Interview with Professor Jan Kysela

Professor Kysela: State should not make people anxious, but rather provide certainty

How did the Czech Republic handle the coronavirus pandemic from a legal perspective, and what could be done better in the future? An expert team from the Charles University Faculty of Law launched a project to evaluate the response of our legal system to the coronavirus crisis and present recommendations for the future.

The coronavirus outbreak still represents an unprecedented situation for all of us. Legally speaking, one of the opportunities it has brought is the possibility to study the role of law amidst a major social and economic crisis. The project called Response of the legal system of the Czech Republic to the Covid-19 pandemic: legal framework, approach adopted by public bodies, future recommendations finished in 6th–7th place in the fourth public tender for the selection of projects for the Funding programme for Applied Research, Experimental Development and Innovation in Social Sciences and Humanities. This success also means that the Technology Agency will support the implementation of the project.

Professor Jan Kysela from the Department of Politology and Sociology, who is the head of the strategic and conceptual management of the project, told us more about the project and its aim:

Which branch of law is the most controversial these days?

Hard to say. From my perspective, I consider the unconditional sentences for shoplifting in the state of emergency to be highly controversial. Harsh sentences are definitely justifiable during looting in areas evacuated due to floods. In such cases, exemplary punishment is in order. But what is the deterring effect of such punishment in a global pandemic? Controversy of a different sort is raised by the regulatory framework for managing the coronavirus crisis. Extraordinary circumstances reduce the ability to handle situations with calm and reason, but the extent to which the principles of creating comprehensible legal regulations are being violated is indeed surprising. Late publication, frequent changes, lots of exceptions, Pythic texts, fragmentary justification. And add to that the weak legal basis for measures such as closing borders.  

Which group of people do you think has the most problems understanding all the constantly changing government decrees,
restrictions, state aid schemes, and so on? 

Let me answer the other way around. A lawyer with enough time, experience and internet connection will understand everything just fine. Others might get lost. 

The situation is new for everyone. Did the need to deal with the coronavirus epidemic reveal any gaps in the constitution, specifically the Security Act?

The pandemic has clearly shown that we are prepared for floods and hurricanes. The problem might not lie in the Constitutional Act on Security. It is definitely worth reconsidering the regulation of all states declared in extraordinary situations, but I would not say that there is a clear gap or shortcoming speaking about the state of emergency in particular.
On the other hand, we could reach the conclusion that the government interfered with the lives of citizens to a much greater degree than we could have imagined, so the role of the Chamber of Deputies might not be limited to approving the duration of the state of emergency as such, but it could extend also to the measures taken by the government in response to the crisis, which would be approved, or rejected, by the Chamber of Deputies. Repeated extension of the state of emergency could be subject to approval by the Senate. Also, the relationship between the Crisis Act and the Public Health Protection Act should be revisited. The question is to what degree these acts are autonomous, and, in contrast, linked together, and whether they provide for all the necessary competences and so on. But I believe that most problems did not stem from the legal regulation, but from the way it was applied. Remedy could be provided by case-law, but the courts were not exactly assertive in in this respect. If the regulatory system worked perfectly, the judiciary could wait until the “nice weather” returns. However, the Czech government demonstrated that references to expertise and professionalism sound nice when talking about the division of power, but they need to be tested in practice.   

Did you start the project in part due to the feeling of confusion in society?

We felt that there are many questions that needed answers, which could be approached by looking at legal regulations, case-law, and experience from abroad. State should not make people anxious, but rather provide certainty. We would like to analyse what happened, the advantages and disadvantages of the road taken, what should change in terms of legal regulation and regulatory procedures, the efficiency of judicial review, whether a standard for review in times of crisis can be set, one which would allow managing the situation without turning a blind eye to fundamental rights and so on. This includes international and European obligations, but also the very practical question of damages. The research team therefore includes experts specialising in various disciplines.    

How difficult is it to evaluate the coronavirus situation from the legal perspective when it keeps changing and evolving?

This is a two-year project. I really hope that we will eventually evaluate the past. So far, we could say that the spring crisis was not unique, since the autumn crisis was not too different. And we would like to contribute to making the situation better in the future. 

Experts in various disciplines will be involved in the project

In the project of the Technology Agency of the Czech Republic, the Faculty of Law of Charles University will be represented by experts specialising in many different fields. The team is divided into several sub-groups focusing on specific topics, under the supervision of senior researchers Jan Kysela and Jan Wintr, who work as parliamentary advisers and have experience with drafting legislative texts.

Veronika Bílková will be in charge of aspects related to international law and David Elischer will be responsible for private law issues. The research team includes authors of existing legal analyses of the coronavirus crisis (J. Wintr, Z. Vikarská, L. Kraus, J. Dienstbier, V. Derka, F. Horák) and other specialists. They will be joined by Jan Kudrna, who specialises in security questions, and Ondřej Preuss who will study the question of the rule of law in a democratic state.

The researchers will examine primarily the legal acts adopted and issued by the state in reaction to the pandemic (legislative acts, judicial decisions, etc.), but also informal political actions. They will look into the circumstances of how they came into existence and their consequences on the legal order. The project will focus on the methods, advantages, and disadvantages of the constitutional solution, its specification in subordinate legislation, its application during the coronavirus crisis, and recommended legislative changes.

The outputs of the project, which are regularly published at www.pravoakrize.net, will provide a blueprint for possible changes to the legal framework governing the states declared in extraordinary situations. In the context of a broader evaluation of the development of constitutional principles (the principle of the rule of law, protection of fundamental rights, etc.), the project hopes to inspire the decision-making of public bodies (the executive and the judiciary) in times of crisis and help settle disputes arising out of the past crisis.

The Technology Agency of the Czech Republic centralises state funding for applied research and development.

Milestones in the project:

December 2020: Launch of the website www.pravoakrize.net dedicated to the latest changes in the legal order in relation to the coronavirus crisis (brief comments, annotations of judicial decisions, basic information for foreigners available also in English);

Autumn 2020 - Summer 2021: Research of relevant legal acts (crisis and extraordinary measures), elaboration of the basic framework for their analysis, reflection of constitutional and theoretical bases and legal and philosophical bases for states declared in extraordinary situations in the context of the coronavirus crisis (constitutional dictatorship, crisis management models, emergency measures, impact on fundamental rights), operation of the website;

Autumn 2021: Publication of two journal articles (analysis of case-law of the Constitutional Court and administrative courts);

Autumn 2021 - Spring 2022: Formulation of the final outputs, preparation of the workshop, operation of the website;

Spring 2022: Finalisation of the first draft of the proposed changes to the Constitutional Act on Security and the subordinate legislation (the Crisis Act and the Public Health Protection Act); workshop in the Parliament of the Czech Republic (presentation of recommendations);

September 2022: Publication of a comprehensive monograph setting out all the knowledge acquired within the project, including the recommended changes to the legal regulation, to the approach adopted by executive and legislative bodies, as well as changes to the judicial review of the questions analysed.