Introduction
This chapter explores the role of the Constitutional Court in emergency situations. It provides a case study that is focused on Bulgaria and the activity of the Bulgarian Constitutional Court.
There are several reasons for this choice of research. The constitutional foundations of the emergency situations in Bulgaria are rather austere.1 The 1991 Bulgarian Constitution provides for war, state of siege or state of emergency, thus offering an exhaustive official scheme of the valid alternatives to the constitutional normalcy. However, the constitutional approach is rather formal- procedural, thus leaving space for interpretation and for further development of the constitutional text by the ordinary legislator or by the Constitutional Court.Moreover, the Bulgarian Constitutional Court is rather activist. Indeed, it refrains from explicit engagement with judicial dialogue with international and supranational courts.2 Thus, it is accomplishing judicial self-restraint in matters related to supranational constitutionalism, global constitutionalism and global governance.3 In contrast, the Bulgarian Constitutional Court’s standing towards domestic matters and in the domestic arena is activist. This is very much visible especially in respect of the Court’s engagement in redrawing the scheme of institutional competences and separation of powers at the national level. Thus, the Bulgarian Constitutional Court is a key player in shaping and further developing the constitutional model of separation of powers. This practice contravenes the principles of popular sovereignty, democracy and separation of powers.
The focus of this chapter will be precisely on the activist engagement of the Bulgarian Constitutional Court in reshaping the constitutional competences of key state institutions via activist interpretation of constitutional provisions related to
1 See Belov, M., A.
Tsekov Covid-19 Pandemic and Its Impact on Parliamentarism in Bulgaria. A self-restricting of the control power, available at: https://www.robert- schuman.eu/en/doc/ouvrages/FRS_Parliament_Bulgaria.pdf.2 Belov, M. Judicial Dialogue, The Hague, Eleven, 2019.
3 Belov, M. Courts, Politics and Constitutional Law. Judicialization of Politics and Politicization of the Judiciary, Abingdon, Routledge, 2020.
DOI: 10.4324/9781003200666-13 emergency situations (war, state of siege, state of emergency) and to the institutional design of the national defence. Elsewhere I have demonstrated the role of this court as an ultimate player in multilevel constitutional games on the border between national and supranational constitutionalism.[547] Here I will focus on the role of the Court as quasi-constituent power reshaping the demarcation lines between the legislative and the executive power and redrawing the lines of competence between the Parliament and government.
The activism of the Court is visible especially in defining and redrafting the lines of competence of the central state institutions - the Parliament, government, etc. - with regard to the model of their engagement in emergency situations. The most recent example is its Decision No. 10 of 2020 related to the introduction of the ‘extraordinary epidemic situation’ in the Bulgarian legal order. Thus, a topical event, namely the response of the Bulgarian legal order to the Covid-19 pandemic, has triggered a new wave of concerns regarding the impact of the Bulgarian Constitutional Court on the institutional design for mastering of emergency situations in Bulgaria.
The chapter will start with an outline of the constitutional model for crisis management provided by the 1991 Bulgarian Constitution. It will offer structured information regarding the regimes for crisis management enshrined in the Bulgarian Constitution as instruments for mastering of emergency situations. Moreover, it will discuss the stance of the Bulgarian constitutional legislator on the conceptualisation of the emergency, the permissible deviations from constitutional normalcy it provides, the tools for its mastering, and their implied philosophy and institutional logic. In other words, the chapter will offer a brief but informative critical account of the constitutional model for emergency situations management in Bulgaria.
The analysis will shed light on the reason why there are no other emergency regimes provided by the 1991 Constitution. This will be of crucial importance for convincingly raising the claim of unconstitutionality of other emergency regimes created by virtue of the ordinary legislation and subsequently legitimated by activist jurisprudence of the Constitutional Court.In that regard, the support of the Constitutional Court’s practice for the adoption of unconstitutional legislation providing for additional regimes of emergency situations will be defined in terms of judicial activism. To sum up: the first part of the chapter will engage with emergency constitutional politics and emergency constitutional regimes serving as a playground for judicial activism and, vice versa, being themselves framed and shaped by activist case law of the Bulgarian Constitutional Court.
The constitutional regime of crisis management, reflecting the original constitutional position on it, will be contrasted with the provision of different emergency regimes in the ordinary legislation in Bulgaria. It will be shown that the Parliament develops the constitutional framework for crisis management too extensively, especially with a view to the ‘extraordinary epidemic situation’ introduced with the amendment of the Health Act on the occasion of the outbreak of the Covid-19 pandemic.
Furthermore, the chapter focuses on the judicial activism of the Bulgarian Constitutional Court. The most important cases of judicial activism of the Bulgarian Constitutional Court, which powerfully develops further the constitution using its open texture,[548] will be briefly outlined. Thus, the immense power of the Court will be demonstrated on the basis of this short but informative overview of its jurisprudence, showing both its key role as strategic player mastering constitutional design and safeguarding institutional adjustment and power balancing and as key danger for the maintenance of the constitutionally enshrined model of separation of powers.
Special attention is devoted to the judicial activism of the Bulgarian Constitutional Court related to mastering of emergency situations. The activist stance of the Court regarding issues of war, state of siege, state of emergency and other - in fact unconstitutional - regimes of emergency measures, such as the ‘extraordinary epidemic situation’ and the ‘state of disaster’, is researched in a complex way. First, the case law of the Bulgarian Constitutional Court related to military emergency situations and to the constitutional scheme for management of national defence issues is critically assessed. Second, the chapter devotes special attention to Decision No. 10 of 2020 which concerns the health-related emergency (‘extraordinary epidemic situation’ ) introduced through ordinary legislation via amendment of an act of Parliament. Third, the Court’s policy towards both national defence-related emergency situations and an extraordinary epidemic situation is compared. This comparison sheds additional light on the judicial activism of the Bulgarian Constitutional Court in the sphere of constitutional emergency politics and leads to important conclusions.
In brief, this chapter has been provoked by a concrete topical issue. This is the introduction of the unconstitutional ‘extraordinary epidemic situation’ by virtue of amendments to the Health Act in 2020 in Bulgaria, which has been declared constitutional by the Bulgarian Constitutional Court. However, this is a good occasion for broader assessment of the role of the Bulgarian Constitutional Court as activist constitutional jurisdiction which visibly and deliberately redraws the separation of powers - more precisely the demarcation line between constituent and constituted powers and between legislative and executive powers.
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