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On May 6 of this year, the Constitutional Court declared the unconstitutional of a legislative initiative, one of the reasons being the execrable, unfounded and superficial quality of the explanatory statement that accompanies the bill. Citing consolidated jurisprudence, Cutea extensively explained, in 8 paragraphs spread over two pages of the 26 of the decision, that an unfounded and superficial explanatory statement violates the constitutional provisions on the quality and clarity of the law, the security of legal relationships, the compliance with the Constitution and the laws of the country, since it would favor arbitrary and abusive legislation. And an important detail: the law declared unconstitutional pointed repeal of special pensions, including those of the judges of the Constitutional Court.
Not even five months later, on September 29, the Constitutional Court had to judge the law approved at the end of July, by which Parliament assigned its competence to set itself, and not the Government, the date of the next parliamentary elections . One of the objections raised by the Government was that the explanatory memorandum was extremely superficial and contained practically no reason why Parliament had granted it this power.
Exactly rigorous work. The explanatory memo contains a short, single sentence that may seem like motivation. Here it is: “Or, in the current context, given the importance of the date of the elections for the development of the entire electoral process, it is all the more necessary for Parliament to maintain this competence.” What is the current context? Is it a pandemic? The China Sea crisis? The situation in the Middle East? Everyone can understand anything. Words like epidemic, pandemic, Covid-19 or health crisis are completely missing from the statement of reasons …
However, the RCC rejected this objection from the Government. In just 10 lines, without even announcing that it changes its jurisprudence, in addition to justifying why it does so, the Court said that it judges the law and not the motivation, and that it has no jurisdiction to rule on the wording. of the explanatory memorandum. The exact opposite of what he had decided in many other cases, including the one five months ago, in which the judges of the CCR had to defend their own special pensions.
And here we have a danger. The Constitutional Court thus gives birth (and it is not the first time) a monster, a true legal nightmare: definitive and generally binding decisions that say exactly the opposite. Future legislators – Parliament or Government – will never know if any of the decisions prevail and which ones, and the Court will be able to choose, depending on who knows what interests, which of the decisions applies in one case or another. In other words, for you to pass a law, from now on it will be mandatory to have a solid file in the Constitutional Court.
Finally, the essential thing here is that the PSD got what it wanted: the date of the elections will be set by Parliament, by law Organic. Remember this word: Organic. But why organic?
In ruling on the law passed in July, the Legislative Council drew attention to the fact that the areas in which organic laws are adopted are limited in the Constitution and that although electoral laws are organic laws, setting the date of elections is not an organic arrangement. ordinary – as evidenced by the fact that this competence is normally attributed to the Government. Therefore, the Legislative Council, an institution that really knows the book, including the jurisprudence of the ICR, recommended that the future law that fixes the date of the elections, in order not to run the risk of invalidation in the ICR, be a Ordinary (which is adopted by the majority of MPs present), and none Organic (which is adopted by the majority of all MPs).
It was hoped that the majority of PSD-ALDE would have welcomed this observation, so that the law could be more easily adopted. And yet, even at the risk of invalidation in the Constitutional Court, on the same day July 27, both Houses of Parliament passed the law ignoring the advice of the Legislative Council: the date of the elections is fixed by organic Law. Isn’t it a bit unnatural? Why would you want a law that you want so badly to not only be more difficult to pass, but also risk a sanction of unconstitutionality?
And yet, in the CCR, surprise (or not?): Despite the evidence and its own jurisprudence, the Court accepted the organic of the law that establishes the date of the election. He did so after a mind-boggling discussion, which was based on a crude hoax (and I’ll explain what counterfeiting is on another occasion).
Asked the other day, on Adevărul Live, about the strange insistence on opting for organic law and not ordinary law, the president of the Senate, Robert Cazanciuc, said that things were clarified by the Constitutional Court. But this is a lack of response. Because the question remains: why did the PSD, despite the Legislative Council’s warning, insist and persist for the organic law? before to know what decision CCR will make? And then I can only explain this apparently unthinking insistence by the fact that there was a permanent communication channel between Parliament and the ICR, through which the majority of PSD-ALDE received guarantees that it will not have problems with the organic nature of the law. sets the date of the election.
At the end of its argument, the RCC affirms that an organic law represents “a necessary procedural guarantee”, which “gives special significance and weight to the decision taken”, since it is adopted “with the most restrictive and difficult legislative procedure possible”. This is a good point of view, if you look at the problem from only one side.
Because seen from the other side, the problem is seen differently: the merit of a common law is not only that it is more difficult to adopt, but that it is also easier to sabotage. And here we have another danger: if the majority of the PSD-ALDE in the current Parliament intends to sabotage the approval of the law on the date of the elections, it has all the means to do so indefinitely, without anyone being able to oppose it, without anyone can do it. sanction in any way. And, no matter what the Constitution says, we will have elections only when the current PSD-ALDE majority wants to have them.
The President and the Government referred to this perspective before the ICR, but the Court said, in many other words, that Parliament has the obligation to respect the Constitution, that such a hypothesis cannot even be invoked or analyzed, and that in the absence of evidence, a kind of intentional process against Parliament, and the Constitutional Court does not judge intentional proceedings. Well, with this logic, we should repeal the entire Penal Code, because it is a great process of intention against every citizen who has not yet committed a crime, but who thinks of committing it.
Forgive me, but I don’t think such a Constitutional Court deserves to have even North Korea.
PS: The other day, Valer Dorneanu hinted that if the elections are not held in the conditions that he establishes, they can be invalidated. First of all, the Constitutional Court only deals with the election of the president and referendums, it has no competence to validate parliamentary elections. Or maybe Mr. Dorneanu is waiting for a legal conflict of a constitutional nature, which only the PSD wins. And 2: there was another Constitutional Court, that of the Republic of Moldova, which acted on the invalidations based on political floods, and such a scandal arose that all the constitutional judges had to resign en bloc. I hope we don’t get there, because there isn’t much left …
