President Klaus Iohannis sent to the Constitutional Court of Romania (CCR) a notification of unconstitutionality on the Law amending and completing certain normative acts in the electoral field, which also concerns the elections to the European Parliament.
“According to the normative content, some provisions are contrary to the constitutional provisions and the jurisprudence of the constitutional court,” the head of state points out, referring to the fact that this law was transmitted by Parliament for promulgation on 29 December 2018.
He maintains that the newly introduced article regarding the unfolding of the elections to the European Parliament, which stipulates that “in order to ensure the observance of the provision of the present article in the reference day no other types of elections, nor referendums at national or local level can be organised,” violates several provisions of the Constitution.
“The lawmaking authority is free to choose for any legislative solution on referendum matters, without interfering though with the competencies of the other public authorities in the field as well as without modifying the constitutional statute of the duties provided for by the fundamental Law. Or, the regulation forbidding the organisation of referendums on the same date as the elections to the EP affect constitutional rules and principles,” the head of state says.
Moreover, Iohannis specifies that CCR ruled that the referendum can take place any time during the year, if Parliament was consulted or it approved the proposal to remove from office the president of Romania.
“According to the Constitution, there is no other condition prohibiting the organization and unfolding of the referendum at the same time as the presidential, parliamentary, local or elections to the European Parliament, or in a certain interval before or after the said elections. As such, where the law cannot distinguish, neither can the interpreter. (…) Consequently, the conditions set by the legislator for the carrying out of the referendum by the criticized law adds to the provisions of the Constitution, which determines their unconstitutionality,” he argues.
The head of state says that these extraconstitutional exigencies contained in the law prevent the organization of any referendum, given that in practice, in Romania, elections may take place every year, which is in contradiction with the Constitution.
He also argues that the provisions on the referendum regarding the revision of the Constitution violate the fundamental Law.
The President shows that according to the Constitution, “the revision is final after its approval by referendum, held no later than 30 days after the adoption of the draft or the proposal for revision” and that CCR [the Constitutional Court of Romania] stated that “for the coherence of the procedure it is rational for the same authority that initiates the referendum to be the one that sets the date and subject of the referendum.” At the same time, he adds, “by virtue of the constitutional role of each authority in triggering different types of referendums, the setting of the date it is to take place takes place in a differentiated way by acts specific to each authority, respectively by a decree of the President of Romania, as regards the referendum on issues of national interest, by Parliament’s decision, in the situation of the dismissal of the President of Romania, and by law, in the case of revision of the fundamental Law “, and “what is important in terms of the conformity of the organization of the referendum with the spirit of the Constitution, is the legitimacy and legal force of the act by which it is triggered, and by which defining aspects are established, as is the date when it is to take place.”
According to President Iohannis, with regard to the local referendum, the respective local authority is the only one with the competence of setting the date of the local referendum.
The president also criticises the provisions on how electoral bureaus for presidential elections are set up. He argues that the definitions given to the members of these offices create a differentiated treatment between parliamentary political parties. Thus, Iohannis states that parliamentary political parties that do not have their own group in both Chambers of Parliament are excluded from the possibility of proposing a member in every constituted electoral office in the elections for the president of Romania.
The president further criticises the provision according to which, at central level, the electoral committee should include: “delegates of parties already represented in Parliament or that have at least a certain percentage of votes. Political parties must be properly represented in the central electoral committee, “stating that in this situation there can be no “proportional” equality, because in this case the political parties would be treated depending on their number of votes, which is not the case.
The president goes on to criticises the provisions according to which “the electoral bureau chair of the polling station shall conclude a report in 3 copies, which shall contain: the total number of voters registered in the electoral rolls, which have been presented at the polls (…) of which: (…) the total number of voters registered in the special electoral lists, present at the polls.” He also notes that the law omits in the calculation formula of the voters the total number of voters registered in the electoral rolls.
“I call on you to admit the unconstitutionality notification and to find that the provisions of the Law for amending and supplementing certain normative acts in the electoral field are unconstitutional,” Iohannis affirms.