State power
| Author | Petru Hlipca |
| Position | Senior Lecturer PhD, Transylvania University of Brasov, Faculty of Law |
| Pages | 113-121 |
State power 113
STATE POWER
Senior Lecturer PhD Petru HLIPCA
Transylvania University of Brasov, Faculty of Law
petru.hlipca@unitbv.ro
Abstract
The state power can be characterized as a power of social nature, expressing and realizing the
will of the governors as a general obligatory will. It is a coercive power, unique and sovereign within
the state. As a "supreme power recognized by the state, it implies its exclusive competence over
national territory and independence in the international legal order, where it is limited only by its
own commitments." Sovereignty substantiates the supremacy and independence of state power. The
supremacy of power implies that the constitutionally established state power is superior to any other
power.
Keywords: state power, constitutionally, democracy, justice, legitimacy, legality, Constitution,
Parliament.
In general, state power can be characterized as a power of social nature, an
organized power, expressing and realizing the will of the governors as a general
obligatory will, a coercive power, unique within the state, a sovereign power.
The fundamental attribute of the state is sovereignty. Considering that
sovereignty has emerged and developed in parallel with the constitution and
development of state and law, notions of state and sovereignty appear to be
indissoluble, they are based and mutually determined. Thus, the state can not exist
without the attribute of sovereignty. As a "supreme power recognized by the state,
it implies its exclusive competence over national territory and independence in the
international legal order, where it is limited only by its own commitments."
So, sovereignty substantiates the supremacy and independence of state power.
The supremacy of power implies that the constitutionally established state power
is superior to any other power, being the only authority with right of action over
the territory and population of the state to establish the system and order of law
within the borders, internal and external policies according to the interests and
aspirations of the people.
Respectively, independence designates the full, exclusive and unlimited right,
but by the force of the international norms and principles, of each state to decide
on all internal and external problems after its free appreciation and according to its
own interests, without the interference or coercion exercised by another state
power or overstate.
Law Review vol. VII, special issue, December 2017, p. 113-121
114 PETRU HLIPCA
An important aspect of sovereignty is within its limits, because it is not
absolute, uncontrollable and discretionary. So, internally, sovereignty is limited by
the Constitution, which strictly lays down the attributions of the bodies of the state
power it exercises. Outwardly, the sovereign power of a state is limited by the
analog power of other states, because they are all equally sovereign.
"Limiting sovereignty" is not meant to limit the power of the people. The
limitation does not arise with regard to the people, but to the powers of exercising
the sovereignty of the people, the traditional powers offered to the state. All the
more so, this is a matter of international sovereignty, in which case the powers in
question can be exercised by the state, but can be delegated by it to the community
structures or jointly exercised at the two levels: the state and the international
institutions. This is how the constitutional provisions of Romania regulating the
transfer of attributions to the Community institutions by virtue of their
membership of the European Union can be interpreted. This does not affect the
sovereignty of the country, but on the contrary it ensures its realization at a higher
European level, for the benefit of everyone and each one.
Therefore, the European integration process involves a modern approach to
the concept of sovereignty, a shift from the classic way of understanding
sovereignty, as the core of the national constitutional system, in which power is
exercised through political institutions representing the people, to the modern
perspective of understanding, in which sovereignty continues to belong to the
people, to be exercised through state institutions, but can also be partially
transferred to certain community institutions. The transfer of prerogatives, done
with caution, does not mean the alienation of legitimate power, but another way of
assuming sovereignty, in common with the other member states of the European
Union.
The modern approach to sovereignty outlines its shared essence. This does not
mean the total loss of some attributes of internal sovereignty, but the development
of the external capacities of national sovereignty. It implies the existence of three
categories of competences: EU exclusive competences, shared competences (shared
between Community institutions and Member States) and exclusive competences
of member states.
Such sovereignty offers states the opportunity to promote their external
interests, to organize and secure their order more effectively, thereby stimulating
development and social progress, as well as contributing to the creation of
international order, to the peaceful coexistence of states, to solving global
problems. Respectively, it appears to be indispensable for the development of
Romania and the Republic of Moldova in their capacity as modern European
states. This issue is particularly relevant for the Republic of Moldova, because in
the case of Romania, the question of the limits of sovereignty has been solved at
the constitutional level, in the context of the 2003 revision of the State's Basic Law.
State power 115
Thus, in the context of its European integration aspirations, one of the key
issues to be addressed is constitutional recognition of the primacy of European law
and its direct applicability. Another aspect would be the recognition of the
possibility of delegating the exercise of certain national competences to the
European Union. It would also be appreciated that the authorities in different
fields of activity should know in detail the Union's legislation and attributions in
order to know "what and how" should be delegated to its competence.
Further, to identify the principles of the organization of state power from a
Community perspective, it is clear from the fact that the European Union is
generally recognized as a "club of democratic states", democracy being the key
premise for the prosperity and development of a state, but also for the peaceful
coexistence of a community of states. For these reasons, it is obvious that in the
organization of the state power the emphasis is placed especially on the aspect
related to democracy, namely in this sphere, democracy is most prominent.
Democracy ensures that the processes through which power is acquired, held
and alternated to allow free political competition, representing the product of
open, free and non-discriminatory participation of the people, exercised according
to legal regulations in their letter and spirit. Democracy is based on the existence of
well-structured and functioning institutions, on a series of regulations and norms,
as well as on the will of society as a whole, well aware of its rights and
responsibilities.
Of course, in a democratic society, the focus largely falls on the legitimacy and
legality of state power. From a political point of view, legitimacy is considered to
be a principle of founding and justification of a system of government, which
implies a certain recognition by the governors of the right to lead exercised by
those who govern.
The legalization of state power presupposes the legal declaration of the justice
(legality) of its appearance, organization and functioning. From this perspective,
legality is a fundamental principle of the organization of state power, the violation
of which generates legal liability - political, criminal, civil, etc.
In modern government systems, which take the form of the rule of law, the
primary condition that the state power must fulfill is compliance with the
constitutional and legal norms that prescribe the limits of action and manifestation.
Moreover, the legality of the power factors is the first element that gives them
legitimacy as well.
Thus, state power can only be maintained and exercised to the extent that the
power structures are legitimate, and political decisions, including laws, express
general will, and are not used against a part of society. At the same time, state
power can not be exercised in its own name, that is to say, on a subject other than
the people and the state. This principle is the foundation of its legality, meaning
that the usurpation of state power is forbidden, and if it takes place, it represents
the most serious crime against the people and is to be penalized. On the same note,
116 PETRU HLIPCA
special attention is paid to the separation of powers as a fundamental principle of
the organization of state power.
Thus, in the theoretical scheme of the principle of the separation of the three
powers specialized in the state, these are exercised by independent authorities,
which have approximately equal portions of power. Within the competences they
are given, each power (public authority) owns and exercises a number of its own
tasks, through which it actually carries out specific activities (legislative, executive
or judicial) and at the same time counterbalances the mutual relations between
them.
Separation does not mean isolation, because each branch of power participates
in the other's functioning through a system of mutual control and balancing.
Under conditions of separation, power is limited by another power, balancing each
other, acting as a system of brakes and counterbalances, preventing the
monopolization of power by a particular state institution.
Therefore, the principle of the separation of powers - in a slim and dynamic
sense - remains an essential element indispensable to the existence and functioning
of the rule of law, because its implementation in practice is oriented towards the
rationalization and optimization of the activity of state mechanism, of all structures
and making it more efficient.
The legislative function implies the activity of the state of editing the legal
norms, which are generally binding for the whole society and for all the state
bodies, the observance of which is ensured by the coercive force of the state. By
virtue of its fundamental importance, this function is attributed to a supreme
representative body - the Parliament. The legal capacity to perform the appointed
function gives Parliament a special status within the system of the state authorities
resulting from the electoral process (electoral process) of the legislature, from the
special procedures (in comparison with the other authorities) for decision-making
and deployment of the entire activity, as well as the prerogatives conferred on the
members of Parliament to guarantee the exercise of the mandate under optimum
conditions.
Constitutional provisions confer on Parliament, on one hand, the status of the
supreme representative body of the people, and on the other hand, the quality of
the sole legislative authority.
The quality of Parliament as a supreme representative body has multiple
meanings. Thus, Parliament is a manifestation of national sovereignty, giving
expression to the power of the people and being the sole holder of political power.
Once constituted, Parliament must be an exponent of the political interests of the
whole people, dissociating themselves, by mandate entrusted, to any inclination to
protect personal, private, local or group interests that would contradict the general
interests of society . The dedication of the character of the Parliament to the
supreme representative body of the people is capable of justifying not so much a
preeminence of this institution in relation to the other state authorities, but
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especially the prerogatives of control provided by the Constitution in relation to
the boss the Government or the public authorities in order to ensure the balance of
powers, the implementation of the principle of the rule of law and the guarantee of
the state's functionality in general.
As regards Parliament's second qualification - the sole legislative authority of
the country - and, implicitly, its role in the system of state organs, it was noted that
the Parliament does not have the monopoly of drafting and adopting the law,
because even if the executive engages in this activity by issuing simple ordinances,
it does so only on the basis of special abilities, and subsequently they are subject to
the approval of the Parliament.
A common problem encountered in the scientific area is the determination of
Parliament as a legislative or deliberative authority. The quality of deliberative
body is argued by Professor I. Deleanu in that the many and important functions
of the Parliament are exercised primarily by deliberation. In our view, deliberation
is a method used in the law-making process, as it is used in the work of the courts
and even the government. Parliament is therefore a legislative authority, because
the legislative function is the purpose, the purpose of Parliament's existence.
As for the rest of the functions, they are able to strengthen the role of
Parliament as the supreme representative body, which - by virtue of the principle
of separation of power in the state - is meant to work with the other branches of
power, to maintain a certain balance between them to verify how the laws adopted
in the course of its work are applied and respected.
At the same time, according to the principle in question, with balancing effect,
several entities with different status (eg the head of state, the Government, the
citizens, the Constitutional Court, etc.) are involved in the legislative activity of
Parliament. Involvement is intended to avoid the concentration of legislative
power in the hands of a minority (even representative), which does not exclude
possible abuse in its exercise.
It is quite significant that the Government intervenes in the exercise of the
legislative function of the state through the institution of legislative delegation.
From this point of view, in the case of Romania, the executive is much more
involved in the legislative activity (compared to the Government of the Republic of
Moldova), because it has the right to issue emergency ordinances, which have the
value of organic laws.
Because, in practice, government ordinances have become the main statutory
source of legislation for the legislation in force, and the Government has often
abused this right, by modifying even the organic ordinances through emergency
ordinances, it becomes clear that legislative delegation is not a way of cooperation
between the Parliament and the Government, but an interference by the executive
in the implementation of the legislative function of the state by the Parliament.
Referring to the legislative power in the context of European integration, we
emphasize that the Romanian Parliament has been permanently involved in the
118 PETRU HLIPCA
initiation and conduct of the EU accession negotiations, carrying out important
actions to re-evaluate and reconsider the Romanian legal system in order to
achieve full compatibility with the principles of European construction. In essence,
such a role is today also in the Parliament of the Republic of Moldova.
The new European statute of Romania emphasizes in particular the
mechanism of the interference between the legislature and the executive, given the
role of each in the decision-making process at the community level and their
transposition at national level. Under these circumstances, the scope of
Parliament's control over the Government is expanding as well as the cooperation
of these branches of the government, which are particularly important in ensuring
the harmonization of positions and the proper representation of national and
parliamentary interest in EU structures.
Particular attention was paid to determining the constitutional status of the
head of state and the place of this institution within the branches of state power.
Despite the fact that in the doctrine the position of the head of state within the
system of power is questionable (it is attributable either to the legislative power or
to the executive, or to both at the same time, or to none of them, the head of state
being considered the fourth power in the state) its (executive-administrative)
attributions denotes its belonging to the executive power.
From a comparative point of view, in the organization of the presidential
institution we can attest the following differences: in the case of Romania the head
of state is elected by universal suffrage, equal, direct, secret and freely expressed,
which justifies and greatly consolidates its function of mediation between the
powers of the state and state and society, and the position of guarantor. The
President of the Republic of Moldova (following the revision of the Constitution)
was elected by the Parliament by secret vote, thus reducing its representative
character, but as a result of the legislative changes, it is elected by the people in
2016 by universal suffrage, equal, direct, secretly and freely expressed as in
Romania.
Another distinction is related to the political incompatibility, which is fixed
only in the Romanian Constitution, according to which "during the mandate, the
President of Romania can not be a member of a party". Such an approach is also
welcome for the Republic of Moldova, because only so will the President be under
the control of all parties, being called to be impartial and to ensure political
pluralism. It can be argued that political incompatibility can be a guarantee against
the establishment of party regime.
Regarding the relations of the Head of State with the Government, it is worth
paying attention to the possibility of the President to consult the Government on
urgent issues of particular importance, as well as to attend the Government
meetings. From a comparative point of view, such an attribution is only for the
President of Romania, the one of the Republic of Moldova being deprived of these
prerogatives following the constitutional review. In our view, this kind of
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relationship between the mentioned authorities is fully justified, because both of
them achieve, to a certain extent, the leadership of the executive power. Moreover,
the consultation provides a mutual information and a more thorough preparation
of the decision-making process.
The importance of the investiture procedure lies in the fact that it involves the
Parliament and the head of state, their role being different. The procedure is
initiated (by the nomination of the candidate for the post of prime minister) and
completed by the head of state (the appointment of the Government), but the
Parliament's vote (on the basis of which the Government obtains legitimacy)
determines the political responsibility of the Government in front of the legislature.
Another issue is the compatibility of the parliamentary and ministerial
functions, which is always present, always questionable and of real theoretical and
practical importance. That is why, in the doctrine, both arguments for and against
have been formulated. Thus, the positive moment is seen in the fact that in this
case the compatibility removes the constitutional conflicts between the powers,
allows the direct knowledge of the legislative and executive issues and a unity of
purpose and action, ensuring the operability and efficiency. However, Prof. A.
Iorgovan argues, it is inconceivable that a parliamentarian, that is, a people's
elected, should hold a position that would put him in a report of subordination to a
member of the Government, no matter if he is, in turn, a parliamentarian. This is a
forcing and a misappropriation of the principles of the rule of law, imposed as the
constant constant of contemporary constitutional democracies.
Another objective in this chapter is to study the forms and principles of
organizing the public administration from a territorial point of view. Depending
on the relations between central and local authorities, meaning the degree of
dependence on the center, the organization of public administration can be either
centralized or decentralized.
An important principle of decentralization is local autonomy, which implies
the right and effective capacity of local communities to solve and manage within
the law, under their own responsibility and for the benefit of the population, an
important part of public affairs. Autonomy also implies the supervision exercised
by the Government (central public administration) on local authorities,
materialized in the control of the legality of acts issued at local level, as well as the
opportunity and necessity of issuing them.
Generally speaking, the systems of organization and functioning of the local
public administration in Romania and the Republic of Moldova are different, each
having its own specificity. It is difficult to affirm the superiority of one or the other;
it is important, regardless of the way in which the central authorities intervene
locally, that the local public administration authorities have sufficient and effective
means to defend their constitutional right to autonomy.
Due to their importance, decentralization and local autonomy are key
objectives of administrative reforms in Romania and, more recently, in the
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Republic of Moldova. In large part, they were conditioned by the European
integration aspirations of these states, the exigencies of which emphasize the need
to strengthen local autonomy.
Investigation of the judiciary has highlighted its different structure in the
reference states. Thus, Romania is characterized by a system consisting of four
links: judges, tribunals, courts of appeal and the High Court of Cassation and
Justice, while judiciary of the Republic of Moldova lack courts. Particular attention
is paid to the role and place of the Public Prosecutor's Office (RM) and the Ministry
of Justice in the structure of the judiciary.
Thus, the legal nature of the Romanian Public Ministry is widely discussed in
specialized studies, most analysts claiming to be an executive body, because this
status is enshrined in constitutional regulations, in the light of which prosecutors
operate under the authority of the Minister of Justice. Moreover, the General
Prosecutor is appointed by the President of Romania, at the proposal of the
Minister of Justice, with the opinion of the Superior Council of Magistracy. This is
appreciated by many researchers as an interference by the executive in the work of
the judiciary. Respectively, solving this "problem" is also an important
desideratum of the European integration process, which emphasizes the need to
ensure the total independence of the judiciary.
A positive moment is the fact that the Supreme Council of Magistracy, as a
guarantor of the independence of the judiciary, is constituted both by judges and
by prosecutors (in the Republic of Moldova only by judges), being a discipline
college for them. Therefore, the institution is also able to protect the independence
of prosecutors.
In the case of the Republic of Moldova, the situation is more complicated,
given that the Prosecutor General is appointed by the Parliament and may be
dismissed from office before the deadline, being obliged to report annually to the
Legislature. This situation is interpreted in the specialized studies as a
subordination of the Prosecutor's Office to the Parliament, even if the law
recognizes its independence from other public authorities.
The solution proposed in this case is to organize the Superior Council of
Magistrates of the Republic of Moldova in such a way as to guarantee and defend
the independence, impartiality and professional reputation both of judges and of
prosecutors. The Council also has to fulfill the role of a court in the field of
disciplinary liability of prosecutors. The necessity of this measure derives from the
fact that subordinating the prosecutors to the General Prosecutor and, respectively,
"subordinating" it to the Parliament are likely to affect the prosecutor's
independence as a factor contributing to justice.
A last topic addressed in this chapter is about the organization and functioning
of the judiciary in the context of European integration. Thus, taking into account
the balance that the judicial function ensures between the authorities exercising the
power in the state, the judge is the key character of the rule of law, and his
State power 121
independence is the primary condition of the rule of law. The principle of
independence is recognized as fundamental to the existence of the judiciary and its
efficient functioning, the guaranteeing and realization of which is an indispensable
condition for the process of European integration.
In particular, judicial reforms in Romania and the Republic of Moldova
focused on eliminating the negative aspects of judicial activity by guaranteeing the
independence of justice, ensuring the quality and efficiency of the act of justice in
order to create a modern system capable of implementing the community acquis
and adapt to the requirements of the European Union. Therefore, the rigors of
European integration aim to ensure the independence of the judiciary, which
corresponds to the principles of the rule of law and the separation of powers in the
state.
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