Legal liability in constitutional law
| Author | PhD Adriana Miron |
| Position | Transylvania University of Brasov, Faculty of Law |
| Pages | 200-208 |
200 ADRIANA MIRON
LEGAL LIABILITY IN CONSTITUTIONAL LAW
PhD Adriana MIRON
Transylvania University of Brasov, Faculty of Law
Abstract
Liability in constitutional law is the main mean of lawful influence of the state on legal subjects
that do not comply with the requirements of the legislation in force, thus undermining the rule of law
established in society. Each state incorporated in the Constitution and in ordinary laws provisions on
the facts to be incriminated and the specific sanctions to be applied to senior state dignitaries,
regulating the necessity of prosecution by a public authority of the highest level in the state.
Constitutional liability is an aspect of legal accountability that derives from social responsibility in
general, a wider and more complex deontological category. According to tradition, both the
Moldovan doctrine and the Romanian doctrine distinguish the following forms of legal liability: civil
(material), administrative, criminal and disciplinary.
Keywords: constitutional law, constitutional system, Constitutional Court, ordinary laws,
field of law, criminal law.
Liability in constitutional law is the main mean of lawful influence of the state
on legal subjects that do not comply with the requirements of the legislation in
force, thus undermining the rule of law established in society.
In the context of the new conditions for the development of society and of
social relations, the differentiation and the establishment of constitutional
responsibility must include the fundamental aspects, which are constantly
perfected, modified and supplemented, in accordance with the time requirements
and the goals pursued by the State in the responsibility section.
Highlighting the rules on constitutional accountability requires clarifying the
social relationships that feed it. These are, first of all, the co-ordination between the
state, the norms of morality, the norms of law, the political and constitutional
regime, the form of government, the way of separation of powers in the state and,
last but not least, the correlation between responsibility and accountability of the
citizen or the high-ranking state official.
This is a problem of the most current ones, which hinders not only the political
life of our country but also that of all the countries in transition. Today, by virtue of
the new realities generated by the dazzling passing to the market economy, the
issue of the definition of responsibility in constitutional law is particularly
stringent. We support the view that responsibility is a fundamental value
enshrined in the Constitution, the proximity of responsibility, the contouring of
this concept in the field of law, the belief that responsibility can create the premises
of liability under binding rules of law.
Law Review vol. VII, special issue, December 2017, p. 200-208
Legal liability in constitutional law 201
The activity of public authorities in the state, whether elected or appointed, is
regulated. Established legal rules dimension the competence of state institutions.
The system of rules established or recognized by the state for the purpose of
regulating social relations, according to the state will require mandatory
compliance, guaranteed by the legal liability and established responsibilities. Thus,
liability in constitutional law is a system of legal norms that have been created to
regulate the conduct of public authorities in the state, which are obliged to behave
according to certain legal norms.
By the constitutional system, by the prescriptions that are issued, the legal
norms ensure the organization of the social life, the functioning of the society
within the limits established by these norms, including the obligations and
sanctions in constitutional liability.
Each state incorporated in the Constitution and in ordinary laws provisions on
the facts to be incriminated and the specific sanctions to be applied to senior state
dignitaries, regulating the necessity of prosecution by a public authority of the
highest level in the state.
The Romanian Constitution also contains a number of provisions regarding
the exercise of Parliament's control over the Government, including the purpose of
this control, ie the responsibility of the Government and its members for the
inappropriate activity they carry out. The relations between Parliament and the
Government are political and legal relations.
Consequently, the question of the responsibility of the Government will have a
political and other legal nature. Undoubtedly, political accountability also has
some legal consequences, but when it comes to the legal responsibility of the
Government and its members, we have in mind legal liability "stricto senso", ie
civil, administrative or criminal liability, as the case may be.
In Romania, the first regulations on the liability of the members of the
Government were included in the "Organic Regulation of Walachia and Moldova".
The idea of ministerial responsibility was central to political documents of the
Revolution of 1848. Even the "Islaz Proclamation" inserts a point on "the
responsibility of ministers and all officials in office." The legislative
implementation of these ideas is achieved through the "Paris Convention of 1858",
which adopts the principle of full ministerial accountability, making ministers
responsible for violating laws and wasting public goods.
The 1866 Constitution, inspired by the provisions of the Belgian Constitution
on the responsibility of the members of the Government, regulates in more detail
and with greater precision the institution of ministerial responsibility.
The Law on Ministerial Responsibility of 2-nd of May 1879 expressly
determines the cases of liability and the penalties applicable to ministers. The
constituent from 1923 no longer provides for crimes committed by ministers other
penalties, and they are subject to the general provisions of the Criminal Code. Also,
the rule stipulated in art. 103 of the 1866 Constitution, according to which the Head
202 ADRIANA MIRON
of State could not reduce or forgive the sentence pronounced by the High Court for
a minister only at the request of the Assembly that accused him.
In the parliamentary life instituted by the 1938 Constitution, we could no
longer speak of a vote of mistrust or the withdrawal of a minister's confidence.
Criminal liability remains unchanged, as regulated by the 1923 Constitution.
Throughout this period, the Law on Ministerial Accountability of 1879 continued,
with some modifications.
During the period 1948-1949 the institution of ministerial responsibility did not
have a special regulation. The tradition of criminal liability regulation of ministers
was resumed through the 1991 Constitution (see in particular Article 109 "Liability
of Government Members" in the Revised Constitution of Romania), as well as the
Law on Ministerial Responsibility.
In constitutional science and practice, constitutional liability is one of the
central areas, as it is, in essence, a guarantee of the realization of the principles of
law, an important factor in the effective transposition of law into society.
The emergence and development of the institution of constitutional
accountability is a long-term process. The responsibility of the Head of State, for
example, came into being when the institution was created, and it was comparable
to that of the state as a form of political organization of society. Over time, legal
norms have been developed and adopted, and specific principles and rules have
been established regarding the liability of constitutional law subjects for assigned
competences and acts issued. The research of these rules and practices, the
regulatory peculiarities led, theoretically, to the foundation of distinct forms of
accountability, based on coherent and unitary concepts and characterized by
distinct features.
Constitutional liability is an aspect of legal accountability that derives from
social responsibility in general, a wider and more complex deontological category.
According to tradition, both the Moldovan doctrine and the Romanian doctrine
distinguish the following forms of legal liability: civil (material), administrative,
criminal and disciplinary. At the same time, modern legal science also
distinguishes legal liability with a political character. Under political responsibility,
policy holders are held accountable for their acts. This accountability of the electors
is partial and fragmentary, and can not be compared with other forms of
responsibility in the decision.
Constitutional liability is based on the concept of constitutional and democratic
state. It refers to the responsibility of the Head of State, the responsibility of the
holders of a representative mandate, the liability of the members of the Government
for the acts committed in the exercise of their office, etc.
In our opinion there is a close and indissoluble link between the various forms
of social responsibility. Every form of social responsibility acts on the other forms
and can not be considered or analyzed separately. Moreover, constitutional
accountability is a crowning of other forms of legal liability - contravention, civil,
criminal, etc.
Legal liability in constitutional law 203
We underline, however, that constitutional accountability has its own, defining
features, which delimit and individualize it from other forms of legal and social
responsibility. The specific nature of responsibility in constitutional law consists,
firstly, in the fact that constitutional liability refers to the obligation to account for
the violation of the constitutional norms and then of the other norms of social
behavior.
The legal constitutional liability is insufficiently studied in the legal literature
and, accordingly, can serve as a research object for the future. At the present stage,
there has not yet been a single conception of the notion and essence of
constitutional legal accountability.
Born as a result of anti-constitutional acts, that is to say, of an unacceptable
behavior by the Constitution as the supreme law of the state, constitutional
responsibility has common features with other forms of liability. If contravention,
civil, criminal, etc. occurs when an act that damages a single person or a group of
persons is committed, then the constitutional accountability is increased because,
in violation of the Constitution as a fundamental state law, the whole society is
affected, and not just a single person.
Anti-constitutional acts are particularly serious because they affect the
fundamental rights and freedoms of citizens enshrined in the Constitution. For
these reasons, the establishment of sanctions for anti-constitutional deeds
committed by state dignitaries, invested according to the Constitution, is carried
out by the highest bodies of state constraint.
Consequently, we appreciate the constitutional legal responsibility as a
constraint measure, necessary to the observance of the norms of the Constitution,
applied by the specially incumbent bodies of the state to dispose of the law also in
the activity of civil servants and other dignities.
Legal liability is based on several general principles, valid for all concrete
forms of manifestation of law, serving as defining lines in all the legal norms
governing the different forms under which constitutional law can be held
accountable.
Among the main principles we enumerate the following: the principle of
liability for the offense committed by a person with legal capacity; the principle of
the constitution's supremacy; the principle of humanism; the principle of
universality; the principle of the presumption of innocence; the principle of legality
of legal liability; the principle of equality under the law; the principle of personal
responsibility; the principle - a single condemnable deed - a single punishment.
Next, paragraph 3 focuses on the detailed analysis of these principles from the
point of view of constitutional accountability.
It is emphasized that any matter of law, including a high-ranking official, may
be punished within the limits of his guilt. Applying this principle in defining
constitutional accountability has a particular effect on the electorate, convinced
204 ADRIANA MIRON
that no violation of the rule of law remains unpunished, irrespective of the
occupied public position, either the Head of State or a member of the Government.
Regarding the forms of liability in constitutional law, we find them regulated
in the Constitution, in the provisions regarding the disciplinary regime and the
disciplinary procedure, in the organic laws on the organization and functioning of
public authorities of the state (Parliament, President, Government, public
administration authorities, , The Constitutional Court, the parliamentary advocacy
institution, etc.) Thus, responsibility in constitutional law takes the following
forms: disciplinary liability; contravention; civil liability; criminal liability, which
occurs when the civil servant has committed acts provided by the Criminal Code
or other special laws.
The author emphasizes in this paragraph that in the practice of applying
constitutional accountability in the Republic of Moldova only cases of retaliation
against some members of the Government are detected, not patrimonial
responsibility. Unfortunately, disciplinary responsibility remains the only form of
responsibility for civil servants and other state dignitaries. It advocates tightening
liability in constitutional law through patrimonial, pecuniary liability, including
criminal liability.
Liability in constitutional law must be an institution that does not necessarily
imply the existence of an active public office, it must also refer to former
constitutional law subjects, that is to say, not only the officials in office but also the
"former officials " whose public service report has ceased for various reasons,
which does not mean that has ceased liability if the person has committed
misconduct.
Legal responsibility is the main mean of lawful influence of the state on legal
subjects who have not complied with the requirements of the legislation in force,
thus insisting on the order of law in society. It appears as a legal consequence,
applied by state bodies, in response to committing an offense. Coercive and forced
enforcement measures are provided for by law. The notion of legal liability
suggests the idea of sanction or repairs. It does not imply the voluntary fulfillment
of legal obligations, because it would lose its character of repression. Legal liability
materializes through the coercive force of the state.
As a result of the investigations, I have emphasized that in the constitutional
law compared, the main aspect of the legal responsibility of the Head of State is
generally related to the fact that the Basic Laws of the States, regardless of the form
of government, admit that the immunity of the Head of State can only be general
and absolute in the sense that it can never be a subject of criminal law, even in
relation to offenses committed before his appointment.
In Romania, the immunity granted to the President is not general, in the sense
that the Head of State can never be a subject of criminal law, but it is neither
absolute, in the sense that under any circumstances and wherever the Head of
State would commit an offense, escapes the incidence of criminal law. The
Legal liability in constitutional law 205
commission of some "serious acts of violation of the provisions of the Constitution"
implies the imposition of political sanctions or, in another "political-disciplinary"
sense - respectively suspension and dismissal - not obligatory to be followed by
legal sanctions.
As long as the Head of State carries out his duties for the purpose and within
the limits provided by the Constitution, there is no question of his liability, political
or legal. The question of liability comes when the political or legal acts or actions of
the Head of State exceed the constitutional abilities. In this situation, of course,
there is also the question of the ways of taking responsibility and the sanctions
applicable to the Head of State, thus removing his immunity. The measure of
suspension is a consequence of a serious violation of constitutional provisions. In
Romania the appreciation of the seriousness of the act belongs to the reunified
Chambers of Parliament, the decision to suspend is taken by majority vote.
In accordance with art. 95 par. (1) of the Constitution, the President may be
prosecuted (“charged") for "high treason". We note that the constitutional text does
not use the notion of "high treason crime", but also resorts to the notion of
"indictment", specific to criminal law.
The dismissal of the President of Romania is a more severe political sanction,
of course and with legal implications, as it results in the loss of this high state
quality. The dismissal of the President is a political act that the constituent
legislator did not leave to Parliament, as he did with the measure of suspension
(which is a lighter and provisional sanction), but that of the electorate, who also
appointed the President, because the dismissal has radical and definitive legal
effects. If the person insuring the interim is committing serious offenses that violate
constitutional provisions, he is subject to the same suspension and dismissal
procedure.
According to the Constitution, the mandate of the President of the Republic of
Moldova ceases in case of expiration, resignation, dismissal, definitive
impossibility to perform duties or death (Article 90). We notice that the reasons are
different, but the effect is the same: it determines the end of the mandate of the
President for which he was elected, leading to the vacancy of the office and the
birth of the obligation to secure the interim.
Resignation is a unilateral act of will by which the President of the Republic of
Moldova decides to give up his office, to put an end to the presidential mandate
ahead of time. The reasons are personal, but they can be determined by "external"
forces, such as the suspension or indictment initiative, the loss of voter confidence,
etc. The request for resignation of the President of the Republic of Moldova is
submitted to the Parliament, which pronounces on it. We believe that this
procedure is welcome, given that the mandate starts from the date of taking the
oath before Parliament, it is only natural that he stops in front of him. I would add
here that once the oath of the President of the Republic of Moldova is also
submitted to the Constitutional Court, it would be appropriate for him to stop
206 ADRIANA MIRON
before the Constitutional Court. That is why we propose that art. 90 par. (2) of the
Constitution to be completed with the phrase "and before the Constitutional
Court", this would raise the responsibility of the President. The final impossibility
of exercising the duties by the President of the Republic of Moldova for more than
60 days is confirmed by the Constitutional Court within 30 days of the referral.
The dismissal of the President of the Republic of Moldova is made in the case
of committing acts that violate the provisions of the Constitution. The President of
the Republic of Moldova may be dismissed by the Parliament with the vote of two
thirds of the elected deputies (Article 89 paragraph (1) of the Constitution). The
motion of dismissal may be initiated by at least one third of the deputies and shall
be brought to the attention of the President of the Republic of Moldova without
delay. The President may provide the Parliament and the Constitutional Court
with explanations of the facts imputed to him (Article 89 paragraph (2), as
amended by Law No 115-XIV of 5 July 2000).
Once the Constitution makes a distinction between "temporary impossibility"
(Article 91) and "final impossibility", the question arises as to the competent body
to rule on the final character - the Constitutional Court (Article 90 paragraph (3) of
the Constitution , introduced by Law No. 1115-XIV of July 5, 2000).
If the position of President of the Republic of Moldova becomes vacant or if the
President is dismissed or if he is temporarily unable to perform his duties, the
interim shall be ensured in order by the President of the Parliament or by the
Prime Minister. Article 91 of the Constitution was also amended by Law no. 1115-
XIV of July 5, 2000.
If the person acting as interim President of the Republic of Moldova commits
serious acts in violation of the provisions of the Constitution, will be applied the
provisions of art. 89 par. (1) and art. 91 of the Constitution of the Republic of
Moldova.
Because of the political and juridical irresponsibility of the President of the
Republic of Moldova for the acts or deeds committed in the exercise of the
established function are a rule, the exceptions are expressly provided,
accompanied by procedural details in general, so that the state institutions can not
be diverted from the purpose for which they were created.
Thus, if we take away the "real responsibility" of the President of the Republic
of Moldova towards the electorate - moral and political responsibility - in the
Constitution we encounter two cases of his accountability: dismissal and
prosecution of serious deeds (art. 89 paragraph (1) and art. 90 paragraph (1) of the
Constitution of the Republic of Moldova).
Unfortunately, responsibility towards the people is not regulated in the
Constitution. Perhaps it was taken into account that the President, who had
compromised his first term, would no longer have the moral right to run for
President for another mandate.
Legal liability in constitutional law 207
In doctrine, the political responsibility of members of the Government has two
forms: solidarity and individuality. The political responsibility of the Government
in a genuine parliamentary system is associated with the right to revoke the
Government (the motion of censure), leading at the same time to the right of
dissolution of the Parliament by the Head of State. Only in this way the
negotiations and the political games for the formation of a new parliamentary
majority and a new Government will not lead to an institutional blockade,
regulating the state mechanism and forging the democratic building.
The conditions for building a rule of law, as the Republic of Moldova claims,
imply the existence of a constitutional regime whereby the democratic institutions
must regulate the fundamental aspects of social organization and activity, as well
as responsibility and sanction for the work that is not done or performed under
any level. In our opinion, ministers should be held accountable for the sphere of
activity entrusted to them. However, the legal responsibility of the members of the
Government is based on the majority of European constitutions.
Scientific proposals and recommendations
1. We consider it necessary to establish the responsibility of the President of
the Republic of Moldova towards the people through a constitutional article,
arguing that the President is the representative of the state, that is, of the people
organized in the state, to whom he has the right and always appeals. So, there
must also be a reversed dominance: the people have the opportunity to cast blame
not only on the presidential candidate during the election, but also on the
President-in-Office through a referendum, through a legislative initiative, veto
popularly.
2. We also propose that art. 90 par. (2) of the Constitution to be completed with
the phrase "and before the Constitutional Court", arguing that this would increase
the President's responsibility.
3. We consider that a civil servant who neglects his or her debts and, implicitly,
the law, must be liable to criminal, disciplinary and pecuniary (patrimonial),
including ex-presidents of states.
4. Another current issue is the rights of the citizen to revoke the deputy.
5. Article 88 of the Constitution of the Republic of Moldova, entitled "Other
attributions", provides at point i) that the President suspends acts of the
Government which are contrary to the legislation until the final decision of the
Constitutional Court has been adopted. We believe that this competence is
particularly important and should not be included in the "Other Powers"
component. In our opinion, its place is in Section 3 "Legislation" of the
Constitution, within art. 74, "Adoption of Laws and Decisions", in paragraph (4),
stipulating that the laws are being submitted for promulgation to the President of
the Republic of Moldova as follows: "The President of the Republic of Moldova
suspends acts of the Government contrary to the legislation until the final decision
Constitutional Court "
208 ADRIANA MIRON
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