Ivan Radojevic, Programme Manager, WFD HUGEN Western Balkan project
The COVID-19 pandemic has resulted in a wide range of responses from government institutions around the world, and parliaments are not an exception. This unprecedented crisis is causing public institutions to adapt their work in response to the new COVID-19 reality.
The Western Balkans is one of the regions responding with the most drastic measures to confront the COVID-19 epidemic. This indicates, unfortunately, that many fundamental freedoms and human rights have been restricted during this period to successfully stop the spreading of the virus. Since the first cases of COVID-19 in the region were recorded, a process of concentration of state power by the executive branch of government has been initiated. This was executed by introducing states of emergency or similar extraordinary situations.
Our Human Rights and Gender Equality Network of Committees in the Western Balkan (HUGEN) project is analysing how parliaments in the region are responding to the COVID-19 crisis and how extraordinary the measures introduced have been. Our regional analysis records the oversight and legislative activities of the Western Balkan parliaments which occurred in the period from March through May 2020. It also documents different health measures which parliaments have implemented for their committee and/or plenary sessions, as well as whether the implementation of modern technologies is contributing to oversight and legislative capacities.
Our main observation for this period demonstrates that the balance of power between the executive and legislative branches of government has been distorted. Governments have concentrated exceptional competences which are not usually entrusted to them. This shift of power toward the executive was made possible due to the introduction of extraordinary measures (state of emergency, state of natural disaster, public health emergency situation, etc.).
All parliaments from the region, except for the Parliament of Montenegro, have adopted extraordinary measures in March 2020. These measures were proclaimed as essential to successfully tackle spreading of the COVID-19 virus. It is important to also point out that members of parliaments were not participating in bodies and task forces which were introduced to coordinate and stop spreading of COVID-19. Although members of parliaments do not usually participate in the bodies established by the executive, during times of crisis like this the need for effective parliamentary oversight is much higher than in normal conditions.
Looking at the operation of parliaments in the region during the period from March until May 2020, all parliaments had organised plenary sessions with the exception of the Assembly of the Republic of North Macedonia, whose members voted to dissolve it in order to prepare for the upcoming elections which were first scheduled for 12 April.
Having in mind that parliaments should play a key role in ensuring that an adequate balance between necessary health regulations and relevant human rights restrictions is met, it could be said that parliaments could be more active during this crisis. The number of oversight hearings, committee sessions, and process of reviewing reports from the government has been at a low level. Their activities were limited only in their own response to COVID-19 crisis. It seems like the parliaments in the Western Balkans were unprepared for such a scale of a global pandemic which quickly spread in the region.
Parliaments could have reacted more rapidly when it comes to using modern technologies for organising sessions. Only the parliament of the Federation of Bosnia and Herzegovina was in the position to organise a plenary session online, while the majority of parliaments were only organising online committee sessions.
The COVID-19 pandemic response is significantly impacting fundamental freedoms and human rights. The need for the protection of the health and wellbeing of citizens is often not proportionate to the imposed restrictions of human rights. There were even cases in which constitutional courts had to react and issue rulings regarding this kind of restrictive measures. In the case of Kosovo, the Constitutional Court adopted a decision which stated that the imposed restrictions of fundamental rights and freedoms were not in accordance with relevant legislation and the constitution. After this court ruling, the restriction on the freedom of movement in Kosovo had to be abolished. Moreover, this ruling meant that all future necessary limitations on fundamental rights and freedoms for the purpose of safeguarding public health must be made in accordance with the Constitution and the abovementioned judgment of the Constitutional Court.
A similar situation has been observed in the Federation of Bosnia and Herzegovina, where the Constitutional Court also had to react regarding the restrictions of the freedom of movement. The Constitutional Court concluded that the Federal Government and Federal Headquarters of the Civil Protection violated the right to freedom of movement under the Constitution of Bosnia and Herzegovina, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms. In some other cases in the region, constitutional courts refused to react to submitted appeals on different human right limitations and restrictions.
It could be said that global pandemics, such as the COVID-19 pandemic, require governments and parliaments to react promptly by introducing certain (extraordinary) measures and restrictions. But an adequate balance between measures and restrictions must be maintained. As these institutions continue to respond to the COVID-19 pandemic, it is very important to evaluate which measures are producing the desired effects and which are not. At the same time, it is important to evaluate how these measures are influencing fundamental freedoms and human rights.
Checking on extraordinary powers must be central to parliamentary activities, especially during times of crisis. Parliaments should present the final line of defence in ensuring that imposed measures and restrictions are adequate, well balanced, reasonable and in line with the constitution, relevant legislation and confirmed international treaties, as numbers of COVID-19 cases continue to rise around the Western Balkan region. At present, we are witnessing a process of reinstating some measures which were already abolished in May 2020. The current situation in regard to tackling the COVID-19 virus in the region is not improving and thus parliaments should enhance their oversight activities, especially on the protection of the fundamental freedoms and human rights.