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DECIDES:
1. Law no. Is declared unconstitutional. 184 of August 27, 2011 on amending and supplementing some legislative acts, as being adopted in violation of the adoption procedure.
2. This decision is final, may not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.
JUDGEMENT
ON THE CONTROL OF CONSTITUTIONALITY
Law no. 184 of August 27, 2011 for amending and supplementing some legislative acts
(Notification no. 28a / 2011)
CHIŞINĂU
December 22, 2011
On behalf of the Republic of Moldova,
The Constitutional Court, ruling on:
Mr Alexandru TĂNASE, President, Judge-Rapporteur,
Mr Dumitru PULBERE,
Mr. Victor PUŞCAŞ,
Mr Petru RAILEAN,
Mrs. Elena SAFALERU,
Ms Valeria ŞTERBEŢ, Judges,
with the participation of Mrs. Dina Musteaţa, clerk,
Having regard to the notification lodged on 5 September 2011, registered on the same date,
Having considered the above referral in plenary,
Having regard to the documents and works of the file,
Deliberating in closed plenary session,
Make the following decision:
PROCEDURE
1. At the origin of the case is the notification submitted to the Constitutional Court on September 5, 2011 pursuant to articles 135 par. (1) letter a) of the Constitution, 25 para. (1) lit. g) of the Law on the Constitutional Court and 38 paragraph (1) letter g) of the Code of Constitutional Jurisdiction of deputies in the Parliament, Mr. Artur Resetnicov and Mr. Serghei Sirbu, regarding the control of the constitutionality of Law no. 184 of August 27, 2011, in the part related to the procedure of its adoption by engaging the responsibility of the Government of the Republic of Moldova before the Parliament based on article 1061 of the Constitution.
2. The authors of the complaint claimed, in particular, that the Government's liability for a draft law during the parliamentary vacation and contrary to the procedure provided by law on public consultation, endorsement and expertise of the draft law contravenes the provisions of Articles 7, 60, 66 let. a) and 1061 of the Constitution.
3. By the decision of the Constitutional Court of September 7, 2011, the notification was declared admissible, without prejudice to the merits of the case.
4. In the process of examining the referral, the Constitutional Court requested the opinion of the Parliament, the Government and the Academy of Sciences of Moldova.
5. The authors of the referral did not participate in the public plenary session of the Court, requesting the examination of the referral in their absence. The Parliament was represented by Mr Sergiu Chirică, Senior Consultant in the Legal Department of the Parliament Secretariat. The Government was represented by Mr Vladimir Grosu, Deputy Minister of Justice.
RELEVANT LEGISLATION
6. The relevant provisions of the Constitution (M.O. no. 1/1, 1994) are the following:
Article 7
The Constitution, the Supreme Law
"The Constitution of the Republic of Moldova is its Supreme Law. No law or other legal act contrary to the provisions of the Constitution has any legal force. "
Article 60
Parliament, the supreme representative and legislative body
"(1) The Parliament is the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the state. [...] "
Article 66
Basic tasks
"Parliament has the following basic responsibilities:
a) adopts laws, decisions and motions; [...] "
Article 74
Adoption of laws and decisions
"[...] (3) The draft laws presented by the Government, as well as the legislative proposals of the deputies accepted by it shall be examined by the Parliament in the manner and according to the priorities established by the Government, including in the emergency procedure. Other legislative proposals shall be examined in the manner prescribed. "
Article 102
Government acts
"(1) The Government adopts decisions, ordinances and dispositions. [...]
(4) The decisions and ordinances adopted by the Government shall be signed by the Prime Minister, countersigned by the ministers who have the obligation to implement them and shall be published in the Official Gazette of the Republic of Moldova. Non-publication entails the non-existence of the decision or ordinance. "
Article 1061
Government accountability
"(1) The Government may assume responsibility before the Parliament on a program, a general policy statement or a draft law.
(2) The Government is dismissed if the motion of censure, submitted within 3 days from the presentation of the program, the general policy statement or the draft law, was voted under the conditions of article 106. "
7. The relevant provisions of Law no. 797-XIII of April 2, 1996 for the adoption of the Rules of Procedure of the Parliament (M.O. no. 81-82 / 765, 1996; republished M.O. no. 50/237, 2007) are the following:
Article 37
Sessions of Parliament
"1. Parliament shall meet in two ordinary sessions a year. The spring session begins in February and cannot exceed the end of July. The autumn session begins in September and cannot exceed the end of December.
(2) If the Parliament is not in ordinary session, it may meet in extraordinary or special session at the request of the President of the Republic of Moldova, of the President of the Parliament or of 1/3 of the number of deputies.
(3) The request for convening the extraordinary or special session shall be made in writing to the Permanent Bureau and shall include the reason, the proposed agenda and the duration of the session.
(4) The convocation of the Parliament in extraordinary or special session will be made within 3 days from the date of registration of the request, unless the law provides otherwise. "
Article 38
Sessions of Parliament
"1. Parliament shall function in the form of plenary sittings and sittings of standing committees."
Article 113
The content of the simple motion
"(1) [...] The motion shall be submitted to the President of the sitting, in the plenary of the Parliament."
Article 116
Submission of the motion of censure
"(1) The motion of censure expresses the withdrawal of the trust granted to the Government at the investiture.
(2) The motion of censure on the activity of the Government may be initiated by at least 1/4 of the number of elected deputies.
(3) The motion of censure on the activity of the Government shall be drawn up and submitted according to the procedure established in art. 113 par. (1) and (2). "
Article 119
The mechanism of engaging the responsibility of the Government
"(1) The Government may engage its responsibility before the Parliament on a program, on a general policy statement or on a draft organic or ordinary law.
(2) The commitment of political responsibility before the Parliament shall be declared by a decision of the Government, which shall be presented to the Parliament on the same day, with the annexation of the text of the program, of the general policy statement or of the draft law. The President of the Parliament shall immediately order the distribution of the decision and additional materials to Members.
(3) If, within 72 hours of the Government taking office, at least 1/4 of the elected deputies do not submit a motion of censure to the Government or if the motion of censure filed is rejected, the program, the general policy statement or the bill is considered adopted and becomes enforceable for the Government.
(4) In case of submission of a motion of censure according to paragraph (3), it shall be examined according to the provisions of art.116-118. "
8. The relevant provisions of the Law on legislative acts no. 780-XV of December 27, 2001 (M.O. no. 36-38 / 210, 2002) are the following:
Article 5
Mandatory general conditions of the legislative act
"1. The protection of the rights, freedoms, legitimate interests of citizens, equality and social equity, as well as compatibility with Community law shall be a mandatory condition of any legislative act.
(2) The legislative act must meet the following conditions:
a) to be in accordance with the basic principles of legislation, provided in art.4;
b) to be drawn up according to the legislative technique and the norms of the literary language;
c) to be adopted by the legislative authority. "
Article 20
Substantiation of the draft legislative act
"Simultaneously with the drafting of the legislative act, the working group shall draw up an information note which shall include [...]"
Article 21
Approval and public consultation of the draft legislative act
„(1) The draft legislative act, accompanied by the informative note, shall be sent for approval to the interested internal and external authorities and institutions and shall be submitted to the public consultation procedure, in the manner established by law. [...] "
Article 22
Expertise of the draft legislative act
"1. For the evaluation of the draft legislative act, legal, anti-corruption, economic, financial, scientific, ecological and other expertise shall be carried out, including compatibility with Community law, depending on the type of regulated social relations, and a language expertise.
(2) Legal expertise is mandatory for all draft legislative acts [...].
(3) Anti-corruption expertise is mandatory for all draft legislative acts ... ".
9. The relevant provisions of Law no. 317-XV of July 18, 2003 on the normative acts of the Government and other authorities of the central and local public administration (M.O. no. 208-210 / 783, 2003) are the following:
Article 32
The main stages of elaboration
„(1) The draft normative act is elaborated in several consecutive stages, according to the rules and norms of the legislative technique.
(2) The elaboration of the draft normative act includes:
a) examining the proposals, documenting and taking the corresponding decision;
b) technical, organizational and financial assurance of the elaboration process;
c) determining the concepts and notions that will be used in the project;
d) drafting the text;
e) substantiation;
f) approval, public consultation and expertise;
g) finalization. "
10. The relevant provisions of Law no. 173-XIII of July 6, 1994 on the manner of publication and entry into force of official acts (M.O. no. 1, 1994) are the following:
„Art.1. - (1) Laws, promulgated by the President of the Republic of Moldova, decisions of the Parliament, decrees of the President of the Republic of Moldova, decisions and provisions of the Government [...] shall be published in the Official Gazette of the Republic of Moldova, edited by the State Information Agency "Moldpres" with translation into Russian and other languages according to the legislation. If necessary, other official documents are published in the Official Gazette. [...]
(5) The official acts nominated in paragraph (1) shall enter into force on the date of publication in the Official Gazette or on the date indicated in the text. The official acts which enter into force on the date provided for in the text of that act shall be published in the Official Gazette within 10 days of the date of their adoption. "
IN LAW
11. On 24 August 2011 the Government approved Decision no. 633 on the commitment of the Government to the Parliament under Article 1061 of the Constitution in order to adopt an organic law on amending and supplementing Law no. 550-XIII of July 21, 1995 of financial institutions, Law no. 199-XIV of November 18, 1998 on the securities market, of the Code of Civil Procedure no. 225-XV of May 30, 2003, of the Execution Code no. 443-XV of December 24, 2004 and Law no. 113 of June 17, 2010 on bailiffs.
12. On the same day, the Government Decision no. Was submitted to the Secretariat of the Parliament, which was on parliamentary vacation for the period July 1 - September 13, 2011. 633 on the commitment of the Government to the Parliament under Article 1061 of the Constitution in order to adopt an organic law on amending and supplementing some legislative acts.
13. In the Official Gazette no. 139-145 of August 26, 2011, at art. 702, the Government Decision no. 633 of August 24, 2011 on engaging the responsibility of the Government. The Court notes that in the Official Gazette no. 139-145 of August 26, 2011, only the text of Government Decision no. 633 was published, not the text of the draft law itself.
14. On 27 August 2011, as no motion of censure was tabled, the proposed bill was deemed adopted. On August 28, 2011 in the Official Gazette no. 146, art. 450, Law no. 184 of August 27, 2011 for the amendment and completion of some legislative acts.
15. The authors consider that, in this context, the procedure for adopting the law subject to constitutional review reveals the situation in which a draft law can become an organic law by engaging the Government's responsibility during the parliamentary vacation, by not presenting the draft in Parliament technique for submitting the motion of censure and without presenting the opinions, a situation which, in the view of the authors of the notification, is contrary to articles 7, 60, 66 let. a) and 1061 of the Constitution.
16. The Court notes that the prerogative conferred on it by Article 135 para. (1) lit. a) of the Constitution implies the establishment of the correlation between the legislative norms and the text of the Constitution, taking into account the principle of its supremacy.
17. In this context, the Court notes that, in essence, the referral aims to comply with the procedure for holding the Government accountable to Parliament for a draft law, as well as to comply with the procedure for drafting and entering into force legislative and normative acts.
18. The Constitutional Court will analyze the contested procedure in the light of the constitutional norms invoked by the authors of the notification, taking into account the two identified aspects. In this regard, the Court will examine the alleged violation of Article 1061 of the Constitution in conjunction with Articles 7, 60 and 66 of the Constitution.
ALLEGED VIOLATION OF ARTICLE 1061 OF THE CONSTITUTION IN COMBINATION WITH ARTICLES 7, 60 AND 66 OF THE CONSTITUTION
19. According to the authors of the complaint, the contested legislative act was adopted by a procedure in violation of Article 1061 of the Constitution, which provides as follows:
"(1) The Government may be accountable to Parliament for a program, general policy statement or bill."
20. In that regard, the complainants consider that the procedure by which the contested act was adopted infringes the prerogatives conferred on the Government by Article 1061 of the Constitution and the prerogatives conferred on Parliament by Article 66 of the Constitution, according to which Parliament:
„A) adopts laws, decisions and motions; [...] "
21. At the same time, the complainants consider that, by failing to comply with the procedure for holding the Government accountable to Parliament, the contested legislative act infringes Article 60 of the Constitution:
"(1) The Parliament is the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the state."
22. In the view of the complainants, as the procedure for incurring the liability of the Government provided for in Article 1061 of the Constitution was not complied with, the contested act has no legal force under Article 7 of the Constitution, which provides:
"The Constitution of the Republic of Moldova is its Supreme Law. No law or legal act contrary to the provisions of the Constitution shall have legal force. "
A. Arguments of the authors of the notification
23. According to the complainants, the commitment of the Government to a bill during the parliamentary holiday does not comply with the requirements of Parliament's Rules of Procedure and Article 1061 of the Constitution, which implicitly regulates that liability is theirs before the full Parliament, so that deputies can effectively to file a motion of censure, if they wish to exercise this right.
24. The authors of the complaint also consider that, by adopting a law through a vicious procedure for incurring liability by the Government, articles 60 and 66 letters were also violated. a) of the Constitution, which states that the Parliament is the sole legislative authority of the state, and the adoption of laws and ensuring the unity of legislative regulations throughout the country is one of its basic responsibilities.
The authors of the notification consider that the non-observance of the procedure for holding the Government accountable in a parliamentary republic constitutes an inadmissible takeover of legislative powers, without these being delegated by the Parliament according to the constitutional procedure provided in article 1062 of the Constitution.
25. The authors of the complaint also note that the urgency of adopting legislative measures, invoked by the Government to engage responsibility for the text of the contested act, does not correspond to the spirit of Article 1061 of the Constitution, because for such situations the Constitution provided in Article 74 para. (3) emergency procedure.
26. The authors of the notification consider that, by submitting to the Parliament's Secretariat the respective draft law without observing the rigors imposed by public consultation and approval, the Government did not follow the procedure established by law and, implicitly, by the Constitution. The authors of the notification emphasize that, in the light of the jurisprudence of the Constitutional Court, the adoption of a law without observing the stages of elaboration and adoption of legal norms has the effect of its nullity.
B. Arguments of the authorities
27. The Government and the Parliament point out that the Constitution lacks detailed provisions regarding the mechanism for holding the Government accountable, which is regulated by the Parliament's Rules of Procedure.
The Government considers that the constitutional norms have not been violated, because the phrase "before Parliament" in Article 1061 of the Constitution cannot be interpreted as meaning the physical presence of the representative of the executive branch in the plenary session of the Parliament. In the opinion of the Government, the commitment of responsibility took place at the moment of the approval of the decision by the entire cabinet of ministers, with the subsequent measures taken by the High Legislative Forum, manifested by action or inaction.
28. According to the Government, parliamentary leave is not a circumstance which would preclude the possibility of incurring the Government's liability to Parliament on a draft law, since, in accordance with Article 67 (2) of the Constitution, Parliament also meets in extraordinary session or at the request of the President of the Republic of Moldova, the President of the Parliament or one third of the deputies. Based on the constitutional provisions, the Government considers that it enjoys full freedom as regards the choice of the moment of engaging its responsibility.
29. In support of his position, in the public plenary session, the Government representative invoked the examples of France and Romania, as states in which governments had more frequently used the institution of holding accountable to Parliament.
30. Citing the jurisprudence of the Romanian Constitutional Court regarding the criteria imposed by Article 114 of the Romanian Constitution for holding the Government accountable, the Government representative argued that the contested legislative act meets these four criteria: (a) the existence of an urgency in adopting the measures contained in the law The government has taken responsibility; (b) the need for that regulation to be adopted as soon as possible; (c) the importance of the regulated area; and (d) the immediate application of the law in question.
31. The Government submitted that projects following the Government's accountability procedure were not subject to the stages of the legislative procedure, as they were an exception to the legislative creation and law-making process. The Government points out that this shortcoming is remedied by respecting the principle of publicity, which gives legal force to the adopted act, as well as by ensuring the procedure for promulgating the law by the interim President of the country.
32. Parliament considers that the constitutional rules have not been violated, as the procedure for holding the Government accountable to Parliament is not governed by the Constitution, but by Parliament's Rules of Procedure, the application of which is the exclusive prerogative of Parliament. In this sense, reference is made to the Decision of the Constitutional Court no. 5 of September 28, 2000, by which the Court revealed the following “the constitutionality control does not extend to the acts of application of the regulatory provisions.
The application of the Regulation is a task of the Parliament. Any interference in this activity by extra-parliamentary public authorities, including the Constitutional Court, can be qualified as a violation of the autonomy of the legislature. In case of contesting concrete actions for the application of the regulation, the use of exclusively parliamentary means and procedures is constitutional. "
33. In its view, the Parliament pointed out that the draft contested legislative act was registered at the Secretariat of the Parliament on 24 August 2011 with no. In 1878, the President of the Parliament immediately ordered the distribution of the materials to the deputies, who were on parliamentary vacation. The convocation of the Parliament in extraordinary or special session is made within three days from the date of registration of the request to convene the session, unless the law provides otherwise.
By virtue of the fact that Parliament's Rules of Procedure do not regulate the procedural steps of holding the Government accountable to Parliament, there is a legislative vacuum, taking into account the three-day deadline set in Articles 106 and 1061 of the Constitution, and the fact that Members were on leave, no special or special session was convened. Parliament reported that no plenary sitting of Parliament (ordinary, extraordinary or special) had taken place, nor had any motion of censure been tabled.
34. According to the Parliament, since the procedure is not expressly laid down in Parliament's Rules of Procedure, starting from the provisions of Article 68 paragraph (1) of the Constitution, the Member, even on holiday, once informed by the Parliament Secretariat of the Government's intention to assume responsibility , in the exercise of the representative mandate, being in the service of the people, had the right to contribute to the accomplishment of the constitutional attributions of the Parliament.
35. The Parliament also pointed out that, since Law no. 780 of 27 December 2001 on legislative acts does not contain regulations on the procedure for holding the Government accountable to Parliament under Article 1061 of the Constitution, the requirements on substantiation, approval, public consultation and expertise of the draft legislative act are not applicable.
36. In the opinion of the Academy of Sciences of Moldova, the Government's liability for the text of the contested legislative act was contrary to the spirit and constitutional norms.
According to the Academy of Sciences of Moldova, in the procedure of engaging the Government's responsibility on a draft organic law, the legislator provided that it be examined in the plenary session of the Parliament and in the presence of the majority of deputies, because Article 1061 para. (2) of the Constitution expressly stipulates that "the Government shall be dismissed if the motion of censure, filed within 3 days of the presentation of the program, general policy statement or bill, has been voted under Article 106".
Moldova revealed that the deputies in the Parliament, who were currently on vacation, were deprived of the effective possibility to exercise their constitutional right to file a motion of censure against the Government in connection with the respective draft law.
37. According to the Moldovan Academy of Sciences, the Government should be held accountable to the Parliament in accordance with a single procedure, with the participation of the Government representative, who presents the program, the general policy statement or the draft law in the plenary session of the Parliament.
38. The Academy of Sciences of Moldova noted that Government Decision no. 633 of 24 August 2011 on taking responsibility for the contested draft law was published in the Official Gazette of 26 August 2011. Therefore, at the time of submission to the Secretariat of the Parliament, this Government decision was not in force according to Article 1 para. (5) of Law no. 173 of July 6, 1994 on the manner of publication and entry into force of official acts. According to the Academy of Sciences of Moldova, the 3-day deadline for "presenting the draft law" was due on August 26, 2011, when the Government Decision was published in the Official Gazette.
C. Findings of the Court
1. General considerations
39. The Court notes that the procedure for holding the Government accountable to Parliament for a program, a general policy statement or a draft law is not detailed in Article 1061 of the Constitution. At the same time, Rule 119 of Parliament's Rules of Procedure does not detail the procedure itself, specifying that liability is possible only for organic or ordinary laws and that it takes place by the adoption of a Government decision. This fact was also mentioned in the views expressed by the authorities.
40. The Court points out that the procedure for holding the Government accountable to Parliament for a program, a general policy statement or a draft law is governed by Article 1061 of the Constitution, following the revision of the Constitution operated by Law no. 1115-XV of July 5, 2000.
41. To date, the Government has assumed responsibility under Article 1061 of the Constitution on two occasions: for Law no. 244 of October 1, 2010 and for Law no. 184 of August 27, 2011, the latter being subject to constitutional review in the present procedure.
42. In order to establish compliance with Article 1061 of the Constitution, the Court considers it necessary to interpret the content of this constitutional rule. In this regard, the Court recalls that, according to Article 135 paragraph (1) letter b) of the Basic Law, the power to interpret the Constitution belongs exclusively to the authority of constitutional jurisdiction and lies in establishing the authentic will of the legislator, the exact and full meaning of constitutional norms and their correct application in space and time (Decision no. 17 of 20.09.2011 for the interpretation of the provisions of art. 78 of the Constitution of the Republic of Moldova).
The Court has repeatedly held that the prerogative conferred on it by Article 135 (1) (b) of the Constitution presupposes the establishment of the authentic and full meaning of constitutional rules, which can be achieved by textual or functional interpretation, in so far as can be deduced from the text of the Constitution, taking into account the generic nature of the rule, the concrete situations that the legislator could not provide at the time of drafting the rule, subsequent regulations (related or even contradictory), complex situations in which the rule must be applied, etc. (Decision no. 21 of 20.10.2011 on the interpretation of article 46 paragraph (3) of the Constitution).
43. In addition, the Court notes that the interpretation of the constitutional norm and the review of constitutionality requested by the referral do not affect the provisions of the Rules of Procedure of the Parliament, reiterating in this respect the conclusions expressed in the Decision of the Constitutional Court no. 5 of 28 September 2000, cited in Parliament's view (see § 32 above).
44. In order to establish the authentic and full meaning of Article 1061 of the Constitution, the Court will further analyze the history of the emergence of the constitutional institution of holding the Government accountable to Parliament, its forms of application in the constitutions of other states and the purpose pursued by the legislator.
45. In this regard, the Court will examine the practice of the two states, invoked by the authorities, in which there is the institution of holding the Government accountable to the Parliament, similar to that of the Republic of Moldova: France and Romania.
2. Comparative law
a) France
46. The procedure for holding the Government accountable to Parliament appeared in the 1958 French Constitution as a result of the governmental instability that generated the parliamentary crisis of the Fourth French Republic. During the Fourth Republic, certain governments were in fact taking responsibility for some bills, threatening the legislature that in the absence of a favorable vote for the proposed bill, they would resign. Article 49 para. (3) of the French Constitution of 1958 provides:
"The Prime Minister may, based on the deliberation of the Council of Ministers, engage the responsibility of the Government before the National Assembly on a text. In this case, the text shall be deemed adopted if a motion of censure, tabled within the next twenty-four hours, is not put to the vote under the preceding paragraph. "
47. Between 1958 and 2008, the French Government committed itself 82 times, with motions of censure being filed in 51 cases and 48 laws being adopted as a result. This procedure was used for two purposes: either to force the National Assembly to accept a text that it did not vote on - the procedure was used by some governments with only a very narrow majority - or to fight against it. parliamentary obstructionism in the form of numerous amendments proposed by the opposition, although this was not the original purpose of the constitutional institution.
48. Considering the use of this procedure to be exaggerated, a constitutional reform was approved on 28 July 2008, amending Article 49 (3) of the French Constitution to limit the prerogative of holding the Government accountable only to draft laws relating to to the state budget or to the social security budget and only once in a parliamentary session.
49. It is clear from the French constitutional texts that the procedure for holding the Government accountable is carried out by the Prime Minister in the sitting of the National Assembly, his physical presence being necessary.
b) Romania
50. With regard to the commitment of the Government, the 1991 Romanian Constitution was inspired by the model of the French Constitution of 1958, offering in Article 113, later renumbered in 114, the possibility of holding the Government accountable to the Chamber of Deputies and the Senate:
"(1) The Government may assume responsibility before the Chamber of Deputies and the Senate, in a joint sitting, on a program, a statement of general policy or a bill."
51. Interpreting the provisions of the constitutional text, through its jurisprudence, the Constitutional Court of Romania has imposed certain conditions under which the Government can assume its responsibility before the Parliament.
Thus, the Government has the constitutional right to assume its responsibility under the following conditions, namely:
(a) the existence of an urgency in adopting the measures contained in the law over which the Government has assumed responsibility;
(b) the need for that regulation to be adopted as soon as possible;
(c) the importance of the regulated area;
(d) the immediate application of the law in question.
52. In response to the draft law on the revision of the Constitution, the Romanian Constitutional Court recommended supplementing the provisions of Article 114 paragraph (1) of the Constitution, in the sense of limiting the object on which the Government may assume responsibility for a program, a policy statement general or to a single draft law regulating unitary social relations concerning a single field (Decision no. 799 of June 17, 2011). In this regard, the Romanian Constitutional Court referred to the vicious practice of the Government in engaging in responsibility for a draft law amending 17 laws on property and justice reform.
53. Referring to the procedure of engaging the Government's responsibility over a draft law, the Romanian Constitutional Court revealed (Judgment 1,557 of November 18, 2009):
„[...] In order not to be categorized as a procedure of disregarding the reasons that were the basis for enacting the provisions of art. 114 of the Constitution, the commitment of the Government's responsibility on a text of law cannot be made at any time, in any case and under any conditions, because this way of legislating is, in a natural order of the mechanisms of the rule of law, an exception. "
54. Ruling on the constitutional role of the motion of censure in the procedure of engaging the responsibility of the Government on a draft law, the Constitutional Court of Romania observed (Decision no. 1,525 of November 24, 2010):
"[...] The submission of the motion of censure has the significance of initiating parliamentary control over the activity of the Government [...]; it is a weapon usually placed at the disposal of the parliamentary opposition and last but not least it is a form of expression of the opposition to the measures adopted by the Government. Consequently, preventing the presentation and refusing to debate a motion of censure already filed is unconstitutional, as this would amount to eliminating the possibility for the parliamentary opposition to censor and control government decisions to hold accountable. "
3. Findings of the Court
55. In the light of the foregoing, the Court finds that the procedure for holding the Government accountable to Parliament is a feature of the legislative procedure, according to which the draft law no longer follows the legislative procedure provided for in Parliament's Rules of Procedure, which is subject to strictly political debate. as a consequence the maintenance or dismissal of the Government by withdrawing the trust granted by the Parliament.
56. In this regard, the Court notes that a political debate on the dismissal of the Government by withdrawing confidence can take place under Article 106 of the Constitution only in the plenary sitting of Parliament. Moreover, according to Rule 38 of Parliament's Rules of Procedure, Parliament operates in the form of plenary sittings and sittings of standing committees.
Therefore, the submission to the Secretariat of the Parliament of the Government decision on the commitment of responsibility with the attached materials, without the presentation of this political act of commitment of responsibility in the plenary session, does not correspond to the requirements of the constitutional norms on liability "to" Parliament.
57. Otherwise, such a debate becomes impossible because, according to Article 37 para. (4) of the Rules of Procedure of the Parliament, the convocation of the Parliament in extraordinary or special session will be made within 3 days from the date of registration of the request, unless the law provides otherwise. The term for submitting the motion of censure is the same as 3 days from the moment of engaging the responsibility of the Government.
For these reasons, apart from the parliamentary sessions, the procedure of holding the Government accountable is conditioned by convening an extraordinary or special session, and the 3-day term for submitting the motion runs from the moment of presenting in the plenary of the Parliament the bill on which the Government assumes responsibility.
58. The Court accepts the Government's argument that the very procedure of holding the Government accountable to Parliament, being a legal reality, does not prejudice the "legislative monopoly of Parliament", as long as this method of legislation is used under the conditions of the Basic Law. Government responsibility does not exclude and cannot be used to exclude parliamentary scrutiny by initiating a motion of censure.The exclusion of this constitutional procedure is the debate of the bill as such, but this is not an unconstitutional consequence, as follows from Article 1061 of the Constitution.
59. The Court also accepts the Government's argument that there is no condition imposed by the Constitution that would limit the Government's exclusive assessment of the appropriateness and content of its initiative. Moreover, the subject-matter of the present case does not extend to the appropriateness or content of the contested legislative act.
60. However, the Court notes that the procedure for incurring the Government's liability in a draft law, as a simplified way of legislating, must be an extreme measure, determined by the urgency of adopting the measures contained in the law on which the Government has assumed responsibility. the need for the regulation in question to be adopted as quickly as possible, for the importance of the regulated area and for the immediate application of the law in question.
61. In this regard, the Court notes that in states where governments have more frequently used the institution of accountability to Parliament, the legislature has limited or seeks to limit the abuse of executive power by this exceptional procedure. The Court finds that in these states the presence of the representative of the executive in Parliament is mandatory, and the mechanism of parliamentary control through the motion of censure was not sufficient to ensure a balance between these powers.
62. The Court finds that Law no. 184 of August 27, 2011 was adopted by holding the Government accountable during the parliamentary vacation, without the presence of the executive in the plenary session of the Parliament, making it impossible to submit the motion of censure and, implicitly, the political debate on maintaining or withdrawing confidence in the Government .
The Court considers that the manner in which the Government made use of the procedure of assuming its responsibility before the Parliament effectively deprived the Parliament, as the supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the state, of control over such exceptional measures. .
63. The Court finds that the lack of express provisions regarding the applicability of the requirements of Law no. 780 of December 27, 2001 on legislative acts on laws adopted by the procedure of engaging the responsibility of the Government cannot be interpreted as an indulgence of the legislator for these legislative acts.
64. The Court notes that similar provisions regarding the harmonization of acts with the mentioned legislation, the economic-financial substantiation, the transparency in the decision-making process are found in Law no. 317-XV of July 18, 2003 regarding the normative acts of the Government, provisions that are certainly applicable to the acts of the Government, in general, and to the Government Decision no. 633 of August 24, 2011, in particular.
65. The Court accepts the argument of the Academy of Sciences of Moldova (§ 38 above), but as noted above (§ 57 above), the term provided for in Article 1061 of the Constitution runs from the moment of presentation in the plenary of the Parliament of the bill on which The Government assumes its responsibility, which is to take place after the entry into force, in the manner provided by law, of the Government's decision to assume its responsibility before the Parliament.
In this way, the promulgation and publication of Law no. 184 on August 27, 2011, 1 day after the publication of the Government Decision in the Official Gazette (August 26, 2011), took place in violation of the constitutional deadline provided for the submission of the motion of censure.
66. Starting from the need to ensure transparency in the governing act, the Court notes that, in the procedure of holding the Government accountable to the Parliament, not only the text of the actual Government decisions will be published in the Official Gazette of the Republic of Moldova. , but also the full text of the draft laws that constitute the object of this procedure.
67. In this regard, the Court recalls that, starting from the primacy of the Constitution and ensuring the conformity of laws and other legal acts with the Supreme Law (Article 7 of the Constitution), all participants in the legislative process are obliged to follow the procedure established by the Supreme Law. The rigors imposed by the Constitution towards the adoption of laws are binding and cannot be modified at the discretion of the participants in the legislative process. Or, a law has legal force only if at the stages of elaboration and adoption the respective legal norms have been observed.
68. Thus, the Court considers that Law no. 184 of 27 August 2011 was adopted by a procedure for incurring the liability of the Government contrary to Article 1061 of the Constitution combined with Articles 7, 60 and 66 of the Constitution.
For these reasons, under Articles 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 let. a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court
DECIDES:
1. Law no. Is declared unconstitutional. 184 of August 27, 2011 on amending and supplementing some legislative acts, as being adopted in violation of the adoption procedure.
2. This decision is final, may not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.
President Alexandru TĂNASE
Chisinau, December 22, 2011
HCC no. 28
File no. 28a / 2011