The Slovak government declared a new state of emergency at the end of
November 2021, combined with a two-week soft lockdown.[1]
The state of emergency has been declared for 90 days, starting on November 25,
on the whole territory of the republic. The lockdown should last until December
9. Both measures can be potentially extended if the pandemic situation so
requires, although the government has signalled a preference for not keeping
restrictive measures in place.
The Slovak constitutional framework[2]
for crisis management newly permits the government to extend the duration of a
pandemic emergency by 40 days, even repeatedly.[3]
It is, therefore, possible that the state of emergency will be extended next
year. The state of emergency adopted this time last year was extended twice.[4]
Every extension of a pandemic emergency necessitates a subsequent parliamentary
approval within 20 days. Without approval, the state of emergency expires by
default.
The government declared the emergency after intense criticism from its
expert advisory body and the head of state. President Čaputová urged the PM and
his cabinet to act on the pandemic to avoid the loss of life the country had
experienced last year after the holiday season.[5]
Slovakia thus follows Austria as the second country in Europe to reintroduce
state lockdown before holidays. That is due to a critical increase in the
number of new Covid19 cases and hospitalisations –currently over 3000 patients.[6]
The emergency declaration provides for a two-week lockdown, consisting of a
curfew between 5AM to 1AM on the following day (until December 9) and
restrictions on the freedom of assembly (maximum of six people). The government
also requests citizens to limit contact with others, keep contact primarily
within a single household and prioritise online communication to keep in contact
with close relatives. Finally, employers are requested to enable their
employees to work from home, if possible.
The curfew order has been criticised for the numerous exceptions it permits. People
are, of course, allowed to leave their homes for work (with proof of
vaccination or a test), to shop for essentials, visit their doctor, go to the
hospital or take the vaccination, but also for worship services, church or state
weddings, funeral ceremonies and baptism without restriction on the number of
churchgoers. Likewise, people can still attend mass sporting events, such as
football, hockey, and basketball. The exemptions for worship services and sporting events contradict the limitations imposed on the freedom of assembly.
Executive Underreach?
Although the government’s response to the first pandemic wave in early 2020
was successful, its more recent attempts to tackle the subsequent waves mostly failed
due to indecisiveness, coalition in-fighting, and preference for populist measures
over science-based policy. Take, for example, the vaccination lottery that was
supposed to incentivise senior citizens. The government spent 27mil EUR to
increase the low vaccination rate, especially among vulnerable groups, but with
little to no effect.[7]
Instead, more than half of the population remains unvaccinated, despite
the lottery or proposed financial incentives.[8]
Why has been the government failing? The conventional understanding in the field
is that the executive might use the uncertainty and moral panic conditioned by
emergencies to overreach – e.g. unduly limit the citizens’ rights, curb checking
institutions and stack the deck against their political opponent. However, in
a select few cases, we can observe the opposite tendency. David
Pozen and Kim Lane Scheppelle term this behaviour an “underreach,” which they define as the “executive’s
willful failure to address a significant public problem that the executive is
legally and functionally equipped (though not necessarily legally required) to
address.”[9]
More specifically, they argue that the concept best describes situations where the
political actors “sees a significant threat coming, has access to information
about what might mitigate or avert the threat along with the power to set a
potentially effective plan in motion,” but does not act.[10]
Slovakia arguably fits the description of an executive underreach. Political actors had access
to information about the pandemic and a recent experience with the negative effects of slow response to the onset of the pandemic.[11]
Yet, despite this, the government again shows passivity and unwillingness to
introduce restrictive measures due to a fear of alienating their constituencies.
The risk is that if the situation does not improve, the public health
sector might collapse due to a shortage of hospital beds and ventilators.[12]
The government’s failure to adequately respond to the crisis in 2020 ultimately
led to the resignation of the PM and a cabinet reshuffle.[13] It remains to be seen if the current government survives its lacklustre
response to the pandemic.
[1] Government Resolution no. 695,
on the Declaration of the State of Emergency no. 428/2021 Coll. <https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2021/428/20211125>
[2] Constitutional
Act on State Security in the Time of War, State of War, State of Emergency, and
Crisis No. 227/2002 Coll.
<https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2002/227/20201229>
[3] The option
to extend the state of emergency applies only to pandemic emergencies to the
exclusion of all other emergencies caused by natural disasters, catastrophes,
industrial or nuclear accidents, which is a peculiar choice. The amendment to
the CA on the state of emergency and other crises, adopted in late December 2020,
was supposed to bring the legal framework in line with expert knowledge on the
nature of emergencies, which can take longer than the constitutionally
permitted maximum of 90 days. The response to the nuclear disaster in Japan,
for example, took the better part of a year, during which the state of
emergency remained in place in the prefecture. Sarah Fecht, “1 Year Later: A
Fukushima Nuclear Disaster Timeline” (Scientific
American, 8 March 2012) <https://www.scientificamerican.com/article/one-year-later-fukushima-nuclear-disaster/>
[4] “State of Emergency in Slovakia to
Be Extended by Another 40 Days” (TASR,
5 February 2021) <https://newsnow.tasr.sk/policy/state-of-emergency-in-slovakia-to-be-extended-by-another-40-days/>
[5]
Michal Hudec, “Lockdown on the horizon for Slovakia after president’s emotional
appeal” (Euractive, 24 November 2021)
<https://www.euractiv.com/section/politics/short_news/lockdown-on-the-horizon-for-slovakia-after-presidents-emotional-appeal/>
[6]
“Slovakia becomes the second European country to go into lockdown as COVID
cases surge” (Euronews, 24 November
2021) <https://www.euronews.com/2021/11/24/slovakia-becomes-the-second-european-country-to-go-into-lockdown-as-covid-cases-surge>
[7]
Michal Katuška, “Lottery worth €27 million did not help. It should have
persuaded the elderly but lured the youth” (The
Slovak Spectator, 3 November 2021) <https://spectator.sme.sk/c/22776193/lottery-worth-27-million-did-not-help-it-should-have-persuaded-the-elderly-but-lured-the-youth.html>
[8] “Coronavirus in Slovakia: 15,278
new cases confirmed (graphs)” (The Slovak
Spectator, 3 December 2021)
<https://spectator.sme.sk/c/22365153/coronavirus-in-slovakia-statistics-and-graphs.html>
[9] David E. Pozen and Kim Lane
Scheppele, “Executive Underreach, in Pandemics and Otherwise” (2020) 114
American Journal of International Law 4, 609
[10] Ibid., 10
[11] Keno Verseck, “COVID-19: Slovakia
mired in chaos” (Deutsche Welle, 1
March 2021)
<https://www.dw.com/en/covid-19-slovakia-mired-in-chaos/a-56740390>
[12] Michal Hudec, “Slovak government
finally takes action as hospitals verging on collapse” (Euractive, 17 November 2021)
<https://www.euractiv.com/section/politics/short_news/slovak-government-finally-takes-action-as-hospitals-verging-on-collapse/>
[13] Matthew Holroyd, “Slovakia’s prime
minister steps down amid Sputnik V vaccine scandal” (Euronews, 30 March 2021)
<https://www.euronews.com/2021/03/28/slovakia-s-prime-minister-to-step-down-amid-sputnik-v-vaccine-scandal>
