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March 20, 2023

CC: Essential proposals in the revision project cannot be promoted

PM designation – monopoly of party or alliance with most parliamentary mandates.

The Constitutional Court of Romania (CCR), in the argument to the decision concerning the Constitution revision draft, maintains that the mechanism proposed for designating the candidate to the Prime Minister position establishes a monopoly of the party or political alliance participating in the elections, which obtained the most parliamentary mandates, without holding the absolute majority, disregarding the need of ensuring the act of ruling in the conditions of a parliamentary support which allows getting the investiture vote and the achievement of the governance programme.
The Court finds that the assessed text highlights the electoral result obtained by the parties or political alliances participating in the elections, conferring only a bottommost and subsidiary nature to the capacity of a parliamentary political alliance of ensuring the absolute majority of parliamentary mandates. The CCR Judges draw the attention that the new text does not take into account the political reality and is meant to create the prospects for some repeated early elections. ‘Thus, although the assessed text apparently clarifies the President’s competencies, by making the procedure of the designation of the candidate to the Prime Minister position excessively rigid, on the one hand, it does not cover all the possible constitutional hypothesis and, on the other hand, it does not take into account the political configuration/situation existing in Parliament. In this conditions, such a procedure lacking in flexibility can easily generate political crises and, therefore, it represents a real constitutional obstacle,’ CCR shows.
The Constitutional Court mentioned as transcending the limits of the revision the provision about the quality of deputy or senator ceasing “at the date of his resignation from the political party or structure on whose behalf he was elected or when he joined another party or political structure.” Judges also consider that one cannot remove from the fundamental law the mention about the members of Parliament being tried by the High Court of Cassation and Justice.
Constitutional judges appreciated as outside the limits of the revision the expression “Romanian citizens are born and live free” because “it has as reverse meaning the denial/exclusion of the mentioned concept in relation to foreign citizens or stateless people.” “Or, this principle targets a distinctive and intrinsic trait of human beings, human condition, and not of the citizen,” CC judges explain.
CC also rejected the condition set in the draft revision that the elections for the Senate, Chamber of Deputies and president of Romania are open only for those candidates “who had their domicile in Romania for at least 6 months before the date of elections.” Judges consider that this constraint suppresses the fundamental right of electing and being elected.
CC also appreciated as beyond the limits of the revision the provision that limits the possibility of the state to obtain data about the secret of correspondence or personal data during the criminal process.
On the other hand, CC judges consider that attributing the decision of the National Security Council, currently CSAT, a compulsory character for the authorities of public administration and for public institutions would be equivalent to attributing to these effects similar to laws.
CC also found out that increasing the number of CSM members by increasing the share of representatives who do not belong to the category of magistrates is inadmissible, because “it is of nature of producing negative effects for the activity of the judiciary system.”
Antonescu: The revision, to be finalised soon
In the political camp, the chairman of the Committee for the revision of the Constitution, liberal leader Crin Antonescu said that he is decided to finalise the draft modification of the fundamental law, but the decision to hold the referendum is political. “We acquiesce the interpretation by the Court of the limits of the revision, we will adopt them undoubtedly,” Antonescu stated. He added that there was the intention to set a maximum number of 300 deputies through the fundamental law, but if this will be considered as infringing the limits of the Constitution, then the idea will be abandoned.
Regarding the observations made by the Venice Commission on the draft revision of the Constitution, Antonescu said that one cannot make two fundamental laws, one for politicians and the other for citizens, mentioning that modifications can be made in both cases. “The Venice Commission reclaims the fact that we do not have a clear mentioning of the form of government in Romania. I am surprised, because the form of government is clearly stipulated by the present Constitution too, and is maintained in the draft revision. The form of government is the republic.”
On the other hand, the democrat-liberals demand Antonescu to resign from his leading position with the committee, as the Venice Commission rejected his work and made serious objections to the project launched by USL.

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