The opinion of The People’s Advocate upon the modification written by the Parliament in the Law no.212 regarding the state of emergency, siege and war regime in the context of establishing the national emergency caused by the COVID-19 pandemic.
The People’s Advocate, Mihail Cotorobai, welcomes the fact that Members of Parliament have rejected the idea of organising elections or referendums, though he remains concerned about the decision of parliamentarians to allow the legislation to be amended and / or repealed during the state of emergency.
The Ombudsman’s concerns in this regard are determined by the fact that in periods of exceptional situations caused by sieges, war, cataclysms of different character, etc. it is very difficult, if not impossible, to ensure the democratic process of legislation. It mainly involves transparency, consultation of relevant professionals in public debates.
Due to the fact that decisions, public policies and laws have a direct impact on the population, the public authorities are obliged to consult the opinion of the beneficiaries and to involve them in the decision-making process, so that the solutions developed correspond to the needs of beneficiaries. However, under the conditions of the state of emergency, for objective reasons, these democratic mechanisms cannot be implemented, because of the danger of committing abuses that would violate the fundamental human rights and freedoms.
The Ombudsman is also concerned because of the amendments made to Law no. 212 by which, in a general formula – “measures necessary for these purposes”, some actions are allowed in addition to those provided in the legislative act. The formulation leaving open to interpretation and disproportionate actions, which could lead to unjustified restriction of human rights under the pretext of the national state of emergency.
In the context, The People’s Advocate mentioned that in the recent call of UN special rapporteurs for human rights, as well as of international human rights experts, UN member states are reminded that any emergency measures in response to COVID-19 must be proportionate, necessary and non-discriminatory. Moreover, it is mentioned that with the establishment of the state of emergency, the authorities cannot do anything they want, anytime, and with anyone! The state of emergency is not equivalent to the abuse of the human rights. (https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722&LangID=E).
The UN has encouraged the states to remain unwavering in maintaining a human rights-based approach when adopting measures to combat the new type of Coronavirus pandemic. The UN encouraged to ensure populations health, public safety, the laws and human rights protection. The call of UN experts reflects the recent call by the UN High Commissioner for Human Rights to focus all the attention to combat the virus COVID-19.
The People’s Advocate call the public authorities to take into account the priority of human rights in the actions undertaken to cope with the COVID-19 test and to prove responsibility towards citizens, and of course, attachment to the democratic values and political maturity.
2020/ 03 /17
