Developments in the constitutional review. Constitutional court between the status of negative legislator and the status of positive co-legislator

• Author: Lecturer Marieta Safta
• Position: Associate professor - lecturer to The Bucharest University of Economic Studies, Department of Law first assistant magistrate to the Constitutional Court of Romania
• Pages: 1-20

DEVELOPMENTS IN THE CONSTITUTIONAL REVIEW.

CONSTITUTIONAL COURT BETWEEN THE STATUS OF NEGATIVE

LEGISLATOR AND THE STATUS OF POSITIVE CO-LEGISLATOR

Lecturer Marieta SAFTA

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Abstract

The study wants to emphasize that Constitutional Courts belonging to the European model depart from their

traditional role as ”negative legislator” – which refers to the effect of their acts consisting in removal from the legal

system of those rules contra ry to the Basic Law -, becoming, to a certain e xtent, a ”positive legislator”. Official

interpreter s of the Constitution, Constitutional Courts a ssume, sometimes, a role of co-legislators, cr eating

provisions they deduct from the Constitution - when controlling the absence of legislation or legislative omissions -,

and revealing the content of constitutiona l and even infraconstitutiona l rules accordingly with the Constitution in

their ca se-law, whose effects are nothing but specific forms of „impulse” or „coercion” of the legislator to proceed

in a certain sense, and whose continuous development guides the evolution of t he entir e legal system. Ca se – law

selected presents ways in which the Constitutional Court of Romania is associated to law-making activity. Without

minimizing in any way its traditiona l role as "negative legislator", the study refers mainly to acts a nd situations that

give expression to the crea tive role of the Constitutional Court of Romania.

Key words: constitutional review, negative legislator, positive legislator, constitutional loyalty, rule of law, effects of

the decisions of the Constitutional Court

JEL Classification: K10

I. Introduction

The acts delivered by Courts (Tribunals, Councils) in exercising their duties have a

specific legal regime determined, on the one hand, by the status of these authorities and, on the

other hand, by the fact that the effects produced by these acts are enshrined in the Basic Laws of

States. This study refers to the European model of constitutional review that entrusts a specially

empowered body with this type of review.

The Constitutional Courts belonging to that model are not courts of law in the strict sense

of the concept, they do not fall into any of the three traditional powers - legislative, executive and

judiciary but, as the Romanian Constitutional Court ruled in one of its decisions

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, ”support the

smooth operation of these powers, within the constitutional relationships of separation,

cooperation and mutual control”. This position of the bodies of constitutional jurisdiction is

legitimized, in fact, even by these powers - involved in the procedure for appointing

constitutional judges - powers which, in turn, are chosen by the electorate

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. It is noted in this

connection that, in States that have opted for the European model of review of constitutionality of

laws, the regulations of reference – the Constitutions, respectively the laws on the organisation

and functioning of the Constitutional Courts /Tribunals - provide that judges are appointed by

representatives of the highest authorities in the State, usually political bodies par excellence

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.

In Romania, pursuant Article 142 paragraph (1) of the Constitution, the Constitutional

Court ”is the guarantor for the supremacy of the Constitution”, and, pursuant Article 1(2) of

Law 47/1992 on the organisation and functioning of the Constitutional Court

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, is „the sole

authority of constitutional jurisdiction”. In exercising the powers under the Constitution and its

1

Marieta Safta - associate professor - lecturer to The Bucharest University of Economic Studies, Department of Law

first assistant magistrate to the Constitutional Court of Romania, marieta.safta@ccr.ro

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Decision 1/2011 on the referral of unconstitutionality of National Education Law, Official Gazette, Part I, no.135 of 23 February

2011

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see IoanVida, Constitutional Court of Romania, Politics justice or justice politics, 45 (Official Gazette, Bucharest, 2011)

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M. Safta, Garanties de l’indépendance des juges constitutionnels dans les pays de l’Union Européenne, Bulletin of the Central

European Academy of Sciences, Letters and Arts no.2/2011

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“Monitorul oficial al României” (Official Gazette of Romania), Part I, no.807 of 3 December 2010

Perspectives of Business Law Journal Volume 1, Issue 1, November 2012 2

organic law, the Constitutional Court carries out also a judicial activity, and the procedures used

in carrying out its duties have largely the characteristics of judicial proceedings.

In exercising its duties, the Constitutional Court of Romania can deliver the following

acts: decisions, rulings or advisory opinions, accordingly, pursuant the distinctions set forth in

Article 11 of Law 47/1992. Of these, the Constitution only refers to decisions and advisory

opinions, while rulings are nominated only by Law 47/1992, which awards them the same effect

as the one enshrined by the Basic Law in case of decisions

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. According to Article 147 paragraph

(4) of the Constitution of Romania, "Decisions of the Constitutional Court shall be published in

the Official Gazette of Romania. From their publication, decisions shall be generally binding and

take effect only for the future.” Given that the generally binding nature of this court's decisions is

constitutionally enshrined, these decisions apply to all subject of law, just as the normative acts,

unlike court judgements, which produce inter partes litigants effects

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.

Similarly, in Poland and Serbia, decisions of Constitutional Courts have generally binding

effect. In Germany, an erga omnes effect is fully established in case of abstract and concrete

constitutional review of laws, as well as of individual complaints of unconstitutionality aimed at

normative acts. The force of law is attributed to these decisions. Likewise, in Austria, decisions

delivered within the constitutional review exercised on normative acts have erga omnes effects.

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Given the aforementioned, even if the acts of Constitutional Courts are generically

described as "case-law" a common concept used to describe the totality of judgments delivered by

courts at all levels, a distinction must be made in relation to their value as source of law

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. It was

stated

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in that respect, with reference to the role of constitutional jurisdiction bodies and the

effects of acts delivered by the same, that, by their case-law, ”have determined a rearrangement

of traditional positions occupied by the time of their emergence by other judicial and political

agents. In these circumstances, the legislator does no longer hold the monopoly over the

formation of national will. The classical concept that the law is the work of Parliament is now

obsolete. "

This is because, in exercising their powers, Constitutional Courts do more than simply a

certification that the disputed legal provisions are or aren’t in accordance with the Constitution.

In stating the grounds for the acts delivered, the Courts establish principles and rules, delimitate

powers of public authorities, give guidance and solution in relation to the interpretation of both

the Constitution and the infraconstitutional legislation

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, and even ”repair”, in accordance with

the constitutional norms, legislative omissions.

Thus, Constitutional Courts belonging to the European model depart more and more from

their traditional role as ”negative legislator ” – which refers to the effect of their acts consisting in

removal from the legal system of those rules contrary to the Basic Law - becoming, to a certain

extent, a ”positive legislator”, official interpreter of the Constitution, revealing the content of

constitutional and even infraconstitutional rules in their case-law, whose effects «are nothing but

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according to expert opinions in doctrine, in this way, Law 47/ 1992 would add to the Constitution, since it provides that also

rulings are acts of the Court, although such are not nominated by constitutional provisions - see Constitutionof Romania -

Comment on articles, coordinators Ioan. Muraru, Elena SiminaTnsescu, 1419 (CH Beck Publishing House, Bucharest, 2008)

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this category does not include the decisions of the High Court of Cassation and Justice, issued following the resolution of appeals

in the interest of law, which have a separate legal regime

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in detail, www.ccr.ro - the XVth Congress of European Constitutional Courts, General Report, V.Z. Puskas, Benke Karoly,

Enforcement of Constitutional Court Decisions

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in the Romanian law system, courts’ case-law is not a creative source of law but it is, as stressed by some authors (Ion Deleanu,

Judges Dialogue, Romanian Journal of Case-Law, no.1/2012, p.25) - «"nor mative force" within the meaning of this phr ase

attributed to "guide", the "model" the "reference", the "benchmark" for legal pr actice, doctrine and legislator »- see the reference

to C. Thibierge et alii, La force normative Naissance d un concept, LGDJ, Bruylant, 2009

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Claudia Gilia, The rule of law theory, 272, (Ch. Beck Publishing House, Bucharest 2007)

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e.g. Constitutional Court of Austria, Estonia, Lithuania, Romania, Hungary,