CYIL vol. 12 (2021)

CYIL 12 (2021) JUDICIAL OVERSIGHT IN TIMES OF A PANDEMIC business activity and to obtain means for subsistence thereby. However, such right did not stand alone and it was necessary to consider it together with right to protection of health and right to life. 23 After this statement, the court’s reasoning turned to the issue of discrimination. The court focused on the fact that while the crisis measure prohibited many retail shops and service providers to operate, it contained 36 exceptions. Accordingly, many businesses were exempted from the prohibition. While the Cabinet’s aims to limit the spread of the epidemic and protect the health system and public health were accepted as legitimate, the court found insufficient explanation for different treatment of various types of businesses. 24 The court noted that it was understandable that rational debate might be more thorough in “quiet times”, but it was nevertheless unacceptable for the Cabinet to act solely on the basis of an instinct or political compromise. It was up to the Cabinet to decide from which sources and how it would draw information for its decision-making process, but it was obliged to provide sufficient reasons for measures so intensively interfering with fundamental rights. 25 The court was aware that it was creating a peculiar situation. While it is common in the Czech legislative process that reasons for a particular law are offered for the parliamentary debate, lack of reasons does not in any manner invalidate laws adopted by Parliament. In other words, when the Constitutional Court strikes down statutes, it does so because their content contravenes the constitution, not because they are not accompanied with a list of reasons for their adoption. In its ruling of 22 April 2020, the court held that the Cabinet’s crisis measure was a type of legislation. By the same logic, lack (or insufficient quality) of reasons should not lead to its invalidation. Nevertheless, in its judgment of 9 February 2021, the court held that the Cabinet had a constitutional duty to provide sufficient reasons for the crisis measure. The court stated that judicial protection of fundamental rights would otherwise be ineffective 26 and then seemed to broaden the obligation to provide reasons even to the lawmaker (i.e. not just the Cabinet, but also Parliament). 27 It held that the Cabinet failed to properly and convincingly explain why it had been necessary to issue such extensive prohibition (and not a measure of lesser extent) and what rationale its various exceptions had. As a result, the Cabinet’s crisis measure was quashed. The court’s judgment was again criticised by several dissenting opinions. Their main tenet was that the court did not exercise appropriate self-restraint and entered a completely political field. 28 The dissent argued that the majority’s reasoning was contradictory; it ran against the principle that reasoning was no obligatory part of statutes. And while the majority claimed moderation by leaving it up to the Cabinet to choose information sources, it did not exercise it because it in fact held the Cabinet’s reasoning insufficient and inserted itself into an expert epidemiologic debate. 29 23 Ibid., paragraph 55. 24 Ibid., paragraphs 59 to 74. 25 Ibid., paragraphs 77 to 79. 26 Ibid., paragraphs 80 to 81. 27 Ibid., paragraphs 83 to 85. 28 Judgment of the Constitutional Court of 9 February 2021, file no. Pl. ÚS 106/20, dissenting opinion of Jaroslav Fenyk, part I, dissenting opinion of Josef Fiala, paragraph 1. 29 Judgment of the Constitutional Court of 9 February 2021, file no. Pl. ÚS 106/20, dissenting opinion of Jaroslav Fenyk, part II.

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