Okay. I will do that. First, I thank the committee for the invitation to address it. My short presentation will not refer to the Irish response to this crisis but I will instead look at this crisis from a comparative law perspective.
Emergency measures may affect the normal functioning of state institutions and the democratic process. They often involve additional limitations on fundamental rights and freedoms. This is inevitable and the Venice Commission has always acknowledged that. That said, at the Venice Commission we believe in the idea of a limited government based on democratic principles and the rule of law. Even in an emergency, these fundamental principles should be respected.
Our commission has studied emergency regimes in a number of countries and has prepared general reports on this matter. I refer in particular to our Rule of Law Checklist and to a more recent report, Respect for Democracy, Human Rights and the Rule of Law during States of Emergency, published last June. We have elaborated specific benchmarks for exceptions from the rule of law principles in emergency situations that may be tolerated. I will focus on the most important.
An emergency regime should be laid down, preferably, in the constitution and in more detail in a separate law and, if possible, an organic or constitutional law. That being said, there are different models on how the constitutional order may deal with emergency cases. In the members' country, the Constitution does not regulate these matters in detail, besides a mention of war and rebellion in Article 28. This model exists in a number of other European countries in which emergency regimes are not entrenched in their constitutions. This is the case, for example, in Norway, Denmark and Switzerland. The constitutional doctrine in these countries acknowledges the situation of a constitutional necessity but, as far as I know, this doctrine has not been invoked in practice since the Second World War.
Many countries have pre-existing legislation that contains instructions that are more or less precise on what the government may do in case of war, earthquakes, epidemics, etc. As I have said, it is preferable that these rules be discussed and adopted in advance in times of peace when the normal procedure applies. The Covid crisis demonstrates that certain situations cannot be foreseen and that this crisis is all-encompassing and is much larger than anything we have experienced before.
There are two possible options. The first is for a parliament to meet urgently and develop new legal rules or to give new powers to the executive. Many countries did this during the Covid-19 crisis, including Ireland, which amended its Health Act. The downside of this approach is that parliamentary procedures may be too lengthy and complicated for a sufficiently quick response. In addition, in the context of an epidemic, the parliament may be simply unable to meet.
The most obvious solution is to adjust parliamentary procedures. For example, the German Bundestag quickly amended its rules. It reduced its quorum, provided for electronic voting and closed hearings for the public, etc. In Sweden, leaders of all political parties represented in its parliament concluded an agreement that only 55 members of the parliament, representing their parties in proportion, would take part in plenary sessions.
This is a temporary solution similar to the war delegation which is a mini parliament during war time provided for in the fundamental law of Sweden.
Alternatively, and this is the second option, the government may be given the power to act quickly before parliament can intervene. Many constitutional orders provide for a declaration of a state of emergency which gives the government the power to adopt decrees having the force of law. In Austria, for example, if the parliament cannot meet, the president of the country, jointly with the government, may take such temporary measures by way of provisional law amending regulations. In Italy, under Article 77 of the constitution, the government may adopt decree laws in sudden cases of necessity and urgency.
If the constitution or the legislation gives the government a broad mandate to legislate in emergency situations, it is important to follow certain rules and provide external checks on the government's powers. First, the law making power of the government should be strictly limited in time. Moreover, changes introduced during emergency situations should not have a permanent effect. The main purpose of emergency measures is to overcome the emergency and to return to normalcy. Emergency decrees or other emergency measures should not be abused to introduce permanent changes in legislation, especially in institutional arrangements. Next, it is crucial, as soon as it is practically possible, for parliament to exercise its supervisory function and review these measures.
In addition, actions of the executive should be subject to effective judicial review. The courts should be able to assess the proportionality of specific measures taken by the government. This judicial review will be supplemented by a review of the constitutionality of emergency legislation by a constitutional court where it exists. Speaking of proportionality, we understand that the state's margin of operation in times of emergency is much larger than during other times. This is particularly true in the current situation where information about the virus and the most efficient ways of combating it is scarce or uncertain. However, a larger margin of operation should not make judicial review meaningless. In particular, the courts should ensure that the crisis is not used by the government to limit rights for ulterior purposes, for example, to silence the political opposition.
I will shorten my speech. The members of the committee have received my original text.
