The checks and balance of the State Branches in Romania. An administrative assessment

Author:Associate professor Mihaela V. Carausan
Pages:197-206
SUMMARY

This paper talks about the extent of public administration in connection to the separation and equilibrium of state’s power. This paper will try to address what the government of Romania has failed to address, which are the topics that must concentrate on enhancing its legal power as part of one state branch. This article focuses, also, on the links between the doctrine of the separation of powers and the concept of public administration in a cross-state branches perspective. Even if, the separations doctrine is at the root of the concept of public administration it remains unclear how administration relates to the other state powers. What is more, the doctrine proofs that public administration is an inner actor of the state’s branches and it can unbalanced or balance them.

 
CONTENT
The checks and balance of the state branches in Romania 197
THE CHECKS AND BALANCE OF THE STATE BRANCHES
IN ROMANIA. AN ADMINISTRATIVE ASSESSMENT
Associate professor Mihaela V. CRUȘAN*
ABSTRACT
This paper talks about the extent of public administration in connection to the separation and
equilibrium of state’s power. This paper will try to address what the government of Romania has
failed to address, which are the topics that must concentrate on enhancing its legal power as part of
one state branch. This article focuses, also, on the links between the doctrine of the separation of
powers and the concept of public administration in a cross-state branches perspective. Even if, the
separations doctrine is at the root of the concept of public administration it remains unclear how
administration relates to the other state powers. What is more, the doctrine proofs that public
administration is an inner actor of the state’s branches and it can unbalanced or balance them.
Keywords: administrative law, constitutional gridlock, regulatory power, independent
authorities.
1. Introduction
The principle of separation of powers is composed of several elements:
separation of functions (among rule making, rule execution and rule adjudication),
separation of agencies (constitutional court enforcing the constitution, and
legislature, executive and judiciary operating in the post-constitutional stage),
separation of persons and, most importantly, the structure of relations between the
powers (pure separation, checks and balances on the decision level as in most
presidential systems—or on the personal level as in most parliamentary systems).1
James Madison theory is that, the Constitution has to grant each branch its
power, which serves the highest interests of the people, otherwise the quest to
maintain the separation it becomes endless. “The accumulation of all powers,
legislative, executive and judicia[l] in the same hands, whether of one, a few, or
many, and whether hereditary, self–appointed, or elective, may justly be
pronounced the very definition of tyranny” (James Madison, Federalist No. 51,
1788). Also, Madison retorted that a “pure” separation of powers was neither what
* National University of Political Studies and Public Administration Faculty of Public
Administration, Bucharest, Romania.
1 Salzberg, E. and Voigt S., Separation of Powers: new perspectives and Empirical findings –
introduction. Constitutional Political Economy, September 2009, 20:197–201, p. 198.
Law Review vol. VI, special issue, December 2016, p. 197-206
198 MIHAELA V. CĂRĂUŞAN
Montesquieu intended nor practical: “[Montesquieu] did not mean that these
[branches] ought to have no partial agency in, or no control over, the acts of each
other. … [T]here is not a single instance in which the several [branches] of power
have been kept absolutely separate and distinct” (James Madison, Federalist
No. 47, 1788).2
The separation of powers has a tremendous impact on state administration,
divides authority over public agencies and administrators. Legislators and courts,
as well as executives, are constitutionally mandated to play substantial roles in
public administration and each one of them brings a different – value set.3 Content
complex the rule of law and the role of law within it includes the value dimension,
the right being the product of social facts and the will of people, a material
phenomenon, a set of moral and normative values, a series of acts of will and
authority’s acts, freedom and constraint.
Pluralist and liberal regimes promote democracy. From an institutional
perspective, democracy brings into the foreground the principle of separation and
balance of powers. The degree of separation and balance of powers is the one that
distinguishes between: the rigid separation of powers, the flexible separation of
powers, the semi-presidential or semi-parliamentary regime and the primo-
ministerial one.4
2. The Separation of Powers: Past and Present
The concept of rule of law has its own universal dimension, being enshrined
expressly in several international and European documents, the rule of law
depends essentially on national realities, because they defines and keeps it as an
overarching concept of the existence of the modern state.
The artisan of the theory of separation of powers, Montesquieu, conceived
State only to the extent where it entrusts power to distinct organs: legislative,
executive and judicial. It was Montesquieu’s vision of a truly separated, tripartite
system: “When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty… Again, there is no
liberty, if the judiciary power be not separated from the legislative and executive.
Were it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would then be the legislator. Were it
joined to the executive power, the judge might behave with violence and
oppression.” (Baron de Montesquieu, Spirit of Laws, 1748).
Quickly, this theory became dogma as it entered in the national Constitutions’
provisions, and especially in the Declaration of Human and Civic Rights of 1789,
2 Webpage on the Separation of Powers with Checks and Balances retrieved on
https://www.docsoffreedom.org/readings/separation-of-powers-with-checks-and-balances.
3 Rosenbloom, David H., Administrative Law for Public Managers, Westview Press, 2003, p. 19.
4 Crușan M.V., The Executive Branch. The Chief of State – comparative study, Acta Universitatis
Danubius. Juridica, Vol. 5, No. 1/2015, pp. 66 and 67.
The checks and balance of the state branches in Romania 199
art. 16 “Any society in which no provision is made for guaranteeing rights or for
the separation of powers, has no Constitution.” Although powers are equal in
authority within the state, Montesquieu established a ‘hierarchy’ of them. In this
regard, the legislature is holding sovereign legitimacy directly from the people,
and so is the first among the three, the executive power is nothing but a derived
power, while judicial authority is ‘neutral’.
Even if the vast majority of European states have enshrined this principle in
their regulations, the quotidian get us now to a reversal of the "hierarchy" of
Montesquieu. The executive power has become progressively the decision-making
power in the detriment of the legislative and the judiciary mere an independent
authority.
Montesquieu developed and exposed his theory of separation of powers in the
paper Spirit of the Laws (1748), a research who had as pillars the study of the
English Constitution and John Locke’s paper (Essay on Civil Government - 1690).
In his study he concentrated not only on the formulation of an abstract theory
about how to avoid concentration of powers, but looked at powers and monitored
how they work. At that time, Montesquieu not only created a counterweight to
monarchical absolutism but also laid the foundations of modernity, the foundation
of what would become the core existence principle of the modern state, the
existence of the rule of law.
The three powers encountered in Montesquieu’s theory have been and are still
considered to be:
1. the legislative power or the power to make laws, to modify and to repeal;
2. the executive power or the power that applies laws, and it retains the public
safety, the national defence and diplomacy;
3. the judiciary, namely judicial authority, tasked with prosecuting the crimes,
the failure to comply with laws and the disputes between individuals, and
nowadays the disputes between individuals and the administration.5
By applying a rigid separation of powers will minimize the principle of
national sovereignty, because the power belongs to the nation and not to the public
organs/authorities (legislative, executive and judicial) which only exerts on its
behalf. A rigid separation of powers can cause a blockage, an institutional disrupt
of the efficient functioning of powers.
Therefore, a state cannot function unless the law passed by the legislature is
applied at the impulse of the executive and the judicial authority with the help of
the executive power carries out its decisions. This cooperation should be
accompanied by a control power against one to another. But for this to be feasible,
it is necessary to provide them the legal and institutional instruments and
mechanisms to counterbalance the others.
5 Crușan, M.V., Drept Administrativ [Administrative Law], Vol. I, Economica Ed., Bucharest,
2012, p. 81.
200 MIHAELA V. CĂRĂUŞAN
Any Constitution is based on the sovereignty of the people and requires an
approach to relations between the legislature, executive and judiciary. But for securing
its superiority over other legal rules, the state constituted an independent authority
which oversees compliance with constitutional norms. This authority, in the European
state model, is the Court or the Constitutional Council which in the modern state
became the guarantor of the rule of law, preserving the balance of powers.
The nation is entitled to participate in the exercise of political power by either
its representatives or directly. Today, the issue of democracy – through the
representatives, as well as the direct one – experience a great revival. No
Constitution cannot ignore the assertion in one form or another of people's right to
participate and exercise the sovereign power. The access to the democratic exercise
in the contemporary era is through representation, but participation concept which
gives masses the right to materially exercise the power brought foreword the
concept of participative democracy. Sure, forms of participation vary from state to
state, according to the political regime, the historical conditions and democratic
traditions, the political culture, the citizens’ interests and the political forces that
share electorate’s options.
The state’s discretion, in the rule of law, is limited by the existence of higher
legal rules whose respect is assured by the existence of an impartial judicial power.
The judge is therefore the basis of achieving the rule of law. In this way,
fundamental rights are not ensured unless justice protects them.
Therefore, if the liberal state insists on the representatives (the Parliament’s
members), the welfare state on the technocrats (the civil servants) as the sole
possessors of expertise, the rule of law insists on the prevalence of judges as
representatives of the normative order.
The rule of law involves a new vision of the state and democracy; therefore,
the latter in contemporary societies is a form of citizen participation in decision
making, as well as a form of guarantee rights and freedoms of citizens within the
state. The rule of law is an essential element of democracy enlarged, which finds its
foundation in society. The degree of democratization of society, economic crises,
social or political collapse can influence the rule of law and through it public
administration.6
3. Executive bodies which are involved in the checks and balance of the
powers
Nowadays, the political power of the democratic state is limited for several
reasons. First governments, as an expression of political power, are bound to
respect and heed the bureaucracy of various authorities and also the judicial
authority that knows better the government’s files and has to conclude ‘social
pacts’ with union leaders. Otherwise, both bureaucracy as well as justice can
obstruct reforms on which unions do not agree (situations which it happens
6 Idem, p. 93.
The checks and balance of the state branches in Romania 201
frequently in transition states like Romania). Moreover, in some cases they have to
get along with elected officials (‘local barons’ whose role is sometimes like the old
feudal) and with various and multiple pressure groups and finally with the
opposition party(ies) which, depending on the position and weight in parliament,
is(are) able to paralyze executive initiatives.
On the other hand, both within the country as well as in external relations,
governments are bound to comply European rules (requirements and regulations
of the European Union and of the Council of Europe) and the rules contained in
treaties and conventions of international law (NATO’s rules and others).
Finally, sometimes governments are confronted with the power of corruption
that spread its network all over the world, featuring a huge financial capacity,
obtain significant support and manage to exert an occult influence on political life,
business, and the administration or justice.
All these causes reduce the capacity of governments and generates a state of
their complacency and limit the measures, likely to be materialized in terms of
pressures said so, finally, the time limit they have and under the spectre of losing a
new mandate, very often abandoning the structural reforms that can be realized
only in the long term and summarize current affairs management. This state of
affairs has generated a false impression, namely that the state role in the world has
decreased and that many of its functions have been alienated.7
Moreover, the executive becomes the main centre decision, thus achieving a
transfer of jurisdiction in favour of the administration in a subtle way, which
practically (in some cases) replaces the political power.
Furthermore, constitutional evolution demonstrates the abandonment of the
legislature’s monopole because it is too rigid and unworkable in practice.
Executive receives regulatory power which grants him competence to take
measures to enforce laws as acts that are erga omnes opposable. So, Parliaments
delegation of powers granted to executive, it widens its power regulation.
However, the primacy of the legislature remains recognized in law as long as the
executive’s ordinances enacted under legislative empowerment have to be
approved by Parliament.
The spectacular reinforcement of the regulatory powers of the executive was
produced in France by Constitution of 1958 (art. 38), which like in art. 115 of the
Romanian Constitution (1991), expressly stipulates that the Government may ask
Parliament for authorization, for a limited period, to take measures by Ordinance
that are normally reserved to law (but not to the organic laws - art. 115 para. 1).
However, in the administrative case law, especially the constitutional one, greatly
limited impact of this innovation. It remains a fact, however, that executive power
as regulators was strengthened.
7 Cruşan M.V., Brief Apology to the National State in Europe, Acta Universitatis Danubius.
Juridica, Vol. 5, No. 1/2009.
202 MIHAELA V. CĂRĂUŞAN
Besides this, as it concerns the active roles played by the two entities of
executive power on the political scene new mechanisms are discovered.
Historically, the legitimacy of administrative arrangements has been greatest
when they were connected to the ideologies of dominant political coalitions and
movements. In each case, the core principles of dominant and accepted
administrative practice lost their legitimacy after the political groups supporting
them fell from the power. In short, administrative expertise must be in the service
of the nation’s dominant political vision.8 In our constitutional gridlock, Romanian
administration is an arm of the nation’s ruling civil servants elite (the technocrats)
and is considered legitimate.
Additionally, even if, the Romanian Constitution provides the possibility of
the President to attend the Government meetings and without influencing the
rhythm of government, as it is in France (art. 9 of the French Constitution), or the
separation and equilibrium of branches nowadays we experience different
situations. By taking into account the new citizens’ movements in Romania and the
role of the President we can conclude that, even if the Constitution sees the
President as a monitor of the state separation and equilibrium of branches, because
is part of one branch and directly elected by the citizens, in crisis situations, cannot
act freely and independent. A major political problem with governmental
regulatory activities is that although they do tend to promote domestic tranquillity,
they are also widely viewed as a breach of the government’s commitment to secure
the ‘blessing of liberty’9.
3.1. The Ministry of Justice
Public policy is established through administrative rulemaking. They
determine much about the health care, the education system and the practices used
in business, agriculture and other areas. The rules are prospective and can be of
general or particular application. The executive branch through the Government,
we could see in the above lines, is directly involved in the administrative
rulemaking system.
Another aspect that confirms the tendency of the Government to apprehend
the regulatory power is the major role of the Ministry of Justice in the legislative
reform. Ministry of Justice as public administration authority is directly involved
in achievement of the legislative process even its main role is to ensure fulfilment
of justice, public order, and citizen safety. The simplification and consistency of the
legal regulations, compatibility of national legislation with the obligations assumed
by Romania, and the harmonization of national legislation to European and Euro-
Atlantic one are roles assumed by the Ministry of Justice.
Among the authorities who have the right of legislative initiative according to
the Constitution, a special role is given to the government. May develop draft
8 Rosenbloom David H., O’Leary Rosemary and Chanin Joshua, Public Administration and Law,
3rd ed., CRC Press, 2010, pp. 29-30.
9 Rosenbloom David H. and Kravchuk Robert S., Public Administration. Understanding
Management, Politics, and Law in the Public Sector, 6th ed., McGraw Hill, 2005, p. 49.
The checks and balance of the state branches in Romania 203
legislation in their field, ministries and other specialized central public
administration and autonomous administrative authorities.
The mission of the Ministry of Justice does not end, however, with the draft
legislation’s submission of the Government to the Parliament, but continues in
ensuring representation of the executive in specialized committees, and in the
plenum of the Parliament’s Chambers.
The Ministry of Justice has, besides the attribution of drafting normative acts
for the justice system, also the endorsement, in terms of the legality, of projects
designed by other ministries or by other central public administration authorities
in the exercise of legislative initiative by the Government. Ministry of Justice
provides a particularly important opinion in creating an effective legislative
framework, stable and consistent.
3.2. The independent administrative authorities / institutions
The rule enshrined in art. 117 para. 3 of the Constitution creates independent
administrative authorities which are not under the subordination, authority or
coordination of the Government, because they are virtually outside government
administration.
It is noted that the only relationship between the Government and these
autonomous authorities/ institutions is based on collaboration. In this respect, the
Romanian Constitution, and a series of subsequent laws, establish and/or organize
various autonomous administrative authorities/institutions that are independent
from the Government and ministries, but not from the Parliament.
These autonomous administrative authorities / institutions exercise, just as
other specialized bodies of the government, administration which falls into the
category of executive bodies of state. They have to organize the execution and
concretely enforcement of the laws and ensure the functioning of public services
and, sometimes, the exercise of administrative-jurisdictional powers.
However, autonomous administrative authorities/institutions differ from
ministries and other specialized bodies subordinated to the Government or
ministries, through:
a) heads of ministries and other specialized bodies of the central government
usually belong to the government and are appointed by the President on the vote
of confidence of Parliament; independent authorities/institutions are led by people
who are not part of government and are appointed by the President based on a
vote of confidence given by the Parliament with two exceptions, the President of
National Council for Solving Complaints in Public Procurement and the President
of Superior Council of Magistracy;
b) ministries and other specialized central public administration operates in
subordination, coordination or authority of the Government; the autonomous
institutions/authorities exercises their duties under the control of the Chambers of
Parliament or of some standing committees thereof, or outside a constitutional
review explicitly regulated, such as the Superior Council of Magistracy.
204 MIHAELA V. CĂRĂUŞAN
c) administrative acts issued by ministers and other heads of specialized
bodies belonging to government may be cancelled by the Government, but it has
no power over the administrative provisions adopted or issued by the autonomous
administrative institutions that, sometimes, are not controlled by any branch of the
state.10
Figure 1.1. The state branches in Romania (author’s representation)
10 Crușan M.V., idem, 2012, pp. 295 and 296.
The Legislative The Executive The Judicial
The Parliament The President
The
Government
The Courts of Law
The
Chamber of
Senate
The
Chamber of
Deputies
Central Public
Administration
High Court of Cassation
and Justice
Territorial
Public
Administration
County and
Local Public
Administration
Tribunals
Courts of Appeal
Courts of first instance
Independent Administrative Authorities / Institutions:
Advocate of the People, Supreme Council of National Defence, Romanian Foreign Intelligence
Service, Romanian Intelligence Service, National Council for Studying the Securitate Archives,
Economic and Social Council, the Competition Council, the Board of the National Bank of Romania,
the Superior Council of Magistracy, the Legislative Council, the Court of Audit etc.
The Constitutional Court of Romania
The checks and balance of the state branches in Romania 205
We find, therefore, a new category of institutions that exceeds the powers
conferred by the Constitutions to the three branches of state: legislative, executive
and judicial. Therefore, taking into account both legal rules and doctrine they
perform specific activities even if they are created and function as mechanisms of
interference of state powers. Consequently, it cannot be said that the autonomous
administrative authorities are subordinated to an organ or another, even their title
bids us to place them under the government or judiciary.
At present, in Romania are set up and operate under the constitutional
provisions the following authorities or independent administrative institutions: the
Advocate of the People, the Legislative Council the Supreme Council of National
Defence, the Superior Council of Magistracy, the Court of Audit, the Romanian
Intelligence Service. All the others mentioned in the paper are set up and operate
based on organic laws. According to the Constitution autonomous administrative
authorities/institutions may be established by an organic law (art. 117, para. 3).
The actual names of these autonomous administrative authorities/institutions
differ from one to another and in their title different terms are used, such as:
Council, Commission, Court Service, Society etc. As a rule, their heads are
president, with the exception of the Advocate of the People, and of the services,
which have directors with ministerial rank. Regulations of these autonomous
authorities/institutions are in principle decisions, orders and instructions, for those
lead by one person, recommendations for the Advocate of the People, and also
regulations, notices for the Competition Council or decisions for the Council for
Study of Securitate Archives.
The courts are generally viewed as essential to subordinating administrative
action to the rule of law. They provide a checks against abuse of administrative
discretion and unconstitutional, illegal, irrational, or procedurally irregular
decision making and enforcement.11 Judicial review takes place within the state
court system. These generally have a well-defined division of labour among first
instance, tribunals ordinary and specialized, and courts of appeal. The High Court
sits at the top of court system. Law is an important means of dealing with
administrative discretion and constraining administrative actions but is not solely
the purview of legislatures it is also made by the courts through interpretation
(especially in the case of the constitutional court). The purpose of the judicial
review of public administration acts is to ensure compliance with the law and at
least minimum levels of rationality and fairness.
4. Instead of conclusion
The theory of separation and balance of powers has revolutionized political
thinking and practice all around the world, from the late eighteenth century, and
generated a process of constitutional replenishment both in Europe and in North
11 Rosenbloom David H., idem, 2003, p. 141.
206 MIHAELA V. CĂRĂUŞAN
America. The success of the theory is due to the fact that it provides an alternative
to absolutist government and a safeguard against the governors' tyranny.12
Parliament’s effort to redefine its constitutional position vis-à-vis
administration relied heavily on the idea that autonomous administrative
authorities/institutions should operate and be treated as independent but they
have to present their activity reports in front of the legislature. Autonomous
administrative authorities/institutions had always been considered instruments
for implementing legislation, and they always had some degree of discretion.
Public administration strongly subscribe to the principle of “unity of
command” as a means of coordinating work. In Gulick13 and Rosenbloom14 public
administrators ought to be subordinate to one branch of state, not three. Just
because Parliament experiments with the autonomous authorities/institutions
does not mean it is ready to turn the administration to the legislative branch. We
do not have to forget that public administration in rule making, adjudication and
policy implementation has two great advantages: it is flexible and able to rely on
expert specialization in decision making.
12 Crușan M.V., idem, 2015, p. 67.
13 Luther G. (1937). Notes on the theory of organisation (reprinted in Classics of Public Administration,
2nd ed. Shafritz, J. And Hyde, A., eds.), Dorsey Press, Chicago, 1987, pp. 79-89.
14 Rosenbloom D.H. et al., idem, 2010, p. 13.