Centre for Constitutional Law and Political Institutions

University of Bucharest – Faculty of Law

 

The Post-1989 Constitutional Course of South-Eastern Europe

 - National Report on Romania -

Elena Simina TANASESCU

 

Historical events of December 1989 in Romania are well known worldwide, thanks to the first international transmission in direct on TV of a popular upraise; they will certainly reveal a lot more for the future generations, once archives will be available to historians. The constitutional consequences of those events are also quite familiar to scholars in legal and political science: the communist Constitution of 1965 has been initially indirectly suspended, through the Decree-Law n°2 adopted on the 21st of December 1989, and then formally abrogated, through the entry into force of the new Fundamental Law, adopted via referendum the 8th of December 1991.

Since December 1989 until December 1991, several Decree-Laws have governed the political transition of Romania from a centralist and authoritarian popular democracy towards a pluralist and liberal democracy, the process still being underway even nowadays. The Constitution of 1991 takes stock of the realities and wishes of the people at that moment, and fixes goals for the future, many of its dispositions being either programmatic, or expressly demanding subsequent legislation for their effective implementation. With its few errors of drafting and many more of application, the Romanian Constitution of 1991 has lived a non-quiet life for some 12 years by now, and gave room to large debates about the need of a potential alteration of its text in the near future.

Therefore, crucial moments of the Romanian recent constitutional history (i.e. after December 1989) are (i) the adoption of the Constitution in 1991 and (ii) its revision in 2002 – 2003. However, in between, some constitutional challenges and even major problems, all more or less directly related to the current Fundamental Law, have shaped the constitutional history. They can be summarised as follows:

  1. “cleaning” pre-constitutional legislation;
  2. late implementation of certain dispositions of the Constitution;
  3. wrong interpretation and application of some provisions of the Constitution.

 

All these factors cumulated, but mostly the third one, leaded to the current revision of the Constitution, which can be considered (both) as a normal process undertaken in order to adapt the text of the Fundamental Law to the already changed social reality and as a voluntary act of conscience, aiming at further shaping the political framework of the Romanian society. Having said this, of course that the adoption and the revision of any Constitution is first of all a result of a game of power and the concrete interests of those having the power in these crucial moments are reflected in the text of the Fundamental Law. However, both at the adoption and at the revision of the Romanian Constitution main actors of those respective moments have searched a certain consensus within the political class and the civil society, at least with regard to the main features of the political system thus shaped.

Chronologically, one must start with the period between December 1989 and December 1991. Several Decree-Laws have regulated the political game during this period, the main ones being:

 

 

 

(i) The adoption of the Constitution in 1991 came after a necessary period of pacification of the Romanian society; the drafting process was rather democratic, although some voices claimed the procedure used in the referendum did not entirely correspond to the democratic goals of the Romanian society of that time. The text of the Constitution represents a well-balanced mixture of modern provisions and traditional articles of Romanian fundamental laws; however, since many dispositions provided dramatic changes in the Romanian society, they required subsequent laws for their effective enforcement.[1]

The novum of the Constitution of 1991 produced serious changes in the Romanian society and provoked various consequences with regard to the normative system. The three main characteristics of the decade that followed the adoption of the Romanian Constitution, from the constitutional point of view, were:

  1. “Cleaning” pre-constitutional legislation - Quite a big number of the pre-constitutional laws were no longer in conformity with the new constitutional provisions. Like in many other states which have been faced with the adoption of a new Constitution after a dictatorial regime (see Italy and Germany after the World War II, or, more recently, Greece and Spain in the ’70) Romania had two main tools to deal with this situation: direct application of the constitutional dispositions and judicial review. Direct application of the constitutional dispositions leads to the indirect abrogation of the legal dispositions contrary to the new fundamental law; this solutions has also been formalised through article 150 paragraph 1 of the Constitution.[2] Additionally, the Constitutional Court of Romania has a (shared with the ordinary courts) competence to check on the content of the pre-constitutional legislation. The jurisprudence of the Constitutional Court has been quite rich in this respect, especially during the first three years after its creation in 1992,  the constant argument of the Constitutional Court in these cases being that a pre-constitutional law that would enfringe upon the dispositions of the Constitution has been indirectly abrogated by the Fundamental Law itself since the moment fo its adoption and ordinary courts or the Constitutional one only have the competence to observe and declare this abrogation, with erga omnes effects for the decisions of the Constitutonal Court.[3]
  2. Late implementation of certain dispositions of the Constitution – as mentioned before, many of the constitutional provisions contain a delegation of competence for the Parliament to adopt laws that should put in practise the normative content of the Constitution. However, considerable delays have been noticed in this respect, the Romanian Parliament being not only lazy when it came to adopt laws, but also when creating new public authorities specifically mentioned in the fundamental law. Thus, some public authorities totally new for the Romanian context have been created immediately after the entry into force of the Fundamental Law (the Constitutional Court[4], the Court of Audit[5], the Supreme Court of Justice[6]), but this is also due to the specific provision of article 152 of the Constitution, which fixes a delay of maximum 6 months from the coming into force of the Constitution for the creation of the Constitutional Court and the Court  of Audit. Some other public authorities, for which noting specifically has been provided for in the fundamental law, have been created after quite impressive delays (e.g. the People’s Advocate[7]). Regarding public authorities, article 151 paragraph 1 provides that the existing institutions of the republic will continue to function until the creation of the new ones. However, a simple list of laws would be representative for the rather slow activity of the  Parliament: the law on the organisation of the  referendum has been adopted only in 2000[8], the law regulating the state border has been adopted only in 2002[9], the law regarding the political parties has been adopted only in 1996[10], law regarding the status of civil servants has been adopted only in 1999[11], and examples can continue.
  1. Wrong interpretation and application of certain dispositions of the Constitution – there are some errors of wording in the Constitution, noticed ever since its adoption, but never corrected since, if not through the interpretation made when applying those provisions. The best example is the word “decentralisation“ used in article 122 about services put under the authority of prefects, when it is obvious that the correct wording would have been “deconcentration”. Another purely theoretical problem, although the hypothesis could realise in practise, is the age-limit fixed for the candidates to the authority of President of Romania. While candidates for the position of senator or for the position of President of Romania have to be at least 35 years old the day when they register their candidacy, candidates for the position of deputy have to be at least 23 years old the same day. Article 97 of the Constitution provides that in case of impossibility for the President of Romania to exercise his duties, the function is to be accomplished, in order, by the President of the Senate and by the President of the Chamber of Deputies. What if the President of the Chamber of Deputies has to perform the task of Head of State even if he or she does not have 35 years already ? This hypothesis has not been taken into account by the drafters of the Constitution, although the situation is not totally theoretical, since some 20% of the positions of deputies belong to persons younger than 35 years.

But these are rather small issues when compared to the real challenges provoked by the wrong interpretation of the Constitution. It is not possible to quote here all miss-interpretations and wrong applications of the Romanian Fundamental Law over the past twelve years, so only two of them, most relevant and notorious, will be presented hereafter.

Legislative delegation – Provided by article 114 of the Constitution (Chapter IV - Relations between Parliament and Government) legislative delegation has been the source of a lot of misunderstandings over the past 12 years. Although the text is quite clear in making the legislative delegation an exception from the regular situation where the Parliament should completely exercise its competence of legislator, the common practise installed since more than 10 years seems to confirm a quite opposite situation.

Thus, the Constitution provides in article 114:

"Parliament may pass a special law enabling the Government to issue orders in fields outside the scope of organic laws.

The enabling law shall compulsorily establish the field and the date up to which orders can be issued.

If the enabling law so requests, orders shall be submitted to Parliament for approval, according to the legislative procedure, until expiration of the enabling term. Non-compliance with the term entails discontinuation of the effects of the order.

In exceptional cases, the Government may adopt emergency orders, which shall come into force only after their submission to Parliament for approval. If Parliament does not sit in a session, it shall obligatory be convened.

Orders shall be approved or rejected by a law which must also contain the orders that ceased to be effective in accordance with paragraph 3."

The text clearly distinguishes between “simple” ordinances, for which an ex ante law enabling the Government to legislate by delegation is required and another law to approve them ex post is the common practise of the Romanian Parliament, and the emergency ordinances, for which this condition is no longer valid, but which cannot entry into force if they have not been submitted to the Parliament for approval.

Irrespective of this classification, all government ordinances are temporary legislation by definition, as they need to be approved ex post, through a law. Furthermore, in the process of approving them, the Parliament may very well change their wording, thus changing the final legal act adopted. In fact, this is the regular situation, the Parliament never really agreeing entirely with the legislative solutions found by the Government and most often adopting different legal norms with regard to a topic previously ruled by norms enacted by the Government. In practise this creates an enormous normative instability and legal insecurity. The situation became totally unmanageable: ordinances apply for several months, and then laws that approve those ordinances change their legal content, so that the legal regime becomes different[12]. It also happens that the Parliament first adopts with modifications an ordinance through a law and then abrogates the intial ordinance, already inexistent, through another law.[13] A part this general confusion, the abuse of ordinances produces a great legislative inflation and instability.

Furthermore, even if the text of the Constitution does not explicitly provide this, the interpretation gave to the fourth paragraph of article 114 by all Romanian Governments that came in power since 1991 is that emergency ordinances can even modify organic laws, irrespective of the provision of paragraph 3 of the same article (for the classification of laws in constitutional, organic and ordinary ones, including their respective field of application, see article 72). Emergency ordinances were not considered as a variety of ordinances of the Government, but as a totally new category of legal acts, therefore submitted to a totally different legal regime. This approach has been finally confirmed also by the Constitutional Court[14], who argued that emergency ordinances enjoy a different constitutional anchor that the “simple” ordinances, and the fact that they are mentioned in the same article of the Constitution does not indicate any similarity of legal regime between the two normative acts equally of the competence of the Government.

Last but not the least, statistics of the Chamber of Deputies show that 90% of the legislative work of the Romanian Parliament is of Governmental origin, some 20% of it representing approval of draft laws presented through the regular procedure by the Government and the rest of 70% being approval of ordinances and emergency ordinances.

In this context, all political parties, be them represented also in Parliament or only in Government, have declared that the current practise regarding article 114 of the Constitution can no longer continue, but none of them kept its promises.

Authority of the decisions of the Constitutional Court – Despite the explicit provisions of article 145 of the Constitution, stipulating that decisions of the Constitutional Court are binding and apply only for the future, some public authorities pretended those decisions only address to the parties and do not have an erga omnes effect. At the beginning of its activity the Constitutional Court encountered such a fierce opposition that it had to adopt a decision of its Plenum in order to underline that article 145 of the Constitution specifically provides for a general binding legal effect for all its decisions.[15] Following some three or four years of constant arguments in the same line, the Constitutional Court seemed to have finally achieved the authority which it was given by the Constitution. However, recent positions taken by the Parliament show that the debate is not completely closed. Relevant for this situation is a relatively recent decision of the Constitutional Court in which the judges had to remind to the Parliament one of their previous decisions to which attention should have been paid in due time. An emergency ordinance of the Government (n°23/1999) for the abrogation of a law (n°31/1996) had been submitted to the Constitutional Court for a check and had been declared entirely unconstitutional through the decision n°15/2000. As a consequence of that decision the emergency ordinance should have been considered inapplicable since 2000, starting with the moment of the publication of that decision in the Official Gazette. However, in 2001 the Parliament wanted to adopt a law to reject the emergency ordinance without even mentioning the previous decision of the Constitutional Court. This gave the opportunity to the President of Romania to send the draft-law for rejecting the emergency ordinance to the Constitutional Court for an a priori control of constitutionality as this authority considered the draft-law useless given the clarification of the situation back in 2000. In its final decision  on this issue[16], the Constitutional Court stated that the binding legal effect of its decisions is equally valid for the a priori and the a posteriori control in exactely the same way and towards  all legal subjects. Decisions of the Constitutional Court given on the basis of a question of unconstitutionnality do not have only inter partes effects, like decisions of ordinary courts, because through such decisions too a general interest is protected and not a private one. As a consequence of the general legal binding effect of all decisions of the Constitutional Court, a  law or a Governmental ordinance once declared unconstitutional by the constitutional judge can no longer be enforced for the future. Of course that the Parliament can still change or abrogate the legal act declared unconstitutional by the Court, but this does not mean that the respective legal act would still produce any legal effects. “Even if the Constitutional Court cannot abrogate laws, this competence belonging exclusively to the Parliament, its decisions declaring unconstitutional a law or a Government ordinance have the same legal effects as any abrogation.” Under these circumstances, adopting a law to abrogate a ordinance previously declared unconstitutional by the Court would mean that the legal effects of that ordinance should stop only from the  moment of the official publication of the law and not since the  moment of the  official publication of the decision. This is unacceptable from a constitutional point of view for two reasons: first, because it would mean to neglect the general binding legal effect of decisions of the Constitutional Court, and, secondly, because this would mean that the validity of the Government ordinance has been artificially extended beyond the constitutional limit. 

(ii) The revision of the Constitution came therefore as a natural consequence of all this turmoil. Debates on the necessity to re-adjust the text of the fundamental law with the evolving realities started in the political class already some four years ago, but it took some time until an agreement could be reached among all political parties represented in the Parliament that a revision is necessary rather sooner than latter and, finally, for them to agree on the main items to be changed.[17]

A special “Parliamentary Committee to elaborate the draft-law on the revision of the Constitution” has been set-up in June 2002[18] to define – by political agreement – the constitutional law that should amend the existing Constitution. By March 2003 the commission publicly announced that it has reached agreement on the majority of issues and the text is deemed by all political parties to be final, with the exception of some minor items that could be solved during the parliamentary phase of the procedure.

The ruling party has already announced the major principles of the draft, without making the text available for the public.[19] The document has not been yet formally registered with the Parliament, but is currently following the preliminary procedure which requires for the opinion of the Constitutional Court prior to any constitutional law can be tabled in the Parliament.

The parliamentary commission for the drafting of the law revising the Constitution has so far agreed the following texts:

 

A.     Texts preparing Romania’s accession to EU and NATO:

1.      treaties deemed incompatible with the Constitution can be ratified only after the revision of the latter (amendment to Art. 11);

2.      asylum is granted and withdrawn according to the laws and international treaties binding Romania, as well as according to EU rules, after accession (amendment to Art. 18);

3.      extradition of Romanian nationals at least to EU Member States after accession remains prohibited;

4.      foreign nationals and stateless persons could acquire land properties only according to the conditions of Romania’s accession to the EU or to other international treaties, based on reciprocity (amendment to Art. 41);

5.      right to vote for all EU citizens in local and EP elections, after Romania’s accession (new provision);

6.      the army is explicitly allowed to participate in operations “preserving international security”, peace-keeping and collective defence operations within the framework of Romania’s collective security arrangements (amendment to Art. 117);

7.      foreign troops could stay or undertake military operations on Romanian territory only in compliance with the conditions laid down by laws (amendment to Art. 117);

8.      a compact new article has been introduced to cover accession to the EU, allowing for the “exercise in common of the powers provided by the founding treaties”. The ratification of the accession treaty is made by a law adopted with 2/3 of the total number of members of the Parliament, assembled in joint session. The provisions of the EU law “have priority when in conflict with provisions of domestic laws”. The President of the Republic, the Parliament and the Government “guarantee the fulfilment of the obligations” deriving from membership, while the Government is obliged to convey to the Parliament all draft EU legislation before its adoption by the EU institutions;

9.      a new article provides for the application, mutatis mutandis, of the rules for EU membership to the case of NATO membership;

10.  the “circulation of the EU currency and the replacement of the national currency could be recognised by organic law, within the conditions of EU accession”.

 

B.     Texts improving the protection of the fundamental rights:

1.      public functions and dignities, be they civil or military, can be filled by Romanian nationals residing in the country (amendment to Art. 16);

2.      the state guarantees the equality of chances between women and men in filling public functions and dignities (amendment to Art. 16);

3.      the parties have the right to fair trial within a reasonable time (amendment to Art. 21);

4.      special administrative jurisdictions (or rather their proceedings) have an optional character, if the laws do not provide otherwise (amendment to Art. 21);

5.      only the courts are entitled to issue arrest warrants, irrespective of the stage of the criminal procedure; during the criminal investigation stage, the arrest warrants could be issued for 30 days, and can be extended only once for 30 days; during the trial stage, the arrest warrant could be issued for 30 days and extended several times for 30 days each, but the total of the arrest period could not exceed 2 years; the liberation of the arrested person is compulsory if the reasons requiring the arrest have disappeared (amendment to Art. 23);

6.      the searches could be decided only by judges (amendment to Art. 27);

7.      the private property is guaranteed and the forcible expropriation based on ethnic, religious, political or other grounds is prohibited (amendment to Art. 41);

8.      if affected by public authorities or by delays, the individual could ask the courts to vindicate not only their aggrieved rights (as it is currently provided), but also their aggrieved legitimate interests; the state is responsible not only for criminal law errors, but also for civil law errors, which does not pre-empt the individual responsibility of magistrates acting in bad faith (amendment to Art. 48);

9.      the restrictions of the fundamental liberties can be decided only if necessary in a democratic society and must not operate discriminations (amendment to Art. 49, already providing for the proportionality of the restrictions with their reasons and for the imperative that restrictions should not affect the substance of freedoms);

10.  the military obligations of Romanian nationals are left for an organic law (amendment to Art. 52; the provision on the compulsory military service was eliminated from the Constitution);

11.  the Ombudsman could deal only with the claims of natural persons and could be assisted by specialised deputy-Ombudspersons (amendment to Art. 55);

12.  the number of citizens which could initiate new laws is decreased from 250,000 to 100,000 (amendment to Art. 74);

13.  the acts issued and the procedures applied by local administration authorities could be expressed also, besides Romanian, in the languages of those minorities, according to the conditions laid down by an organic law;

14.  in those communities where ethnic-Romanians do represent a minority, their representation within the local and county councils is compulsory, according to the provisions laid down by an organic law;

 

 

C.     Texts concerning the functioning of democratic institutions and processes:

1.      the explicit provision of the principle of „checks and balances” of constitutional powers (amendment to Art. 1);

2.      the provision according to which the sovereignty is exercised by the nation through its representative organs is supplemented by the provision that these organs must be set up following free, periodic and fair elections (amendment to Art. 2);

3.      the State is deemed to be grounded not only on the unity of the Romanian people, but also on its solidarity (amendment to Art.4);

4.      slight increase of the number of matters for the regulation of which the chambers of the Parliament must meet in joint sessions, accompanied by the exclusion of the mediation procedure for the adoption of laws, and by a certain specialisation of each house to examine in first reading specific draft laws; time limits are provided for the first reading (30 days for usual laws, 45 days for codes); if the deadlines are exceeded, the drafts are deemed to be tacitly adopted; whether rejected or adopted by the first chamber, the drafts are sent to the second one, which decides in last instance (amendments to several articles and new provisions); the Chamber of Deputies must be the first called to decide on international treaties and their implementing legislation, on all organic laws (new provisions);

5.      the matters requiring regulation by organic laws are slightly reduced (amendments to Art. 72; the most important issue excluded is the general framework of the religious cults, which could be read as an effort to reduce the threshold for renewing the outdated legislation in force; one of the most important issue added is the legal framework of the Permanent Electoral Authority, which should replace the current system supposing the temporary establishment, for each elections, of a new authority which does not inherit the archives, skills and experience of the previous ones; the second most important issue added is the statute of national minorities in Romania);

6.      when the Government’s reshuffle implies changes of its political composition, the appointment of new ministers by the President could be made only with the Parliament’s approval, upon proposal from the Prime Minister (new provision);

7.      when the Government asks for a vote of confidence based on a draft law, if the vote is given by the Parliament, the draft is deemed adopted with those amendments proposed by the Parliament and accepted by the Government (amendment to Art. 113);

8.      the Government is allowed to adopt emergency ordinances only in exceptional cases which cannot suffer delays, must motivate the urgency of their adoption, and is allowed to legislate in the areas covered by organic laws (except for the organisation of fundamental institutions, fundamental freedoms, electoral rights and expropriations); nevertheless, if the house receiving the emergency ordinance for the first reading fails to adopt it within the 30-day deadline, the emergency ordinance is deemed accepted (amendment to Art. 114);

9.      local administration is based, besides the principle of autonomy, on the principles of subsidiarity and de-concentration (amendment to Art. 119); the prefects are leading the public de-concentrated services of the ministries and other central authorities (amendment to Art. 122, correcting decentralisation with deconcentration);

10.  nomination of judges and any other measure concerning them are proposed to the President of the Republic or decided by the Superior Council of the Magistracy (amendment to Art. 124);

11.  the Supreme Court of Justice is formally transformed into a High Court of Cassation and Justice, and safeguards the consistent interpretation and implementing of the law by the other courts all over the country (amendment to Art. 125); its judges are no longer appointed for 6-year terms, but for life (amendment to Art. 124);

12.  a number of provisions expressly confirm competences which are already a reality due to lower level laws: the creation of specialised courts; the participation of experts which are not magistrates; the judicial control over all acts of public authorities (except military acts and the acts concerning the relations with the Parliament);

13.  the Public Ministry would function as attached to the High Court and the other courts (amendment to Art. 130);

14.  prosecutors’ offices lead and control the activity of the judicial police (amendment to Art. 130);

15.  the Superior Council of Magistracy safeguards the independence of the Judiciary, is organised in two sections, one for judges and another for prosecutors, and is chaired by the President of the Republic. The minister of Justice, the president of the High Court and the Prosecutor-General are ex lege members. 4 representatives of the civil society are also members, but participate only in the plenary sessions. The magistrates are elected in the general assemblies of the magistrates. The mandate of the members is of 6 years. The decisions of the Council are taken by secret vote and cannot be challenged in courts. The Council is the disciplinary jurisdiction for magistrates, case in which the minister of Justice and the Prosecutor General could not vote (amendment to Art. 132);

16.  the Constitutional Court was given the powers (a) to rule on the constitutionality of treaties with the Constitution and (b) to solve the “conflicts of a constitutional nature” between the public authorities. The provisions declared as unconstitutional are ex lege repealed within 45 days from the date of the publication of the Court’s decision, if not replaced by the competent authorities. The right of the Parliament to reverse a Constitutional Court decision declaring the unconstitutionality of a law not yet promulgated was eliminated (amendment to Art. 145);

17.  the disputes resulted from the activity of the Court of Audit are under the jurisdiction of ordinary courts; the members of the Court are appointed for a 6-year term which could be renewed once, and are independent and immovable; 5 members of the Court are appointed every 2 years (amendments to Art. 139);

18.  the Economic and Social Council has its own constitutional provision, confirming its current advisory status to the Parliament and the Government;

19.  the Ombudsman was given the right to ask the Constitutional Court to declare the unconstitutionality of laws both before their promulgation and after their entry into force (amendments to Art. 144).

 

D.    Other provisions:

  1. the role of the State has been widened to include the enforcement of regional policies in compliance with the EU objectives (amendment to Art. 134);
  2. certain resources – transport networks and waterways which could be used for the production of energy – are no longer subject of an exclusive public property regime (amendment to Art. 135);
  3. provisions intuitu personæ: former Constitutional Court judges which did not enjoy a full mandate of 9 years could be reinstated.

 

E. Unsettled (so far) provisions:

1.      whether the national emblem should figure or not on the flag,

2.      the number of members of the Court of Audit,

3.      the full list of principles that should govern the activity of public local administration,

4.      the conditions for the use of minority languages in local administration and in front of courts,

5.      the creation of positions of life-senators.

 

These should not, however, delay significantly the progress of the law. A proof that the advancement is steady is also the fact that a number of provisions have been decided upon only one week before the submission of the darft-law to the Constitutional Court:

a.       Employers’ unions receive constitutional recognition and are treated on an equal footing with the trade unions (amendment to Art. 9);

b.      The text initially agreed on extradition has been further amended and provides now that “Romanian nationals cannot be extradited or expelled from Romania. Romanian nationals can be extradited on the basis of international treaties to which Romania is a party, according to the law and based on reciprocity.”

c.       Education at all degrees can be organized by public, private and religious educational entities, according to the law (amendment to Art. 32). The requirement for the education to be organized only in Romanian or in languages of international circulation has been eliminated.

d.      The pecuniary liability of the state for judicial errors does not preclude the liability of the magistrates acting in bad faith in exercising their judicial functions (amendment to Art. 48).

e.       The Ombudsman would no longer be appointed only by the Senate, but in a joint session of the houses (amendment to Art. 55).

f.        The parliamentary immunity has been procedurally restricted to the votes and political opinions expressed by the MPs (amendment to Art. 69). This means that the Parliament would no longer be requested to approve the opening of criminal investigations against an MP, but its consent would nevertheless be required for searches and arrest measures.

g.       The competences of the two houses have been again redefined. The Senate remains the house that would finally approve most of the organic laws, but not all of them, as initially thought. However, its powers of ultimate decision remain far stronger than those of the Chamber of Deputies. Following the new agreement, the competence of the houses would be the following:

I.       The Senate would decide ultimately on the following laws:

-   ratifying all international treaties (the ratification of the EU and NATO accession treaties belongs to the joint houses);

-   implementing requirements of all international treaties (including the EU and NATO accession treaties, the EU constitutive treaties and the rest of the EU acquis, as the provision relative to the ratification of the accession treaties does not cover also the implementing legislation);

-   the organization of public TV and radio companies;

-   the definition of the categories of persons which cannot be members of political parties (magistrates, including of the Constitutional Court, the Ombudsman and his deputies, the militaries and policemen, certain public servants);

-   legal framework for the fulfilment of military obligations by the Romanian nationals;

-   legal framework of incompatibilities of the members of the Government;

-   organization of the national defence system, organization of the army and of the other military forces (police, gendarmerie etc.);

-   use of minority languages in the local public administration;

-   legal framework of local administration, local autonomy and the territorial organization;

-   legal framework of the educational system;

-   organization of the institution of the Ombudsman;

-   organization of the Government and of the ministries;

-   organization of the Superior Council of the Magistracy;

-   organization of the Public Ministry;

-   organization of the Constitutional Court;

-   organization of the High Court of Cassation and Justice;

-   organization of specialized courts;

-   organization of the Legislative Council;

-   organization of autonomous administrative entities (e.g. the Competition Council etc.).

II.     The Chamber of Deputies would decide ultimately on all other laws, of which the organic ones would be those defining the legal framework of the following:

-   electoral system;

-   political parties;

-   status of MPs;

-   referendums and popular legislative initiatives;

-   state of siege and of emergency;

-   crimes and their sanctions;

-   amnesty and measures of grace;

-   labour relations, trade unions and employers’ unions;

-   national minorities;

-   churches and religious denominations;

-   organisation of the Economic and Social Council;

-   organisation of the Court of Audit.

h.      The rules proposed regarding emergency ordinances remain the same, but a further amendment requires the Parliament to debate emergency ordinances in emergency procedure. (According to the current rules of procedure of each house of the Parliament, the emergency procedure allows only 48 hours for the filing of amendments, obliges the specialised committees of the houses to give their opinions in 3 days, and does not allow any amendment in the plenary sessions debating the texts.)

i.        An organic law should provide the conditions in which citizens belonging to a national minority and representing “a considerable proportion” within the population of administrative units could use their mother tongue in their contacts with local administration authorities and with the public de-concentrated services (amendment to Art. 119; this right, already provided by the law of local public administration, is now constitutionally guaranteed).

j.        The mandate of the chairperson of the Superior Council of the Magistracy is of 1 year and is not renewable (amendment to Art. 132).

 

Some other provisions have been agreed in principle for a long time by now, but their finale wording has been settled only days before the law was sent to the Constitutional Court and they worth special mention as they bring novelties for the Romanian legal system:

a.       The presumption of lawful acquisition of goods, currently provided by Art. 41 para. 7, is not valid in the case of goods acquired by laundering the proceeds from crimes (amendment to Art. 41).

  1. Laws enter into force 3 days after their publication in the Official Journal, unless otherwise provided by them (amendment to Art. 78).
  2. The President of Romania enjoys immunity, which applies to his/her political opinions and to his acts as President (amendment to Art. 84). He/she also enjoyed immunity under the current provisions, but the extent of this immunity was modified in line with the changes in the parliamentary immunity.
  3. Treaties are concluded by the President on behalf of Romania and are submitted for ratification to the Parliament within a reasonable time (amendment to Art. 91). The texts in force provide a time limit for the submission for ratification - 60 days.
  4. Either of the houses of the Parliament are allowed to adopt simple motions stating their positions on domestic or foreign policy matters or on matters which have made the object of an interpellation (amendment to Art. 111);
  5. The provisions concerning the High Court of Cassation and Justice will be implemented in a maximum of 2 years after the entry into force of the law revising the Constitution, but the judges already appointed will be allowed to terminate their mandate.

 

Some delays from the initial time schedule, which foresaw that the text should be ready for referendum by the end of June 2003, just one week before the parliamentary summer recess, are more than simply possible. Only the ruling party has assumed this timetable with the final deadline on the 23 of June 2003, despite the fact that is provides for quite unrealistic deadlines: 3 weeks for debates in each chamber and 2 weeks for mediation and adoption in plenary session. The constitutional law is steady advancing, but delays are all the more likely since a number of political parties feel that a few more amendments should be brought to the text to improve it. As Christoph Engel once mentioned: “A technology often reaches perfection when its successor is already in place. Miraculously speedy and reliable punch cards readers were finally available on the market when demand shifted to personal computers, to cite only one example. Do constitutions follow the same evolutionary pattern?”[20] The revision process of the Romanian Constitution will certainly provide one possible answer to this question.



[1] For a detailed presentation of the normative content of the Romanian Constitution of 1991 see national reports on Romania at the opening conference of the RIGAS Network - “Constitutional history of the South Eastern European countries”, Simina Tanasescu “Fundamental principles of the Romanian Constitution” http://www.cecl.gr/RigasNetwork/databank/REPORTS/report_main.htm

[2] Which states “Laws and all other normative acts remain in force to the extent they do not cotradict the current Constitution”.

[3] E.g. see decisions n°31/1993 (M.Of. n°13/1994), 32/1992, (M.Of. n°126/1994), 33/1993 (M.Of. n°278/1993à, 49/1993 (M.Of. n°126/1994); etc.

[4] Law n°47/1992, M.Of. n°57/1992.

[5] Law n°94/1992, M.Of. n°76/1992.

[6] Article 151 paragraph 2 of the Constitution provides that the new Supreme Court of Justice would have to be  nominated in a delay of maximum 6 months by the Chamber of Deputies and the Senate, at the proposal of the President of Romania, in a joint session.

[7] Law n°35/1997, M.Of. n°48/1997.

[8] Law n°3/2000, M.Of. n°84/2000/

[9] Law n°243/2002, M.Of. n°302/2002.

[10] Law n°27/1996, M.Of. n°87/1996.

[11] Law n°188/1999, M.Of. n°600/1999.

[12] E.g.: the Emergency ordinance of the Government n°272/2000 for the modification and completion of the Emergency ordinance of the Government n°97/2000 regarding the cooperatives of credit has been rejected through the Law n°262/2002, whereas the initial Emergency ordinance of the Government n°97/2000 has been finally approved with some changes though through the Law n°200/2002 regarding the approval and modification of the Emergency ordinance of the Government n°97/2000 concerning the cooperatives of credit.

[13] E.g.: the Government Ordinance n°27/30.01.2000 regarding the regime of the products submitted to accises has been abrogated through the Law n°512/17.07.2002 and then rejected through the Law n°618/13.11.2002.

[14] See decision of the Constitutional Court of Romania n°34/1998, published in the Official Gazette n°88/1998.

[15] Decision of the Plenum of the Constitutional Court n°1/1994, M.Of. n°157/1994.

[16] Decision n°98/2001, published in the M.Of. n°265/2001.

[17] For the beginning of the revision process of the Romanian Constitution, see national reports on Romania at the 6th Workshop of the RIGAS Network - “Democracy and Constitution: Common Challenges in South Eastern Europe; Simina Tanasescu “Democratic deficits and Constitutional Institutions and Emanuel Socaciu “The Romanian Constitution, subject to revision  debates. What is at stake ?”,  http://www.cecl.gr/RigasNetwork/databank/REPORTS/report_main.htm

[18] Created through the Parliament Decision n°23/2002, published in the Official Gazette n°453/27.06.2002.

[19] The draft-law containing only the politically agreed-upon articles has nevertheless been published in the law review “Curierul Judiciar” n°3/2003, p.1.

[20] "Hybrid Governance Across National Jurisdictions as a Challenge to Constitutional Law" research conducted by Christoph Engel in Maw Planck Institute, http://papers.ssrn.com/abstract.