GDI, ISFED and HRC call the Georgian Government and the Parliament of Georgia for timely provision of information to public on the situation related to Pandemics and the legal situation after 15 July.
The timeframe for the legal basis for the restrictions imposed due to the fight with pandemics is expiring on 15 July, although it has been still unknown for public, what legal situation will appear afterwards. Up to date, there have been no draft-law submitted to the Parliament on either prolonging this term or on any other solution to the issue. Therefore, we would like to call the Georgian Government and the Parliament for starting intensive discussions around this issue and provide public with the relevant comprehensive information.
To our opinion, providing public with the timely information on the existence/non-existence of pandemics-related restriction is even more important due to the election year and the election process as far as ensuring proper organization of the election process as well as of free expression of the will of the electorate depends greatly on regulation of the legal basis on fight against pandemics.
After the termination of the state of emergency, with the aim of preventing the spread of COVID-19, the Parliament of Georgia made the changes to the Georgian Law on “Public Heath” allowing the Government of Georgia impose the restrictions on a number of constitutional rights, among them on the implementation of economic activity, movement, education process and etc.
It should be noted that as a result of strong protest coming from the civil sector and of the recommendations published by the Public Defender of Georgia, the initial version of the draft-law has been updated and improved. The final version of the law takes into consideration some reservations on the delegation of power to the executive authorities on restricting the rights. In spite of this fact, the final version does not provide for the important request – to stipulate the basis and the limits of restricting the constitutional rights by the law itself.
While delegating the powers, it is important to set the criteria by law. It is extremely important when it is related to the restriction of fundamental rights in order for the decision-making power on the human rights not to be fully granted to the discretion of the executive authorities and be foreseen and predictable. For this very aim, it is important that the legislators define themselves the scope, content, aim and limits of interference into the fundamental rights. According to the position of the Georgian Constitutional Court, the deeper the interference into the fundamental rights is, the more detailed basis and rules for the use of these means shall be defined by the legislators. This is the requirement which has been ignored in the approved law and which are the issue of dispute at the Constitutional Court.
Another problem is also the fact that based on the delegated powers, the Georgian Government has the right to again set to rules different from the regulations set by the legislative norms. Thus, the approved norms allow not only the restrictions of human rights by by-laws but also gives the government the possibility to impose such restrictive rules which differ/contradict the will of the legislators and the rules stipulated by law. The latest does not fall in line with the principle of the Rule of Law as far as due to this principle the Government resolutions and other by-laws cannot be granted with superiority vis-a-vis the laws and could not replace the law. This is the reason why we consider it important that the human rights shall not be restricted by the resolution of the Government and such regulations shall be stipulated by law.
GDI, ISFED and HRC have been working actively on the assessment of the protection of human rights standards during pandemics and the state of emergency, are ready to participate in the relevant discussions and to share their position on the respective issues with the persons interested.