Lawyer Rodoljub Sabic told the Beta agency yesterday that the decision of the Minister of Defence to send to the Serbian President recommendation for the implementation of a state of emergency in the country “is without foundation from a legal point of view”.
Sabic, who was also the first Public Information Commissioner, warned that it is necessary to distinguish between the terms “state of emergency” and “emergency situation”.
“The Constitution and the law distinguish between these two terms and they are introduced for different reasons, they are recommended and decided upon by different bodies, they involve different measures and, above all, they differ in the consequences they may have on the rights of citizens guaranteed by the Constitution. The state of emergency is regulated by Article 200 of the Constitution while the emergency situation is regaled by the Law on Disaster Risk Prevention and Emergency Management,” said Sabic, adding that the state of emergency is introduced by parliament.
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Sabic also said that “there are no grounds for the decision to be taken jointly by the President of the Republic, the parliament and the government in the present concrete circumstances”.
“The Constitution provides such an opportunity for situations where the parliamentary assembly cannot meet, but we are not in that situation. This constitutional provision takes into account the factual impossibility of rallying Members of Parliament and it would be absurd to argue that because of the government’s decision to ban gatherings of more than 100 people, the Government Assembly cannot be convened. No government act or an act of any executive body can be an obstacle to the highest legislative body in the country holding a session,” Sabic said.
He also stated that it is “even more important when a state of emergency is declared rather than who declared it”.
“According to the Constitution, the state of emergency can be declared only when a public danger jeopardizes the survival of the state or citizens. The very term “endangers the survival” clearly indicates that these are extremely exceptional situations. Therefore, the provisions in Articles 87 and 88 of the Law on Defence, which the Minister of Defence used as grounds to propose state of emergency to the President of the Republic, refer, at the same time, to the declaration of a state of war and the introduction of a state of emergency, obviously because the state security is threatened during a war, i.e. the imminent danger of war or the like. The viral epidemic does not fall within the competence of the Ministry of Defence, and however unpleasant and dangerous the situation may be, it is certainly not something that threatens the survival of the state and the people,” Sabic said.
According to him, “it is particularly important that, in declaring a state of emergency, the National Assembly can prescribe measures that deviate from the rights constitutionally guaranteed to citizens.
“On the other hand, the Law on Disaster Risk Prevention and Emergency Management applies not only to situations that “threaten survival”, but also to other serious, even catastrophic situations, among which epidemics and pandemics of infectious diseases are explicitly mentioned. The emergency situation is not proclaimed by parliament but by the government at the suggestion of the State Emergency Management Body when, as the law stipulates, “there are risks and dangers of such magnitude and intensity that their consequences cannot be eliminated through the uninterrupted execution of the relevant services, but when special measures, additional resources and increased working regime are needed,” Sabic added.
Sabic concluded that “it is especially important to note that, in declaring a state of emergency, the Government cannot prescribe any restrictions on citizens’ constitutionally guaranteed rights.”
(Novi Magazin, 15.03.2020)
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