US-CHINA LAW REVIEW VOL. 10
October 2013
NO. 5
ARTICLES THE PROCEDURE OF THE CONTROLE OF THE DELEGATED LEGISLATION IN LAW-MAKING PROCESS IN ROMANIA Marian Enache The special legislative procedures deviate from common rules, from the ordinary legislative procedure. The special legal procedures include: the additional legislative procedure to review the law, the assumption of responsibility by the Government, the legislative delegation procedure, the emergency procedure, and the adoption of constitutional laws, of organic laws, of financial laws and of laws to ratify international treaties.
INTRODUCTION ............................................................................................ 409 I. PRELIMINARY CONSIDERATIONS .............................................................. 410 II. SIMPLE ORDINANCES .............................................................................. 412 III. EMERGENCY ORDINANCES .................................................................... 415 CONCLUSIONS ............................................................................................. 418 INTRODUCTION The paper presents an analysis of the delegation procedure in Romania, on one hand, and on the other hand an analysis of the relevant provisions of the Constitution of Romania regarding ordinances issued by the Government under an enabling law and emergency ordinances. The division of the article is as follows: First, there is a presentation of the legislative delegation procedure and in the second part, there is a presentation of the legal framework of the issuing of ordinances in Romania.
Ph.D. in Constitutional Law and Political Institutions, Member of the Chamber of Deputies, Romanian Parliament; Scientific Researcher, the Romanian Institute for Human Rights. Research fields: Constitutional Law, Parliamentary Law, Administrative Law, Election Law and Private Law.
409
410
US-CHINA LAW REVIEW
Vol. 10:409
I. PRELIMINARY CONSIDERATIONS According to Art. 61 of the Constitution of Romania, “The Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country”. However, the constituent legislature felt the need to include the government in drafting basic legal norms under a strict parliamentary control. This control may result in changing, amending, repealing or approval of the ordinance—a normative act and it is exercised through legislative delegation. The legislative delegation is made simply by issuing ordinances or emergency ordinances by the Government, subject to parliamentary scrutiny in a separate procedure known as the control of the delegated legislation. The institution of the legislative delegation, both in theory (the removal of the legislative monopoly of the Parliament) and in practice (the abuse of the Government in issuing simple or emergency ordinances) aroused extensive debates among Romanian theorists and practitioners. Some specialists consider that the ordinance is the expression of the exercise of competencies as established by the Constitution or the enabling law1. The use of the term competence in this context is a known fact of public law. Each public authority operates under a competence established by law. But when we speak of legislative delegation, it is estimated that the call for French terminology—competence of attribution—does not save the institution of legislative delegation because, in all cases, it is established by law. There is no exception that law not even for the Constitution of Romania, which states that for the judiciary the competence is established by law. Things are the same when we speak of the executive power, of the public administration or of the Parliament. The fact that in the Constitution, it is expressly stated that ordinances and the emergency ordinances are issued under a law enabling the Government to it or directly by the Fundamental law can not convince us that we are in the presence of a different form of competence than the one applicable to state authorities 2 . Likewise, I. Deleanu considered that the legislative delegation—as a variety of the delegation in general—is “a 1
See I. Muraru & M. Constantinescu, Studii Constituţionale, Actami Publishing House, Bucharest 1998, at 144. 2 See I. Vida, Legistică Formală. Introducere în Tehnica şi Procedura Legislativă, Universul Juridic Publishing House, Bucharest 2012, at 196.
2013
THE PROCEDURE OF THE CONTROLE
411
substitute of the legislative activity of the Parliament during very critical times, especially during times of war”3. In the specialized literature, it is estimated that the legislative delegation, amid legal empowerment of public authorities, is a transfer of legislative attributes toward the executive power, conditionally or unconditionally. According to this opinion, we can say that the legislative delegation may operate in three directions: (1) Legislative delegation to the Government, by means of an enabling law – the case of simple ordinances; (2) Constitutional legislative delegation by means of emergency ordinances; (3) Legislative delegation to the head of the state, in case of the state of siege, the state of emergency or in the event of general or partial mobilization of the armed forces or in case of war4. To release the contents of each form of legislative delegation, we further analyze the constitutional, legal and regulatory regulation. If this classification is not challenged by most authors of constitutional law, Prof. I. Deleanu considered that the measures taken by the head of state—an inappropriate term—in given situations are not equivalent to a constitutional legislative delegation5. According to Art. 108 of the Constitution of Romania, the acts of the Government are decisions and ordinances. Decisions shall be issued to organize the execution of laws, and ordinances shall be issued under a special enabling law, within the limits and in conformity with the provisions thereof. Also, according to paragraph (4) of the same article, decisions and ordinances adopted by the Government shall be signed by the Prime Minister, countersigned by the Ministers who are bound to carry them into execution, and shall be published in the Official Gazette of Romania. Nonpublishing entails non-existence of a decision or ordinance. From the publication rule there is only one exception, considering the decisions of the Government of a military character which shall be conveyed only to the institutions concerned. As we can notice, this text refers only to simple ordinances of the Government, issued under a special enabling law, within the limits and in conformity with the provisions thereof. 3
See I. Deleanu, Instituţii şi Proceduri Constituţionale – î n Dreptul Român şi Dreptul Comparat, C. H. Beck Publishing House, Bucharest 2006, at 1699. 4 See I. Vida, op.cit., at 197. 5 See I. Deleanu, op.cit., Nota 3, at 700.
412
US-CHINA LAW REVIEW
Vol. 10:409
Also, paragraph (4) refers to the same type of ordinances since their validity is conditioned only by the publication in the Official Gazette of Romania, although, in reality, the validity of the emergency ordinances is subject to other requirements such as submitting them to the Parliament. For the complete understanding of the typologies of ordinances it is necessary to appeal to Art. 115 of the Constitution, which defines the legislative delegation, showing that it concerns, equally, the simple and the emergency ordinances. II. SIMPLE ORDINANCES According to the Constitution of Romania, the issuing of simple ordinances is of a legal nature. In such cases, the Parliament may adopt a special law enabling the Government to issue ordinances in areas which do not fall under the area of organic laws. From the provisions of paragraph (1) of that article follow two constitutional restrictions to issue simple ordinances: (1) The Government may issue simple ordinances only when the Parliament passes a special enabling law in this regard; (2) The ordinance may not regulate in areas reserved to organic laws. According to article 115 paragraph (2), the enabling law will mandatorily establish the domain and the date by which ordinances may be issued. As regards the domain in which the Government may issue emergency ordinances, the first problem was solved: They cannot regulate in areas which fall under the domain of organic laws. However, the numerous complaints sent to the Constitutional Court on the constitutionality of a law enabling the Government to issue ordinances argued that certain areas regulated by this law would belong to the area of the organic laws, although this is impossible before examining the content of the ordinance which regulates that particular area. Beyond this possibility of the Constitutional Court to determine the organic nature of the regulation by examining the normative content of the ordinance, there were numerous cases where the Constitutional Court ruled directly on the unfounded support of the claims of the authors on the unconstitutionality of some provisions of the law enabling the Government to issue ordinances6. The third situation that may be encountered on the determining of the content of the enabling law refers to the possible conflict between simple 6
See Decision No.2 of January 5th, 1995 on the constitutionality of the Law enabling the Government to issue ordinances, published in the Official Gazette of Romania, Part I, No. 5 of January 13th, 1995.
2013
THE PROCEDURE OF THE CONTROLE
413
and emergency ordinances. This refers to the situation that an emergency ordinance has provisions which are specific to ordinary law. This case is resolved by itself because the emergency ordinance of the Government may cover areas which fall under the ordinary law since it is adopted by absolute majority, which is superior to a simple majority required for the adoption of ordinary laws. Things are more complicated when a simple ordinance refers to provisions specific to organic laws. A case like this was when an ordinary law provided the regulation of certain crimes. It is known that the regulation of crimes, according to article 73 paragraph (1) letter h), is reserved to organic laws. This conflict was dealt with by the Constitutional Court on two occasions. In the first phase, the Constitutional Court ruled that the provisions which are not organic from an organic law may be amended by an ordinary law7. Later, referring to the constitutionality of the Law on the Chamber of Commerce and Industry of Romania, the Constitutional Court found that an organic law may not be amended by an ordinary law8. This is, indeed, the correct constitutional solution, since the provisions of the Fundamental Law, which set a particular majority for passing an organic law, respectively an emergency ordinance, and a different majority for passing an ordinary law or a simple ordinance, are deeply violated if an organic law shall be passed by the specified majority of ordinary laws, when things happen the other way around. This conflict arises when the Parliament examines ordinances and passes them, amends or repeals them by law. In all these cases, the content of the ordinance determines the organic or ordinary nature of the law on the passing, amending or repealing of the ordinance. Together with the area where the Government may issue simple ordinances, the enabling law must also determine the date until such ordinances may be issued. Until now, the Parliament did not delegate its legislative powers when it was in session. As such, the period which the enabling law could have set for issuing simple ordinances was during parliamentary holidays. The deadline for enabling the Government to issue simple ordinances was between the beginning and the end of the 7
See Decision No.88 of June 2nd, 1998, published in the Official Gazette of Romania, Part I, No. 207 of June 3rd, 1998. 8 See Decision No.545 of July 5th, 2006, published in the Official Gazette of Romania, Part I, No.638 of July 25th, 2006.
414
US-CHINA LAW REVIEW
Vol. 10:409
parliamentary holidays. The law set the date when the Government may issue simple ordinances and the date until these ordinances may be issued. Paragraph (3) of article 115 states that if the enabling law so requests, ordinances shall be submitted to Parliament for approval, according to the legislative procedure, until the expiry of the enabling time limit. Noncompliance with the term entails discontinuation of the effects of the ordinance. Until now, all laws enabling the Government of Romania to issue ordinances have regulated this legislative procedure for the approval of simple ordinances. The law enabling the Government to issue ordinances, passed by Parliament under article 115 paragraph (1) of the Constitution is an ordinary law since it can not contain provisions on the revision of the Constitution or provisions specific to organic laws. In this matter, legislative initiatives of MP’s or of citizens are not allowed. The legislative initiative on the Law enabling the Government to issue ordinances lie, exclusively, with the head of the public administration, respectively the Government. This limitation of the subjects of the right to legislative initiative, in this area, is explained not only by the fact that the Government knows best the areas where an emergency regulation is needed, during parliamentary holidays, but also by the fact that only its specialists are capable to express the immediate requirements of the new legal regulation. This limitation results implicitly from the provisions of article 115 paragraph (1) of the Constitution, which grants only to the Government the power to issue ordinances under an enabling law. The drawing up of simple ordinances is subject to rules of legislative technique as established by Law No. 24/2000. The draft ordinance prepared under this law must take the form of a bill, must meet the requirements relating to its structure in chapters, sections etc., must be drafted according to the characteristics of a normative act and to the requirements set out by its contents, according to the requirements posed by its contents as its object refers to the adoption of primary legal norms, the amending or the repealing of other normative acts. Once drafted, the draft ordinance is subject to the approval of the Government. The adoption in the Government turns it into a simple ordinance. After adoption, the simple ordinance, together with a bill on its approval, is sent to the Parliament and is published in the Official Gazette of Romania. The simple ordinance, thus adopted, comes into force three days after its publication. The simple ordinance is deposited to the Reflection Chamber, which is to the Chamber of Deputies or to the Senate, depending on its contents.
2013
THE PROCEDURE OF THE CONTROLE
415
After the adoption or rejection, the simple ordinance is sent to the Decision-Making Chamber of the Parliament of Romania. In both Chambers, the bill on the approval of the simple ordinance follows the rules of the ordinary legislative procedure, is assigned to a standing committee for drawing up a report, to standing committees for counsel, it is amended and finally, together with the report of the commission is subject to a debate in the Decision-making Chamber. In each Chamber, there is a vote only for the bill on the approval of the ordinance. The question that arises refers to the situation where the plenary of the Chamber or the standing committee proposes the rejection of the ordinance. At the Chamber of Deputies, if the plenary fails to adopt the bill reffering to the ordinance, if it is the Decision-Making Chamber, the bill will be discussed again in the next sessions, starting from the form with which the Chamber was first notified based on the final report of the standing committee. This special legislative procedure set out by the Regulation of the Chamber of Deputies is subject to certain criticism. We basically find ourselves in two situations: (1) The Chamber of Deputies, as a Decision-Making Chamber, rejects a bill on the approval of a ordinance; (2) The Chamber of Deputies rejects a bill which proposes the rejection of the ordinance. In the first case scenario, the bill rejected by the Chamber of Deputies must not be discussed again in the next session, denying it all procedural operations which took place in the previous session, including voting. It would be normal for the rejection of a bill on the approval of the ordinance to automatically lead to its conversion into a bill on the rejection of the ordinance, which would be voted within the same session. If not even in this case is not reached the majority of votes required by the Constitution for the rejection of the bill, it is considered to be abandoned and the Government has to start again the procedure of adoption of the bill on the approval of the ordinance. In the second case scenario, where the bill on the rejection of the ordinance does not meet the voting requirements demanded by the Constitution, it turns into a bill for the approval of the ordinance. If it is not approved, the Government must resume the legislative procedure. We feel that the same rules may be applicable for the Senate, if it is a Decision-Making Chamber. III. EMERGENCY ORDINANCES According to article 115 paragraph (4) of the Constitution of Romania,
416
US-CHINA LAW REVIEW
Vol. 10:409
“The Government can only adopt emergency ordinances in exceptional cases, the regulation of which cannot be postponed, and have the obligation to give the reasons for the emergency status within their contents”. These normative acts bear the name of emergency ordinances. This text of article 115 paragraph (4) was introduced following the revision of the Constitution in 2003. Along with other provisions of article 115 of the Constitution, this aims at reducing the number of simple ordinances and of emergency ordinances which amounted until the revision, but also after the revision, registering a disturbing increase in number, which affects the legislative monopoly of the Parliament. In the form prior to the revision of 2003, in the Constitution of Romania approved on December 8th 1991, this issue was regulated in article 114 paragraph (4). According to this constitutional text: “In exceptional cases, the Government may adopt emergency ordinances, which shall come into force only after their submission to Parliament for approval. If Parliament does not sit in a session, it shall obligatorily be convened”. As it can be noticed, the new regulation replaced the term “in exceptional cases” with the term “only in exceptional cases”. This replacement of term had no effect on reducing the number of exceptional ordinances. To the same purpose, the Constituent Assembly, on the revision of 2003, brought another determination which stated that the adoption of emergency ordinances was conditioned by the impossibility of delaying the regulation. Not even this constitutional requirement prevented the subsequent Governments to issue an increased number of emergency ordinances. Finally, paragraph (4) of article 115 forces the Government to explain the emergency within the ordinance. This constitutional requirement was applied by subsequent Governments which, while taking account of the provisions of Law No. 20/2000 on the legislative technique norms which do not state that the explanation of the normative acts may be done within its structure, have drafted the explanation in the preamble of the emergency ordinance. The new constitutional regulation resumed some provisions of the old one or referred to new requirements. In terms of continuity, it is worth mentioning that both regulations state that the emergency ordinance comes into force only after it was submitted for debate to the competent Chamber and after its publication into the Official Gazette of Romania. If the Chambers are not in session, they must be convened within five days from the filing date or, as the case may be, from referral. The novelty of the text
2013
THE PROCEDURE OF THE CONTROLE
417
refers to the examining procedure of the emergency ordinance by the competent Chamber, therefore the Reflection Chamber, according to article 75 of the Constitution. Here, the debate of the emergency ordinance must take place in an emergency procedure. At the Senate, the Regulation states the emergency ordinances, in both cases, when the Senate is the Reflection Chamber as well as when it is the Decision-Making Chamber, are subject for debate and approval in an emergency procedure by law. At the Chamber of Deputies there is no such provision in its Regulation. On the other hand, filing or adopting the emergency ordinance, or sending it to the other Chamber, during parliamentary holidays, must lead to the Parliament being convened in an extraordinary session, mandatory within five days. In the case of these bill is also applicable the procedure of implicit adoption. Thus, if no later than 30 days from filing, the notified Chamber does not pronounce itself on the ordinance, it is considered to be adopted and it is sent to the other Chamber which will proceed to debate and adoption in an emergency procedure. The most important statement of article 115 paragraph (5) considers the fact that the emergency ordinance containing provisions with a character of an organic law should be approved by an absolute majority. This specification is designed to remove the previous dispute concerning the majority required by law for the adoption of emergency ordinances which include specific rules of ordinary laws. The amendments of article 115 from 2003 do not all have a definite reason, since some of them must be understood through interpretation. Thus paragraph (6) of article 115 sets out that emergency ordinances cannot be adopted in the field of constitutional laws, or affect the status of fundamental institutions of the State, the rights, freedoms and duties stipulated in the Constitution, the electoral rights, and cannot establish steps for transferring assets to public property forcibly. This text is susceptible to several comments. First of all, the statement that emergency ordinances cannot be adopted in the field of constitutional laws was not necessary because the Constitution, by establishing that the Parliament passes constitutional, organic and ordinary laws, provided in each case a different procedure for their adoption. Thus constitutional law is passed under the terms of articles 150-152, which establish the initiative of the revision, the procedure of the revision and the limits of the revision, all these being different from organic or ordinary laws.
418
US-CHINA LAW REVIEW
Vol. 10:409
As to the fact they might affect the status of fundamental institutions of the State, Prof. I. Deleanu asked himself: What does the term “does not affect” mean? In order to understand this term, the author proposes an interpretation after the intent of the legislator of the constitutional text, by virtue of which it can be concluded that “does not affect” is similar to “does not injure”, “does not harm” or “does not damage”. Also, the text does not say anything about the fundamental institutions of the State, leaving us to draw different conclusions, on the same method of interpretation. Obviously within the fundamental institutions of the State there are the public authorities provided by the Constitution of Romania, but also others, like the one referring to national security which is not expressly stipulated by the fundamental law. In fact, the Constitutional Court ruled in this regard when the Court held that a fundamental institution of the state is the Court of Audit9. Another problem presented by this paragraph (6) of article 115 of the Constitution considers the fact that the emergency ordinance, just like the constitutional laws, cannot affect the freedoms and duties stipulated in the Constitution and the electoral rights. In our view, the separate mentioning of the electoral laws is redundant, since the electoral rights are part of the rights, freedoms and duties stipulated in the Constitution10. The same constitutional text provides that emergency ordinances cannot establish steps for transferring assets to public property forcibly. Under these terms, we ask ourselves if the text does not come into conflict with the provisions of article 44 paragraph (3) of the Constitution which stipulate “no one shall be expropriated, except on grounds of public utility, established according to the law, against just compensation paid in advance”. Paragraph (7) of article 115 provides that the ordinances the Parliament has been notified about shall be approved or rejected in a law which must also contain the ordinance that ceased to be effective. Finally, the last paragraph of article 115 establishes another measure that is the law approving or rejecting an ordinance shall regulate, if such is the case, the necessary steps concerning the legal effects caused while the ordinance was in force. CONCLUSIONS The structure, the composition and the periodic and heavy working 9
See the Decision of the Constitutional Court No. 544 of June 28th, 2006, published in the Official Gazette of Romania, Part I, No.568 of June 10th, 2006. 10 See I. Vida, op.cit., at 201.
2013
THE PROCEDURE OF THE CONTROLE
419
rhythm of the Parliament, faced with the demands of speed and timeliness of the State management imposed a certain procedure, a certain governing technique that is the legislative delegation. This technique is thought in such a manner that it is satisfactory to the legitimacy and the dimensions of the functions of the Parliament, but also to the requirements of a dynamic and efficient governing, without entrusting other public authorities with the adoption of laws. Thus, the Constitution of Romania, by granting to the Government the right to issue ordinances, under certain conditions and limitations, improves, for our constitutional system, these traditional techniques of governing, which meet different requirements: (1) Of a political nature, like adopting necessary but unpopular measures, with the Parliament reserving the right to amend or repeal them, depending on the accomplishment of the foreseen effects; (2) Of a financial-economical nature, where the timeliness of establishing measures is essential for their effectiveness; (3) Of an institutional nature, where the political composition of the Parliament may create an obstruction of the legislative process, etc. Through legislative delegation, the Government receives competencies which apparently are equal to parliamentary legislative prerogative, but are not a substitute for the Parliament, since it lacks its attribute to represent the nation, a quality which cannot be conveyed by any kind of delegation. While the law is the supreme work of the general will, the ordinance is the product of the functional activity of the Government, an activity regulated by laws.