Role of the Constitutional Court in shaping and mastering an emergency situation

4.1 The judicial activism of the Bulgarian Constitutional Court

The Bulgarian Constitutional Court does not have a very long history. It was established in 1991 by the last Bulgarian Constitution and started its functioning one year later.

Mastering emergency situations 183 judicial self-restraint. There are even cases in which the Court could or even should have demonstrated its clout, but did not do so. However, there are plenty of examples of overt and unrestrained judicial activism which has redrawn the demarcation lines between the competences of constitutional institutions and has produced extensive implications of new meaning in the open texture of the con­stitutional provisions.

I have to make an admission here and say that I am not explicitly against judicial activism. In fact, I believe that judicial activism can be possible, justifiable and in many cases even necessary. The role of courts has changed throughout the history of modern statehood.¹⁵ They should not necessarily be a power which is en quel- que facon nulle, as suggested a long time ago by Montesquieu. Judicial activism may be necessary in order to promote change, adjust the constitutional and legal order to the demands of the socio-political context and establish a feasible system of human rights and rule of law. This does not preclude the fact, however, that judicial activism in general and the development of constitutional standards by the constitutional courts via extensive interpretation of the constitution allowed by its ‘open texture’ is in sharp contradiction with established principles of constitutional law such as popular sovereignty, separation of powers and democracy. I am just briefly marking this conceptual problem and will not discuss it in detail due to space constraints.

Again, the judicial activism of the Bulgarian Constitutional Court is also not a negative phenomenon per se. In fact, the Court in quite a number of cases did an excellent job adjusting the Constitution to the demands of the socio-political rea­lity and giving informative interpretation, elucidating many obscure or unclear elements of the constitutional texture, and thus of the constitutional order. Therefore, the Court has been not only a defender of the rule of law, democracy and human rights, but also a promoter of constitutional change leading to the adaptation of the constitutional text to the constitutional context.

constituent power - the National Assembly and the Grand National Assembly. Thus, the Court has actually defined the spheres of competences of the constituent power while it is supposed to be constituted power. For more about these issues, see Belov, M. Constitutional Courts as Ultimate Players in Multilevel Constituent Power Games: The Bulgarian Case. In: Belov, M. (ed.) Courts, Politics and Constitutional Law. Judicialization of Politics and Politicization of the Judiciary, Abingdon, Routledge, 2019, pp. 160-166.

15 See Belov, M. Global Rule of Law instead of Global Democracy? Legitimacy of Global Judicial Empire on the Edge between Westphalian and post-Westphalian Con­stitutionalism. In: Belov, M. (ed.) The Role of Courts in Contemporary Legal Orders, The Hague, Eleven, 2019.

Nevertheless, the perils of judicial activism both in general and in the Bulgarian case should not be underestimated.

4.2 The activist role of the Constitutional Court in shaping and mastering military emergency situations

The constitutional foundations of the national defence can be briefly summarised in the following way. The National Assembly has monopoly over the decision of the most important issues - the declaration of war, state of siege or state of emergency, the ratification of the most important treaties related to national defence and security. The Parliament allows the sending and use of Bulgarian military troops abroad as well as the transition or deployment of foreign military troops on Bul­garian territory. The international treaties with political or military character must be ratified by the National Assembly by virtue of an act of Parliament. The Parliament adopts the legislative framework of the national defence. The National Assembly also asserts control over the Council of Ministers, the Minister of Defence and the Minister of Interior and may engage their political liability.

The Council of Ministers determine the foreign, national defence and national security politics. It determines its strategic lines and shapes and its tactical key points. The government further develops the legislative framework of national security and defence through normative, general and individual administrative acts. The Council of Ministers is competent to propose to the Parliament the declaration of war, state of siege or state of emergency.

The President of the Republic is the commander in chief of the armed forces both in times of peace and war. He also presides over the Advisory Council for National Defence. The President of the Republic appoints and dismisses the high military ranks and assigns military decorations on proposal of the Council of Ministers. The President of the Republic declares general or partial mobilisation on the proposal of the Council of Ministers. The President of the Republic declares war in case of military invasion against the country or when the immedi­ate fulfilment of international obligations for collective defence is necessary, as well as a state of siege or state of emergency when the National Assembly is not in session. In this case the National Assembly must be summoned immediately in order to pronounce on this declaration.

This is the relatively simple but clear structure of the ‘military constitution’ in the contemporary Bulgarian constitutional order. The Constitution provides for an intelligible framework not only for the emergency situations (war, state of siege and state of emergency) but for the whole constitutional model of the national defence. However, the Constitutional Court has adopted two interpretative deci­sions in this domain. Decision No. 5 of 1999 and Decision No. 1 of 2003 of the Constitutional Court give abstract and binding interpretation on some of the most important issues related to the sphere of national security and defence. They are clear examples of judicial activism and demonstrate the central role of the Con­stitutional Court in shaping and mastering military emergency situations. The overall reason for these two decisions is that they interpret rather extensively the constitutional text, imply new meaning in it, and thus enable the political institu­tions and more precisely the government to accomplish its military and defence policy in rather a discretionary way through diminishing its constitutional restraints.

Decision No. 5 of 1999 was adopted on the initiative of the Council of Ministers, who had approached the Constitutional Court with the following two interpretative questions:

1 In case of international treaty that has already been ratified with an act of Parliament by the National Assembly and has entered into force which reg­ulates issues related to the transition of foreign military troops through the Bulgarian territory or their deployment on it, namely: the type of the military troops, the aims of their transition or deployment and the term of the validity of the treaty, should the government ask for permission the National Assem­bly in each concrete case of transition or deployment. The Council of Minis­ters believes that such permission is not necessary because it is granted via parliamentary decision, while the international treaty has already been ratified via an act of Parliament which has superior legal force.

2 Should military troops that transit or are deployed on Bulgarian territory be considered as military troops of a foreign state or international organisation if they are accomplishing these manoeuvres in accordance with an international treaty which has been ratified with an act of Parliament and has entered into force for Bulgaria. For example, if the Republic of Bulgaria is attacked by a foreign state and in accordance with an international treaty, it has to receive military help from foreign states or international organisations; it is necessary that the National Assembly must give permission in each concrete case.

It has been mentioned above that the Constitution has clear and explicit pro­vision that in all of the above-mentioned cases there must be an explicit and formal decision of the National Assembly.

However, exactly the opposite has been done due to contextual reasons related to political opportunity and expedience. The Constitutional Court has decided that if the international military treaty has been ratified with an act of Parliament by the National Assembly, if is published and entered into force and if it contains clauses for the transition or deployment of foreign military troops through or on Bulgarian territory, then there is no need for a special decision of the Parliament which allows each concrete transition or deployment. Thus, the Constitutional Court has in fact amended the Constitution and has allowed the government to acquire competences in the sphere of national defence which were initially vested in the Parliament by an explicit constitutional provision.

Moreover, the Constitutional Court stipulates in Decision No. 5 of 1999 that in case of international obligations for mutual military support that are a result of an international treaty, ratified with an act of Parliament by the National Assem­bly, published and entered into force the deployment or transition of military troops of such alliance on Bulgarian territory, can be accomplished with a decision of the government and a special decision of the Parliament is not necessary.

This line of reasoning has been continued by the Constitutional Court in its Decision No. 1 of 2003. According to it the military troops of a political or mili­tary union, or the member states of such union or those of allied states that are parties to an international treaty which is ratified via an act of Parliament by the National Assembly, published and entered into force for the Republic of Bulgaria, are not foreign troops according to the meaning of Article 84, point 11 of the Constitution if their transition or deployment through or in the territory of Bul­garia is related to the accomplishment of alliance obligations.

The decision of the National Assembly in accordance with Article 84, point 11 of the Constitution is not necessary in case of sending and use of Bulgarian mili­tary forces outside of the territory of the state as well as in case of transition or deployment of foreign military troops through it when this is done in the course of implementation of alliance obligations stemming from an international treaty which is ratified via an act of Parliament by the National Assembly, published and entered into force for the Republic of Bulgaria in accordance with Article 85, paragraph 1, point 11 of the Constitution.

A decision of the National Assembly for each concrete case related to the hypotheses provided by Article 84, point 11 of the Constitution is not necessary if a separate act of Parliament enlists exhaustively the aims, procedure and conditions for fulfilment of the Bulgarian obligations stemming from an international treaty which is ratified via an act of Parliament by the National Assembly, published and entered into force for the Republic of Bulgaria that foresees the sending of Bulgarian military troops outside of the country or the transition or deployment of allied military forces through or on Bulgarian territory.

The joint effect of these two Constitutional Court decisions is the redrawing of the scheme of competences in the sphere of national defence between the key players in it - the National Assembly and the Council of Ministers - in favour of the latter. Thus, the Constitutional Court has rewritten the Bulgarian Constitu­tion, strengthening the role of the government in national defence for reasons of expediency, efficiency and political and military appropriateness. Just one clear example for this extensive and obvious judicial activism: according to Decision No. 1 of 2003 the military troops of NATO countries are not foreign troops if they are on Bulgarian soil for the fulfilment of their alliance obligations. There is no single provision or even word in the text of the Bulgarian Constitution which allows for such a conclusion of the Court.

It will be shown that such an activist stance of the Bulgarian Constitutional Court is not an exception. On the contrary, Decision No. 10 of2020 adopted in the context of the Covid-19 pandemic is a clear continuation of the same line of reasoning and of the same trend for strengthening the role of the government in case of emergency situa­tions to the detriment of the National Assembly and parliamentarism in general.

4.3 The activist role of the Constitutional Court in shaping and mastering health-related emergency situations

The ‘extraordinary epidemic situation’ that was introduced in 2020 by virtue of amendments in the Health Act has been described above. It is just one of the many unconstitutional activities undertaken by the Bulgarian authorities during the Covid-19 pandemic, disrespecting and infringing the rule of law and democ­racy. Most of the measures adopted have been disproportional and did not take into account the balancing between the protection of life and health and the other constitutionally provided rights such as freedom of movement, privacy rights, the right to education, the freedom of speech, etc.

The state of emergency was declared by the National Assembly on proposal of the Council of Ministers for the period of two months (13 March 2020 to 13 May 2020). However, it has been considered largely disproportional, especially with a view to the relationship between the lockdown and the rather low number of cases of Covid-19 in the country during the above-mentioned period. Thus, the govern­ment and its parliamentary majority have been forced by public opinion to renounce the continuation of the state of emergency after 13 May 2020. The state of emer­gency had detrimental effects on the economy as well, so the government itself wanted to go beyond it while keeping the possibility of restricting rights and shifting power towards the executive and its technocratic advisers. Hence, the government wanted to have an intermediate regime at its disposal - a hybrid regime which is not exactly a state of emergency but allows for the adoption of emergency measures. More precisely, the idea was to preserve the shift of power from the Parliament to the government, the Minister of Health and the expert advisory institutions - the National Operative Headquarters and the Chief Health Inspector.

This is the reason why the government and its parliamentary majority came up with this idea - to introduce an ‘extraordinary epidemic situation’, formally dif­ferent from the state of emergency, following the example of the state of disaster introduced in 2006 by the Protection against Disasters Act. The hope of the government was that this ‘extraordinary epidemic situation’ would allow for a restriction of human rights and for the imposition of harsh measures with detri­mental impacts on society, education, culture and normal life in general while removing the claim that governance by emergency measures needs to comply with the requirements of legal certainty, proportionality, transparency and has to have some clear temporal limits. Moreover, the government needed a legal excuse for the shift of power from the Parliament to the government, and the technocratic advisory bodies the latter deprived of any constitutional status and legitimacy.

In this context, the President of the Republic has approached the Constitutional Court with the claim that the amendments in the Health Act that enabled the introduction of an ‘extraordinary epidemic situation’ on 14 May 2020, which is still in force, are unconstitutional. The constitutional proceedings had been initi­ated on the same day as the ‘extraordinary epidemic situation’ had entered into force - on 14 May 2020. More precisely, the President of the Republic suggested that Article 63, paragraphs 2-7 of the Health Act contravene Article 57, paragraph 3 (inviolability of constitutional rights in times of war, state of siege or state of emergency), Article 61 (the duty of the citizens to cooperate with the state and help the society in case of disasters and other emergency situations), Article 4 (rule of law) and Article 8 (separation of powers) of the Constitution.

The Constitutional Court has rejected the claims of the President of the Republic. Thus, it has confirmed the constitutionality of the above-mentioned provisions of the Health Act and consequently provided that the introduction of the ‘extraordinary epidemic situation’ is compliant with the Constitution.

This decision of the Constitutional Court is unconstitutional. It shows the risk of unconstitutional Constitutional Court decisions. Unconstitutional constitu­tional amendments is one of the hottest topics in contemporary constitutional theory.^[558] The scientific debate is focused mainly on the challenges which formal constitutional amendments that are unconstitutional on formal, procedural or substantial grounds create for constitutional theory or political practice. The overall claim produced as a result of this debate is that the constitutional legislator may also act unconstitutionally if the constitutional amendments are introduced in an unconstitutional manner or infringe the main constitutional principles, the core of the constitution or constitutional identity. Of course, the opinions which are the legitimate grounds for unconstitutionality of constitutional amendments are rather divergent. In Bulgaria there is even a decision of the Constitutional Court

Mastering emergency situations 189 which has declared a formal constitutional amendment adopted by the National Assembly instead of a special covenant - the Grand National Assembly - to be unconstitutional. This is Decision No. 7 of 2006.

However, in parallel to the risk of constitutional infringement inflicted by the institutions of the constituent power via formal constitutional amendment, there is also the threat of unconstitutional constitutional amendment accomplished by the Constitutional Court through their interpretative decisions or via any other deci­sion that accomplishes ‘virtual amendment of the Constitution’.^[559] I believe that this is the case with Decision No. 10 of 2020 adopted by the Bulgarian Con­stitutional Court. Here are the reasons for my claim.

Indeed, the very construction of the concept of unconstitutional constitutional amendment produced by the Constitutional Court’s decision is rather question­able since the Courts are not supposed to be able to amend the Constitution. This is true if we stick to the traditional theory of clear separation between constituent and constituted powers. In such case the Constitutional Court must be an insti­tution that belongs to the constituted powers having the competence to only clarify meaning enshrined by the constitutional legislator while sticking to judicial self-restraint.

However, constitutional courts nowadays typically perform judicial activism, as their explicit or implicit constitutional policy uses the ‘open texture’ of the constitu­tional provisions^[560] in order to further develop the constitution. This is the case also with the Court of Justice of the EU and the European Court of Human Rights. This phenomenon is usually defined as a ‘virtual amendment of the Constitution’^[561] via judicial activism. Many contemporary Constitutional Courts perform such activist jurisprudential development of the Constitution. Thus, we must not reject the possi­bility of ‘unconstitutional constitutional amendment’ via constitutional interpretation and the case law of the courts. On the contrary, constitutional theory must expose such cases, critically assess them and suggest strategies for their prevention.

In the motives to Decision No. 10 of 2020 the Constitutional Court wrongly assumes that the emergency situations inevitably lead to constitutional dictator­ship. In fact, the Court structures an important part of its argument around the concept of ‘constitutional dictatorship’, which is not a valid concept of Bulgarian constitutional law, as correctly noted by Judge Georgi Angelov in his dissenting opinion^[562]. Indeed, the emergency situations are ‘emergency regimes’ as the Court points out, but this does not lead to any legitimation of dictatorship - constitu­tional or unconstitutional. Hence, the Court speculatively builds its argument around a purely theoretical concept which is of marginal importance even for the theory and derives arguments addressing the issue of the constitutionality of the

‘extraordinary epidemic situation’. This is a clear example of judicial activism by the Court by virtue of which it creates justification for unconstitutional legislative inven­tions such as the ‘extraordinary epidemic situation’. Unfortunately, the argumenta­tion strategy of the court, structured on the basis of recourse to ‘constitutional dictatorship’, has repercussions also for the overall conceptualisation of the con­stitutionally provided emergency situations (war, state of siege or state of emergency).

The Court correctly provides a brief historical analysis of the emergency situation in Bulgarian constitutional history. It also rightly points out the international agreements of which the Republic of Bulgaria is part which define the concept of emergency situation. The Court’s decision (as well as the dissenting opinions) engage also with linguistic analysis and comparison of the terms ‘extraordinary epi­demic situation’ and ‘state of emergency’, which are denominated by different words in the Bulgarian language (‘edcTaneBKa’ and ‘neae>KCHHc’). The linguistic analysis in fact contributes to the blurring of the conceptual clarity with the delib­erate aim to justify the constitutionality of the ‘extraordinary epidemic situation’.

Nevertheless, the Court comes to the wrong conclusion that the Parliament has not violated the constitutional provisions for emergency by creating an emergency situation which deviates from its requirements. The long line of historic and comparative argumentation and the definition of the concept of emergency do not really prove the thesis of the Court that the ‘extraordinary epidemic situation’ is compliant with the Bulgarian Constitution. The Court has not been able to solidly prove its main thesis that underlines the decision. The discretionary imposition of ‘extraordinary epidemic situation’ coinciding with the concept of state of emer­gency, but regulated as a different concept, initiated on the discretionary decision of the Minister of Health on suggestion of experts without any parliamentary involvement, its temporal non-restrictedness, the rather vague and wide criteria for its imposition and the substantial shift in competences from the legislative to the executive power are in contrast to the key idea enshrined in the Constitution regarding regulation of emergency. This is the idea to have only three types of emergency - war, state of siege and state of emergency - declared exclusively by the Parliament when it is possible to be summoned. Hence, the ‘extraordinary epidemic situation’ contravenes the principle of separation of powers since no ‘constitutional dictatorship’ is permissible even in a state of emergency and the Constitution clearly requires the involvement of the National Assembly in mas­tering emergency situations.

Another great danger of the introduction of the ‘extraordinary epidemic situa­tion’ is that it allows for a disproportionate restriction of constitutional rights. These restrictions are introduced by the ordinary legislator without taking into account basic elements of the constitutional principle of rule of law. These are the predictability and transparency in the introduction of human rights limitations, legal certainty, the proportionality in human rights limitations, the balancing of rights and the need for involvement of the Parliament in the imposition of such restrictions. The Bulgarian Constitution provides for proportional human rights limitations which are related to the three possible emergency situations - war, state of siege and state of emergency. They are not applicable to an ‘extraordinary

Mastering emergency situations 191 epidemic situation’ which is constitutionally null and void and does not grant legitimacy for the restriction of any constitutional right. This constitutional logic is in conflict with the legislative provisions of the Health Act by virtue of which the ‘extraordinary epidemic situation’ has been introduced. Thus, the ‘extraordinary epidemic situation’ contradicts the principle of rule of law and is unconstitutional also on that ground.

It must be noted that Decision No. 10 of 2020 was adopted with only nine votes because there were three dissenting judges who wrote two dissenting opi­nions that contain their reasons and arguments for disagreement with the majority in the Court which had been behind the decision. The one dissenting opinion is jointly written by the Constitutional Court judges Tanya Raikovska and Atanas Semov. The other dissenting opinion is written by the Constitutional Court judge Georgi Angelov.

Some of the arguments for unconstitutionality of the ‘extraordinary epidemic situation’ discussed here are shared also by leading experts in law or medicine in their advisory opinions to this case.^[563] I cannot discuss them here due to space constraints. However, I will briefly focus on the two dissenting opinions of the above-mentioned three Constitutional Court judges. Similarly to the expert advi­sory opinions, the dissenting opinions do not possess either validity or normativity. Nevertheless, they demonstrate alternative judicial logic and serve as an important source of information for the eventual weaknesses in the argumentation and the conclusions of the Constitutional Court enshrined in its decision.

In their dissenting opinion, judges Tanya Raikovska and Atanas Semov sti­pulate that

‘the principle of safeguarding of the legitimate legal expectations and the principles of proportionality are of fundamental importance for the rule of law. The continuous introduction of disproportional anti-pandemic measures which do not take into account the balance of constitutional rights as well as their subsequent chaotic and frequently partial abolition are severe infringement of the rule of law’.^[564]

In their dissenting opinion, Tanya Raikovska and Atanas Semov raise important claims. They believe that the ‘extraordinary epidemic situation’ is a variant of the state of emergency and must be defined as such. They think that the procedure for declaration of this ‘extraordinary epidemic situation’ is clear - it is the procedure for a declaration of a state of emergency - and it has not been taken into account. The judges believe also that the ‘extraordinary epidemic situation’ contradicts the rule of law and the separation of powers, with a view to both an unconstitutional shift of competences from the Parliament to the Minister of Health and expert institutions and the infringement of the constitutional safeguards for restriction of constitutionally provided human rights.

Linguistic comparison is accomplished also by Judge Georgi Angelov in his dissenting opinion. On its basis, he comes to the conclusion that the constitutional concept of ‘state of emergency’ and the ‘extraordinary epidemic situation’ as a concept provided by an act of Parliament are mutually related as type to subtype, and the former includes the latter. Thus, the ‘extraordinary epidemic situation’ is a variant of the state of emergency and must be declared only by the National Assembly and not by the government. Hence, the introduction of an ‘extra­ordinary epidemic situation’ is unconstitutional since it shifts power and compe­tences in an unconstitutional way. Judge Angelov believes that the legislative provisions that introduced the ‘extraordinary epidemic situation’ are unconstitu­tional also because the concretisation of the reasons for declaration of a state of emergency in the Health Act limit the constitutional competence. He also chal­lenges the rather questionable recourse to the concept of constitutional dictator­ship and the reasoning of the Court’s majority in the motives of Decision No. 10 of 2020 that the extraordinary situation is a legitimate constitutional dictatorship in which deviations from the constitutional model of separation of powers pro­vided for times of normality are permissible. Judge Angelov correctly concludes that ‘transformation of the constitutional order’ in times of emergency is con­stitutionally non-permissible.

Last but not least, Decision No. 10 of 2020 of the Constitutional Court is a dangerous precedent also because it indirectly legitimises the other form of unconstitutional deviation from the constitutional model of state of emergency. This is the ‘state of disaster’ discussed above. Thus, the Court paves the way for the future introduction of further unconstitutional forms of emergency situations on the discretion of the parliamentary majority pressured by its government.

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