Petrovic Skero: No One Can Restrict Our Right to Human Dignity
Vida Petrovic-Skero, Former President of the Supreme Court of Serbia, now a head of the Centre for Judicial Research, in her Istinomer interview for the podcast show “TO THE MIC”, explained the movement restrictions for 65+ population as the consequences of the state of emergency and need to safeguard the categories of population at risk. However, in her own words, “the methods of doing this are at issue”. Petrovic-Skero wonders “How did the country choose to impose the state of emergency, instead of emergency situation, which would be more appropriate in these circumstances.” “State of emergency must be adopted by the National Assembly and the only exception is allowed if it is not possible for the National Assembly to be convoked”, explained Vida Petrovic-Skero.
Is the National Assembly prevented to be convoked by the Decision on ban of gathering indoors for the limited number of people?
How can one subordinate the Constitution to a decision? It is also a matter of appropriateness, especially since the decision on the state of emergency is adopted in such a way, when our Parliament was actually working, when on Friday the reading room of Faculty of Law library was packed, and no one wondered, regardless of the decision: “Wait, how is this possible?”. We can also wonder if the Assembly could have adopted such an important decision for less than a half an hour, by having a session, for example, after everything is disinfected, with zig-zag seating arrangements, making the session short and providing disinfectants for everyone.
In your opinion, why is had been decided to declare the state of emergency by such means, as it was practically declared by only three persons?
Probably to exhibit the national authorities discipline to observe the decision, in fact, Government recommendation, to prevent people to gather in groups larger than 100, although that number proved changeable since it was reduced, which is fine – but the question remains, why the Assembly cannot sit in session for a short time when such an important matter is in question. Representatives of our profession should answer this question. There is another Constitutional provision saying: during the state of emergency there is no need to exceptionally convoke the National Assembly– it means it may constantly operate and may not be dissolved, and this is regulated by Article stipulating the state of emergency.
So the National Assembly must confirm the decision on the state of emergency?
Precisely, the National Assembly should confirm it, if possible. This is very particularly regulated by the Constitution which says that obviously the National Assembly will adopt the decision on the state of emergency. What happened was that one day professionals came out deciding that schools should not be closed, and the next day exactly one of the professionals said – it is necessary to close schools and pre-school institutions, and the day after came the Minister of Defence, who, I really do not know why, proposed the state of emergency to be imposed, and he had send this proposal to the President of the Republic and not to the Speaker of the Parliament.
Any idea why?
I really do not have an idea, but it is irrelevant. What matters is that decisions are modified day by day, so the next day, though three days before the schools could work, we have the state of emergency and we are communicated that on TV at 8 o’clock in the evening. The next morning, we have an announcement and statement by the Prime Minister that she was shocked by the lack of discipline and horrible occurrence that senior citizens are queuing in front of supermarkets, stores and pharmacies.
What was your understanding of that?
I understood that they will adopt unpopular measure of charging RSD 150,000 fines and impose “curfew”. By the way, our Constitution is not familiar with the term “curfew”, and our laws as well. Anyway, state of emergency was imposed by the President of Republic only who had adopted the decision, because he had been addressed by the Minister of Defence. Everyone was impressed by the actions of the President of state, who several days before had laughed at the press conference when the people were misguided and convinced that the virus is not dangerous, although really it is dangerous, because the entire world is responding, and suddenly we are having something entirely different. All of this happened in three days. Whether this is serious or not, no one mentioned. We adopted the Law on Disaster Risk Reduction and Emergency Management in November 2018, where such things are precisely defined –the situations, procedures, authorities, and who is the head of it all.
That law even allows the police and army to be engaged for such purposes?
It does, but primarily the police, as the Minister of Interior is the head of the Team for Emergency Response, who is not initiating anything now, not notifying anyone that the Team can no longer operate…
…are you trying to say that by imposing the state of emergency the Team for Emergency Response, headed by the Minister of Interior, should be dissolved?
No, but it should have responded at the time, before the state of emergency was imposed. The Team must have operated, worked and met. Assistant Minister of Interior said – it was not true that Minister of Interior had done nothing, he had sessions with others, but it is interesting what was the essence of these sessions, as they had reported on that.
When were the sessions held?
The sessions were held on March 12th, 13th and 16th. March 16th was the day after the decision on state of emergency, and on 12th and 13th they spoke about the possibility of floods, since the data on potential water levels rising was monitored, which is very good, and this is the job of this Team, so we are not caught off guard by rising water levels and Obrenovac and other cities being flooded. However, on March 13th we already had people tested positive for COVID-19, and we have known for 2 months that the threat of this risk is rising across the globe. With all this time, with the Team established as permanent body, headed by Minister of Police, we do not know if he had made any special plan, we do not know what he did, whether he was able to remove obstacles to impose measures from lex specialis regulating this situation, but what we have is the direct imposing of state of emergency and potential suspending of freedoms and rights from Constitution.
It has been announced at press conference that we have two teams – one is handling coronavirus, headed by Prime Minister and the doctors, and the other is dealing with economic consequences, with President as the head. In addition to this, we also have a third body, Team for Emergency Response, under the law. Which legal acts are the foundation for setting up these bodies?
Team for Emergency Response should adopt orders, conclusions and recommendations. It is further mentioned that it may use the civil protection services – the police, and everyone able to contribute in these situations, and to establish committees, professional ones, which is highly relevant for this situation. Medical experts’ opinion is highly relevant, on the one hand, but on the other hand it is really relevant what experts in education, safety and other think too. Who has established these two committees and what is used as the basis for that, I do not know that, and I have not seen it.
In your opinion, why had this country and the country head opted for state of emergency instead of emergency situation? What is behind this decision?
I cannot say, but under the Law and the Constitution, the decision on state of emergency is adopted when normal measures are not sufficient to achieve something, to avoid disaster, and under the Constitution it is also mentioned it is done to help survival of the state. Whether in this case the assessment has been done, within one, five or two days, I cannot say that with certainty.
The Prime Minister used the term “curfew”. We know this word from war movies in occupation times. How did she come up with that word now?
I could not say, maybe this is some specific jargon. But the point is that state of emergency is imposed only when the survival of the state is threatened – this is the term from the Constitution. Someone had to perform the assessment, and Mr Vulin addressed the President of the state. I hope that this assessment was done by the Speaker of the Assembly, Prime Minister and President of the state, because under the Constitution all three of them had to sign it. But I also hope that they had not done it independently, yet on the basis of the opinions of everyone who had to carry out the assessment, because in this period there are rights that may never be suspended and are precisely listed. As regards the restriction of rights, when you look what remained under the Constitution, you will see that in this state of emergency persons may be deprived of freedom without court decision, that there are some other rules regarding detention, its duration and protection of those rights. What is relevant here, it says that – freedom of movement could be restricted, and that is “the curfew”, and I do not want to address this as a legal professional, but I want to talk about restricting the freedom of movement, because your freedom of movement can be restricted at specific time of day or night, or when the heat is unbearable.
Is the restriction of movement, which first started by pleading the retired population, followed by the ban, legally founded?
Restricting movement, which is restriction of human right, may be at first done by an appeal or similar. Next thing would be a decision. Here we had decision on the state of emergency adopted by three persons with powers. It shall mean that within 48 hours the National Assembly must confirm this decision, and if it cannot do that, because it cannot meet for session, the decision will be in force until the first session of the Assembly, or will terminate automatically after the specific time period had expired. The measures suspending specific human rights, which are mentioned in the Constitution and provided for by international acts, must be also adopted by the National Assembly, and if the Assembly fails to do so, the powers are conferred to the Government, and the Constitution says that such decision, when adopted, must be done with the consent of the President of the state and must be explained. I still have not seen the reasoned decision on restricting the movement, but I have realised something else – they constantly talk about volunteers, which is amazing, but yesterday on TV I saw that Minister of Sport invited those who run the umbrella organisations working with the youth to organise the volunteer service. The state of emergency was declared on Sunday evening, and Monday morning we first hear what the Minister of Sport has appealed for, and then the announcement of the Prime Minister saying it is dreadful that many persons 65+ are outside in front of the stores. Where are the volunteers? They said – measures are adopted immediately, but who will watch for the babies? Could one parent skip work, if their job does not allow working from home? That must have been regulated really quickly, because otherwise we would have contra-productive measures, or recommendations only as dead letters, and we have threats and inappropriate way to talk to the citizens. Here I must intervene and say –the rights which are not possible to be restricted are the right to physical and mental integrity and right to personal dignity. If someone threatens me, and I cannot ask anyone to do grocery shopping for me, as I do not have kids or kids are working, or pregnant, and now I am referring to Prime Minister, so at this moment my personal dignity is not respected as I am being threatened.
You took it like this?
I took it like this, because I believe people are not sufficiently informed. People are not foolish, especially the elderly, who know they are at risk personally and they can put their children, neighbours and some of the volunteers shopping groceries for them at risk. Senior citizens are just trying to obtain disinfectants which are out of stock, cannot be found in pharmacies, grocery stores, and retired persons are trying to buy bread, which is out of stock as well due to overshopping and fear, they are trying to find supplies such as two kilos of flour, three bottles of oil, checking stores looking for that.
In your opinion, why are the Prime Minister and President constantly yelling at these press conferences?
I really consider this as totally inappropriate behaviour, which insults people’s dignity, especially the group of people it referred. I saw the broadcast when the doctor said that this is “ridiculous” virus, I have seen that with my own eyes, and then I heard the President saying he is really angry, he was speaking furiously and saying – I am sick of those lying. If we know that imposing the state of emergency may, among other things, involve the suspension of the right to be informed and freedom of association and media freedom, then it is normal that if someone is talking to you is such a manner you may believe that you have done something against the Constitution and law. However, you also have stronger obligation to provide information to the public, so as to avoid unnecessary panic, and thus it is important to know which is true – if the truth is what we had said three days ago when we laughed and minimised it, saying that this was no danger, you can go abroad and shop, the schools should not close, or the decision made the next day is the true one.
What do the citizens feel then?
This may cause complete absence of trust in future news reporting, the facts and what is true and false. I would particularly underline that in state of emergency, referring to government officials and representatives of institutions, it is even more essential for them to observe constitutional and legal principles and regulations, to respect them even more strictly than in ordinary circumstances. So it is important to maintain the rule of law to the full extent and the functioning of the state. Despite them having the right to restrict specific constitutional rights of citizens, what remains must be, and I emphasise this, strictly respected.
May we say that the fact people disregarded the appeals, as they went out and shopped in frenzy despite claims that we are fully stocked, represent the lack of trust in the institutions?
I am certain this is true. It is a very good decision to restrict the amount of masks and personal care and cleaning products, and to restrict prices as well, but you cannot say – we are fully stocked, and then the stocks are gone, and people lose trust. By the way, I have seen on Sunday that there was notice that the national pharmacies will get disinfectants and masks, so I heard the queues in front of national pharmacies were kilometres long, from early morning up to some moment of the day and that nothing was supplied. Then you can ask – how will I trust this? The information and the method of delivering the information is the problem.
Do you agree with Sofija Mandic and her thesis that state of emergency was imposed in fact as the means to postpone the elections?
The pandemic is a global problem, but this was the only way to postpone the elections. If the emergency situation was imposed, it would not threaten the elections. The state of emergency is different. In December, in one of the debates on whether we will have the elections postponed, what the Europe wanted from us, I joked saying that it would be impossible under our Constitution, except if the state of emergency would be imposed. I would contradict myself now if I would say that you cannot say the state of emergency was introduced due to that. You can get such impression. I strongly want to believe that this was not the reason, because this state was serious to do something which was not done to sufficient extent under the Law on Risk Reduction, bearing in mind how the Team worked and failed to adopt any measures, not that we know of, and that it failed to immediately engage the civil protection, which could have been fully operational by now, to organise the volunteers to deliver food to senior citizens, who will not leave the house, so we could have avoided to organise it now like this. This is the problem.
Few days ago the main topic was the number of ventilators. It was a public information at one moment, then the PM said it is a state secret, and then Vucic said he told her it is a state secret, so the day after they announced the number of ventilators, and the President said he will buy ventilators in grey or semi-grey market, and then again it was the state secret. What kind of message is this?
I was referring to this type of messages before, that are disturbing the citizens very much and causing lack of trust. There is a bitter joke saying: “We better catch virus on time”. It is a joke, but also our reality, because the government should not behave like this by saying – we will find them (ventilators) anyway… I listened to a medical professional this morning who said this was outrageous, because they faced the problems of ventilators procurement before, as some did not meet the medical criteria and were malfunctioning. If the people, when the President said such thing, would stay calm and say – well, okay, they will put me on a ventilator if I get sick, although this ventilator is procured God knows how, and then you can also shoot me in the grey market? What will be our relationship with Europe when the President said – I wanted to hide the number of our ventilators, since we have more ventilators per a citizen than Germany, which is manufacturing them, and now as we had said how much we had, this will prevent me, so to speak, to cheat some of the Prime ministers? The bigger problem is that the entire world heard this statement and that is unforgiveable. Another thing – will this open the door for scams now, can I lie how old I am, can I trick someone that I am very ill and explain with tears in my eyes that I really need more alcohol for disinfection and so on. This is simply inexcusable.
When it comes to media freedom, do you expect any occurrences related to restriction of freedom, since we are in the state of emergency?
I expect that, I must admit that my personal opinion is it will be prohibited to criticise some actions. But at this moment I think someone should limit incompetent politicians to give statements that disturb the public. It is unpardonable to give such statements.
Who and what are you referring exactly?
If one day he said – we will do everything to protect everyone, and the next day, with teary eyes, he was saying that our loved ones will not make it, does that mean creating panic? Would you panic if you would hear – you have to respect this and wash your hands, and there is no more soap in stores, is it normal if he said – you have to disinfect all the time, and there are no disinfectants? Then please allow professionals, but real professionals to talk, not the one who smilingly gives instructions to people, he might be the expert, but please, do not allow him to talk how women can shop in Italy, just three days before the state of emergency is imposed and we already have dozens of sick ones. Such behaviour in this situation, I reiterate that, causes lack of trust and anxiety. So the experts should talk, and politicians should only be there to say what measures they had taken and which decisions they had adopted.
Can we say that the method of imposing the state of emergency, the method of implementing the proposed measures, and the threats, stand for further deterioration of rule of law and legal system or not?
Certainly, this will lead to deterioration of rule of law, because all of us have suspicions, because if the Army Minister talked to the President of state expressing his hope that President of the state will adopt the decision on state of emergency, but then people check what is said in the Constitution, then it is really hard to have confidence in rule of law. Because precisely at this moment, when you are adopting such severe, the harshest measure as regards the functioning of the state, which can suspend or restrict specific, fundamental human rights, it means that we are having severe deterioration and loss of faith as regards the rule of law and what is represented by this.
Bearing in mind what is really going on outside, are two of us really talking about irrelevant things here, by insisting on the rule of law and respect of Constitution and the Law?
In fact, that could be irrelevant if something terrible is going on around you, if hundreds of people die daily in Italy, then you say – I will do everything to restore trust. I do not want to negative at the end –yesterday I read the interview with director of the Batut Health Institute, who gave the explanation what was going on, how maybe in a year, or year and a half we might have vaccines, maybe even sooner, but that this disease was not so tragic so as to destroy our country, and obliterate our people. She explained what was going on in normal words and did not shout or threat, and she was not pathetic. This is how you act as an official person and respect dignity and Constitution. Everything you say must have a framework, because legal professionals often say that form safeguards the essence. The form is not more important than the essence, but it protects it sometimes. I will not be able to believe some explanations, especially since I wonder – did we adopt the Law on Mitigating Disaster Risks in 2018, which was not fully implemented this time, only to tick another obligation as regards the European Union, or we had adopted it so as to have an effective law, regulating situations like this one, as in several chapters it refers to epidemic and pandemic as well.