30 March 2020

                                                           24 Hrs.


Legal Angle

written by  
Luka Jovanović
attorney-at-law and FSD Program & Communications Director 

The third week of the state of emergency is well underway, there is a curfew from 5 p.m. to 5 a.m. but after repeated threats of a complete lockdown of all citizens of the Republic of Serbia it would seem that these measures are becoming senseless and devoid of the purpose that the Constitution had in mind when it prescribed them. 

The first question from the gathering throng or at least the first legal question, that everyone is asking themselves after President Vucic’s sit-in on TV Prva is: Is this thing that the President is announcing even possible? 

The exceptions from basic human rights during a state of emergency are regulated by Article 202 of the Constitution. Section 1 of this article states that the departures from the rights guaranteed by the Constitution are permitted only to a degree in which such departures are necessary. This assessment of necessity is a political decision, just as the declaration of a state of emergency was. Experts can weigh in with knowledge and facts but they can’t make the decision instead of the National Assembly (anyone remembers them?) or, in this particular case, instead of the Government and the President and this expert opinion, particularly the opinions of Chinese experts, most certainly cannot be used as an excuse that the political decision-makers can hide behind because that would be problematic in so many ways that it is impossible to list them all here. Medical experts that consent to this castling would, without any doubt, lose the public confidence they painstakingly built-up over the past few weeks and the consequences of that, at a juncture the experts themselves describe as crucial, could be catastrophic.

Furthermore, section 4 of said article lists those human rights from which there cannot be any deviation under any circumstances, particularly during a state of emergency and during wartime. These rights include, but aren’t limited to, the right to human dignity, life, physical and psychological integrity, the right to a fair trial as well as the freedom of thought, conscience and denomination. Instituting a complete lockdown would assuredly violate or at the very least seriously endanger some of these rights.

Under the present circumstances a complete lockdown wouldn’t be so much a public health precaution as much it would be an inhumane and demeaning punishment of all the citizens of Serbia on an unprecedented scale for something that they simply can’t be held accountable for, especially when the public announcements of the political leadership immediately prior to the issuing of a state of emergency and certain press conferences that haven’t exactly inspired confidence (such as the one at which the Prime Minister threatened the public with lengthy prison sentences) are factored in.

I have a lot of sympathy for the difficulties that the crisis HQ is facing in this difficult time, but resorting to such a drastic action would, unconstitutionality and illegality of it aside, be counterproductive because it would represent a triumph of Fear over Law. It would be a symbolic stake that would bury any last traces of hope that the gravity of the situation could be communicated to the public in a reasonable manner and a definite signal any such attempts have been abandoned.

Just as the calling of a physician entails the treating of patients, so the calling of a politician, particularly those holding public office, entails communication with constituents. The doctors aren’t giving up on their patients and neither should the politicians give up on communicating with their constituents, whom they were elected to represent, during this crisis – regardless of how difficult, tiring and nauseous it is because it is important precisely because it’s difficult, tiring and nauseous. The question of whether it had to be is a story for another time…