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UNIVERSITY of BUCHAREST FACULTY of LAW DOCTORAL DISSERTATION the ACCOUNTABILITY of the GOVERNMENT (ABSTRACT) Phd ADVISER PROF. U

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UNIVERSITY of BUCHAREST FACULTY of LAW DOCTORAL DISSERTATION the ACCOUNTABILITY of the GOVERNMENT (ABSTRACT) Phd ADVISER PROF. U UNIVERSITY OF BUCHAREST FACULTY OF LAW DOCTORAL DISSERTATION THE ACCOUNTABILITY OF THE GOVERNMENT (ABSTRACT) PhD ADVISER PROF. UNIV. DR. VERGINIA VEDINAȘ PhD STUDENT MARIANA OPRICAN BUCHAREST 2015 1 CONTENTS CONCEPTUAL INSIGHTS 8 GENERAL CONSIDERATIONS 10 1. The importance and relevance of the research theme 10 2. Research purpose and methods 14 PART I RELATIONS BETWEEN PARLIAMENT AND GOVERNMENT IN THE ROMANIAN LAW 14 CHAP. I PARLIAMENTARY CONTROL EXERCISED OVER THE EXECUTIVE POWER 14 Section 1. The principle of separation of powers-evolution and relevance 14 1.1 The principle of separation of powers-concept 14 1.2 The principle of separation of powers-current trends 20 1.3 The principle of separation of powers under the Constitution of Romania, adopted on December 8, 1991 27 1.4 Consideration of the principle of separation of powers in the Constitution, revised 29 Section 2. Dimensions of the parliamentary control function 35 Section 3. Short history of the evolution of parliamentary control function in Romania 43 Section 4. Parliamentary control methods (without sanction) exerted on Government activity, regulated by the Constitution, revised 47 4.1 Parliamentary inquiry 48 4.2 Reporting to Parliament 50 4.3 Constitutional conditions for questions, interpellations and simple motions 54 CHAP. II CONSTITUTIONAL CONDITIONS FOR THE VOTE OF CENSURE IN THE ROMANIAN LAW 60 Section 1. The significance of the institution 60 2 Section 2. The conduct of the procedure 66 Section 3. Some aspects of governmental stability 71 Section 4. The vote of censure and the vote raised in the parliamentary practice 75 PART II CONSTITUTIONAL CONDITIONS FOR GOVERNMENT ACCOUNTABILITY IN THE ROMANIAN LAW 88 CHAP. I GOVERNMENT ACCOUNTABILITY ACCORDING TO ART. 114 OF THE CONSTITUTION OF ROMANIA, REVISED 88 Section 1. The significance of the institution 88 Section 2. Regulation history 94 Section 3. The conduct of the procedure 99 Section 4. Government accountability on a programme or on a general policy statement 101 Section 5. Government accountability for a draft law 104 4.1 Generalities 104 4.2 The right to make amendments 107 4.3 Referral to the Constitutional Court under Art. 146 a) of the Constitution 109 4.4 Review of the law by the Parliament at the request of the President of Romania 111 CHAP. II GOVERNMENT ACCOUNTABILITY ON A DRAFT LAW. GOVERNMENTAL PRACTICE DURING 1996-2014 113 Section 1. Generalities 113 Section 2. Evolution of governmental practice during 1996-2014 115 2.1 Governmental practice until the adoption of Law no. 429/2003 on the revision of the Constitution, adopted on December 8, 1991 115 2.2 Governmental practice in the period following the revision of the Constitution, namely the period between 2004 and 2014 122 CHAP. III 3 GOVERNMENT ACCOUNTABILITY FOR A DRAFT LAW. CONSTITUTIONAL COURT CASE LAW 135 Section 1. Government accountability for complex draft laws 136 Section 2. Government accountability on several draft laws on the same day, and in the same parliamentary session 141 Section 3. Government accountability on a draft law, regardless of the status of the legislative procedure on that draft 142 Section 4. Government accountability for a draft law is a simplified way of putting under the jurisdiction of law, aimed in “extremis” 144 Section 5. Some critical aspects on the Constitutional Court decisions in matters of Government accountability for a draft law 147 5.1 General features of the procedure for Government accountability on a draft law held by the Constitutional Court case law 148 5.2 Some aspects relating to the nature of the draft law that is the subject of Government accountability 150 A. Some critical aspects on the Constitutional Court decisions containing provisions relating to the Government accountability for complex draft laws 150 B. Approval of an emergency ordinance by Government accountability procedure 152 B.1 Legislative delegation and Government accountability in the light of constitutional provisions 152 B.2 Critical comments regarding the Constitutional Court Decision no. 34/1998 regarding the settlement of the objection of unconstitutionality of the Law approving Government Emergency Ordinance no. 88/1997 regarding the privatization of companies 154 5.3 Some critical aspects of Constitutional Court decisions containing provisions regarding this procedure use frequency in governmental practice 156 CHAP. IV VOTE OF CENSURE PROVIDED BY ART. 113 OF THE CONSTITUTION AND VOTE RAISED, GOVERNED BY ART. 114 OF THE CONSTITUTION- COMPARATIVE ANALYSIS 159 Section 1. The meaning of the institutions provided by Art. 113 and Art. 114 of the Constitution-comparative analysis 160 Section 2. Some aspects on certain features of the procedures provided by Art. 113 and Art. 114 of the Constitution 171 4 Section 3. The vote of censure provided by Art. 113 of the Constitution and vote raised provided by the Art. 114 of the Constitution-comparative aspects regarding the conduct of the procedure 174 Section 4. The vote of censure and the vote raised in the Constitutional Court case law. Comments on Decision no. 1525/2010 on the constitutional legal conflict between the Government of Romania, on the one hand and the Parliament, on the other hand 179 PART III RELATIONS BETWEEN PARLIAMENT AND GOVERNMENT IN COMPARATIVE LAW 183 CHAP. I RELATIONS BETWEEN PARLIAMENT AND GOVERNMENT IN SOME STATES IN THE EUROPEAN UNION 183 Section 1. The relationship between Parliament and Government in parliamentary monarchies 183 1.1 Circumstance in which the Parliament withdraws its confidence through a constructive vote 183 1.2 Circumstance in which the Parliament is a political instability factor 189 Section 2. Relations between Parliament and Government in the parliamentary republics 191 Section 3. Relations between Parliament and Government in semi-presidential republics 193 CHAP. II RELATIONS BETWEEN THE EXECUTIVE AND THE LEGISLATIVE POWERS IN OTHER COUNTRIES OF THE WORLD 199 Section 1. US constitutional regime 199 Section 2. Relations between Parliament and Government in some countries in Latin America 202 CONCLUSIONS 205 LEX FERENDA PROPOSAL 220 ANNEXES 232 REFERENCES 238 5 DISSERTATION ABSTRACT Keywords: Government, Parliament, Constitution, motion of censure, Government’s liability This Doctoral Dissertation entitled “The Accountability of the Government” covers the research of the institution specified in Art. 114 of the Constitution of Romania, the procedure for Government accountability respectively, in the context of relations between the executive power and the legislative power, against the background of the trends shown by the executive power to dominate the legislature, through aggressive use of this procedure. The importance and relevance of the research theme should be viewed from the perspective of the role held by the institution of Government accountability in the Romanian legal system, of the connections established between this institution (enshrined by the provisions of Art. 114 of the Constitution,1 revised 2 and republished3) and other institutions (also constitutionally enshrined) and of the relations established between Parliament as the supreme representative of the people and country’s sole legislative authority and Government. Also, we cannot exclude from this equation the importance of the parliamentary and governmental practice on the matter, towards understanding connotations this procedure acquires through overuse by the executive power, which is likely to contribute to changing the balance of power between public authorities. The scientific novelty of the dissertation is particularly given by the approach from the perspective of governmental practice on the subject - practice determined mainly by political and economic transformations that have taken place in Romanian society – of the role the Government acquires within power relations between public authorities, by using the accountability procedure for a draft law. The contemporary political scene is dictated by the increasing significance of the executive power, by its dominant trends in relation to the legislature. Not only in Romania, but even in other European countries with democratic tradition, Governments have turned often from performers of legal rules into creators of legal rules, while it is more difficult for 1 Constitution of Romania of 1991 was adopted by nominal vote, by the Constituent Assembly and approved by national referendum on December 8, 1991. The 1991 Constitution came into force on its approval date by referendum. 2 Constitution of Romania of 1991 was amended and supplemented by the Constitution Revision Law no. 429/2003, published in the Official Gazette no. 758 of October 29, 2003 3 Constitution of Romania of 1991 was republished by the Legislative Council under Art. 152 of the Constitution, by updating the names, and texts being renumbered 6 the Parliament to exert the control function which, in many experts’ opinion, is considered to be more important than the legislative function. In our constitutional system, the acknowledgement through the Basic Law of some institutions such as the legislative delegation institution and the institution of Government’s accountability for a draft law, led to the creation of a very strong executive power that dominates the political life and “blurs” the activity of the legislature. Undoubtedly, against the background of executive supremacy trends in the work of legislation, strengthening the control function of Parliament appears as a sine qua non condition for strengthening the democratic
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