Constitutionality and The Special Legal Order

Abstract

The Covid 19 disease and its treatment in the national legal systems raised important questions of constitutionality. In this contribution to the anniversary of the independence of Ukraine, we will remember the importance of constitutionality even in situations of danger and extraordinary threats, natural or human attacks on the society, nature and economy. We are facing this situation now in times of the pandemic, the Covid19 virus that attack almost the entire globe. According to the Venice Commission, that made a comparative report about the situation of democracy, rule of law, the protection of human rights in times of the pandemic in Europe [CDL-PI (2005)005rev], the only legitimate aim and legitimate ground for adoption of emergency measures is to help the State overcome an exceptional situation. It is the nature, severity and duration of this exceptional situation which determines the type, extent and duration of the measures that the State may lawfully resort to. Emergency measures should respect certain general principles which aim to minimize the damage to fundamental rights, democracy and rule of law. The measures are thus subject to the triple, general conditions of necessity, proportionality and temporariness. We will fi rst share some basic information about the structure of the special legal orders and their history in Hungary including the Ninth Amendment to the Fundamental Law that will enter into force in January 2023 that aims to change the present structure of the special legal order. In the second part of the presentation, we will show the special legal orders in the Fundamental Law and highlight the relevance of constitutional guarantees.