Legal Regulation of Emergency Governance in the Context of the Covid-19 Pandemic. Decision to declare the State of Emergency
Abstract
The article analyses the declaration the State of Emergency according to the Constitutional Act on the Security of the Czech Republic in the context of the current Covid-19 pandemic. The decision to declare the State of Emergency is characterized as a normative, constitutive act of the government without direct and immediate effect on the legal sphere of persons, which can be classified in the hierarchy of legal norms as law.
Thus, the paper rejects the conclusion that such an act could be an administrative act or a non-legal (purely political) act. The article further analyses the possible defects of this act and divides them into three groups depending on their intensity and consequences.
The most intense defects should make the act void. Defects that are less intense, but as a result of which the essentials of a democratic state governed by the rule of law are affected, should lead to the reviewability and possible revocability of the act by the Constitutional Court.
Finally, defects of the lowest intensity should be covered by the so-called Fehlerkalkül theory, and therefore unreviewable. In conclusion, the article also deals with the control of the declaration of the State of Emergency by the Chamber of Deputies and the judicial review of this act.
Regarding control by the Chamber of Deputies, a space is devoted particularly to the issue of the possibility of the State of Emergency "re-declaration" contrary to the will of the Chamber of Deputies. Concerning judicial review, the article excludes review by administrative courts and only allows for limited review by the Constitutional Court.