CCR, an inconsequent arbiter in the fight between the state powers

During the current year, the Constitutional Court of Romania (CCR) has adopted 29 decisions related to the constitutionality of some laws and solved two juridical conflicts of constitutional nature.Of those eight notices hand in to CCR before the laws to be promulgated, just for the last three were overruled the notices for unconstitutionality.The activity of the Constitutional Court seems to have intensified lately, this giving since the beginning of the year till now 31 solutions for notices of constitutional nature, in comparison with 25 decisions in the similar period of last year (36 during entire last year). Of all the contestations previously of promulgating a law, respective 18 since 2007 till the pre- sent, only three notices of unconstitutionality were all overruled during last week, in the meeting on October 15. The Government has contested to CCR the constitutionality of the Law related to the public system of pensions and other rights of social insurances and the constitutionality of the Law regarding the wages increase of the staff from education, and CCR decided that these are constitutional. Also, Traian Basescu draws the attention to CCR related to the setting up and functioning of the Court of Accounts, this contestation being overruled. These laws, the only constitutional ones tracked within the examination previous of promulgating the law, have reached to the Constitutional Court in full electoral campaign, transforming CCR in the arbiter of the political “matches“.

The last solution,contesting the constitutionality

Deputies of all political colors have voted almost in unanimity the increase of pensions and of wages for professors with 50%. The government directed by Tariceanu has confronted with an accomplished fact, for which have voted even the PNL members.   The hope of the Exe- cutive remained to CCR, for this to declare the law unconstitutional, invoking also other two decisions of CCR, one since 2007 and other since 1997, that have strengthen the sense of the article from the Constitution related to the compulsoriness of indicating the financing source. „The constitutional demand stipulated by art. 138 paragraph 5 imposes the concomitant set up of the budgetary allocation, that has the signification of an expenditure, as also of the financing source, that has the signification of the necessary income for supporting it, in order to avoid the negative consequences, on economical and social plan, of establishing the budgetary expenditures with lack of funds”, cite the jurists of the Government from the Decision of the Court, showing that in their opinion is established only the budgetary expenditure, without being presented the financing source. An argument, that previously presented by the Government, in case of the Law for changing and completion the Law  nr.128/1997 concerning the Statute of the education staff, determined that the instance of the Court to consider the law as being unconstitutional. Two cases almost identically, with different solutions. In what concerns the objection of unconstitutionality raised by the President of Romania, Traian Basescu has contested the articles of the law which allow the Court of Accounts to organize and function through the internal regulation and to establish penal- ties, such as the ones related to pensions, naming the counselors and suspensions. Those three laws were also the only ones for which the Government and the President have formulated notices the current year.

In 2007, no rejected notice

 

During last year, Basescu has contested to CRR two laws before of being promulgated, while the Government raised three objections of unconstitutionality. The first contestation of the Government since 2007 was the one related to the change of the Law 128/1997, regarding the Statute of the educational staff. For motivating the notice, the Government sustains that the criticized Law was adopted by violating the constitutional stipulations of the art.138 paragraph (5), according to which “No budgetary expenditure can be approved without establishing the financing source”. In justifying the decision of admitting the unconstitutionality, CCR has also justified among others by: “In the constitutional reports between the Government and Parliament, the problems related to the structure and execution of the public budget have special significant in the legislative process, in what concerns the justification and sustaining of some regulations in different domains of activity with financial implications”. The other two laws contested by the Government and admitted as unconstitutional by CCR were the Law for overruling OUG 24/2007 concerning the establish of some measures of reorganization within the central public administration and the Law for overruling OUG 25/2007 related to the set up of some measures for reorganization of the Government apparatus.

Attributing the mandates of parliamentary, at CCR

In 2007, the President has contested as unconstitutional the Law concerning the assignment of a house to the retiring general Marin Lungu, and CCR approved the notice. The second law for which Basescu has addressed to the Court in 2007, previous of promulgation, was the law for the elections of the Chamber of Deputies and of the Senate, the Law for the elections of the authorities of the local public administration, the Law of the local public administration and the Law concerning the statute of the local elected persons. To the objection of unconstitutionality concerning attributing the mandates of parliamentary towards persons from the additional national list, without these to be voted by electors, CCR has agreed with the president. To sum up, during this year were hand in within the control previous to the promulgation, eight notifications to CCR, two of the Government, one of the President and five of the PDL deputies. Last year, were also hand in during the previous promulgation, 10 contestations of which three of the Government, two of the President and five of the deputies. In those two years (2007 -2008), the PSD deputies have raised one single objection of unconstitutionality, in 2007, for the Law related to the protection of the economical operators that have as work object the exploit and processing of the wood from the forest areas affected by wind or by other natural disasters. The contestation was admitted by the Constitutional Court.

The conflicts between the public authorities

In what concerns the juridical conflicts of constitutional nature between the public authorities, last year CCR has solved one notice, and this year two. The request from 2007 was hand in by the Prime Minister Tariceanu and was related to the appointment of a new Minister of Foreign Affairs. CCR has established that the President’s overrule for appointing a member of the Government at the proposal of the Prime Minister and generated a conflict of constitutional nature. CCR has shown that the president doesn’t have a veto right, but it can ask to the Premier to drop out to the proposal, when the proposed person doesn’t fulfill the legal conditions. The first conflict from 2008 solved by CCR was identical with the one from 2007, the president rejecting to appoint Norica Nicolai as Minister of Justice. CCR has determined again at the notice of Tariceanu, the existence of a juridical conflict of constitutional nature between the Govern- ment and President and showed that the president can overrule, only once, motivated,  the proposal of the Premier, this one being obligate to propose another person.  CCR was solicited the second time in 2008 by the President of the Chamber of Deputies related to the ministerial responsibility and penal pursuit of Adrian Nastase, Miron Mitrea, Paul Pacuraru and Codrut Seres. CCR has noticed the existence of a conflict of constitutional nature between the Public Minister – the Prosecutor Office within the High Court of Cassation and Justice, on one hand and the Parliament – the Chamber of Deputies and the Senate –on the other hand, but not between President and those two Chambers. CCR has decided that President’s approval for starting the penal pursuit of the ministers which also are parliamentarians isn’t enough, and it is necessary also the approval of the Chamber of which are part the respective ministers.

Contestations after promulgation

In 2008, within the control after promulgation, the Constitutional Court has solved 19 notices sent by politicians, local authorities, Ministry of Justice, judges or lawyers. Only at five of these was noticed that a part of the paragraphs of different contested laws are really constitutional, but the unconstitutionality objections were approved, generally. There were contested articles from the Law related to the access at their own file and deconspiration of the political police, articles within the Civil or Penal Code, the Adoption Law, the Family Code, the Law concerning the Asylum in Romania, from the Ordinance concerning the prevention and sanction of all ways of discrimination.