Rule of law and its ‘emergency exceptions’

Conviction that real emergencies are, by definition, actually unpredictable or having sui generis origin is deeply embedded in the Western history of political theory and constitutional law.

Notable adages such as Inter arma silent leges, Salus rei publicae suprema lex esto or Necessitas legem non habet were known centuries before J. Locke reopened the issue in his discourses on the ‘prerogative’, which has the right to act ‘according to discretion, for the public good, without the prescription of the law, and sometimes even against it’.² But Locke deserves much more attention here because his argument, in terms of causes and consequences, was completely formulated. It is already with him that we find not only the practical problem of law-making power which ‘is not always in being, and is usually too numerous, and so too slow for the

Activism of the Croatian Constitutional Court 205 dispatch requisite to execution’. He also warns of ‘legislators not being able to foresee, and provide by laws, for all that may be useful to the community’. What Locke envisions is that ‘the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it’.^[580] It is, however, worth noting that Locke was not an advocate of a completely unrestrained executive, such as we find with C.

These postulates found their intellectual echo in, to remain with the classics, both the French and the Americans. Thus, J.J. Rousseau warned that ‘The inflexibility natural to laws, which hinders their bending to events, may in certain cases be pernicious, and, in a crisis, even occasion the ruin of the State’, and then stressed that ‘as there are at thousand occurrences for which the legislator has not provided, it is a very necessary part of foresight to perceive that everything cannot be foreseen’.^[581] [582] Similarly, A. Hamilton pointed out that powers needed for the common defence ‘ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspon­dent extent and variety of the means which may be necessary to satisfy them’.

All this had already been said long before C. Schmitt proposed his theory of an actually unfettered sovereign and his interpretation of the ‘exception’.^[583] [584] But Schmitt’s completely reductionist belief that ‘the most guidance the constitution can provide is to indicate who can act in such a case’ (i.e. of extreme peril) was soon rejected by C.L. Rossiter and C.J. Friedrich and their concepts of ‘Con­stitutional Dictatorship’. ³ Besides his famous 11 criteria of constitutional dicta­torship, Rossiter posited three ‘fundamental facts’ of his theory. The first was that ‘the complex system of government of the democratic, constitutional state is essentially designed to function under normal, peaceful conditions, and is often unequal to the exigencies of a great national crisis’. The second was that ‘in time of crisis a democratic, constitutional government must be temporarily altered to whatever degree is necessary to overcome the peril and restore normal conditions’, with an unavoidable consequence that ‘the government will have more power and

the people fewer rights’.

Those were, in fact, lessons learned after World War II. After bitter experiences from the ‘Schmittean’ era, they strongly advocated for bringing the rule of law back into action. What they actually meant is that emergencies are not a legal ‘black hole’ and that, despite an unavoidable need for certain accommodations, there have to be some restrictions on governments acting in crisis.

Once the rule of law in emergencies is back in action, the problem I would like to further address here is what exact role is thus given to the ‘judicial-review mechanism’.³⁵ Due to their insight into long-standing national experiences, including debates surrounding the ‘War on Terror’, I believe that American authors are especially inspiring here. Nevertheless, their views on the position of courts in emergencies vary greatly,³⁶ along the usual lines.³⁷

34 Rossiter, C.L., Constitutional Dictatorship - Crisis Government in the Modern Democracies, pp. 5-7.

35 Tushnet, M., Controlling Executive Power in the War on Terrorism, 118 Harv. L. Rev. 2673 (2005), pp. 2673-2682.

36 One of the notable aspects of the American debate on the past is that there exist rather different interpretations of it. Thus, for example, E.A. Posner and A. Vermeule explain two differing views on history in the security vs. liberty context (history either as a ‘political and constitutional failure’ or as a ‘political and constitutional success’). This, in their view, consequently leads to adoption of either ‘civil libertarianism’ or ‘defer­ential’ view. See: Posner, E.A. and Vermeule, A., Terror in the Balance - Security, Liberty and the Courts, op.

37 On this, see also: Gardasevic, Djordje, American Lessons Learned - European Future Rethought?, op. cit. The following short reference to the American doctrine here is inevitably reduced and my primary attention is to emphasise its overall importance for European debates as well, in terms of general issues raised and possible interpretations offered.

Thus, for instance, ‘civil libertarians’³⁸ argue for a strong role of courts and for that they offer various reasons, for instance, that courts have the advantage of not being politically accountable and are not under pressure to act quickly and decisively, as it is expected from political branches; moreover, that courts are advantaged compared to other branches because they ‘assess the legality of measures long after they have been adopted, which means that courts may bring more perspective to the question than those acting in the midst of the emergency’; or, that ‘the fact that legal decisions must offer a statement of reasons that then binds future cases contributes to the judiciary’s ability to exert control over the next emergency’; further, that judicial case law ‘in the long run [...] establishes] principles that are critical to checking future government abuse’, and that ‘the formalities of the judicial process mandate the creation of an official record that may facilitate reaching a just result’ and ‘may make subsequent assessments, beyond the heat of the moment, more reliable’.³⁹ On the other hand, the ‘executive unilateralists’ often rely on particular advantages of the executive,⁴ argue for ‘flexible’ interpretations of the Constitution in favour of inherent executive and against unspecified judicial powers⁴¹ or stress that, basically, judges are not experts for national security matters.⁴²

38 Here I draw from the inspiring division of American authors on ‘executive uni­lateralists’, ‘civil libertarians’ and those that further some type of the third way, such as the ‘process-based institutional approach’.

39 In addition, see also the arguments that the long-standing practice of American judges to defer to other governmental branches in security issues, characteristic until 1950s, was later reversed through ‘rejection’ of the ‘logical’ presumption of deference either by the newly construed case law or through various forms of political excuse for past mistakes or overreactions. On this, see: Stone, G.R., National Security v. Civil Liber­ties, 95 Cal. L. Rev. 2203 (2007), pp. 2203-2212; Cole, D., Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis, 101 Mich. L. Rev. 2565 (2002-2003), pp. 2565-2595.

40 See the arguments furthered by A. Hamilton in: Federalist No. 70 (A. Hamilton), The Executive Department Further Considered, 18 March 1788; Federalist No. 74 (A. Hamilton), The Command of the Military and Naval Forces, and the Pardoning Power of the Executive, 25 March 1788.

41 See: Yoo, J., The Powers of War and Peace - the Constitution and Foreign Affairs after 9/11, op. cit., pp. 11 and 18.

42 See: Posner, R.A., Not a Suicide Pact - the Constitution in a Time of National Emer­gency, op. cit., pp. 9 and 35; Posner, E.A. and Vermeule, A., Terror in the Balance - Security, Liberty and the Courts, op.

From the historical perspective, the actual outcome of the Court’s Covid-19 decisions probably could have been expected. In fact, the Court’s precedents for that purpose include only one decision dating back to the 1990s war.⁴ In reviewing presidential emergency decrees thereof in 1992, the Court, in a totally deferential approach, rejected all arguments submitted by the applicants. Most strikingly, the Court completely ignored the strict constitutional command that the President could decide on restrictions of constitutionally protected rights and freedoms only if the Parliament was not able to convene, which factually was not the case.⁴⁴ In a manner that executive unilateralists would largely greet, the Court simply stated that the President had an independent, or ‘inherent’, power to act. Admittedly, to this the Court valued also that the contested decrees were in the meantime approved by the legislative body as well. But even so, one may easily conclude that the Court followed a well-known scheme of a clear unilateral executive exception, followed by subsequent parliamentary ratification and result­ing in a hugely deferential (‘process-based’⁴⁵) judicial validation.⁴⁶

When viewing the Court’s case law in the corona cases, one may easily notice that, save for the decision in the ‘Sunday’ and the ‘Standing Orders of the Parlia­ment’ cases, it allowed for all safety measures to be applied.⁴⁷ But before

some judicial activism, such as is visible, for instance, in its application of the Matthews v. Eldridge test in the Hamdi v. Rumsfeld case. Other relevant cases here include opinions in Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush.

43 Decision of the Croatian Constitutional Court: U-I-179/1991, 24 June 1992. For an additional description of this decision, see also: Gardasevic, Djordje, Croatian Con­stitutional Adjudication in Times of Stress, in: New Challenges to Constitutional Adjudication in Europe - A Comparative Perspective, Zoltan Szente and Fruszina Gardos-Orosz (eds.), Routledge (2018), pp. 27-44.; Gardasevic, Djordje, American Lessons Learned - European Future Rethought?, op. cit.

44 Two additional issues that the Court analysed in this case were the presidential power to unilaterally proclaim an emergency and his power to enact measures with retro­active effect.

45 For this approach, see: Issacharoff, S. and Pildes, R.H., Emergency Contexts Without Emergency Powers: The United States’ Constitutional Approach to Rights during Wartime, op. cit. See also: Issacharoff, S. and Pildes, R.H., Between Civil Libertar­ianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime, in: The Constitution in Wartime - Beyond Alarmism and Compla­cency, Tushnet, M. (ed.), Duke University Press, Duke and London, 2005., pp. 161­197.

46 This scheme is well known in comparative practice. See, for instance: the Prize cases, 2 Black (67 U.S.) 635 (1863). Additionally, I believe that such a ‘liberal model’ of ‘emer­gency powers’ might be typical for constitutional systems in their rudimentary form in which, despite formal proclamations, there exists neither a true concept of ‘fundamental rights’ nor an effective system of judicial review. For the ‘liberal model’, see: Lobel, J., Emergency Power and the Decline of Liberalism, 98 Yale. L. J. 1385 (1988-1989).

47 One additional exception to this is found in the Court’s statement issued prior to the July 2020 parliamentary elections in which it warned the State Electoral Committee that it was unacceptable to deny the right to vote to persons having a virus and thus being in isolation. This, however, was not a decision of the Court in formal proceed­ings, but rather its general statement. See: Statement and Warning of the Constitu­tional Court, U-VII-2980/2020, 3 July 2020.

Activism of the Croatian Constitutional Court 209 concluding that the Court was hugely deferential to political branches, and not activist, it is necessary to see what it could or should have done instead.

The crucial point to be made is, of course, that the Court avoided answering the question whether the emergency Article 17 of the Constitution should never­theless have been used. In that context, comparative practice might suggest that courts usually defer to other branches in emergency issues, and even more so when they are dealing specifically with proclamation of an emergency than when deciding on specific measures.^[585] Despite that, it is also true that there do exist models in which even proclamation of emergency is at some point made subject of a special review, at least theoretically,^[586] whereas the dissenting judges in the Croatian case also strongly advocated for application of Article 17. From that point of view, I also think that the Court should have thoroughly examined that particular argument, if for nothing else than the fact that, while avoiding inter­preting the Constitution, it did interpret Article 22.a of the Law on the Civil Protection System. In fact, having in mind that Article 17 and Article 22.a contain substantively the same provisions, it is, as a matter of legal interpretation, com­pletely unclear why the Court allowed for introduction of the legal definition of ‘special circumstances’ at the expense of the constitutional term of ‘a severe nat­ural disaster’.^[587]

This brings me to the next point, the fact that in the corona cases the Court accepted the proposition of a suigeneris origin of the ‘threat’. More precisely, it is quite clear that the sui generis qualification of the epidemic in the Croatian case stems from three crucial points: the rejection of the application of Article 17 of the Constitution, the amendments to the Law on the Civil Protection System and the Infectious Diseases Protection Law and, finally, from the explicit conclusions of the Croatian Constitutional Court. Moreover, in terms of theoretical connection

between causes and consequences of emergencies, the Court went even further than the Government when it established that during the first month of the pan­demic there was no gap in the legal framework regulating the work of the Head­quarters.^[588] This, of course, largely resembles Locke’s, Hamilton’s and Rousseau’s conceptions I had previously mentioned. At the same time, in my own opinion, this fact represents the most troubling aspect of the Court’s standing. This is so because the reference to ‘special circumstances’ and the Headquarters’ extensive power to enact ‘decisions’ and ‘guidelines’ is thus not restrained by a requirement that such decisions and guidelines ought to be grounded in other laws, with more specific and enumerated powers of said body.^[589]

On the other hand, the existing legal framework under which the Headquarters has acted so far contains neither some strict sunset clauses nor an additional model of, at least periodical, parliamentary control of anti-corona measures, outside of ordinary means of supervision over the Government.^[590] This surely would be the case had the Court accepted the emergency model. For that purpose, Article 17 of the Constitution prescribes that in cases of severe natural disasters restrictions of rights must be decided by a two-thirds majority in the Parliament. Admittedly, in the words of Article 17, there exists no further specification as to whether the two- thirds parliamentary approval is necessary for all decisions restricting constitutional rights or just for those that require adoption of new laws. An activist court could go so far as to claim that even in cases of all restrictions of rights there needs to be the two-thirds parliamentary approval, possibly within a short period of time fol­lowing the enactment of special measures. I personally believe, however, that the latter solution would appropriately balance between the need to act quickly, on the basis of powers already within the laws adopted before the emergency, and possible need to acquire new legal anti-epidemic tools of reaction.^[591] Had the Court been activist, it could have clarified that problem as well. But it did not.

As to the applied level of judicial scrutiny, the Court seems to have opted for some type of review between the executive unilateralism and the ‘process-based institutional approach’.⁵⁵ This is even more curious when one has in mind that the whole time the Court acted under the pretext of normal conditions, in which the regular proportionality review is required.

Finally, in the Croatian constitutional settings, the Court does have the power to start a constitutional review of its own will. Nevertheless, and despite the initiative of the dissenting judges,⁵⁶ it took it more than five months to finally deliver its opinions in mid-September.

All in all, I think that expecting the Croatian Constitutional Court to take an activist role in reviewing the measures of the Government in a delicate safety context might still be a bridge too far.

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