Chairman of the Constitutional Court of Romania (CCR) Valer Dorneanu said on Thursday that he is considering notifying the Venice Commission, the Council of Europe and the Conference of European Constitutional Courts over recent the statements by Romania’s Prime Minister Ludovic Orban against the CCR, adding that in no country in Europe does a prime minister feel free to have “such uncouth attacks on the court.”
“I have got the impression that the prime minister has a different pandemic against the Constitutional Court and me, inciting public opinion against this important institution. (…) Unfortunately, I have got the impression that his office has added other specific dimensions to that word ‘pandemic’. I have known the prime minister for many years, and that is why I am somehow a bit hesitant and I have a bit of respect to answer him by the same token when he talked of politruks (…) I know that he was a student at the Brasov Machine Engineering faculty; I don’t know if he graduated from any higher education school, political higher education, that would justify him calling us, the Constitutional Court, what he called us. I am not talking about me, but all my colleagues are professionals with expertise who cannot be called in any way politruks,” Dorneanu told Antena 3 private broadcaster.
He claimed that Ludovic Orban incited public opinion against CCR.
“I am sorry that he is spreading such ideas in the public space and inciting public opinion against CCR, which would be the one to blame for the spread of the pandemic, for the non-observance of the decisions of the elected representatives. Luckily, Mrs Weber, the Ombudsman, also popped in, and we share the blame for being the destroyers of the country and democracy. I want to remind the prime mnister that we, the CCR institution, are one of the most important institutions that defend the rule of law and promote the rule of law. In no other country in Europe does a prime minister feel free to use such a language and such uncouth attacks on the Constitutional Court,” added Dorneanu.
Asked if he would notify the international bodies, Dorneanu said that he is considering that.
“I will talk to my colleagues, I have had such discussions before and I have always had reservations about the opportunity to take any step. I now believe that things have taken a turn that necessarily requires such an intervention with the Venice Commission, the Council of Europe, the Conference of European Constitutional Courts. (…) We intend to refer the matter to the Venice Commission and the Council of Europe and, of course, to the Conference of European Constitutional Courts,’ he added.
Prime Minister Ludovic Orban said on Thursday that CCR’s ruling on the law giving Parliament the right to set the election date seemed “ludicrous” and “a flagrant violation of the Constitution by the body that must be the guardian of it.”
According to the prime minister, “orders are given by Florin Iordache and others to Valer Dorneanu and politically appointed judges, who churns out rulings that no longer have anything to do with the Romanian Constitution and democracy.”
CCR ruling: Legislative has full competence to set parliamentary date through ordinary or organic law
Setting the date of the elections after the conclusion of Parliament’s term of office is carried out by it through organic law, and if the date setting takes place before the expiration of the mandate, by ordinary law, shows the Constitutional Court of Romania (CCR) in the full text of the decision by which the complaints filed by President Klaus Iohannis and by the Government on the Law regarding the organization of parliamentary elections were rejected.
At the end of September, the CCR rejected the complaint filed by President Klaus Iohannis and the Government on the Law regarding some measures to organize the elections for the Senate and the Chamber of Deputies, following the conclusion of the mandate of the Parliament elected in 2016.
“The court notes that the setting of the date of the elections after the term of Parliament has concluded is carried out by organic law, and doing so before the conclusion of the mandate of Parliament, by ordinary law. Thus, if Parliament had opted for the date of the parliamentary elections to be decided by ordinary law, it would mean that the previously referred to date would have to be placed within the duration of 4 years of the Chambers’ mandate, yet, by art. 1, paragraph (1) of the criticized law, Parliament has opted for the adoption of an organic law to set the date of the elections, which means that the parliamentary elections will take place after the expiration of the term, meaning within three months since the expiration of the mandate of 4 years of the Chambers,” the decision mentions.
Thus, the quoted source shows, the Court notes that art. 1, paragraph (1), which reverts the attribute of setting the date of the elections back to Parliament, of the criticized law does not infringe Constitutional articles 1, paragraph (5), referring to the supremacy of the constitution, art. 73, paragraphs (1) and (3), letter a), regarding types of laws, and art. 147, paragraph (4) of the Constitution, referring to the obligation to follow Constitutional Court decisions.
Regarding the competence of the Government to set the date of the elections, the Court notes that it stands at the level of law, and can be removed by law at any time or, as the criticized law states, by derogation from the law enabling the government to do so.
“It is not a constitutional demand that the Government be the one to set the date of the elections, but merely a political option of Parliament. Moreover, in regards to the problem of setting the date of the local elections by Parliament or Government, by Decision no. 240 of June 3, 2020, the Court noted that ‘Parliament cannot retain this competence if it does not derogate from the provisions of art. 10, paragraph (1) of Law no 115/2015. Lacking an express derogation, the common law is to be applied, as represented by Law no. 115/2015, case in which the competence to set the date of the elections is of the Government. Thus, from a constitutional point of view, both legislative solutions are possible,” the constitutional judges mention.
In that same sense, the Court retains, as was shown, that the legislative has previously set the date of the parliamentary elections, art. 120, paragraph (1) of Law no. 373/2004 expressing clearly that ‘the elections in the year 2004 for the Chamber of Deputies and Senate, as well as for the position of President of Romania take place on November 28, 2004.”
Thus, the CCR says, nothing forbids Parliament to derogate from the common law regulation regarding the authority competent to set the date of the parliamentary elections.
“Having in view the above, it results that Parliament has the full competence to set the date of the elections by ordinary or organic law, in a case-by-case scenario, depending on the political option to organize elections within the mandate of the Chambers or in the 3-month term that starts following the conclusion of the mandate. Lacking a law to set the date of the parliamentary elections, they can take place only within the duration of the four year mandate of the Chambers, the elections being on time, whereas, in the conditions of such a law, parliamentary elections can be organized both on time, as well as after the term concludes, the political decision in this sense belonging exclusively to Parliament,” the CCR also shows.
The CCR also states in its decision that Government Decision no. 774 of September 3, 2020, that set the date of the elections on December 6, while issued respecting the law in force at the time, will cease any legal effects following the entry into force of the contested law.