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The Romanian Constitutional Court (CCR) analyzes, on Wednesday, the notifications of President Klaus Iohannis and the Government on the Law on some measures to organize the elections to the Senate and the Chamber of Deputies, as a consequence of the termination of the elected Parliament in 2016 , writes agerpres.ro.
On August 17, the head of state notified the RCC, requesting that this normative act be declared unconstitutional as a whole.
According to a statement from the Presidential Administration, the law violates the provisions of art. 1 par. (3) and (5), those of art. 36, art. 37, art. 61, art. 63 par. (1), (2) and (4), art. 69 par. (2), art. 73 par. (1) and (3) letters a), as well as those of art. 147 par. (4) of the Constitution.
Article 1 para. (1) of the criticized law establishes that “(1) Notwithstanding the provisions of article 6 subsection (2) of Act No. 208/2015 on the election of the Senate and the Chamber of Deputies, as well as for the organization and operation of the Permanent Electoral Authority, With subsequent modifications and terminations, the date of the elections for the Senate and the Chamber of Deputies that will be held as a result of the expiration of the mandate of Parliament, which is exercised on the date of entry into force of this law, it is established by organic law, at least 60 days before the date of the elections. “
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The provision to which the art. 6 par. (2) of Law no. 208/2015, stipulates: “(2) The date of the elections will be made public at least 90 days before the voting day, through the publication in the Official Gazette of Romania, Part I, the decision of the Government on the date of the election “, warns the head of the State.
“When analyzing the content of the repealing provision, we find that it creates a special legislative framework only for the next parliamentary elections. We consider that such an amendment, made less than 6 months before the legislature, violates the requirements of article 1, paragraph 5) of Constitution in its dimension of predictability of the law and security of legal relations ”, explains the Head of State.
It points out that, according to the Code of Good Practice on Electoral Practices – Guidelines and Explanatory Report, adopted by the European Commission for Democracy through Law at its 52nd Plenary Session (Venice, October 18-19, 2002), “it would be necessary avoid, not so much the change of voting systems – they can always be improved – but their frequent change or little (at least one year) before the elections. Even in the absence of an intention to manipulate, the changes will be dictated by party interests political imminent “.
As the Court pointed out, adds Iohannis, the recommendations of the Code of Good Practices in Electoral Matters, prepared by the Venice Commission, “constitute coordinates of a democratic election, in relation to which states – which are characterized by belonging to this type of regime – They can exercise their free choice in electoral matters, respecting fundamental human rights in general and the right to be elected and to choose in particular “.
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“However, the criticized provision changes the competence to set the date of the elections only a few months before the elections, contrary to constitutional norms, establishing a prerogative for Parliament to set the date of the parliamentary elections at its discretion. In addition, in the current context, the adoption of one of the laws that establish the date of parliamentary elections becomes all the more problematic in the case that one of the causes that condition the legal extension of the mandate of Parliament, such as the state of exception provided for by article 93 of the Constitution ”, adds the president.
In his opinion, the “untimely” intervention and the “excessive” formalization of the procedure for setting the date of the elections create the premises for the violation of other constitutional provisions and guarantees. Furthermore, given the current context, if, for various reasons, Parliament does not pass such a law in a timely manner, it can lead directly to a violation of the constitutional rules that clearly establish the mandate of Parliament and the maximum interval in which they must be held. parliamentary elections, Iohannis added.
Regarding the violation of the provisions of art. 69 par. (2) of the Constitution, the head of state says that the rule provided for in art. 1 par. (1) of the criticized law establishes in the task of Parliament an obligation of result, that of adopting an organic law, in a determined time horizon, presetting the solution that will be imposed on the senators and deputies, “whose real will no longer seems it had meaning. “
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However, the general will that is achieved at the level of Parliament and is materialized in the approval of a law results from the exercise and mandate of each senator and deputy. In the exercise of the mandate, the deputies and senators freely express their will by voting on legislative proposals or bills, a will that is formed after analysis, debates and deliberations on the content of the draft normative act, regardless of whether it materializes or not in the approval of a law ”, is mentioned in the notification.
Consequently, as a result, if senators and deputies are forced to vote in favor of passing the law that fixes the date of the elections, then the will of the parliamentarian is no longer free, the mandate becomes imperative, which places the criticized law in the field of “absolute nullity” that cannot be removed in any way, in accordance with art. 69 of the Constitution.
Violation of the provisions of art. 61 and art. 63 par. (1), (2) and (4) corroborated with those of art. 36, art. 37 and art. 147 par. (4) of the Constitution is motivated by the President by the fact that, by analogy with the option to fix the date of the local elections, by the criticized law the Parliament opted for the same legislative solution according to which the date of the Next elections to the Senate and Chamber of Deputies will be established by organic law.
“Given the constitutional role of Parliament, the constituent legislator expressly established the duration of his mandate, as well as the situations in which it can be extended, which is why the legislative solution established by the criticized law violates constitutional norms and principles, in matters of parliamentary elections By the content of article 1 paragraph (1) of the criticized law, Parliament acquires the power to set the date of the elections at its discretion, ignoring the rules established by article 63 of the Constitution., it is possible to extend the mandate of the current Parliament, outside the constitutional framework ”, shows the cited source.
According to art. 63 par. (1) of the Constitution, “the Chamber of Deputies and the Senate are elected for a period of 4 years, which is extended by law in a state of mobilization, war, siege or emergency, until its extinction.”
Unlike the mandates of local authorities, Parliament has a mandate configured in the content of art. 63 par. (1) of the Basic Law, which expressly and limitedly regulates the situations in which it is extended by law, respectively in a state of mobilization, war, siege or emergency, until its termination. Likewise, to ensure continuity, the legislature is extended until the legal meeting of the new Parliament, in its configuration resulting from the elections, indicates the president.
“In accordance with current legislation, the Government is the one who establishes the date of the elections, and the public announcement of the date of the elections is made at least 90 days before the voting day, through publication in the Official Gazette of Romania, Part I, the government’s decision on the date of the elections, “recalls Klaus Iohannis.
It affirms that the fixing of the date of the elections is linked to the duration of the mandate of Parliament and the Government is the authority that ensures compliance with the constitutional norms through the application of the legal provisions, which are essentially a transposition of the constitutional ones .
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