The Emergency Constitution of Greece: Ideal on Paper, Inefficient in Reality

—Antonios Kouroutakis, Post-Doctoral Fellow, Aristotle University of Thessaloniki

Wars, social unrest, and armed coups in 20th century Greece informed the drafters of the 1975 Greek Constitution on the issue of emergency.^[1] De lege lata, the emergency toolbox of Greece, provides policymakers with a plethora of options to address emergency situations.^[2]

Constitutional provisions and ordinary legislation cover a wide range of emergency situations, provide distinct emergency response frameworks, and bestow a wide range of executive powers upon policymakers so they may respond accordingly. The emergency constitutional provisions also use vague terms, such as “public order,”^[3] “national security,”^[4] “extraordinary circumstances of an urgent and unforeseeable need,”^[5] “disasters,”^[6] thereby giving policymakers further discretion and flexibility to act.^[7]

The Greek Constitution contains both “generic” and “specific” provisions for emergencies.

For instance, Article 44 is a generic constitutional provision that can be applied to a variety of situations, ranging from natural disasters^[8] to socio-economic exigencies.^[9] Article 44 further empowers the government to adopt “Acts of Legislative Content,” which are legally binding rules equivalent to ordinary parliamentary laws. These Acts of Legislative Content expire ipso jure within 40 days of enactment if the government does not present them to Parliament for ratification before then or if the Parliament fails to ratify them within three months.

Article 4 – entitled “State of Siege” – is an example of a specific constitutional provision that focuses on emergencies relating to national sovereignty and security. This provision grants unparalleled powers to the executive to suspend constitutional rights and guarantees, such as the freedom of association, the freedom of the press, and habeas corpus. Other examples of specific constitutional provisions include Paragraph 3 of Article 18, which discusses the requisition of any kind of property, and Paragraph 4 of Article 22, which discusses the requisition of personal services. Additionally, Article 103 authorizes the government to deviate from standard rules of appointment by allowing it to hire personnel to meet unforeseeable and urgent needs.

The emergency framework set forth by the constitutional provisions is supplemented with permanent mechanisms policymakers rely on during emergency situations, such as the General Secretariat for Civil Protection,^[10] the Center for the Control and Prevention of Communicable Diseases,^[11] and the plan with the code name “Xenocratis.”^[12]  After all, preparedness and experience are invaluable in emergency situations.

The role of the executive may be comparable to that of the “Commander” in the case of a war^[13] or that of the “Coordinator” in case of natural disasters.^[14] Depending on the magnitude of the natural disaster, the emergency framework may delegate power to centralized entities, such as the Minister of Citizen Protection in case of large-scale disasters^[15] or to local authorities in case of small-scale disasters.^[16]

The emergency toolbox also incorporates procedures of parliamentary review aimed at limiting executive power. For instance, in the case of a state of siege, the parliamentary review mechanism kicks in after 15 days.^[17] In the case of a natural disaster, parliamentary review begins after 6 months.^[18] Nonetheless, the practice of delegating legislative initiatives to centralized entities, in addition to the courts’ deference to the administration on political issues,^[19] shows that these review mechanisms are not a strong enough check on the government.^[20]

Given the fact that policymakers in Greece have such powerful tools at their disposal to address potential threats to national security before these escalate and cause breakdowns, one may wonder why the constitutional system has been unable to respond promptly and efficiently during more recent emergencies – like the economic crisis in 2009 and the emerging refugee crisis in 2015. The reason why the Greek constitutional system repeatedly fails to address emergencies in practice is twofold. First and foremost, the imperfect formulation of the separation of powers allows the Prime Minister, head of the cabinet and leader of the majority party in Parliament, to remain inactive during emergencies.^[21] This is because the emergencies initiative is monopolized by the cabinet.^[22] In other words, there is no constitutional mechanism to compel the executive to act during emergencies.

For instance, in 2009, the Government in Greece did not adopt any measures to reduce the excessive primary budget deficit despite the fact that its economy had been under surveillance since 2005^[23] and that many European countries fell into recession as a result of the 2008 global economic crisis. Instead of adopting emergency measures, the Government called for snap elections just a few months before the collapse of the economy. The Government was not of the view that the developing economic difficulties warranted emergency status.

The abuse of the emergency powers and the creation of a coalition government in 2012 caused a significant clash between the government’s and the people’s perspectives on what deserved emergency treatment. Suffice it to mention here that the Greek Government has extensively used executive law-making power granted by Article 44 to circumvent the open procedures in parliament so as to avoid criticism from the opposition. For instance, the Greek Government shut down the Greek Broadcasting Corporation (in Greek abbreviated as ERT) without prior notice,^[24] even though there were no extraordinary or emergency circumstances that could justify such a decision.

As the economy worsened and the government’s dysfunction became a permanent feature of the constitutional system, the refugee crisis developed. It was clear that the Greek Government was unable to handle the sudden and overwhelming influx of people and that, therefore, additional measures were necessary. It is estimated that in 2015 more than 750,000 nationals of third countries entered Greece.^[25] On December 30, 2015, the Government invoked its power under Article 44 and enacted an executive law in order to provide and regulate temporary accommodations for refugees.^[26] However, the Greek Government’s response came too late, as the emergency had already spun out of control. The Alternate Immigration Policy Minister – the minister responsible for immigration – stated that there was nothing the Government could do until the refugees filed for asylum and acquired legal status.^[27] She added that there is no legislative framework for migrants who “use Greece as a crossing.”^[28] Meanwhile, the people regarded this as a state of emergency.

The occurrence of the refugee crisis amidst the economic crisis is a prime example of an emergency within an emergency, or a “second-generation emergency,” a term that Professor Amnon Reichman coined during the discussion after the presentation. In principle, it is apparent that governments rely on the emergency provisions to face second-generation emergencies as well. But given that emergency provisions are drafted on the assumption that an emergency will occur under normal circumstances, one must wonder if the existing emergency provisions will be good enough to address second-generation emergencies.

In conclusion, the complexity of the ongoing crises in Greece shed light on two neglected aspects of emergencies: Emergency inactivity and second-generation emergencies. The former raises the question of whether constitutional drafters should innovate and bestow the power to declare an emergency upon two distinct institutions. The latter raises the question of whether a specific emergency framework is required when dealing with second-generation emergencies.

Suggested Citation: Antonios Kouroutakis, The Emergency Constitution of Greece: Ideal on Paper, Inefficient in Reality, Int’l J. Const. L. Blog, Mar. 30, 2016, at: http://www.iconnectblog.com/2016/03/the-emergency-constitution-of-greece-ideal-on-paper-inefficient-in-reality

^[1] The Constitution of 1975, which established the so-called third Republic, replaced Constitution of 1952, which was overthrown in 1967 by a military coup that lasted seven years until 1974. For further details about the constitutional history of Greece, see Philippos C. Spyropoulos, Theodore P. Fortsakis, Constitutional Law in Greece (Wolters Kluwer 2009) 41 ff.

^[2] While a different point of view, it is argued that the emergency framework might be seen as excessive with many redundant, unnecessary, and overlapping provisions. See Kostas X. Xrysogonos, Individual and Social Rights (Ant Sakkoulas Publishing 2002) 67 [in Greek].

^[3] Constitution of Greece, Article 18, Paragraph 3.

^[4] Constitution of Greece, Article 48, Paragraph 1.

^[5] Constitution of Greece, Article 44, Paragraph 1.

^[6] Constitution of Greece, Article 22, Paragraph 4.

^[7] For more details about the utility of vague expressions, see R. Dixon and T. Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design’ 9 I.J. Con. L. 636 (2011).

^[8] For instance, see Act of Legislative Content, dated July 28, 1978, entitled “Concerning damage compensation of 1978 earthquakes in a region of Northern Greece.”

^[9] For instance, see Act of Legislative Content, dated on the January 4, 2011, entitled “Suspension of the auctions by credit institutions and other creditors.”

^[10] Article 4, Law 2344/1995 reestablished and upgraded through Article 6, Law 3013/2002 and further amended by Article 104, Law 4249/2014.

^[11] Article 20, Law 2889/2001.

^[12] Ministerial Decision 1299/2003, which was further amended through Ministerial Decision 3384/2006.

^[13] See Constitution of Greece, Article 48.

^[14] See Article 8, Paragraph 1b, Law 3013/2002, as it was amended by Article 115, Paragraph 1, Law 4249/2014.

^[15] Article 8, Paragraph 1b, Law 3013/2002, as it was amended by Article 115, Paragraph 1, Law 4249/2014.

^[16] Article 8, Paragraph 1d, Law 3013/2002, as it was amended by Article 110, Paragraph 2, Law 4249/2014.

^[17] See Constitution of Greece, Article 48.

^[18] Article 3, Law 3013, as amended by Article 110, Law 4249/2014.

^[19] See for instance Council of State 2291/2015.

^[20] For more on the centralization of legislative initiative, see Paul Craig, Administrative Law (7th ed., Sweet & Maxwell 2012) [3-004].

^[21] I use the term “inactive” instead of the term “inertia” because inactivity implies intention.

^[22] See Article 44, Paragraph 1, and Article 48 of the Greek Constitution.

^[23] Council decision under Article 104.9 (IP/05/390). See http://europa.eu/rapid/press-release_IP-05-390_en.htm?locale=en (last accessed on March 20, 2016).

^[24] See Official Gazette of the Greek Government Β’ 1414/11.6.2013.

^[25] See Commission Implementing Decision, amending the work program for 2016 and the financing for the emergency assistance within the framework of the Asylum, Migration and Integration Fund at http://ec.europa.eu/dgs/home-affairs/financing/fundings/migration-asylum-borders/asylum-migration-integration-fund/union-actions/docs/c_2015_9534_f1_annex_en_v5_p1_837717_en.pdf (last accessed on March 20, 2016).

^[26] See Act of Legislative Content, Article 10, dated December 30, 2015, entitled “Regulating Urgent Issues, etc.” Accordingly, the Ministerial Decision on the infrastructure of the temporary accommodation of third country nationals was adopted in 2016. See Official Gazette of the Greek Government Β 24 2016.

^[27] Minister mulling ‘open’ facility for migrants in city at http://www.ekathimerini.com/199881/article/ekathimerini/news/minister-mulling-open-facility-for-migrants-in-city (last accessed on March 20, 2016).

^[28] Minister mulling ‘open’ facility for migrants in city at http://www.ekathimerini.com/199881/article/ekathimerini/news/minister-mulling-open-facility-for-migrants-in-city (last accessed on March 20, 2016).