The unconstitutionality of the legislative proposal regarding the establishment of the institution for the promotion of national values "King MIHAI I"
Andrei-Nicolae Popa
Andrei-Nicolae Popa, Codul civil, Constitutie, propunere legislativa, Regele Mihai I
Every year, our republic is hard tried by all kinds of legislative initiatives that call into question its constitutional validity and the degree of reflection in the social relations that concern us, even if they are not regulated by the legal norm. Today I propose a critique of Pl-x no. 315/2018 regarding the legislative proposal regarding the establishment of the institution for the promotion of national values "King MIHAI I", with the hope that the Parliament, in its capacity as the supreme representative body of the Romanian people and guarantor of respect for the Constitution and its supremacy, will reject this legislative proposal unconstitutional and which dishonors the ideals of the December 1989 Revolution.
We lost ourselves in terms, in beautiful words about history, forgetting that the most social value protected by the Constitution is the guarantee of the common future. Our republic is one of equality between citizens, on the one hand, and equality before the law and public authorities, on the other. These guarantees are opposed to the monarchical form of government, which is a regime of privileges and the acquisition of political power through blood relations.
Since the death of the late professor Antonie Iorgovan, the father of the Constitution, no one has defended the Constitution and the republican character of Romania so fiercely, as if we were ashamed of our own path that we chose. Today I propose, humbly, and without trying to pretend that I can rise to the level of book science of Professor Iorgovan, to continue the work of defending our republic and raise an alarm before those who think they can play with the destinies of Romanians and their thirst for freedom and equality before the law, values that only the republic can defend.I. Regarding the violation of the republican character of the state
1. From the statement of reasons of the legislative proposal, the real intention pursued by the legislator is shown, that of legitimizing a former organ of an executive authority from a monarchical form of government - the "Royal House of Romania". Although the legislator does not directly admit it, the teleological interpretation of the statement of reasons and the text of the legislative proposal betrays the true purpose pursued by the initiator.
2. Specifically, in the statement of reasons, the fact that "currently, there is no institutional basis for the state to facilitate specific public activities" is lamented. The group of initiators recommends that "considering the public interest character of the large-scale activities carried out, it is desirable to create the possibility of financing them from public funds, as well as the administrative apparatus affected by their fulfillment"[1]. Also, the takeover of the Elisabeta Palace, publicly owned by the state and administered by RA-PPS, by the heirs of the former head of state of Romania is being pursued: "The main venue for the planned activities in Bucharest is the Elisabeta Palace. That is why it is desirable to consecrate the Elisabeta Palace as the seat of an institution dedicated to these activities"[2]. Compared to the true intention of the initiator, the text of the proposal violates art. 1, para. (2) of the Constitution which stipulates that the form of government is the republic and which applies to any acts or deeds of the public authorities that legitimize, by law, institutions that belong traditionally and consecrated to another form of government.3. The republican character of the state is a provision of supreme public order. This is deduced from art. 152 of the Constitution prohibiting the modification / replacement of the republican character of the state. The modification / replacement of the public character of the state can only be done by changing the constitutional order in the sense of adopting a new Constitution. These aspects validate the idea that the legislative proposal is unconstitutional in relation to the provisions of the current Constitution.
4. The text of the legislative proposal also speaks directly about the "Custodians of the Romanian Crown" (art. 3, paragraph (2) of the proposal[3]) which will propose the appointment and revocation, by the Parliament, of the Director of the Institution. However, "Custodians of the Romanian Crown" does not exist, being rather a protocol name recognized by the first daughter of the former head of state Mihai I as a sign of appreciation for his activity until his abdication. Moreover, being rather a matter of fact, an honorary title, it cannot be given a legal value. Therefore, the norm lacks clarity and thus is unconstitutional, because it cannot be determined objectively who is the "Custodian of the Romanian Crown". If, however, we appreciate that it is a natural person, the Initiator introduces a private person in a process of appointment as a public authority, by the Parliament, creating an unjustified privilege and a discriminatory situation in relation to other Romanian citizens. It also violates the independence and autonomy of the autonomous administrative authority which, according to the doctrine, cannot be subordinate to any authority, apart from parliamentary control and the eventual appointment by Parliament of the head of the institution. Under this aspect, the text is unconstitutional because it violates the principle of respecting the supremacy of the Constitution and the laws provided by art. 1, para. (5) from the Constitution of Romania, republished, and that of the equality of citizens before the law and public authorities provided for in art. 4, para. (2) and art. 16, para. (1) and (2) of the Romanian Constitution. Under this aspect, the Court has ruled, in the past, in Decision no. 600/2005 also regarding the attempt to create a privileged legal regime, in the matter of acquiring real rights, for the former head of state of Romania Mihai I.5. The initiator of the legislative proposal tries, in a disguised way, to institutionalize the "Royal House of Romania", taking from its "statute" the method of appointing the "Head of his Majesty's House
To the King"[4] which, in the text of the law, is renamed "Director of the autonomous administrative authority King Mihai I". The "Statute of the Royal House of Romania" can have the legal value at most of a holographic will drawn up by the former head of state and which covers the rules of conduct within his family. Without going into the statute of the Royal House from the period of the Romanian monarchical regime, we stop to say that the legislator cannot duplicate this organization of the nature of private law relations through a law that has a general and impersonal character, with erga omnes effects, because s- would produce a fraud on the law, i.e. the regulation of other social relations than those expressly declared and constitutionally established. The legislator does not aim to create an autonomous administrative authority within the meaning of art. 117, para. (3) of the Constitution, but uses it as an instrument with the aim of legitimizing organs and legal relations specific to the monarchical regime, a fact that contravenes art. 1, para. (2) and (5) of the Romanian Constitution.
II. Regarding the character of autonomous administrative authority
6. In the meaning of art. 117, para. (3) of the Constitution, autonomous administrative authorities are understood as autonomous authorities that are not subordinate to the Government or another public authority, autonomy excluding any form of subordination. However, in the context in which, in art. 3, paragraph (2) from the legislative proposal, the proposal and revocation of the director of the authority is done by the Custodian of the Crown of Romania, the principle of non-subordination to the autonomous administrative authority is violated, because the one who proposes and revokes is in a higher hierarchy than the one proposed, the act of appointment and revocation being a unilateral act of will.7. Autonomous administrative authorities are domain bodies that can be classified in several categories, depending on their object of activity and the purpose of the activity, as follows: synthesis bodies, such as, for example, the National Authority for the Supervision of the Processing of Personal Data Personal; coordinating bodies, such as the Supreme National Defense Council; control bodies, like is, for example, the Court of Accounts, the Competition Council or the National Integrity Agency We find that, by the declared attributions, the "King Mihai I" institution does not fall under any of the functions of such an authority, violating art. 117, para. (3) from the Constitution of Romania.8. The autonomous administrative authorities carry out a service of public interest, being part of the executive power lato sensu and helping the Government and the other authorities of the administration in fulfilling the duties of organizing the execution of the law and the concrete execution of the law. The autonomous administrative authorities have the role of satisfying a public interest, i.e. that interest which, according to art. 1, para. (1), lit. l) from Law no. 554/2004, aims at the rule of law and constitutional democracy, guaranteeing the rights, freedoms and fundamental duties of citizens, meeting community needs and realizing the competence of public authorities. Or, we note that the establishment of this authority, on the one hand, aims to legitimize a body of executive authority specific to the monarchical regime and, on the other hand, through the declared attributions, aims neither to perform a public service nor to satisfy a public interest, fact moreover, what would be in contradiction with the constitutional legal order according to the undeclared or tacitly declared purpose of this institution. The promotion of monarchist values by means of a public institution vested with the exercise of state authority, within a republic, cannot represent a public interest or a constitutional framework. Republican values do not only refer to the way of election and the attributions of representative bodies, but also to the entire structure of public institutions, to the purpose pursued by them and their connection with the constitutional or infraconstitutional provisions under which they were established. The republican character of the state essentially means the legal equality of people and the equal vocation to participate in the government of the state, without privilege or discrimination. Even the name republic comes from res publica, meaning in public interest, not in private/family interest.9. Referring to art. 2, para. (1) and (2) of the legislative proposal, we note that the initiator proposed that the Institution have a series of objectives, respectively general activities such as the promotion of culture and national symbols, the promotion of tourism, the promotion of events with historical significance or socio-economic development on a local, regional, national and international level. In Romanian administrative law, according to Law no. 195/2006 of decentralization, public administration bodies have only three types of competences according to the criteria of attributions exercised in relation to other bodies:
III. Regarding the adoption of the budget9. Referring to art. 2, para. (1) and (2) of the legislative proposal, we note that the initiator proposed that the Institution have a series of objectives, respectively general activities such as the promotion of culture and national symbols, the promotion of tourism, the promotion of events with historical significance or socio-economic development on a local, regional, national and international level. In Romanian administrative law, according to Law no. 195/2006 of decentralization, public administration bodies have only three types of competences according to the criteria of attributions exercised in relation to other bodies: exclusive powers, delegated powers and shared powers. Thus, in our legal system, there are no parallel competences of the public administration bodies and, in the present case, the Institution proposed by the initiators takes over established powers of ministries such as the Ministry of National Education, the Ministry of Tourism, the Ministry of Economy or the Ministry of Culture and National Identity. In this sense, the proposed text violates art. 16, para. (1) from Law no. 24/2000 which provides that "In the legislative process, it is forbidden to establish the same regulations in several articles or paragraphs of the same normative act or in two or more normative acts. In order to emphasize some legislative connections, the reference rule is used".10. The initiators of the legislative proposal propose that the budget of the autonomous administrative authority "King Mihai I" be constituted through the budget of the Senate of Romania, in a fixed annual amount of 860.00 euros, updated annually ex officio with the average annual rate of inflation, and to cover "some current and capital expenses" (art. 5 of the legislative proposal). 11. Law no. 500/2002 on public finances provides for the way in which the budgets of the autonomous administrative authorities are drawn up, approved and executed. Thus, art. 16, para. (1), lit. b) of the Law provides that "(1) The state budget, the state social insurance budget, the budgets of special funds, the budgets of autonomous public institutions, the budgets of external credits contracted or guaranteed by the state, the budgets of non-refundable external funds, the budget of the state treasury and the budgets of public institutions shall be approved as follows: b) the budgets of autonomous public institutions, by the bodies empowered for this purpose by special laws;”
12. Also, the budget is established, according to art. 26 of Law no. 500/2002, from the estimates of the budget year (revenues), commitment credits and budget credits determined by the authorizations contained in specific laws, in their functional and economic structure (expenses), the budget deficit or surplus, as the case may be , and regulations specific to the budget exercise. Thus, the budget of an autonomous administrative authority cannot have a fixed amount and cannot be executed from the budget of another main credit authorizer, the Parliament of Romania (art. 20, para. (2) of Law no. 500/2002).
13. We mention that the proposal also violates the provisions of art. 48, para. (1) from Law no. 500/2002 which provides that "(1) The revenues and expenses approved by the state budget, the state social insurance budget, the budgets of special funds, the budgets of external credits contracted or guaranteed by the state, the budgets of non-reimbursable external funds and the budgets of autonomous public institutions are distributed among quarters, depending on the legal deadlines for revenue collection, the deadlines and the possibilities of ensuring the sources of financing the budget deficit and the period in which it is necessary to carry out the expenses ".14. In this sense is the CCR Decision no. 36/1996: "From the provisions of art. 12 of Law no. 10/1991 on public finances results that the state budget includes all state revenues and expenditures. So the allocations for making the expenses, being established only through the budget, result that, in their turn, they are subject to the principle of annuality. Consequently, it is unconstitutional to establish a budget allocation, even at its minimum level, with a permanent character, as established by art. 11, introduced by the Law for the approval of Government Ordinance no. 25/1995, the allowance for scientific research. The law approving the state budget being exclusively temporary, the establishment by law of an allowance cannot be other than temporary, as it follows from the principle of annuality, being unconstitutional, so its establishment through a norm of a permanent nature, as is the legal provision what is the subject of the notification."IV. Aspects of an infraconstitutional nature
A. Regarding the right to manage the Elisabeta Palace
15. We note that the New Civil Code directly takes over the provisions of art. 12, para. (2) of Law no. 213/1998 regarding public property and its legal regime (text repealed and amended by Law no. 71/2011), regulating, to begin with, the method of establishing the real right of administration. Thus, it is stipulated that this right can only be established through a government decision, in the situation where the property is in the public domain of the state, and by a county or local council decision, if17. Art. 867 para. (2) Civil Code establishes that the authorities that constitute the right of administration are responsible for controlling and monitoring the way of exercising the right of administration, which emphasizes, in our opinion, the fact that between the holder of the right of public property and the beneficiaries of the right of administration a relationship is created that can be characterized as one of subordination. However, the character of the "King Mihai I" institution as an autonomous administrative authority gives it the possibility to be only under parliamentary control and independent of the Government, ministries and other bodies of the public administration authorities. Thus, this institution cannot have subordinate relations with the Government, given the manner in which it is created as a legal entity under public law. B. Regarding the organization chart 17. Art. 867 para. (2) Civil Code establishes that the authorities that constitute the right of administration are responsible for controlling and monitoring the way of exercising the right of administration, which emphasizes, in our opinion, the fact that between the holder of the right of public property and the beneficiaries of the right of administration a relationship is created that can be characterized as one of subordination. However, the character of the "King Mihai I" institution as an autonomous administrative authority gives it the possibility to be only under parliamentary control and independent of the Government, ministries and other bodies of the public administration authorities. Thus, this institution cannot have subordinate relations with the Government, given the manner in which it is created as a legal entity under public law.18. Art. 6, para. (1) of the legislative proposal establishes an organization of the specialized apparatus of the autonomous administrative authority. We appreciate that the establishment of functional and hierarchical work relations between the staff of the own work apparatus is rather a regulation related to the organization of the execution of the law or even the concrete execution of the law, being necessary to adopt it through a secundum legem. In this regard, the Court ruled successively through decisions no. 63/2017 and 68/2017, unequivocally delimiting the sphere of competence between the legislator and the executive, so that one power does not arrogate its regulatory powers to another power. B. Regarding the organization chart
18. Art. 6, para. (1) of the legislative proposal establishes an organization of the specialized apparatus of the autonomous administrative authority. We appreciate that the establishment of functional and hierarchical work relations between the staff of the own work apparatus is rather a regulation related to the organization of the execution of the law or even the concrete execution of the law, being necessary to adopt it through a secundum legem. In this sense, the Court ruled successively through decisions no. 63/2017 and 68/2017, unequivocally delimiting the sphere of competence between the legislator and the executive, so that one power does not arrogate its regulatory powers to another power.
C. Regarding the use of the budget reserve fund at the disposal of the Government to ensure the funds necessary for the organization and operation of the Institution in 2018.
C. Regarding the use of the budget reserve fund at the Government's disposal to ensure the funds necessary for the organization and operation of the Institution in 2018.
19. Art. 10, para. (1) of the legislative proposal provides that "For the year 2018, the funds necessary for the organization and operation of the institution are provided from the budgetary reserve fund at the disposal of the Government".20. Art. 30, para. (1) from Law no. 500/2002 provides that "(1) The state budget shall include the Budgetary Reserve Fund at the disposal of the Government and the Intervention Fund at the disposal of the Government". Paragraph (2) provides that "The budget reserve fund at the disposal of the Government is distributed to the main creditors of the state budget and local budgets, based on decisions of the Government, for the financing of urgent or unforeseen expenses arising during the budget exercise" .
21. As the establishment of the Institution is done by law (in the formal sense), which is not even in an emergency procedure, we appreciate that the urgency is not justified for the transfer of budget credits from the reserve fund at the disposal of the Government. The establishment of this institution has no unforeseen character, because the Parliament tried in the past to regulate the legal status of the "Royal House", each time being blocked by the same criticisms of unconstitutionality. Thus, the initiators do not meet even the second condition for which this use of the reserve fund, which was intended for really important, sometimes dramatic situations, related to the solution of problems regarding the life, health, physical and mental integrity of citizens of Romania and ensuring the good functioning of public services governed by the principles of efficiency and permanence.[1] Expunere de motive Pl-x nr. 315/2018 Propunere legislativă privind înfiinţarea instituţiei pentru promovarea valorilor naţionale „Regele MIHAI I”, disponibil la: http://www.cdep.ro/proiecte/2018/300/10/5/em397.pdf; accesat la data de 22.05.2018.
[2] Ibidem.
[3] Pl-x nr. 315/2018 Propunere legislativă privind înfiinţarea instituţiei pentru promovarea valorilor naţionale „Regele MIHAI I”, disponibil la: http://www.cdep.ro/proiecte/2018/300/10/5/pl397.pdf; accesat la data de 22.05.2018
[4] A se vedea art. 12, alin. (2) din Statutul Casei Regale a României, disponibil la: http://www.familiaregala.ro/familia- regala/normele-fundamentale-ale-familiei-regale-a-romaniei; accesat la data de 22.05.2018.
[5] Antonie Iorgovan, Tratat de drept administrativ, vol. I, ed. A 4-a, p. 447.
[6] Verginia Vedinaș, Drept administrativ, ediţia a X-a, revizuită și actualizată, Universul Juridic, București, 2017, p. 105. [7] Corneliu Turianu, Andrei Duţu, Drept civil. Compediu, Universul Juridic, București, 2016, p. 278.
[8] În același sens, Decizia nr. 1/2014 cu privire la plaje.
Andrei-Nicolae Popa
Facultatea de Drept, Universitatea din București
ORIGINAL. IN ROMANIAN.
https://www.juridice.ro/582433/neconstitutionalitatea-propunerii-legislative-privind-infiintarea-institutiei-pentru-promovarea-valorilor-nationale-regele-mihai-i.html