Parliamentary oversight in romania, a guarantee of achieving separation of powers in the state

• Author: Silvia Mihalcea
• Position: Ph.D. candidate, Faculty of Law, 'Nicolae Titulescu' University, Bucharest; Lawyer
• Pages: 149-165

Silvia Mihalcea

149

LESIJ NO. XIX, VOL. 2/2012



PARLIAMENTARY OVERSIGHT IN ROMANIA, A GUARANTEE

OF ACHIEVING SEPARATION OF POWERS IN THE STATE

Silvia MIHALCEA∗

Abstract

This paper focuses on the dimension of the relationships between the Parliament and other

state institutions in Romania (Government, chief of state, public administration authorities) from the

point of view of the parliamentary oversight. The reason and the necessity of the parliamentary

oversight comes naturally from the existence of the democratic principle of representation: using the

mandate entrusted by the people in the electoral elections, the members of the Parliament are

entitled and, in the first place, have the obligation to verify the public affairs related to the

safeguarding of the national interest and achievement of the well being. This mechanism is a flexible

one and involves collaboration, cooperation, balance and thus, it appears as the strongest form in

accomplishing the separation of powers in the state. The paper approaches the early developments

and the evolution of the parliamentary oversight, the wide range of tools used by the Parliament to

carry out this function (procedures and forms) according to the stipulations of the Constitution, laws

and European Treaties and emphasizes the role of the parliamentary practice in this field. The study

also puts forward a series of detailed recommendations aiming to improve the quality of this act. A

new element is the parliamentary oversight in the field of European affairs, introduced by the

implementation of the Lisbon Treaty, which consolidates the role of the national assemblies in order

for them to become important actors in the European constru ction by their active involvement in the

decision making.

Keywords: Parliament, parliamentary oversight, separation of powers, state, Constitution

Introduction

The people are the sole holders of the power, which is exercised by the state through its

institutions. A division1 of the powers occurs and we distinguish between the legislative power, the

executive power and the judicial power. The importance of this segmentation brings a balance, each

power has control instruments on the others, limiting and preventing the power seizure and thus,

avoiding abuses.

The parliamentary institution has remote origins, being recorded in Island in 1930 for the first

time, when it was founded and when the first national forum met under the name of Althing; in

Romania, the parliamentary history started in 1831 along with the Organic Regulations, in 1831 in

Wallachia and in 1832 in Moldavia.

The mission assigned to the parliament is very much connected to its functions, namely to

provide the citizens’ needs according to the mandate received from them. One of these functions is

the parliamentary oversight (control), which represents a democratic mechanism for ensuring that

necessary balance between the powers in the state in order to prevent the seizing of the . Using





∗ Ph.D. candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest; Lawyer (e-mail:

scmihalcea@gmail.com).

1 Nicolae Popa, General Law Theory, (C.H.Beck Publishing House, Bucharest, 2008), p. 80

150 Lex ET Scientia. Juridical Series

LESIJ NO. XIX, VOL. 2/2012

specific means, the legislative authority exercises influence on the Government and the public

administration, but also on chief of state, pursuing the general interests of the society.

Even if there are very clear and precise provisions in the Romanian Constitution and other

laws, in practice things are very often different and this study aims to underline these aspects taking

into account the latest approaches and developments, identifying the slippages also targeting to put

forward proposals for future amendments of the actual legislation.

1. Evolution of the parliamentary oversight concept

The Parliament, „the supreme representative body of the Romanian people and the sole

legislative authority of the country”2, is composed of the Chamber of Deputies and Senate, elected by

universal, equal, direct, secret and freely expressed vote according to the electoral rules, each of them

having different duties.

Professor Ioan Muraru identifies six tasks for the Parliament3:

a) adoption of laws;

b) establishment of the socio-economic, cultural, state and legal guidelines;

c) election, appointment or removal of some state authorities;

d) parliamentary oversight;

e) executive board in foreign politics;

f) own organization and operation.

The occurrence of the parliamentary control concept was born long time before the

development of modern political parties. Etymologically, the word control comes from the old

French, contreroller, undertaken from the mediaeval Latin word contrarotulare (to check by

registering in a second register). In English, scrutiny is used for defining this concept, undertaken

also from the French word scrutin, which comes from the Latin word scrutinium – exam and the verb

scrutari – to search, to look over.

Adopted by the French National Assembly on the 26th of August 1798, the Bill of Human

Rights and Citizens set at the art. 14 and 154 the principle of the governors’ accountability to people,

principle developed subsequently by the French Constitution from 1791, Title III About public

powers: „ministers are liable for all the crimes perpetrated by them against national security and

Constitution 5

meanwhile the regulatory power has the authority to prosecute ministers and main

agents of the executive body before the High National Court.

In our country, as well as in the other European ones, the transparency of the scrutiny

(parliamentary control concept) can’t have its origins but in the constitutional provisions, proceeding

from the competencies assigned to the state institutions and their inter-relations on the state power

separation-based principle.

Once the state power separation principle has been established in the Constitution, we can

analyze the existence, size and forms of the parliamentary control within that period of time.





2 Art. 61 of the Romanian Constitution

3 Ioan Muraru, Simina T<n<sescu, Constitutional Law and Politica l Institutions, C.H.Beck Publishing House,

Bucharest, 2009, p 154

4 The citizens have the right to find out by themselves or by their representatives, the necessity of the public

contribution and to willingly accept it, to follow its destination, to establish its quantum, bases, perception and time.

The society has the right to take a public officer to task for the way he/she meet his/her duties.

5 http://sourcebook.fsc.edu/history/constitutionof1791.html