL entitles the Government to adopt decrees by means of which it may, as provided for by a cardinal Act, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures in a state of danger. These decrees shall remain in force for fifteen days, unless the Government, on the basis of authorisation by the National Assembly, extends those decrees.
The executive has not been granted powers to derogate from the normal division of powers.
The Government has powers provided by Law n. 833/1978, establishing the National Health Service, as well as constitutional power to issue decree laws which should be approved by Parliament within sixty days (see Q7 and Q9).
Powers of the executive are based on the existing legislation (namely the IDCPA); in theory, the President may use powers given by Articles 76 and 77 of the Constitution, but it was not needed in the current situation
The Constitution does not provide for derogations from the normal separation of powers, including in exceptional circumstances. Moreover, it should be borne in mind that it is the Government, through the line ministries, that is primarily responsible for the prevention and management of coronavirus infections.
The Epidemic Act creates rather far-reaching powers to act. The current regulation in force (see Q3) is limited to a maximum of six months.
If the state of emergency is declared under Article 144 of the Constitution, the Government enjoys the powers provided for in the Law on the State of Emergency.
Article 29 stipulates that the measures ordered by the President should be limited in time and should be "general" in nature, i.e. do not concern specific persons.
The Constitution of Monaco does not provide for a state of emergency; the Minister of State may use (and used, in the context of the COVID epidemy) police powers which it has under the ordinary legislation. There was no derogation from the distribution of normative powers in this case. The measures taken are likely to be subject to judicial review
The government has the powers under the decree law of March 2020 (ratified by Law No. 23.20) for the duration of the state of health emergency. The government can take "the necessary measures required" by the state of health emergency.
Yes, the Government may assume power according to the unwritten rule of constitutional necessity, see Q1 and Q7. However, this rule has not been applied since 1940, and the threshold is very high.
See Q1: the scope of the state of emergency
The executive does not have any power or possibility to change or derogate from the normal allocation of powers : the Organic Law provides that the declaration of a state of emergency may only alter constitutional normality under the terms laid down by the Constitution itself and by the Organic Law, and may not affect the application of constitutional rules on the competence and functioning of sovereign bodies and organs of self-government of the autonomous regions, as well as the rights and immunities of their holders.
Under Article 200 of the Constitution, "measures providing for derogation from human and minority rights prescribed by the National Assembly or Government shall be effective 90 days at the most, and upon expiry of that period may be extended under the same terms."
A state of emergency may only be declared to the necessary extent, for the necessary time and for no longer than 90 days. A state of emergency may only be declared in the affected or imminently threatened area. If a state of emergency is declared, fundamental rights and freedoms may be restricted and duties imposed only to the necessary extent and for the necessary time in relation to the severity of the threat and only in the affected or imminently threatened area.
The declaration of the state of alarm does not allow the abrogation of the division of powers.
For wartime-situations (see Chapter 15 Art. 5 and 6 - click here the Government may assume powers if Parliament or the War Delegation cannot meet. The duration is in the hands of Parliament when it can convene again after the war.
In a qualified extraordinary situation, all the powers of Parliament would be transferred to the Federal Council (the federal governemtn) (see Q2).
The Government has only the right to adopt decrees with the force of law i.e. to regulate issues if the Parliament cannot convene.
Yes, by virtue of an organic Law No. 2020-19 of 12 April 2020 empowering the Head of Government to intervene in the legislative field. This power is limited to two months (duration) and intended to deal with COVID 19 (scope).
Since no emergency was declared in relation of COVID-19, the Government was using powers provided by the ordinary legislation.
Article 24 of Law of Ukraine «On Legal Regime of Emergency State» on 16 April 2000, No. 1550-III (amended) provides that "Any attempt to use the imposition of a state of emergency to seize or abuse power entails liability under the law."
The powers of the executive are defined by the ordinary legislation, which entitles the executive to make public health regulation even where there is no emergency. Some of this ordinary law is preexisting (like the CCA or the PH(CoD)A), some legislation was created specificaly for the purposes of dealing with the COVID-19 crisis (like the CA).
United States constitutional law does not use the concept of “derogation” from basic principles of the separation of powers. As such, there are no possibilities for the President of the United States to derogate from the normal division of powers in emergency circumstances.
Albania
Even in the case of issuing these acts, the limitation of the fundamental rights and freedoms of the individual must be done by respecting Article 17 of the Constitution, respecting these criteria: the limitation should be done only by law, for a public interest or for the protection of the rights of others, the limitation must be proportionate to the situation that has dictated it, the limitation must not violate the essence of freedoms and rights and in no case exceed the limitations provided for in the European Convention on Human Rights.
Armenia
Austria
The COVID-19 Measures Act as well as the regulations issued in accordance with this act and with the Epidemics Act are limited in duration. Some of them have already ceased to be in force, the latest will cease to be in force on 31 December 2020. With regard to circumstance and scope, Sections 1 and 2 of the COVID-19 Measures Act stipulate that the Minister may issue regulations (e.g. in order to restrict freedom of movement in public places) when COVID-19 occurs (”Beim Auftreten von COVID-19”) and insofar as this is necessary in order to prevent the further spread of the virus.
Azerbaijan
The Law on the state of emergency sets limits as gto the scope and duration of the restrictive measures taken during a state of emergency (Articles 21-29).
As to duration of a state of emergency it shall not exceed 60 days. After the expiration of this period of time, the state of emergency is considered to have expired. If the objectives pursued by the introduction of the state of emergency have not been met in the said period, the state of emergency may be extended by no more than 60 days provided that the constitutional and legislative requirements of introducing of a state of emergency are fully met (Article 6).
Article 7 of the Law also provides that elimination of the circumstances which led to the introduction of the state of emergency within the time period stipulated under Article 6 of the Law, requires that the appropriate body of executive authority cancel the state of emergency and the population of the concerned territory be immediately notified of the decision taken.
Belgium
The measures enumerated in Q8 above were taken on the basis of article 181 of the law of May 15, 2007. This article does not contain any explicit limits as to the duration of the minister's power to “prohibit every displacement or movement of the population ”, but links this power to the notion of“ dangerous circumstances ”, and to the aim of “ensuring the protection of the population" (See Q3).
Bosnia and Herzegovina
Bulgaria
In Decision No. 10 of 23 July 2020 the Constitutional Court (see the summary in answer to Q14) stated that the exercise of the power of the Government to declare an emergency epidemic situation and the anti-epidemic measures taken by the Minister of Health in implementation of the decision of the Council of Ministers are not immune from control. During an emergency epidemic, the Parliament retains all of its powers, including overseeing the actions of the Executive. In the event of an emergency epidemic situation, the Council of Ministers shall not revoke the power of the National Assembly to adopt a decision to declare a state of emergency. The decision of the Council of Ministers to declare an emergency epidemic situation, as well as the orders of the Minister of Health and the director of the respective regional health inspectorate for introduction of temporary anti-epidemic measures are subject to control by way of the Administrative Procedure Code. In this way, the Legislature, the Executive and the Judiciary retain their constitutional functions even during the state of emergency.
Cyprus
Czech Republic
Denmark
France
In addition, the powers of the executive specific to the state of emergency are detailed in the law creating the state of emergency - in the present case, the law 2020-290 of 23 March 2020, (introducing the concept of the "state of health emergency", voir Q9). All measures are limited by the state of emergency.
Germany
Hungary
Act XII of 2020 on the containment of coronavirus set out that the Government may exercise its power during the state of danger only for the purpose of preventing, controlling and eliminating COVID-19, and preventing and averting its harmful effects, to the extent necessary and proportionate to the objective pursued (see in English here). However, Act XII of 2020 does not limit the Government's power to issue decrees by any time-limit. In particular, Section 2 (1) of Act XII stipulates that "During the period of the state of danger, in addition to the extraordinary measures and rules laid down in Act CXXVIII of 2011 on disaster management and amending certain related Acts, the Government may, in order to guarantee that life, health, person, property and rights of the citizens are protected, and to guarantee the stability of the national economy, by means of a decree, suspend the application of certain Acts, derogate from the provisions of Acts and take other extraordinary measures."
Ireland
Such restrictions which have been introduced are limited in scope by the specific terms in which they are framed and in duration by an end date of 9 November 2020. The November date can be changed by resolutions from both Houses.
Italy
Korea, Republic
Kyrgyzstan
Liechtenstein
Lithuania
In addition, the Government may claim powers it has under the Law on Civil Protection and the Law on the Prevention and Control of Contagious Diseases in Humans. The Government, acting on the basis of the relevant provisions of the above-mentioned laws, may take decisions on specific limitations and restrictions on certain human rights (freedom of movement, restrictions of economic activity), but, where applicable, in duration, circumstances and scope as strictly provided for by the laws adopted by the Parliament.
It appears that, by ordering certain measures under the law on the prevention and control of contagious diseases, the Government exceeded the legislative mandate, which required adoption, with retroactive effect, of amendments to this law by Parliament, legalising those measures (see Q13)
Mexico
During the COVID-19 crisis the executive used powers conferred on the relevant State authorities by the general legislation, in particular the Health Act. The regulations adopted by the State have sub-legal status.
Monaco
Morocco
Norway
Otherwise the Government has a limited mandate within the framework of delegated legislation (like the 1994 Act on communicable diseases, for example - see Q9).
Peru
does not affect the principle of separation of powers or the structure of the State, but gives additional powers to the executive to limit four constitutional rights, mentioned in Article 137
Portugal
Serbia
Slovakia
Spain
Article 116.5 of the SC establishes that none of the constitutional powers of the State may be discontinued during the validity of any of the three exceptional states. In constitutional terms the position of Parliament is strengthened, since it cannot be dissolved while any of the three exceptional states are in force, with the chambers (Congress and Senate) automatically convened if they are not in session, insofar as the intervention of Congress is expressly provided for (to varying degrees, depending on the exceptional state in question). In fact, in the state of alarm both the declaration and the extensions require joint action by the executive and the legislature. The executive declares the state of alarm and must immediately inform the legislative. As for the extension, it is requested by the executive, but must be authorised by the parliament, which determines its scope and conditions.
Regarding regional powers, the Decree of the state of alarm allows the national government to subject regional competences related with the emergency situation under the direction of National authorities. During the first period of the state of alarm regional competences over such issues were solely executive. Then, during the last extensions of the state of alarm, a coordination and cooperation among both levels of government was established.
Sweden
In peacetime situations Parliament can always initiate a legislation to limit provisions decided by the government (the Executive). The method to require a submission to Parliament is used in the Act on rationing and the Act on Protection Against Contagious Diseases. Submission to Parliament as a possible limiting measure is generally provided for in Chapter 8 Art. 6 Instrument of Government.
Switzerland
In the event of an extraordinary situation under Article 185 al. 3 of the Constitution or under Article 7 of the Epidemics Act, the powers of the Federal Council are limited in duration, circumstance and scope:
- According to Article 185 al. 3 of the Constitution, the Federal Council may, in cases of urgency and without a specific legal basis, issue ordinances to protect the public order and the internal and external security of the country. The effects of an ordinance based on Article 185 al. 3 shall expire if the Federal Council, within six months of the entry into force of the ordinance, does not submit to the Federal Assembly a draft for the formula-tion of a legal basis (Article 7d of the Government and Administration Organisation Act);
- According to Article 7 of the Epidemics Act, the Federal Council may order, if an ex-traordinary situation so requires, the necessary measures for the entire country or for parts of it. The notion “necessary measures” includes not only interventions to address health risks, but also measures to reduce the effects of contagious diseases on society and the individuals concerned (Article 2 al. 2 lit. f of the Epidemics Act). The Federal Council decides, without involving Parliament, whether such extraordinary situation exists. The law does not regulate the duration of the effects of an ordinance based on Article 7 of the Epidemic Act. The Federal Council may, however, include an expiry date in its ordinances. Should this not be the case, according to legal doctrine, the obligation to set a time limit is deduced from the constitutional principle of proportionality.
North Macedonia
Tunisia
Turkey
In theory, during the state of emergency, the President may issue emergency decree laws on matters which cannot be regulated by the Presidential decrees in normal conditions.
It appears that the Constitutional Court declared itself incompetent to evaluate the scope of the presidential emergency decrees, in the context of the post-coup emergency regime of 2016 (click here)
Ukraine
United Kingdom
In addition, still under the "ordinary law", the executive may use some additional "emergency" powers, over and above the "ordinary" powers enjoyed by the executive. First, this is the power to bring regulations into force immediately, without parliamentary or assembly scrutiny. The excercise of this power depends on it being necessary to make the order without laying a draft, “by reason of urgency”. Second, the power to enable the imposition of special restrictions or requirements depends on the existence of a “serious and imminent threat” to public health.
The power of the executive under the CCA is an emergency regulation-making power. The CCA does not, as might be the case in other jurisdictions, provide for a shift in military or law enforcement command structures, or permit access to emergency budget reserves. Instead, it provides the power to make emergency regulation, and those regulations could (but need not) have that effect, depending on the emergency.
The “normal” law-making powers of the executive, subject to Parliamentary oversight, are very broad. The precise limits on the powers to make emergency regulation conferred on the relevant executive by the PH(CoD)A and analogous provisions are set out in other questions. As to the specific types of limitation referred to in this question, regulations made under the emergency procedure are limited in duration to 28 days, unless approved by the relevant legislature. The circumstances in which emergency regulations under the PH(CoD)A and analogous provisions may be made are described above: there must, in addition to the requirements of the statutory provision, be “urgency” which makes it necessary to forego the draft affirmative procedure. There are no specific limitations on the scope of regulations which can be created by the emergency procedure. Those limitations are the same as the limits applicable to regulations made in accordance with the normal draft affirmative procedure: regulation which imposes restrictions and requirements is only permissible where there is a “threat to public health”. Regulation which enables the imposition of special restrictions or requirements must be in response to a “serious and imminent” threat to public health.
United States of America