the interpretation of Article 106¹ par. (1)
of the Constitution
(Government liability) (Notification no. 24b / 2015)
in the Official Gazette
Article No. 40
Effective Date: 03/02/2016
On behalf of the Republic
Constitutional Court, sitting in composition:
Mr. Alexandru Tanase, President, Mr. Aurel
BĂIEŞU, Mr. Igor
DOLEA, Mr. Tudor Panţiru
, || | Mr. Victor POPA, judges,
in which Mr Teodor Papuc, Registrar,
Considering the complaint filed on June 4, 2015
and registered on the same date
examining the notification mentioned in the council chamber,
Considering documents and materials,
deliberated in closed session
Delivers the following judgment: PROCEDURE
1. The case originated notification is submitted to the Constitutional Court on June 4, 2015, under Articles 135 paragraph. (1) b) of the Constitution, 25 lit. g) of the Law on the Constitutional Court and 38 para. (1) g) of the Code of Constitutional by MPs Mihai Ghimpu and Valeriu Munteanu for interpretation of Article 106¹ par. (1) of the Constitution.
2. The authors asked the Court referral interpretation of this article, by elucidating the following:
"1. Number of laws for which the Government assumes responsibility is limited to a short period of time?
2. What is the legal procedure to be followed in case of the President of Moldova nepromulgării laws for which the Government took responsibility? "
March. By decision of the Constitutional Court on 4 September 2015, the complaint was admissible, without prejudging the merits.
4. In examining the notification, the Constitutional Court sought the views of Parliament, the President of Moldova and the Government.
May. At a public session of the Court, in which the judgment was pronounced, was present Eugen Beşliu, the authors of the referral, and Eduard Serbenco, Deputy Minister of Justice, Government representative to the Constitutional Court.
THE FACTS 6. Moldovan Constitution institution regulated by Article 106¹ Government liability. According to para. (1) of this Article, the Government may assume responsibility before Parliament upon a program, a general policy statement or a bill.
July. According to Article 74 para. (4) of the Constitution, laws shall be sent for promulgation to the President of the Republic of Moldova. Article 93 para. (2) of the Constitution provides that the President of Moldova has the right, if he objects against a given law, to submit to Parliament for reconsideration within two weeks.
Relevant legislation in August. The relevant provisions of the Constitution (OJ 1994, no. 1) are:
Article 6 Separation and cooperation of powers
"In Moldova the legislature, executive and judiciary are separate and cooperate in the exercise of their powers under the Constitution."
Article 74 The adoption of laws and decisions
"[...] (4) Laws shall be sent for promulgation to the President of the Republic of Moldova."
Article 93 Promulgation of laws
(2) The President of Moldova has the right, if he objects against a given law, to submit it within at most two weeks to Parliament for reexamination. If Parliament remains committed previously adopted, the President must promulgate the law. "
Article 106¹ of responsibility by the Government
"(1) The Government may assume responsibility before Parliament upon a program, a general policy statement or a bill.
(2) The Government shall be dismissed if a motion of censure, tabled within three days from the submission of the program, general policy statement or bill, was passed under Article 106.
(3) If the Government has not been dismissed according to paragraph (2), the bill presented shall be considered adopted, and the program or general policy statement shall become binding on the Government. "
9 tHE lAW. From the content of the notification, the Court observes that it is essentially: (1) the problem of the number of draft laws for which the Government may assume responsibility at the same time and (2) the problem nepromulgării by the President of the laws for which the Government has committed responsibility.
10. Thus, the notification relates to a number of factors and constitutional principles, such as the role of government, Parliament and President of the Republic of Moldova in the liability and the principle of separation of powers.
ADMISSIBILITY 11. In accordance with its decision of 4 September 2015 the Court held that under Article 135 para. (1) b) of the Constitution, article 4 par. (1) b) of the Law on Constitutional Court and Article 4 paragraph. (1) b) of the Code of constitutional complaints concerning interpretation of the Constitution the competence of the Constitutional Court.
12. Articles 25 letter g) of the Law on the Constitutional Court and 38 para. (1) g) of the Code of Constitutional parliamentarian confers the right to petition the Constitutional Court.
13. The Court notes that the power conferred upon it by that Article 135 para. (1) b) of the Constitution requires establishing the meaning of authentic and full of constitutional norms, which can be achieved by the literal or functional, as far as can be inferred from the Constitution, given the generic nature of rule and complex situations in which the standard must be applied .
14. The Court notes that the issues tackled in the notification relates to: (1) the number of draft laws on which the Government may assume responsibility at the same time and (2) the legal procedure to be performed when nepromulgării by the President of Moldova law passed by Government liability procedure.
15. The Court notes that the previously interpreted certain provisions of Article 1061 of the Constitution, the constitutionality review of laws adopted under the liability of the Government. However, the issues raised by the authors of the complaint were not subject to the interpretation of the Constitutional Court.
16. The Court considers that the notification can not be dismissed as inadmissible and there is another reason to stop the process in accordance with Article 60 of the Constitutional Jurisdiction Code. The Court notes that before it was legal and that the jurisdiction to rule on the interpretation of Article 1061 of the Constitution. Therefore, the Court will consider the merits of the referral.
17. In this regard, the resolution of this case, the Court will develop its interpretations of the previous case.
A. MERITS OF THE CASE 1. Arguments authors referral
18. According to the authors of the referral, the Government has often used the prerogative liability for a large number of draft laws at the same time. They argue that the Government may assume responsibility than a single bill, otherwise there is the possibility of resorting to this procedure discretionary and unjustified.
19. In addition, the authors argue that the complaint lacks a regulatory framework that determines what happens if the President did not immediately promulgate the bills on which the Government has assumed responsibility. They wonder if it is necessary to repeat the procedure liability of the Government or whether the situation can be resolved by vote of the Parliament will vote to confirm the original.
2. Arguments authorities
20. In his opinion, the Moldovan Parliament does not consider that there is any restriction on the number of bills that can be adopted by government liability, as long as their urgency requires. On the situation in which the President would refuse enactment of legislation on which the Government has assumed responsibility, Parliament believes that the refusal is indeed a prerogative of the President. He may request reconsideration of the law once upon which the Government took responsibility.
21. President of the Republic of Moldova supports the view that the Basic Law does not set any conditions on the number of draft laws for which the Government may assume responsibility at the same time. However, the Government may incur liability on one or more bills at the same time if this procedure in extremis, in compliance with urgency, importance of the area covered and the immediate implementation of projects that became law. Also, the President believes that he may ask Parliament review any law.
22. In his view, the Government believes that the constitutional text does not limit government liability in using the procedure before Parliament. Also, according to the Government, enactment of the law is one factor which conclude the legislative process and control one's prior law. Therefore, the President may request reconsideration of the law by the Parliament.
March. Findings of the Court 3.1. General principles
23. The Court notes that Article 60 (1) of the Constitution, Parliament is the supreme representative body of the people of Moldova and the sole legislative authority of the state.
24. In this respect, the Court, in Case no. 20 of June 4, 2014, said:
"61. Being the sole legislative authority, the legislative function is the main function of Parliament, which consists in its ability to develop and adopt laws. "
25. At the same time, by Articles 1061 and 1062 of the Constitution, the constituent legislator and government vested with legislative powers. Thus, if Article 1061 of the Constitution regulates the institution of government liability to Parliament upon a program, a general policy statement or a bill, then Article 1062 establishes the procedure legislative delegation.
26. In Case No. 11 of May 13, 2015 the Court stated:
"46. [...] Basic Law has established three methods of regulation: one natural, common, and which, under Article 60 of the Constitution, belongs to Parliament and two exceptional available to the Government, enabling it to enter the sphere of primary regulation of social relations - either by responsibility before Parliament (art. 106/1) or by issuing ordinances (art. 106/2). "
27. The Court held that the liability of the Government on a bill is a legislative indirect way of adopting a law.
28. In Decision no. 28 of 22 December 2011, referring to the procedure liability by the Government, the Court stated:
"55. [P] ROCEDURE liability of the Government in Parliament is a feature of the legislative process, that the bill not follow the legislative procedure provided for in Regulation Parliament, being debated by strictly political, resulting in retention or dismissal of the Government by withdrawing confidence granted by Parliament.
58. [P] ROCEDURE itself of liability of the Government to the Parliament, being a legal reality, without prejudice 'to Parliament's legislative monopoly "as long as this form of regulation is used under the terms of the Basic Law. The procedure does not exclude the liability of the Government and can not be used to exclude parliamentary control by initiating a motion of censure. Which excludes the constitutional procedure is debating the draft law as such, but this is not a consequence unconstitutional, as reflected in Article 106/1 of the Constitution. "
29. Taking into account its previous case, the Court reiterates that Parliament is and remains the sole legislative authority, even if the liability of the Government. Article 1061 of the Constitution expressly regulates an exception to the rule established by the constitutional provisions of Article 60, it can not prevent Parliament from fulfilling its role as the procedure of accountability by the Government menus before Parliament and is conducted under the supervision and control of its . Parliament has at its disposal by virtue of constitutional provisions, the right to dismiss the government by initiating and debate a motion of censure.
3.2. Applying the principles set out in this case 3.2.1. On the number of bills that can be adopted simultaneously by the Government
liability 30. The Court notes that Article 1061 of the Constitution, the Government may assume responsibility before Parliament upon a program, a general policy statement or a bill.
31. In respect of the liability on "a bill", the Court notes that the word "a" may represent that part of speech or an indefinite article or a numeral. Where is the indefinite article, interferes rule of textual interpretation, that a word used in the singular implies the plural. The term "a" and could mean "some". Precisely for this reason alone is not enough textual interpretation of this provision.
32. Accordingly, the Court notes that here operates rule in claris non fit interpretatio they assuming the task of ruling on the matter, as guarantor of the supremacy of the Constitution and the interpretation thereof, using methods of interpretation necessary.
33. In this regard, the Court notes that the Government may assume responsibility on several draft laws at the same time, to achieve the existing public interest. Besides using teleological method, the Court concludes that fact using the logical interpretation. Any formal condition of a single project might be evaded by presenting several projects in the form of one.
34. In its previous case law the Court affirmed the Government's opportunity to liability on several bills while (HCC No. 11 of 13 May 2015).
35. The Court also notes that the draft laws are presented to Parliament for the government to liability should apply to a single field of regulation.
36. The Court points out that, regardless of the number of bills that are presented to Parliament for the government to liability, the legislature has the possibility to initiate a motion of censure, if not agree with their content.
37. At the same time, given that the procedure before Parliament the Government liability is a feature of the legislative procedure, the Court holds that the use of this tool is constitutional to consider that there is a real urgency to adopt legislative measure.
38. In this respect, the Court reiterates the findings of Decision no. 28 of 22 December 2011, that the procedure be liable Government on a bill must be a measure in extremis, driven by the urgency in adopting the measures contained in the law on which the Government has assumed responsibility, the need for legislation at issue be taken with utmost celerity, the importance of the area covered and the immediate application of the relevant law.
39. In conclusion, the Court holds that the Government may assume responsibility before Parliament for several bills at the same time, provided that they have a sense of urgency necessary to regulate in one area of major social importance and be implemented immediately.
3.2.2. Concerning the refusal of the Moldovan president to promulgate the law adopted as a result of liability by the Government
40. The Court notes that Article 74 para. (4) of the Constitution, laws passed by Parliament are sent for promulgation to the President of Moldova.
41. In its case the Court noted that the promulgation is the final operation of the legislative procedure and it allows the president to invest enforceable law obliging public authorities to enforce its provisions (HCC no. 3 of 28 February 1996).
42. Article 93 para. (2) of the Constitution provides that the President of Moldova has the right, if he objects against a given law, to submit, no later than two weeks to Parliament for reexamination. If Parliament remains committed previously adopted, the President must promulgate the law.
43. The Court notes that, unlike the ordinary legislative procedure, adoption of the bill by the Government not assume liability debating the draft according to the ordinary legislative procedure in the Parliament's specialized committees and in plenary. In this case the projects are subject to strict political debates, resulting in retention or dismissal of the Government by withdrawing confidence of Parliament.
44. Given the particularities of this institution, the Court holds that the Moldovan president can not send facing for reconsideration before promulgating a law for which the government has assumed responsibility. Otherwise, such a possibility would, in fact, the annulment of the constitutional mechanism.
45. Also required the President to promulgate the law adopted following liability due to default and the existence of a genuine emergencies for its adoption.
46. The Court emphasizes that real urgency and importance liability law adopted by the Government do not admit delays from other authorities.
47. Meanwhile, in Case no. 9 of February 14, 2014 the Court noted that the control exercised by the President into law the procedure for promulgation is based on three components (directions): procedural and constitutional opportunity.
48. The Court held that, if the President believes that the law adopted by the Government liability is unconstitutional, it can petition the Constitutional Court.
49. However, in Decision no. 9 of February 14, 2014, the Court held that:
"67. [...] Given the imperative norm of Article 93 of the Constitution [...] notification on the constitutionality of the law before publication does not directly affect the promulgation procedures so that in the event the promulgation of the law challenged until judgment Constitutional Court, a priori review of the constitutionality of the law shall be carried in the a posteriori. "
50. Given the above considerations, the Court holds exceptional nature of the procedure promulgation of a law on which the Government has assumed responsibility. Therefore, Article 93 para. (2) of the Constitution can not be applied to laws adopted under the liability of Government to Parliament.
For these reasons, under Article 140 of the Constitution, 26 of the Law on Constitutional Court, 6, 61, 62 lit. a) and 68 of the Code of Constitutional Court Constitutional
1. Under Article 1061 para. (1) of the Constitution, the Government may assume responsibility on several draft laws at the same time, provided that adopting a measure in extremis to be determined by:
- urgency in adopting the measures contained in the law / laws on which / which the Government has assumed responsibility;
- The need for regulation to be adopted with the utmost celerity;
- Immediate application of the law / laws;
- Laws circumscribing a single regulatory domain.
2. 1061 in Articles par. (1) and 93 par. (2) of the Constitution, the President of Moldova can not send facing for reconsideration before promulgating a law for which the government has assumed responsibility. If the President believes that the law adopted by the Government liability is unconstitutional, it can petition the Constitutional Court.
March. This decision is final, can not be subject to any appeal, shall enter into force upon adoption and shall be published in the Official Gazette of the Republic of Moldova.