100 years of constitutionality control

Author:Daniela Cristina Valea
Position:PhD. University of Medicine, Pharmacy, Sciences and Technology of Tirgu Mures
Pages:45-65
SUMMARY

One of the most important guarantees of the rule of law is the constitutionality control of laws (and of the government ordinances). In Romania, we may speak about a real system of control of constitutionality starting with 1912 (just a little over 100 year!). The recognitions as a legal mechanism were made by Romanian Constitution of 1923. During the period of the communist regime, the constitutionality control was reduced to a formality. After the Revolution of 1989, the constitutionality control has been reintroduced into the Romanian constitutional system. But the Romanian Constitution-maker of 1991 gave up the traditional form of the constitutionality control, concentrated, exercised by the supreme court alone, and chose the “European model”, respectively a system where the constitutionality control is exercised by the Constitutional Court, a specialized body, organized only for this purpose, and which is not part of the judiciary power of the State. This paper represents a short review of (a little over) 100 year of constitutionality control in Romania.

 
CONTENT
100 years of constitutionality control in Romania 45
100 YEARS OF CONSTITUTIONALITY CONTROL
IN ROMANIA
associate professor Daniela Cristina VALEA, PhD.
University of Medicine, Pharmacy,
Sciences and Technology of Tirgu Mures
Faculty of Economics and Law - Department
of Law and Public Administration,
Lawyer, Mures Bar Association
vdaniela2002@yahoo.com
Abstract
One of the most important guarantees of the rule of law is the constitutionality control of laws
(and of the government ordinances).
In Romania, we may speak about a real system of control of constitutionality starting with 1912
(just a little over 100 year!). The recognitions as a legal mechanism were made by Romanian
Constitution of 1923. During the period of the communist regime, the constitutionality control was
reduced to a formality. After the Revolution of 1989, the constitutionality control has been
reintroduced into the Romanian constitutional system. But the Romanian Constitution-maker of
1991 gave up the traditional form of the constitutionality control, concentrated, exercised by the
supreme court alone, and chose the “European model”, respectively a system where the
constitutionality control is exercised by the Constitutional Court, a specialized body, organized only
for this purpose, and which is not part of the judiciary power of the State.
This paper represents a short review of (a little over) 100 year of constitutionality control in
Romania.
INTRODUCTION OF THE JUDICIAL CONTROL OF
CONSTITUTIONALITY BY PRAETORIAN WAY IN ROMANIA
By Decision no. 261 of March 16, 1912 of the High Court of Cassation and Justice,
section I, handed down on the occasion of the settlement of the lawsuit filed by the
Tram Company in Bucharest, the judicial constitutionality control of the laws in
The Project of research and dissemination of cultural, scientific information in the legal field of
the Transylvanian Association for Culture, Conference on "100 Years of Law". The project is part of
the series of Centenary events and is funded by the Ministry of Culture and National Identity through
the National Identity Department.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 45-65
46 DANIELA CRISTINA VALEA
the Romanian constitutional system is introduced by praetorian way, by
establishing the right of the courts to rule on the constitutionality of the laws.
The so-called "Case of the Tram Company" is the reference point in the
evolution of constitutional control in Romania. In the context of the beginning of
the 20th century and the necessity of modernization of the capital of Romania1, the
Law of April 18, 19092, which regulated the necessary framework for the
establishment of a joint stock company – Tram Company of Bucharest3 - for the
execution of the works intended for the operation and exploitation of the electric
tramway network and the usage of the existing lines after the expiry of the
ongoing concession. Through the Journal of the Ministers’ Council no. 633 of May 26,
1909, the Statutes of the Bucharest Municipal Tram Company were approved, the
way they were drawn up by the Bucharest City Hall and approved in advance by
the Bucharest Municipal Council. Among other things, these Statutes provided
that they could be modified only with the parties' agreement, with the prior
approval of the shareholders meeting, in which the capital will hold a quarter of
the votes. But later, the Journal of the Ministers’ Council no. 905 of July 11, 1911
repealed the Journal no. 633 of May 26, 1909, therefore the Statutes of the
Municipal Tram Company are canceled. The Minister of the Interior orders also the
stopping of all activities. Under these circumstances, the Bucharest Municipal
Tram Company took legal action against the Municipal Council of the Capital and
the Ministry of Interior, asking the court to declare the validity of the Statutes
approved on the basis of the Law of April 18, 1909, to oblige the defendants to stop
forestalling the activity, to order the defendants to pay the comminatory damages
in the amount of 50,000 lei for any day of delay and to pay civil damages, as well as
1 The following sources were used for the data related to the events and the trial initiated by
Bucharest Tram Company: Alexandru Vleanu, Controlul constituionalitii legilor în dreptul român şi
comparat, „Ion C. Vcrescu” Publishing House, Bucureşti, 1936, pp. 272-280; Eleodor Focşeneanu,
Istoria constituional a României (1859-1991), Humanitas Publishing House, Bucharest, 2nd Edition,
1999, pp. 46-49; Mircea Criste, Controlul constituionalitii legilor în România – aspecte istorice şi
instituionale, Lumina Lex Publishing House, Bucureşti, 2002 pp. 59-66; Ion Deleanu, Justiia
constituional, Lumina Lex Publishing House, Bucureşti, 1995, p. 141; Ioan Muraru, Elena Simina
Tnsescu, Drept constituional şi instituii politice, vol. I, All Beck Publishing House, Bucureşti, 2005,
pp. 74-75; Ioan Vida, Btlia pentru Curtea Constituional, Ioan Muraru, Liber Amicorum. Despre
Constituie şi Constituionalism, Hamangiu Publishing House, Bucharest, 2006, p. 10.
2 Published in the Official Gazette of Romania no. 15 of April 18, 1909.
3 The Romanian Communal Tram Company was to be established by subscription for a period of
40 years. Part one - a quarter to half - of the capital of the Company would be formed by the
contribution of the Bucharest Municipality, and the rest by public subscription. The Company
committed to build 10 km of electricity network within 3 years, restore existing lines, replace animal
traction with mechanical traction on expiry of the existing concession contract. The net benefits were
shared between Bucharest Municipality and the Company so established. Upon expiration of the
Company's lifetime, all installations will be transferred to the public property of the Municipality
without any compensation. The shares were issued, the board of directors and the company's control
committee were set up, and it was registered at the Commercial Court.
100 years of constitutionality control in Romania 47
the court charges. During the proceedings at the Ilfov Tribunal, surprisingly, the
Parliament adopted the Law of December 18, 1911, based on the Article 1 of the
Civil Code, imposing a new statute on the Bucharest Municipal Tram Company4.
This law was qualified as a law for the interpretation of the Law of April 18, 1909 so
that the retroactivity of the Law of December 18, 1911, based on Article 1 of the
Civil Code could not be invoked, but that the retroactive effects could be invoked.
In response, the Bucharest Tram Company invoked, by way of exception, the
unconstitutionality of the Law of December 18, 1911, calling for its non-
application5.
In reply, the defendants challenged the court's right to verify the compliance of
a law with the text of the Constitution by appealing to several arguments6.
Ilfov Tribunal, Section II, by the Journal no. 119 (the resolution) of February
2nd,19127, admitted the objection of unconstitutionality of the Law of December 18,
1911 raised by the applicant, declaring it "contrary to the principles and formal texts of
the Constitution, and therefore ... must ... remove the application of this laws" and rejected
the request of the defendants to defer the case for another hearing. Thus, the
Tribunal considered the law of December 18, 1911 unconstitutional, therefore it
cannot be applied.
4 Thus, new conditions were imposed on the shareholders who subscribed in 1909, and if they
had not accept the new conditions, the administration could have set up a n ew Company and redeem
the plant and equipment of the first Company at the production price ("according to the scripts and
registers ") (Article 2). The nominal value of the shares held would have been returned at an interest
rate of 6% (the procedure was considered an expropriation!). If the assignment was refused, the
Capital could remove all the installations and materials of the Company from its streets and store it on
its behalf (Article 4 et seq.). Moreover, according to the Law of December 18, 1911, the mere
acceptance by the shareholders of the new statute is a place of constitutive act and of common law
formalities (Article 2).
5 In reasoning the application, the applicant argued that the Law of December 18, 1911 violates
Article 14, Article 31 and Article 36 of the Constitution from 1866 respectively violates the principle of
the separation of powers in the state, since the legislative power has intervened regulating ongoing
litigation issues. Also, in the reasoning it was also pointed out that the law violates Article 19 of the
Constitution from 1866, affecting the Company's property rights over the pat rimony and affecting the
shareholder ownership over their shares by effecting a true illegal expropriation.
6 First, they argued that, by reviewing constitutionality, the court would take over the rights of
the legislative power, which would be an interference within the jurisdiction of the legislature, the
only one capable of establishing the constitutionality of its own laws. Secondly, they argued that, even
if the court were to have the right to verify the constitutionality of a law, that would be possible only if
the violation of a precise text was supported, and not a vague and uncertain principle, as is the
principle of the separation of powers in the state. On the other hand, the defendants also argued that
there had been no expropriation, but only a retroactive modification of the Company's statutes.
7 The panel was composed of the following judges N. Algiu (chairman), C.C. Bossie and I.G.
Manu (who had a separate opinion). The decision was published in the "Curierul Judiciar" no. 13 of
February 16, 1912, pp. 152-156 - the text of the decision in Alexandru Vleanu, Controlul
constituionalitii legilor în dreptul român şi dreptul comparat, „Ion C. Vcrescu” Publishing House,
Bucureşti, 1936., pp. 407-421.
48 DANIELA CRISTINA VALEA
The Ilfov Tribunal reasoned its decision on the following grounds (Judge
Algiu's wording):
it falls within the jurisdiction of the judiciary to enforce all laws, whether
constitutional or ordinary, and if the issue of a contradiction between the
Constitution and a law arises, the Constitution will be applied as a matter of
priority, as it imposes upon both the legislator and the judge;
the jurisdiction of the courts to rule on the constitutionality of laws derives
precisely from the role that the Constitution has just given it: to apply the law, be it
constitutional or ordinary, to the pending trials;
the judge's jurisdiction to review the conformity of laws, called upon to
apply them, with the text of the Constitution, should not be expressly provided in
a normative act. Only, the injunction (as an exception) must be expressly
formalized;
the wording of Article 108 Romanian Criminal Code can not be interpreted
as prohibiting the judge from applying prevalently a constitutional provision in
conflict with an ordinary legal provision, this article sanctioning the interference of
the judge in the sphere of activity of the legislative power. As for the opinion
issued by the Ilfov Tribunal, the acknowledgement of the unconstitutionality of a
law is merely the choice of the judge to apply directly and prevalently, in an actual
case, the constitutional provision violated by the respective law;
Article 77 of the Law on Judicial Organization, according to which judges
were obliged to take the oath to comply with the Constitution and with the laws is
the proof that the ordinary legislator formally admitted the right to apply the
Constitution and other laws, which automatically implies the right to decide in
case of contradiction between them;
once established and demonstrated the right of the tribunal to rule on the
constitutionality of the law, the court considered that by law of December 18, 1911
the legislative power intervened with a new regulation of a conflict situation found
in a court and thus an intromission of the legislature in the judicial activity was
committed, the Parliament replacing the tribunal, thus violating Article 14 and
Article 36 of the Constitution of 1866;
the law of December 18, 1911 does not have the nature of an interpretative
law, because it did not clarify and explain the meaning of an ambiguous or unclear
law. It is a law applied to a single actual case, which only changed the statute of a
Company, a statute drawn up on the basis of legal provisions in relation to which,
for that matter, there were no problems of interpretation;
The law of December 18, 1911 violates the provisions of Article 19 of the
Romanian Constitution from 1866, affecting the ownership of shareholders (on
legally owned shares) and the Company (on its patrimony) by making an illegal
expropriation;
100 years of constitutionality control in Romania 49
Thus, by reasoning its decision, the Ilfov Tribunal succeeded in synthesizing
what will become the foundation of the judicial constitutionality control in
Romania.
Next, in the present case, the defendants challenged the court's resolution by a
second appeal8 before the Supreme Court, calling down on the excess of power
committed by the tribunal, since it was not in its jurisdiction to rule on the
constitutionality of the laws.
By settling the second appeal, the High Court of Cassation and Justice, the
united sections, by Decision no. 261 of March 16, 19129 rejected the defendants'
second appeal. Undertaking the Tribunal's arguments on the jurisdiction of the
courts to rule on the constitutionality of laws, the Supreme Court sustains the Ilfov
Tribunal's resolution. It also determined that the tribunal did not commit an excess
of power when it ruled on the constitutionality of the law since it was notified and
called upon to make a lawful decision. The Supreme Court has reaffirmed the right
and obligation of the courts to avoid refusing law enforcement, to observe the
constitutional principles, and when faced with a conflict between the Constitution
and any other law, they should apply the Constitution as a matter of priority ("...
being the base law of the social edifice, the Constitution is imposed by its authority to all, it
is the superior and sovereign law, and therefore the judge owes it preference").
Although the solution of the Tribunal in the Trial of the Tram Company was
not exempted from criticism, Decision no. 261 of March 16, 1912 of the High Court
of Cassation and Justice marked the establishment of the jurisdictional
constitutionality control of the laws in Romania, this decision having for the
Romanian constitutionalism the same role that the Decision of 1803 of the Supreme
Court of Justice in the United States had in the case Marbury v. Madison, for the
North American constitutionalism and beyond10. From this point on until the entry
into force of the Constitution of Romania in 1923, the American type of
constitutionality control of laws was applied, where all the courts were authorized
to rule on the conformity of laws with the text of the Constitution. Even the High
8 It is about the second appeal regulated by Article 31 para. 2 from the Organic Law of the High
Court of Cassation and Justice, a special appeal for the excess of power, which could be promoted
even against certain non-final rulings ("uncompleted").
9 Published in the "Curierul Judiciar" no. 32 of April 29, 1912, pp. 373-376. The decision was
handed down by a panel of judges: G.N. Bagdat, C. R. Manolescu, G. Giuvaru, V. Bossy, V.
Râmniceanu, Al. D. Dobriceanu, Gr. Ştefnescu, I. N. Stambulescu and Al. Alesiu - see the text of the
decision in Alexandru Vleanu, op. cit., pp. 421-432.
10 A more remarkable similarity stands out between the decision of the US Supreme Court in
1803 and the decision of the Romanian Court of Cassation and Justice: both were challenged by a
political aspect. In the American case, President Adams's appointment of the 42 federal peace judges
in the final moment of his career as he attempted to counterbalance the republican weight in the new
legislature. In the Romania’s case, the result of the organized elections determined the change of the
political color of the government, respectively of the administration.
50 DANIELA CRISTINA VALEA
Court of Cassation and Justice also acknowledged the lower courts the right to rule
on the constitutionality of the laws, considering that there is no risk of abuse as
long as the activity of these courts is also subject to the control exercised by the
Supreme Court. And the Supreme Court, "... by its organization and the nature of its
attributions, it can rule apart from any influence of political struggles, with all the
guarantees of independence and impartiality."11 Subsequently, also by jurisdiction, a
number of procedural rules for exercising the constitutionality control were outlined,
confirmed and subsequently supplemented12. In order to prove the fairness and
the justice of the resolution established by the Romanian High Court of Cassation
and Justice, not only that nobody disputed the right of the judge to rule on the
constitutionality of the law, but the resolution has found a constitutional consecration
(we may speak of a principle of constitutional rank), being expressly provided in
the Romanian Constitution of 1923.
It is true that in the following period, until 1923, the courts were relatively
rarely called upon to rule on the constitutionality of laws or decrees-laws (most of
the cases called for the defense of property rights).
In Romania, we may speak about the express regulation of a system of
concentrated judicial constitutionality control of laws, that should replace the
political type of control, starting from the moment the Constitution of 192313 came
into force. One of the great merits of this Constitution14 is the express regulation of
the judicial constitutionality control of the laws as a way of ensuring the principle of
11 See Tudor Drganu, Drept constituional şi instituii politice – tratat elementar, vol. I, Lumina Lex
Publishing House, Bucureşti, 2000, p. 301.
12 See Bianca Selejan- Guan, Excepia de neconstituionalitate, All Beck Publishing House,
Bucureşti, 2005, p. 12.
13 Published in the Official Gazette of Romania no. 282 of March 29, 1923. It was voted in the
Chamber of Deputies with 247 votes in favor, 8 votes against and 2 abstentions, and in the Senate with
137 votes in favor, 2 votes against and 2 abstentions.
14 Due to the little differences between the text of the Constitution from 1866 and that of the
Constitution from 1923 (which undertook about 60%), there were also poi nts of view that one can not
speak of a new Romanian Constitution elaborated and adopted in 1923, but only of an amendment (a
revision) of the one from 1866 - see Dumitru V. Firoiu, op. cit., p. 290. Characterized as the "Fully
Revised Old Constitution", it was adopted but without the rigorous observance of the provided
procedure: no elections were held for the constitution of the Constituent Assembly, the Constitution
from 1923 being debated and adopted by the Chambers of Parliament. However, it can be argued that
the procedure was observed in this respect, due to the parliamentary elections organized by the
Government led by Ion I.C. Bratianu from 1922 - see Ioan Scurtu, Istoria României în anii 1918-1940 –
evoluia regimului politic de la democraie la dictatur, Didactic şi Pedagogic Publishing House,
Bucharest, 1996, p. 77. On the other hand, it was not proceeded as in the case of the previous revisions,
when only the articles reviewed were submitted to vote, but all the articles were voted, even those
that remained unchanged, derogations from the established procedure, derogations accepted as such
in the social and political context - see Eleodor Focşeneanu, Istoria constituional a României (1859-
1991), Humanitas Publishing House, Bucureşti, second edition, 1999, p. 60.
100 years of constitutionality control in Romania 51
legality, together with the control of the lawfulness of the administrative acts, the
declaration of the constitutional second appeal, the immovability of the judges15.
In the precursory period of the adoption of the Constitution from 1923, the
issue of the need to regulate a judicial constitutionality control has been the subject
of certain analysis and discussion.
The fundamental rules underlying the judicial constitutionality control were laid
down in Title III "On State Powers", Chapter III "On the Judiciary", Article 10316:
a. only the Supreme Court, in united sections, had the power to verify the
constitutionality of laws;
b. laws deemed unconstitutional could not be enforced;
c. the right of appeal in cassation is of constitutional order;
d. the court's decision to declare unconstitutionality has inter partes effects;
Subsequently, through the legislation on the organization and functioning of
the judiciary power, the procedure for exercising the constitutionality control was
regulated. But the case law of the Court of Cassation and, to a certain extent, the
doctrine, has also received the role of enshrining judicial jurisdictional
constitutionality control of laws among the fundamental legal institutions of the
Romanian constitutional system17.
Thus, a concentrated constitutionality control of the laws was regulated, unlike
the previous period, during which this prerogative was recognized by all types of
courts (diffuse control). According to Article 103 of the Constitution from 1923, the
Court of Cassation, in united sections, judged the constitutionality of laws and
declared the laws contrary to the Constitution - inapplicable. Through several
decisions, the Court of Cassation imposed the rule according to which the extrinsic
constitutionality could be determined by any court, while the intrinsic
constitutionality was in the exclusive jurisdiction of the Court of Cassation.
But such reasoning may prove dangerous because it could easily be concluded
that the rights and interests of those involved in a trial, in defense of fundamental
rights or freedoms can only be harmed by a law which by its content would be
contrary to the Constitution.
15 Unlike the Constitution from 1866, the new Constitution places greater emphasis on the
principle of legality, as a foundation of the state - see Mihai T. Oroveanu, Istoria dreptului românesc şi
evoluia instituiilor constituionale, Cerna Publishing House, Bucureşti, 1992, p. 273. Although it was
argued that the introduction of the constitutionality control of the laws is "another innovation" (see Emil
Cernea, Emil Molcu, Istoria statului şi dreptului românesc, Universul Publishing House, Bucureşti, 1994,
p. 319), it should be noted that this control was introduced by praetorian way by the courts as early as
1912.
16 "Only the Court of Cassation in united sections has the right to judge the constitutionality of the laws
and to declare inapplicable those which are contrary to the Constitution. Ju dgment on the unconstitutionality of
laws is confined to the case alone. The Court of Cassation will rule as in the past on conflicts of authority. The
right to a second appeal in cassation is of constitutional matter."
17 It is considered to be the first crystallized form of the constitutionality control of laws in
Romania - see Ion Deleanu, Justiia constituional, p. 143.
52 DANIELA CRISTINA VALEA
Perhaps, in such a context, there is more than justifiable the option of verifying
the absence of a law by any court.
The inter-war legislator expressly mentioned in the text of Article 103 of the
Constitution that the decisions of the Court of Cassation on judging
unconstitutionality have inter partes effects ("only within the case tried"). The measure
was envisaged as a guarantee of respect for the principle of separation of powers in
the state, so that the judicial power does not have the possibility to intervene in the
sphere of activity of the legislative power. Therefore, the effect of the decision that
declared the unconstitutionality of a law did not lie on its repeal, but in the removal
of the law from the settlement of the respective trial, the judge putting aside the
respective law in settling only that case. Thus, it was considered that the risk in
what concerns the "judicial power that gradually becomes a Constitution law maker"18
would be eliminated. Regarding the legal nature, it has been clearly established
that the second appeal in cassation is constitutional. Even during the
parliamentary debates on the Constitution draft it was argued that such a
specification is more than welcome, due to the case law, frequently encountered so
far, to forbid the second appeal in different matters by special laws19. Thus, by
constitutional regulation, it was guaranteed to every person the right to use the
special second appeal (the exception) regarding the constitutionality of a law.
Concurrently, it can be argued that as long as in the text of the Constitution of
1923 (Article 88 paragraphs 2 and 3) the reproduction of the text of Article 93 para.
2 and 3 of the Romanian Constitution of 1866 is found, the political form of the
constitutionality control of the laws was also maintained. Thus, this control was
accomplished by the king, by exercising his duty to sanction and promulgate20 the
law, and especially by the possibility of refusing to promulgate the law (the veto
right).
Starting from the basic principles established by the Romanian Constitution of
1923, the procedure of exercising the constitutionality control was regulated by the
law on the courts and by the jurisprudential approach, precisely by the Supreme
Court. This procedure contains rules on: the subject, the right of referral, the
judgment, the conditions of admissibility of the exception of unconstitutionality
(the special appeal), the resolution and the effects of the decisions regarding the
unconstitutionality of a law.
18 See C.G. Dissescu, as rapporteur of the Mixed Commission of the Assembly of Deputies and
the Senate of the Constituent - in the Constituent National Assembly of 1922, the Mixed
Constitutional Commission, Proiectul Constituiei [The Draft Constitution], p. 60.
19 A. Lascarov-Moldoveanu, Sergiu D. Ionescu, Constituiunea României din 1923 adnotat cu
dezbateri parlamentare şi jurisprudene, „Curierul Judiciar” Publishing House, Bucureşti, 1925, p. 407.
20 The promulgation is defined as a confirmation of the law that it was voted on by constitutional
provisions, with the order to be enforced - see Mihai T. Oroveanu, Istoria dreptului românesc şi evoluia
instituiilor constituionale, Cerna Publishing House, Bucureşti, 1992, p. 281.
100 years of constitutionality control in Romania 53
In the following period, the supreme Romanian court has formed a wide-
ranging jurisprudence, being required to rule in several areas (property rights,
individual rights and public freedoms, taxation, legislative unification, retroactivity of
laws, special jurisdictions).
OTHER FORMS OF CONSTITUTIONALITY CONTROL PRACTICED
DURING THIS PERIOD. LEGISLATIVE COUNCIL
By Article 76 of the Romanian Constitution of 192321 and by the Law of
February 15, 192522, the Legislative Council was established and received (the same
way as in other constitutional systems23) an advisory role in the legislative
procedure and the elaboration of the administrative regulations issued for the
enforcement of the law. According to the Constitution of 1923, the Legislative
Council had the task of "advising on the making and co-ordination of laws ... and in
drawing up general regulations for law enforcement" (Article 76 paragraph 1 of the
Constitution).
If, the Court of Cassation, the united sections, exercised a concentrated judicial
constitutionality control, a posteriori, by way of exception, by the establishment of
the Legislative Council a preventive constitutional control was regulated, a priori.
The establishment of the Legislative Council has reactivated the dispute over
the need for a posterior constitutionality control. The proponents of the removal of
such control, considered repressive and a threat to the stability of the rule of law
and of the rigorous application of the law24, have used this moment to demonstrate
the need for just an a priori control, considered sufficient.
However, the Legislative Council did not lack in criticism, with power to
exercise a preventive, pre-constitutionality control. It was considered that such a
body could be too easily controlled by the Government in order to limit the
Parliament's powers25 or that it could give rise to conflicts between the
21 Article 76 of the Constitution of 1923: "A Legislative Council is set up, whose purpose is to assist in
making and coordinating laws, streaming either from the executive power or from the parliamentary initiative,
and to assist in drawing up general regulations for the application laws.
Consultation of the Legislative Council is compulsory for all bills, other than those concerning budget
appropriations; if, within a time limit set by the law, the Legislative Council does not give its opinion, the
Assemblies may start to discuss and approve the projects.
A special law will determine the organization and functioning of the Legislative Council."
22 Published in the Official Gazette of Romania no. 45 of February 26, 1925.
23 The Legislative Council set up by the 1923 Constitution was considered to be a "legal adviser
to the Government", the same as the French State Council, but without the jurisdiction of the latter -
see Gérard Conac, O anterioritate româneasc – controlul constituionalitii legilor în România de la
începutul secolului XX pân în 1938, in „Revista de drept public”, nr. 1/2001, p. 12.
24 See Gérard Conac, art. cit., p. 12.
25 See Gérard Conac, art. cit., p. 13.
54 DANIELA CRISTINA VALEA
fundamental state authorities or, more seriously, would intervene in the justice
sphere of activity26.
Thus, the rule of the obligation to seek the opinion of the Legislative Council
on bills has been established (administrative laws or regulations), with the
exception of those on budget appropriations. The opinion had to be requested by
the president of the Council of Ministers (for constitutional drafts and
constitutional laws) or ministers (for bills and regulations on the field of
jurisdiction) or by the parliamentarians (through the president of the respective
parliamentary Chamber). The Opinion of the Legislative Council was an advisory
opinion, that is to say, mandatory to be requested, but not mandatory to be taken into
account. As a matter of fact, even the fundamental law has established that, if the
Legislative Council does not give its opinion within the time limit set by the law,
the normative act may be adopted in the absence thereof. Even if the notice was
issued within the legal deadline, the initiators of the bill were not - legally - bound
in any way to take into account the point of view of the Legislative Council.
However, the case law has proven the authority and recognition that this body has
enjoyed, since more than half of the negative opinions issued by the Legislative
Council in about ten years of activity have led to the withdrawal or abandonment
of those normative projects27.
The theory of the Legislative Council jurisdiction for exercising the
constitutional control - a priori, preventively - on the laws or, the so-called
constitutionality control of bills28 was based on the mandatory request of the opinion
for all the normative drafts (except for the budget appropriations) - because if this
opinion had not been requested, the law would have been considered
unconstitutional.
Although both the Constitution of 1923 and the law on organization and
functioning have clearly defined the position and role of this body in the
organizational structure of the state29, that period didn’t miss points of view that
claimed for the Legislative Council a more special position, as a component part,
alongside the Senate and the Assembly of Deputies. Thus, the Legislative Council
itself pronounced in this respect, arguing that "The Constitution lawmaker has
precisely shown the three constituent elements of the legislative power, understanding that
the new body being created, which is the Legislative Council, should be part of the
26 See the point of view of George Alexianu, quoted in Alexandru Vleanu, op. cit., pp. 107-109.
27 Of the total number of opinions issued by the Legislative Council (518), about 64-66% had an
effect - see Alexandru Vleanu, op. cit., p. 105; Tudor Drganu, Drept co nstituional şi instituii politice –
tratat elementar, vol. I, p. 296.
28 See Tudor Drganu, op.cit., vol. I, p. 295.
29 It was not part of the legislative power - see Alexandru Costin, Consiliul Legislativ, in Romanian
Encyclopedia, vol. I, pp. 265-268, quoted in Angela Banciu, Istoria constituional a României, Lumina
Lex Publishing House, Bucureşti, 2001, p. 145.
100 years of constitutionality control in Romania 55
legislative power. It is, therefore, an organ that is meant to take part in the legislative
activity together with the Chamber and the Senate in the form of opinions ..."30.
With the adoption of the Constitution of 1938, discussions on the role of the
Legislative Council are again triggered, fed by the text of this Constitution, which
again makes reference to the obligation to consult this body on matters of law
(consultation being compulsory both before and after the amendment of the drafts
- Article 72 of the Constitution), which formally represented a “reinstatement of
rights... but in reality, the legislative approach is firmly directed and controlled by the
government as the representative of the sovereign”31.
Recognizing the importance and special contribution incumbent on the activity
run by the Legislative Council during its period of operation, in terms of the legal
nature, we believe that it should be considered, however, a specialized technical
body with competences in the field of legislative technique and not a component
part of the legislative power32.
CONSTITUTIONALITY CONTROL EXERCISED DURING 1938-1948
As a result of the coup from February 10/11, 1938, the royal dictatorship was
established in Romania. A new Constitution33 was developed, according to which
the King was declared the "Head of State" (Article 30) and the sole Chief of the
Executive, and who practically governed the country through decree-laws. He
holds the exclusive right of legislative initiative, the right to appoint senators, the
right to appoint and dismiss ministers, who are only accountable before the king,
regulations that go against the principle of separation of powers in the state.
Article 75 of the Constitution from 1938 reproduces the text of Article 103 of
the Romanian Constitution from1923 (on the exercise of the constitutionality
control by the Unified sections of the Court of Cassation), and, moreover, the
Legislative Council is maintained, so theoretically a posterior constitutionality control
concentrated and by way of exception, - exercised by the Court of Cassation and Justice
30 See the Opinion of April 2nd,1927 of the Legislative Council, Minutes no. 42 of April 1-2, 1927
of the Council meetings - quoted in Ion Deleanu, op.cit., p. 146 and Paul Negulescu, Principiile
fundamentale ale Constituiunei din 27 februarie 1938, Zanet Corleanu Workshops, Bucharest, 1938,
p. 194.
31 See Florian Tnsescu, Parlamentul şi viaa parlamentar din România – 1930-1940, Lumina Lex
Publishing House, Bucureşti, 2000, p. 349.
32 As claimed in the doctrine, even by one of the commentators of the Constitution from 1938 -
see Paul Negulescu, op.cit., p. 194.
33 Romanian Constitution of 1938 sanctioned by King Carol II on February 27, 1938 and
published in the Official Gazette of Romania no. 48 of February 27, 1938. It was considered a statute
type of constitution, in other words, a manifestation of the will of the monarch, subject to the
plebiscite vote - see Paul Negulescu, op.cit., p. 10.
56 DANIELA CRISTINA VALEA
(Article 75, paragraph 1) - and a preventive and previous constitutionality control– in
the jurisdiction of the Legislative Council (Article 72) are regulated, as in up to now
circumstances. Concerning the Legislative Council, its consultation on legislative
drafts has become mandatory, with the exception of budget appropriations,
although the Parliament could submit to debate the legislative drafts without the
opinion of the Legislative Council in case it does not meet the established
deadline34.
However, within the framework of the acts through which the legislative
activity materialized, during this period, the decrees-law issued by the king,
according to Article 46 of the Constitution occupied a very significant place. The
King could issue these decrees legally during the parliamentary holiday or if the
Parliament was dissolved. Subsequently, these decrees were to be subject to
ratification of the Parliament, which was the expression of the parliamentary
control. But, on terms in which the Constitution regulated an exceptional situation,
namely that during the time up to the constitution of the legislative assemblies
under the new Constitution (the elections were held hardly on 1 July 193935), the
royal decrees would have the power of law without the need for their ratification by the
Parliament (Article 98 paragraph 7 of the Constitution), even this form of control
has been eliminated.
Although some forms and control mechanisms have been formally maintained
or regulated, in reality, under the conditions of the degradation of values, of the
traditional constitutional and liberal principles on which the Romanian
constitutional system was based36, one cannot speak of the existence of a
constitutionality control - in the true sense of the word - effectively.
By Decree-Law no. 3052 of September 5, 194037, the Constitution of 1938 is
suspended, the Romanian Parliament is dissolved, and Romania is organized
according to the model of the fascist states. As a consequence for the suspension of
the Constitution from 1938, the constitutionality control is no longer exercised, a
matter confirmed by the Decree-Law of September 23, 1942, which abolishes this
control.
34 Considering the provisions of Article 72 of the 1938 Constitution, it was argued that this body,
as a body of legislative technique, designed to examine bills and give only consultative opinions, is
now becoming a body of collaboration and decision-making in the legislative activity, but being
controlled and directed by the monarch - see Angela Banciu, op. cit., p. 264.
35 The elections were won 100% (!) by the National Renaissance Front - see Florian Tnsescu, op.
cit., p. 109.
36 The representative parliamentary regime was removed, the king is the "Head of State", the
king is the holder, the owner of sovereignty ... and the nation has only the exercise of sovereignty, the
government directs the work of the legislature - see Paul Negulescu, op.cit., pp. 90, 98, 120.
37 Published in the Official Gazette of Romania no. 205 of September 5, 1940.
100 years of constitutionality control in Romania 57
The reinstatement of the Constitution of 192338 on September 2nd, 1944 also
meant the reintroduction of the constitutionality control exercised under this
fundamental law. But in the period that followed, the Constitution of 1923
underwent a series of more or less constitutional changes, which proved to be only
measures taken to allow the establishment of the communist regime. And the
constitutional control exercised by the Supreme Court was influenced by the
political and legal situation in Romania39.
THE COMUNISM REGIME IN ROMANIA AND THE
CONSTITUTIONALITY CONTROL OF LAWS
Absence of judicial constitutionality control
The establishment of the communist regime in Romania also implied
important changes regarding the existence and exercise of a constitutionality
control of laws.
There are two aspects that have favored the removal of the constitutional
jurisdictional control40 in Romania or the subsequent application of some
"distorted"41 forms of control. First of all, although the "Constitution supremacy"
was stated in the constitutional texts of the time, it was nothing but a simple
formula without content and effectiveness, lacking in consecrated content, as long
as everything was subject to the will of the "supreme organ" or later, to "the ruling
38 Royal Decree no. 1626 of August 31, 1944, published in the Official Gazette of Romania no. 202
of September 2nd, 1944.
39 The High Court of Cassation and Justice was called to rule on a second appeal of
unconstitutionality raised precisely in the trial of marshal Antonescu. The second appeal of
unconstitutionality referred to Articles 1-3 and 4-8 of the Law no. 321 of April 21, 1945 on the prosecution
and sanction of those guilty of the country's disaster or war crimes (published in the Official Gazette of
Romania no. 94 of April 24, 1994), which established extraordinary national courts (thus violating Article
101 of the Constitution from 1923 and the Royal Decree no 1849 of October 11, 1944 (published in the
Official Gazette of Romania no. 235 of October 11, 1944), authorized to judge also the war crimes
(which also constituted a violation of the Armistice of 12 September 1944 (Armistice Convention
between the Romanian Government on the one hand and the Governments of the Soviet Union,
United Kingdom and United States of America on the other hand, dated September 12, 1944,
published in the Official Gazette of Romania no. 219 of 22 September 1944)). The High Court of
Cassation and Justice dismissed the second appeal of unconstitutionality (the decision of the High
Court of Cassation and Justice, united sections no. 21 of May 31, 1946 - apud Eleodor Focşeneanu, op.
cit., p. 98).
40 Since it has been considered a means by which the judge is raised over the legislature - see
Anita M. Naschitz, Inna Fodor, Rolul practicii judiciare în formarea şi perfecionarea normelor dreptului
socialist, Academia R.S.R. Publishing House, Bucharest, 1960, p.39.
41 See Ion Deleanu, Justiia constituional, p. 171.
58 DANIELA CRISTINA VALEA
political force of the whole society", the Romanian Communist Party (Article 3 of
the Romanian Constitution of 1965). Secondly, through the three Socialist
Constitutions (194842, 195243, 196544), the principle of the separation of powers in the
state was abandoned in favor of the principle of the single and indivisible state power, the
single and supreme power incompatible with a constitutionality control.
Moreover, even the Constitution was reduced to a simple normative act, as long as
its adoption and amendment appeared as an ordinary task "listed among the other
attributions" of the Grand National Assembly45, according to Article 43 section 1 of
the Romanian Constitution of 1965.
In the view of socialist doctrinaires, the constitutionality control of laws thus
falls into a system in which the Constitution can be modified by a simple
procedure (the changes being nothing but the materialization of the continuous
improvement of the socialist production relations), there are no deliberate
violations of the law (perhaps only errors of legislative technique), and the only
competent authority to control the legislative activity is the legislative authority
itself (because, as a supreme body, it can not be subordinated to any other body46,
to which we can of course add to the fact that the socialist doctrine excluded "any
possible discrepancy between the will of the people's representatives and the latter (the
people – our note)"47.
The regulation of some distorted forms of constitutionality control
If, in the first instance, the issue of regulating a constitutionality control of the
laws was not settled - the Romanian Constitution of 1948 contained no regulation
in this respect, but only gave the jurisdiction of the Presidium of the Grand
National Assembly the interpretation of laws (Article 44 section 3 of the
Constitution of 1948), subsequently, the "general control on the application of the
Constitution"48 was regulated by the Constitution of 1965, which was put in the
42 Published in the Official Gazette of Romania no. 87 bis of April 13, 1948.
43 Published in the Official Bulletin of the Grand National Assembly no. 1 of September 27, 1952.
44 Published in Official Bulletin of the Grand National Assembly no. 1 of August 21, 1965, last
published in the Official Bulletin of R.S.R. no. 65 of October 29, 1986.
45 See Eleodor Focşeneanu, op. cit., p. 123.
46 See Mircea Lepdtescu, Teoria general a controlului constituionalitii legilor, Didactic şi
Pedagogic Publishing House, Bucureşti, 1974., pp. 121-122.
47 See Dan Claudiu Dnişor, Drept constituional şi instituii politice, vol. I Teoria general, C.H. Beck
Pubishing House, Bucureşti, 2007, p. 668.
48 The general control over the implementation of the Constitution is the broad framework,
which includes the narrower concept of the constitutionality control of laws. The general feature of
the control on the implementation of the Constitution assumes the review of compliance with the
Constitution not only of the laws and acts of the Grand National Assembly and its subordinate
bodies, but also of the acts of all the state bodies, including political acts, legal material deeds and
technical material operations - see Tudor Draganu, Controlul general al aplicrii Constituiei înfptuit de
100 years of constitutionality control in Romania 59
jurisdiction of the Grand National Assembly, the only one authorized to "decide
upon the constitutionality of the laws" (Article 43, paragraph 15 of the Constitution
from 196549), as the supreme body of state power to which all other state bodies are
subordinate50.
The Grand National Assembly was assisted in exercising this constitutionality
control by a special parliamentary commission, the Constitutional Commission
(Article 53 of the Constitution). Subsequently, by Law no. 2 of March 18, 1975 for
the amendment of Article 5351, two parliamentary committees, the Constitutional
Commission and the Legal Commission were brought together, resulting in the
Constitutional and Legal Commission52, as it appears in the republished text of the
Constitution from 196553.
According to the regulations in force, the Constitutional and Legal
Commission is composed of two categories of members: deputies and specialists
(who are not members of Parliament yet).
The Constitutional and Legal Commission assists the Grand National
Assembly in exercising its constitutional control of laws and in preparing the work
on the adoption of laws (Article 53 paragraph 1 of the Constitution) by issuing
reports and opinions. It was considered, on the basis of this constitutional
provision, that this commission has the juridical nature of an auxiliary body, a
study and training body54, made available to the Grand National Assembly "as the
supreme body of the state power, the only legislator of the Socialist Republic of
Romania"55. The Commission is not authorized to declare a law - unconstitutional,
this power belonging exclusively to the Grand National Assembly56.
Exercised in this manner, the constitutionality control covers two forms: a
posterior control of law exercised after the entry into force (the Grand National
Assembly declaring the unconstitutionality) and a previous control of the bills,
exercised in the course of the legislative procedure.
Marea Adunare Naional, în Instituii şi reglementri în dreptul socialist român, RSR Academy, Institute of
Legal Studies, RSR Academy Publishing House, Bucharest, 1969, pp. 88-89.
49 Republished in the Official Bulletin of R.S.R. no. 65 of October 29, 1986.
50 See Tudor Drganu, op.cit., p. 73.
51 Published in the Official Bulletin no. 30 of March 21, 1975.
52 It is a permanent commission of the Grand National Assembly - see Alfred Carsian, Aspecte ale
lrgirii şi perfecionrii activitii comisiilor permanente ale Marii Adunrii Naional], in Revista român de
drept [The Review of Romanian Law], no. 1/1973, p. 35; also characterized as a permanent
commission with specific traits - see Paul Dumitru, Controlul constituionalitii legilor în dreptul
comparat socialist, in the Review Studii şi cercetri juridice [Studies and legal research], 14th year, no.
4/1969, p. 605.
53 See Ovidiu inca, Constituii şi alte texte de drept public, Imprimeriei de Vest Publishing House,
Oradea, 1997, p. 83.
54 See Mircea Lepdtescu, op. cit., p. 411.
55 See Article 42 of the RSR Constitution of 1965.
56 See Tudor Drganu, op.cit., p. 77.
60 DANIELA CRISTINA VALEA
The previous control is exercised only upon notification to the Office of the
Grand National Assembly (on bills) and to the State Council (on the draft decrees
encompassing norms with legal power).
Posterior control shall be exercised upon the notification of the Constitutional
and Legal Commission by the Office of the Grand National Assembly, the State
Council, the Council of Ministers, the Supreme Court and the Prosecutor General
of the Republic, or ex officio according to the operational rules of the Grand
National Assembly.
Subsequently, through another amendment to the Constitution, the
Commission became authorized to examine the constitutionality of the decrees as
well which included the rules with legal power issued by the State Council and the
decisions of the Council of Ministers in the context of the posterior control57.
The point of view of the Constitutional and Legal Commission was presented
in a report or opinion submitted to the Grand National Assembly. If the
Constitutional Commission determined that a decree with legal power or a
decision of the Council of Ministers was unconstitutional, the issuing body would
have the obligation to return to the act. In case of refusal, the Grand National
Assembly decided upon it. However, the Grand National Assembly was able to
impose its point of view even if a law was considered by the Commission to be
contrary to the Constitution, "by virtue of its right to general control" but also by the
legal nature of the report or opinion58, given that the Commission's opinion was
merely an advisory opinion59 (mandatory to be requested but not necessarily to be
taken into account60). And so, the constitutional control - in fact a self-control, in
the case of the laws – returns to the Grand National Assembly61.
Thus, we are witnessing a return to the embryonic forms of control, the political
control of constitutionality, which proved to be equally ineffective in both a
57 It has been argued in the legal literature that, in fact, under the general control of the
application of the constitution it owns, the Grand National Assembly verifies the compliance with the
Constitution of the acts of all the other state organs - see Tudor Drganu, op.cit., p. 75; Tudor Drganu,
Organele puterii de stat în Republica Socialist România, dinamica dezvoltrii lor sistemice şi funcionale, in
Revista Român de drept [The Review of Romanian Law], no. 2/1977, pp. 14-15.
58 These are considered to be simple procedural forms prior to the issuance of a legal act and they
do not produce any legal effect - see Tudor Drganu, Actele de drept administrativ, Scientific Publishing
House, Bucharest, 1959, p. 125.
59 See Mircea Criste, op.cit., pp. 105-106.
60 See Ioan Vida, Manual de legistic formal – introducere în tehnica şi procedura legislativ, Lumina
Lex Publishing House, Bucharest, 2004, p. 163; Rodica Narcisa Petrescu, Drept administrativ, Cordial
Lex Publishing House, Cluj-Napoca, 2001, p. 266; Anton Trilescu, Drept administrativ, All Beck
Publishing House, Bucharest, 2005, p. 201; Ilie Iovnş, Drept administrativ, Servo-Sat Publishing
House, Arad, 1997, p. 42; Lucian Chiriac, Activitatea autoritilor administraiei publice, Accent
Publishing House, Cluj Napoca, 2001, p. 134.
61 See Mircea Lepdtescu, op. cit., p. 431.
100 years of constitutionality control in Romania 61
socialist system and a "capitalist" one. Each socialist state took care to impose, in
particular, the constitutionality control exercised by the supreme body of the state
power62.
Although in the socialist doctrine the advantages of the ways of
constitutionality control regulated by the Constitution of 196563 have been
revealed, in reality the implementation of such a control is not in fact compatible
with the hegemony of the Romanian Communist Party, ranked as the "ruling
political force of the whole society"64, so that no form of control other than that
exercised to verify compliance with the policy of the Romanian Communist Party
can be addressed.
CONSTITUTIONAL COURT
After a period of a missing constitutional control as well as of all the
mechanisms of the democratic rule of law (we speak about the communist period),
starting with the Romanian Constitution in 1991, this constitutional guarantee is
reintroduced into the Romanian constitutional system. But the Constitution
legislator chose to give up the traditional (judicial control - exercised by the
Supreme Court65) and opted for another variant, namely the political-judicial control,
entrusted to a special and specialized body, or in other words, opted for the
"European model" of constitutionality control66. Respectively, a system of
constitutional control has been chosen, with a Constitutional Court in its center, a
specialized body specially organized for this purpose, outside the judicial power. According
to the current normative regulations, the Constitutional Court of Romania is the
only competent body to exercise the constitutional control in Romania.
As a result of long and animated discussions and debates that took place
during the elaboration and adoption of the Constitution in 1991, the Constitutional
62 Constitution of the People’s Republic of Albania in 1961 - People's Assembly; Constitution of
the German Democratic Republic of 1968 – People’s Chamber - see Paul Dumitru, art. cit., pp. 602-604.
63 In general, constitutional jurisdictional control is considered by the socialist doctrine to be a
prerequisite of capitalist, imperialist or bourgeois regimes. "Its role is to safeguard the interests of the
dominant exploitative class" - see Anita M. Naschitz, Inna Fodor, Rolul practicii judiciare în formarea şi
perfecionarea normelor dreptului socialist, p. 35.
64 See Article 3 of the Constitution from 1965.
65 Although, during this period (1991), the Supreme Court of Justice of Romania was asked four
times to rule on the constitutionality of a normative act - Decree no. 92/1950 - which it did through
four decisions, in which it not only considered itself authorized to rule on the constitutionality of the
legal provisions, but also outlined a series of procedural rules regarding the exercise of this control -
for details see Mircea Criste, Controlul constituionalitii legilor în România – aspecte istorice şi
instituionale, Lumina Lex Publishing House, Bucharest, 2002, pp. 69-76.
66 See Nicolae Popa, Curtea Constituional şi statul de drept, in the "Revista de Drept Public"
[Review of Public Law], no. 2/2001, p. 7.
62 DANIELA CRISTINA VALEA
Court of Romania appears as a "strong public authority to control the
constitutionality of laws"67 and beyond.
In a first version of the documents drafted by the Constitutional Commission68
(consisting of 12 deputies, 11 senators and 5 independent specialists, who did not
have the right to deliberative vote (named experts), Title 4 of the Theses, title
entitled "the Constitutional Council" was assigned to the Constitutional
jurisdictional authority.
The Commission's option for drafting the Constitution on regulating such public
authority was supported and reasoned, mainly taking into account the following
arguments69:
- the constitutionality control of laws and of other acts subordinated to them is
a necessity for a rule of law and a democratic state;
- it provides the possibility of exercising also a preventive control;
- the appropriate procedure is the exercise of this control by a single, special
and specialized body, all other known procedures being ineffective, obsolete,
objectionable;
- the advantages of the constitutional control system entrusted to a special and
specialized body: ensuring the homogeneity of the case law; erga omnes effects of
the decisions that confirm or invalidate constitutionality; reducing legal insecurity;
professionalism and neutrality of the members of this body;
- the possibility of being entrusted with tasks that exceed the jurisdiction;
- under the influence of contacts with foreign specialists, it was considered that
the choice of the European model of constitutional control is a realistic,
contemporary act, connected to the reality of the vast majority of constitutional
systems, especially European. In the European space, constitutional control has
witnessed a strong development in the 20th century, therefore three important
periods can be considered: the start-up period (the establishment of the first
Constitutional Court under the influence of Hans Kelsen), the period after the
Second World War, when an expansion of the Constitutional Courts took place
and the third period since the 1970s, characterized by a strong extension of judicial
control in new areas70;
- the adoption of a constitutional control system based on a special and
specialized body by most European countries, including many of the former
67 See Ioan Vida, Btlia pentru Curtea Constituional, Ioan Muraru, Liber Amicorum. Despre
Constituie şi Constituionalism, p. 12.
68 Decision of the Constituent Assembly no. 2 of July 11, 1990, published in the Official Gazette of
Romania no. 90 of July 12, 1990 also called the Constitutional Commission - see Antonie Iorgovan,
Odiseea elaborrii Constituiei, "Vatra Româneasc" Publishing House, Tîrgu Mureş, 1998, p. 11.
69 See the Speech of the reporter of the Drafting Commission, Mr. Ion Deleanu, in Geneza
Constituiei României 1991. Lucrrile Adunrii Constituante, pp. 854-855.
70 See Mauro Cappelletti, General report, in Louis Favoreu, J.A. Jolowicz, Le contrôle jurisdictionnel
des lois, Économica Publishing House, Paris, 1986, p. 229 (our trans.).
100 years of constitutionality control in Romania 63
communist countries, should remove any reservations regarding the existence of
such a body71. "The Constitutional Council, consisting of a specialized body of judges,
without political affiliation and independent of the three powers in the state, having as its
object of activity the constitutional justice ... represents a viable solution to the defense of
the Constitution ... means to fully and distinctly guarantee the prestige and respect of the
Constitution, human rights and freedoms. ... the proposed institution preserves the
separation and balance of powers in the state, circumscribing the law-making activity of the
legislative bodies within the limits of the Constitution by removing the voluntarism and the
legislative subjectivism"72;
- such an institution is not even expensive, thanks to its 9 members that
form it73.
The denial of assigning to the courts the exercise of the constitutionality
control was also grounded, during the debates:
- the temptation or obligation of judges to sometimes appreciate the law from a
political but not a legal point of view;
- the courts would become part of the legislative power or even a genuine
power of government;
- the court, from an impartial institution, could become a discretionary one;
- an irrevocable court decision can no longer be withdrawn even if it is
wrong74;
- the exercise of constitutionality control by the courts would mean a violation
of the principle of the separation of powers in state75.
In the final version of the draft Constitution, compared to the text suggested in
the Theses, the Constitutional Court's regulation presents a few changes: the change
of the Constitutional Council's name in the Constitutional Court, considered to be
a compromise obtained by the supporters of the American model76; replacing the
term "member" of the Constitutional Court with that of "judge"77; the decisive vote
of the President of the Constitutional Court was dropped in the case of the parity
71 The speech of the Deputy Vasile Gionea, see Geneza Constituiei României 1991. Lucrrile
Adunrii Constituante, p. 858.
72 The speech of the Deputy Marian Enache, see Geneza Constituiei României 1991. Lucrrile
Adunrii Constituante, pp. 861-862.
73 See the Report of the Drafting Commission on the amendments presented by the
parliamentary groups, deputies and senators to the draft Constitution, in Geneza Constituiei României
1991. Lucrrile Adunrii Constituante, p. 878.
74 See the Speech of the reporter of the Drafting Commission, Mr. Ion Deleanu, in Geneza
Constituiei României 1991. Lucrrile Adunrii Constituante, p. 854.
75 The speech of Deputy Vasile Giona, see Geneza Constituiei României 1991. Lucrrile Adunrii
Constituante, p. 858.
76 See Antonie Iorgovan, op.cit., p. 309. It was argued that it was a way to emphasize the
jurisdictional feature compared to the political one - see Carmen Nora Lazar, Teoria şi practica
controlului de constituionalitate, Casa Cartii Publishing House of Science, Cluj Napoca, 2003, p. 133.
77 Proposal made by Mr. Gheorghe Frunda, in Antonie Iorgovan, op.cit., p. 660.
64 DANIELA CRISTINA VALEA
of the judges' votes and it was mentioned that the President of the Court would be
elected by secret ballot; the condition of seniority was increased from 15 to 18
years; the limits of the incompatibilities with the position of judge of the
Constitutional Court were cut through Constitution wording, while other
incompatibilities could not be established by the organic law of the Court; previous
constitutional control covers all laws (not only the organic ones, but with the
obvious exception of the constitutional laws) and is exercised only by referral and
not ex officio; the constitutional review of Parliament's regulations is also exercised
by referral; the jurisdiction of the Constitutional Court has been extended by
adding three new powers: to rule on the exceptions of unconstitutionality raised
before the courts regarding the unconstitutionality of laws and ordinances; to issue
an advisory opinion on the proposal to suspend the President of Romania from
office; to verify the fulfillment of the conditions for the exercise of the citizens'
legislative initiative.
Instead, due to the determined opposition in the Constituent Assembly's
activity, the power to decide, in the event of a challenge, on the election of senators
and deputies, as well as on the power to resolve conflicts of jurisdiction between
central authorities or between the central authorities and the local ones was
removed. Also, the text of letter j within the content of Title IV of the Theses was
deleted, according to which the Council (the Court) can perform "any other
attributions provided by the Constitution or organic laws" and the value and the effects
of the decisions of the Constitutional Court are regulated differently – in a separate
article. In the case of exercising the previous constitutional control, as well as
regarding the Parliament's regulations, the Court's decision is no longer binding or
final, and may be defeated by the Parliament if, after the review, it adopts the law
in the same form but with a majority at least two-thirds of the number of members
of each Chamber and thus its promulgation becomes mandatory78. Para. 2 of
Article 145 stated that the decisions of the Constitutional Court are binding and
have power only for the future, being published in the Official Gazette of Romania.
It should be noted that in 2003, by the revision of the Romanian Constitution79,
in addition to other amendments, two of the proposals of the Theses were reiterated
to some extent: the jurisdiction of the Constitutional Court to resolve legal conflicts
of a constitutional nature (letter e, Article 146 of the revised Constitution of
78 Note that although in the beginning of paragraph a of Article 145 of the unrevised
Constitution, it was stipulated that both the law and the regulation found unconstitutional by the
Court were sent to the Parliament for re-examination, the second part of the paragraph mentioned the
effects of the re-examination but only for the law! For identity of reason, we can assume that the same
procedure applies to the Parliament's regulations.
79 Through the Law on revision no. 429 of September 18, 2003, published in the Official Gazette
of Romania no. 669 of September 22, 2003, subject to approval by national referendum.
100 years of constitutionality control in Romania 65
Romania) and the fact that it can also perform other tasks provided by the organic
law of the Court (Article 146 of the Revised Constitution of Romania).
The Constitutional Court of Romania actually started its activity in the mid-
1992, the first decisions being handed down on June 30, 1992.
The Constitutional Court in Romania represents the institutional
materialization of a condition and, at the same time, an inherent desideratum of
the rule of law, the supremacy of the Constitution. One of the main mechanisms for
achieving the rule of law, namely the constitutionality control80, has been and is the
main task of a Constitutional Court, including that of Romania.
The role of guarantor of the Constitution supremacy has attracted inevitably
and absolutely compulsory a constitutional regulation, as "naturally, its legitimacy
and its prerogatives (the Court – our note) can only flow from the Constitution,
from the fundamental law whose supremacy is called upon to guarantee it"81.
Relevant to show the role and position of the Constitutional Court is also the
provision in Article 1 para. 3 of the Law no. 47/1992 republished82, according to
which the Constitutional Court is independent of any other public authority and is subject
only to the Constitution and its organic law. By its role as a guarantor of the
supremacy of the Constitution, the Constitutional Court can not submit to any
other public authority83, as "the power to rule on the constitutionality of laws is
incompatible with the idea of subordination ... to another law, other… than its own law"84.
80 The constitutionality control of laws is one of the main legal mechanisms for the rule of law -
see Tudor Drganu, Drept constituional şi instituii politice – tratat elementar, 2000, p. 291.
81 See Ion Deleanu, Justiia constituional, p. 182.
82 Published in the Official Gazette of Romania no. 101 of May 22, 1992, republished in the
Official Gazette of Romania no. 643 of July 16, 2004.
83 But the question inevitably arises: does this state of complete independence towards any other
authority does not exclude any form of control over the Constitutional Court? But is it not necessary
to have control over the Court? After all, who will control the Court?
84 See Ion Deleanu, op.cit., p. 182.