[Editor’s Note: This is a guest post by Dragoș-Alin Călin and Irina Alexe. Dragoș-Alin Călin is a judge of the Court of Appeal in Bucharest and Co-president of the Romanian Judges’ Forum Association. Irina Alexe is an associate scientific researcher within the Institute for Legal Research ‘Andrei Rădulescu’, Romanian Academy. Readers of the blog will find this essay of interest, as it deals with the phenomenon of legislation by ordinance, in Romania.]
The starting point of this article rests on a law recently adopted by the Parliament of Romania which rejected an emergency ordinance issued by the Romanian Government, more than 13 years before. The said emergency ordinance was issued in the matter of judicial organization (GEO no.131/2006 for the amendment and supplement of Law no. 508/2004 on the establishment, organization and functioning within the Public Ministry of the Directorate for Investigation of Organized Crime and Terrorism).
It is certain that by quasi-generalising the method of legislating by simple or emergency ordinances, in the last ten years, a shift in the constitutional role of the Parliament as sole law-making authority to the Government took place. Actually, the Government has become a real legislator in almost all fields, since Parliament has changed into a sort of notary public, which many times ratifies, with or without any amendments or supplements, and sometimes rejects, after some significant periods of time, the normative acts issued by the Government, in the absence of any deadlines provided for in the Romanian Constitution for completing the Parliamentary procedure.
In its Opinion no. 950/2019, the Venice Commission acknowledged that “legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are changed too quickly and too often, without preparation and consultations, which raises legitimate questions about the soundness of the outcomes and of the real motives behind some of those changes. The resulting legal texts are not clear. This practice weakens external checks on the Government, it is contrary to the principle of separation of powers and disturbs legal certainty”.
Certain issues related to the legislative delegation in Romania. Statistical data relating to delegated or emergency enactment during the period 2010-2019.
The legislative delegation is regulated by Article 115 of the Constitution of Romania, republished. The competence of the Parliament to legislate may be exercised by a body of the executive power, namely by the Government, when one of the two possible types of situations indicated in the text occurs: (I) the Government’s authorization by the Parliament, under a special law, to issue, within a limited period of time, any ordinances in certain fields which cannot be subject to the organic laws, respectively, (II) the exceptional, permanent constitutional empowerment of the Government, which may be materialized by issue of an emergency ordinance, not involving an express empowerment on the part of the Parliament, to legislate in certain fields, which could be also covered by organic laws, when the conditions provided for in Article 115(4) are fulfilled and none of the prohibitions indicated under Article 115(6) occurs.
Nevertheless, the examined statistical data lead to the conclusion that the opportunity of legislation by exceptional means, by the Government, has become a rule in Romania and has not been used as an exception for a long time, as there are also years in which the Government seems to have coped with an extraordinary situation described by the constitutional text once every two or three days, which, obviously, does not reflect reality.
During the reference timeframe, 60.46% of the primary law adopted in Romania was represented by emergency ordinances and simple ordinances issued by the Government, as well as by any laws relating to their approval or rejection (a number of 2559 out of 4232).
As such, the Parliament does not operate anymore as a main legislative authority, contrary to its constitutional role, and the Government becomes the main and actual legislator. The Parliament seems to play only a secondary part; however, this is exercised late, the negative record being of 15 years and 2 months, a period needed for the rejection of the GEO no.16/1999 by Law no.66/2014. The timeframe of 13 years and one month follows in the hierarchy for the rejection of the GEO no.131/2006 for the amendment and supplement of Law no. 508/2004, by Law no. 16/2020.
For more than 60 ordinances or emergency ordinances, the Parliament needed more than three years for examination, in the case of each ordinance, including normative acts entailing an immediate approval (4 years and 6 months for the adoption of Law no.9/2020 for the rejection of the Government Ordinance no.13/2015 regarding the use of certain data recorded in the registers with the passengers’ names in the cross-border cooperation for preventing and fighting against terrorist acts; 3 years and 6 months for the adoption of Law no.238/2011 for the approval of the GEO no.53/2008 on the amendment and supplement of Law no.656/2002 on the prevention and sanctioning of money laundering, as well as for establishing some actions for preventing and fighting against financing terrorist acts; 3 years and one month for the adoption of Law no.38/2013 for the approval of the GEO no.2/2010 regarding certain measures for the organization and functioning of the working apparatus of the Government and for the amendment of certain normative acts).
Also during the reference period, only 6.29% of the issued laws contain solutions of rejection of certain simple ordinances or emergency ordinances (71 of 1128), the latter containing provisions establishing permanent legal rules, and not exclusively temporary or transitory solutions, as in the case of the GEO no.131/2006, previously mentioned.
During the period 2017-2018, three amendments were adopted to the generally referred to as laws “of judiciary”. A significant part of these amendments was harshly criticized by the Venice Commission orGRECO, being extremely detrimental to judiciary. As regards these amendments to the “laws of judiciary”, given mainly the insufficiency in the regulation, the gaps, the contradictory provisions, inadequate to the needs of the judicial system, the Romanian Government issued five emergency ordinances (GEO no.77/2018; GEO no.90/2018; GEO no.92/2018; GEO no.7/2019; GEO no.12/2019).
For example,GEO no.77/2018 was adopted with intuitu personae effects, to ensure the continuity of the positions of chief inspector of Judicial Inspection. From the publication date (5 September 2018) and until the date hereof, the GEO no.77/2018 was not approved by the Parliament and nor did the Constitutional Court of Romania rule on those three pleas of unconstitutionality raised on the dockets of courts (the oldest having been raised by a court order delivered on 19 December 2018).
Since the year 2012, the Venice Commission warned about such a constitutional situation, in Opinion no.685/17 December 2012. Almost eight years later, things seem to be identical or even more complicated, the law making in waves carried out by the Government has affected the quality of legislation and has overlooked the principle of balance of powers, and the executive power has carried out an essential and continuous role in legislating.
By the Decision no.28 dated 29 January 2020, the Constitutional Court of Romania itself notices such imbalance, considering that “the Government decision to undertake responsibility does not reflect any emergency to regulate in a given field, does not represent a measure taken in extremis, but rather taking an option opportunistic in nature, to extend over time certain temporary measures ordered under the Government Emergency Ordinance no.7/2019 and to remove from enforcement of the provisions of Law no.242/2018. At the same time, it appears that it was not necessary to adopt such a measure with maximum celerity, and possibly it could have been adopted only under the conditions in which “the major challenges” generated by Law no.242/2018 could not be overcome. 88. As regards the importance of the regulated field, it is found that, in principle, the field of justice is one in which the Government may undertake responsibility [see, for example, Decision no.375/2005]. (…) 90. Given the above, the Court acknowledges that the criticized laws breaches Article 114 of the Constitution and, implicitly, Article 61 paragraph (1) of the Constitution, by excessive limitation of the role played by the Parliament. Hence, it also appears a breach of the constitutional principle of balance of powers [Article 1 para. (4) of the Constitution] since one of the State powers, namely the executive power, assumed a preeminent role in the enactment activity, excessively using an enactment procedure which, by its nature, is exceptional.”
The significant timeframes within which the Parliament approves or rejects normative acts issued by the Government, in the absence of clear time limits provided for in the Constitution of Romania, are liable to lead to subordination, which is contrary to the principle of balance of powers.
In such a context, until an expected constitutional revision, a possible solution would be found in the principle of loyal cooperation and of mutual respect between the state authorities/institutions.