Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Contracts Expression
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The Constitutional Court of Georgia held that the Parliament of Georgia did not violate the freedom of assembly by delegating to the Government of Georgia the authority to adopt regulations on isolation and quarantine to prevent the spread of Covid-19. The delegated authority empowered the Government to promulgate the “quarantine measures” and restrict specific constitutional rights, including freedom of assembly, to manage the Covid-19 crisis. Subsequently, the Government, among other things, restricted people’s outdoor movement from 21:00 to 05:00; and limited people’s assemblies related to social events (e.g., wedding parties, funeral repasts, etc.) up to 10 persons.
According to the applicants, the delegated authority was indefinite; the Parliament of Georgia should have defined the content and extent of restriction on each human right before delegating concrete powers to the Executive. However, the Constitutional Court concluded that Parliament delegated its authority to the Government with sufficient precision; the law defined the purpose, content, and extent of the delegation, and no fundamental and exclusive competency of the legislator was granted to the Executive in the given case.
The applicants were Georgian citizens who lodged four separate claims at the Constitutional Court of Georgia on May 25, June 22, and July 21, 2020. The two applicants, Lika Sajaia and Eduard Marikashvili, among other things, challenged the first and second sentences of paragraph 1 of article 453 of the Law of Georgia on Public Health (hereinafter – the disputed Law).
Disputed sentences stipulated that “the rules of isolation and/or quarantine shall be established by the Government of Georgia or the Ministry designated by the Government of Georgia. The relevant quarantine measures, which in this case are part of the rules, may be determined in accordance with the rules.” According to the disputed Law, “quarantine measures” were the “measures defined by this Law and/or the normative act adopted/issued in accordance with this Law, which are temporarily used for the protection of the health of the population during a pandemic and/or epidemic especially dangerous for the public health and which may imply a different regulation than those established by other normative acts of Georgia, including the temporary imposition of appropriate restrictions in connection with the activities/administration of public institutions, other institutions under the executive government, legal entities under public law, other legal entities, the provision of public services, the movement of persons, property, labour, professional or economic activities, and illegal migration/international protection, and/or in connection with the gathering of persons for the purpose of holding social events.”
Subsequently, the Government, for the purpose of preventing the spread of the virus, adopted various quarantine measures, e.g., suspended international land and maritime movement, dropped in-class education and switched to remote learning, restricted people’s outdoor movement from 21:00 to 05:00; and limited people’s assemblies related to social events (e.g., wedding parties, funeral repasts, etc.) up to 10 persons.
Applicants argued that all fundamental decisions on the restriction of constitutional rights, including freedom of assembly, should have been done by Parliament and not by the Government. They stressed that Parliament could confer specific authority on the Executive; however, Parliament needed to define the content, scope, and intensity of human rights restriction before delegating certain powers to the Government. The applicants believed that the Parliament of Georgia escaped its lawmaking responsibilities, unconstitutionally delegated its exclusive competency to the Executive, and in this way violated the principle of separation of powers enshrined in the Constitution of Georgia.
The respondents – the Parliament and the Government of Georgia held that the disputed provision conformed with the Constitution. The respondents stated that Parliament delegated the Government’s authority with sufficient precision, and no exclusive powers of the legislator were granted to the Executive in the given case. Also, the respondents argued that given the extraordinary situation caused by Covid-19 and the need for fast decision-making, it was impossible and would have been ineffective for the legislator to more precisely define the contents and extent of each restriction of human rights.
On February 11, 2021, the First Collegium of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court.
The underlying issue before the Constitutional Court was whether the Parliament of Georgia delegated the legislative authority to the Government of Georgia in conformity with the Constitution, the principle of separation of powers, and the required standards of restriction of constitutional rights, including freedom of assembly.
At the outset of the judgment, the Constitutional Court reiterated that the disputed provision granted the Government the power to adopt measures on isolation and quarantine to protect the population’s health during a pandemic. For achieving this goal, the Law also allowed the Government to restrict certain rights, including freedom of movement and freedom of assembly.
The Constitutional Court referred to its practice and noted that assessing the constitutionality of any interference with human rights does not only mean evaluating the particular measure’s proportionality. The Court’s task is also to check whether the appropriate state organ interfered with human rights following the Constitution’s formal requirements.
The Constitutional Court stated that in contrast to some specific constitutional provisions (e.g., Article 67 of the Constitution – an exclusive power of the Parliament to introduce taxes), the Constitution does not explicitly forbid the Parliament to delegate certain constitutional rights restrictions to the Government including freedom of assembly. On the other hand, the Court referred to its previous practice and highlighted that even when the explicit non-delegation clause does not restrain the Parliament, it still cannot confer its powers to the Executive to decide on the state’s matters of fundamental importance. Also, the Court highlighted that to minimize abuse of the power, the lawmaker should define the purpose, content, and extent of the authority before delegating it to the other state organ.
For these purposes, the Court had to check: a) whether the legislative act defined the purpose, content, and the extent of the delegation; and b) whether Parliament granted to the Executive the authority to regulate state’s fundamental issues, the power that exclusively belongs to the Parliament.
The Constitutional Court pointed out that the Law of Georgia on Public Health expressly defined the delegated authority’s purpose, which is adopting quarantine measures to protect public health and prevent the spread of the virus. The Court concluded that if the Government restricts human rights by the delegated authority, which will not be rationally related to the purposes mentioned above, the restriction will contradict the Law and the Constitution itself.
Furthermore, the Court highlighted that the disputed Law clearly defined what “isolation” and “quarantine” meant. In particular, according to the paragraph “K” of article 3 of the disputed Law, isolation meant – “keeping a diseased or an infected person separately from others for the period of communicability of the disease by placing him/her in such a place and/or in such conditions that would restrict or prevent direct or indirect transmission of the disease from him/her to another person”. And the “quarantine measures” were: a) “a set of measures applied to a person who is not ill but has had or may have had contact with the case of contagious disease during the period of transmission”; b) “measures defined by this Law and/or the normative act adopted/issued in accordance with this Law, which are temporarily used for the protection of the health of the population during a pandemic and/or epidemic especially dangerous for the public health and which may imply a different regulation than those established by other normative acts of Georgia, including the temporary imposition of appropriate restrictions in connection with the activities/administration of public institutions, other institutions under the executive government, legal entities under public law, other legal entities, the provision of public services, the movement of persons, property, labour, professional or economic activities, and illegal migration/international protection, and/or in connection with the gathering of persons for the purpose of holding social events.”
Thus, the Constitutional Court concluded the disputed Law defined the content of the delegation as well. That is the authority to adopt appropriate measures for identifying and isolating the infected or the infected person’s contact. And also, for the prevention of the virus, the implementation of relevant quarantine measures that would affect the movement of persons, property, labour, professional or economic activities, and illegal migration/international protection, and/or in connection with the gathering of persons to hold social events. The Court concluded that the disputed Law expressly specified rights that the Government could restrict through the quarantine measure to prevent the virus’s spread.
Moreover, the Constitutional Court emphasized that paragraph 3 of article 453 of the disputed Law obliged the Government to enact only such quarantine measures that aim to secure the population’s health. Such measures should be provided for by Law and/or other normative acts. Also, these measures should be necessary for a democratic society, non-discriminatory, proportionally restricting. Thus, the Court concluded that the disputed Law also defined the delegated authority’s extent.
Based on the mentioned above, the Court stated that the disputed Law clearly defined all the necessary requisites for the delegation, which would hinder the abuse of power. The Court held that it wouldn’t be difficult for one to conclude exactly when the Executive exceeded its delegated authority. In particular, this will occur when the Government restricts constitutional rights other than as enlisted by the disputed Law, or when restriction of specific human rights does not serve the purpose of protecting public health, or when the regulation is not proportionate and discriminatory. Thus, the Constitutional Court concluded that the disputed Law granted the ordinary courts the possibility and transparent standards to assess in each case whether a particular restriction adopted by the Government of Georgia corresponds to the Law and the requirements set out above. The Constitutional Court was of the opinion that this factor could serve as another layer for preventing the power abuse by the Government. As a result, the Constitutional Court concluded that the Law in dispute defined the purpose, content, and scope of the delegated authority.
Next, the Court assessed whether Parliament granted the Government the power to decide on fundamental matters – the authority of which exclusively belongs to the Parliament. According to the Constitutional Court’s case-law, if the Parliament delegates to the Executive the powers to decide on fundamental matters, the Law contradicts the separation of powers and the Constitution.
The Constitutional Court highlighted its previous practice and stated that the MP’s are constitutionally bound to decide on the state’s fundamental social, economic, cultural, legal, and political matters. Also, the MP’s are required to decide on the issues of high political and social interest. According to the Court, these topics can be identified when the regulation: a) impacts the state’s development perspectives in the long run; or b) severely interferes in constitutional rights. For example, the Court noted that content-based regulation of a speech is a subject of fundamental social importance. Thus, only Parliament had the right to interfere with it (see Mdzinarashvili v. Georgian National Communications Commission).
The Court noted that the Covid-19 crisis and the quarantine measures to prevent its spread were the issues that attract society’s broad interest. However, the Court said that it couldn’t infer that merely societal interest makes an issue fundamental.
The Constitutional Court pointed out that the disputed Law granted to the Government only temporary authority to adopt the measure to prevent the virus. The disputed provision was adopted on May 22, 2020 and to last until July 15, 2020. Due to the grave epidemic circumstances, the Law was prolonged two times – once until January 1th of 2021 and then until July 1 of 2021. Nevertheless, the Court noted the Parliament delegated its authority to the Government temporarily, not permanently. Besides, according to the disputed Law, the Government of Georgia was obliged to adopt only such temporary measures/restrictions on human rights that would be rationally related to protecting public health and preventing the virus’s spread. Thus, the Government was not allowed to enact regulations on enlisted human rights generally or to define the latter’s nature, but only those which served the purpose of protecting the population’s health and were proportionate and non-discriminatory. Given the delegation’s content and its temporary nature, the Court concluded that these circumstances could not be counted as matters that would have impacted the state’s social, economic, cultural, legal, or political development in the long run. The Court stated that Parliament delegated disputed authority to the Government merely because of the severe epidemic situation and rapidly changing circumstances that needed a fast response from the Government.
Moreover, the Court stated that restricting people’s movement or limiting people’s gatherings to a certain number could not be considered an intensive human rights interference. Also, the quarantine measures were not repressive by their nature and were not directed for the persecution or the person’s punishment. Thus, the fear of abuse of power was relatively low in the present case. The Court held the disputed delegation did not constitute such a grave interference in human rights, which could necessarily require a priori participation of Parliament. Therefore, the Constitutional Court concluded that the disputed provisions did not violate human rights, including freedom of assembly.
However, the Constitutional Court struck down the restriction on freedom of labor since the Constitution explicitly states that the Organic Law should adopt any interference with the freedom of labor. The Court found that restriction of labor was made by the ordinary Law (the Law on Public Health) and struck the part of the disputed provision out of this technical reason.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment contracts the protection of freedom of expression. The disputed provision granted the Government of Georgia the power to restrict freedom of assembly. Also, it should be noted that, with an alternate reading of the disputed legislation, one can assume that the delegated authority conferred upon the Government a power to adopt content-based restrictions on any assemblies and, thus, freedom of expression. However, this topic was not raised during the proceedings, and thus the Court did not address it.
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