Background

On 6 July 2012, the Secretary General of the Council of Europe has asked the Venice Commission to provide an opinion on the compatibility with constitutional principles and the rule of law of actions taken by the Government and the Parliament of Romania in respect of other state institutions.

On 9 July 2012, the Prime Minister of Romania, Mr Ponta, requested an opinion on the Government Emergency Ordinance on amendment to the Law no. 47/1992 regarding the Organisation and Functioning of the Constitutional Court and on the Government Emergency Ordinance on amending and completing the Law no. 3/2000 regarding the Organisation of a referendum.

Given that these requests overlap, the Commission decided to prepare a single opinion covering both requests.

The opinion deals with two different types of actions: (a) formal legal texts, such as the government emergency ordinances, submitted by Prime Minister Ponta, but (b) also actions taken by representatives of the Government and the Parliament of Romania in respect of other state institutions, some of which are public statements, rather than formal legal acts. This opinion will examine both legal texts (see notably CDL-REF(2012)031 and 032) and statements made.

A yardstick for these acts are the formal rules for the adoption for the legal texts and, especially as concerns public statements, also the principles of the European Constitutional Heritage, which ensure a fair implementation of the provisions of the Constitutions.

Conclusions
In July 2012, the Romanian Government and Parliament adopted a series of measures in quick succession, which led to the removal from office of the Advocate of the People, the Presidents of both Houses of Parliament, a limitation of the competences of the Constitutional Court, changes on the conditions for a referendum on the suspension of the President of the Republic and the suspension of the President itself. The Venice Commission is of the opinion that these measures, both individually and taken as a whole are problematic from the viewpoint of constitutionality and the rule of law.

The events examined include ordinances, decisions and procedures whose constitutionality is questionable, especially when taken together in quick succession. The Commission is worried in particular about the extensive recourse to government emergency ordinances – both by previous and present majorities – which presents a risk for democracy and the rule of law in Romania.

In addition, the events and several statements made demonstrate a worrying lack of respect among representatives of State institutions for the status of other State institutions, including the Constitutional Court as the guarantor of the supremacy of the Constitution.

The Commission is of the opinion that the respect for a Constitution cannot be limited to the literal execution of its operational provisions. The very nature of a Constitution is that, in addition to guaranteeing human rights, it provides a framework for the state institutions, sets out their powers and their obligations. The purpose of these provisions is to enable a smooth functioning of the institutions based on their loyal co-operation. The Head of State, Parliament, Government, the Judiciary, all serve the common purpose of furthering the interests of the country as a whole, not the narrow interests of a single institution or the political party having nominated the office holder. Even if an institution is in a situation of power, when it is able to influence other state institutions, it has to do so with the interest of the State as a whole in mind, including, as a consequence, the interests of the other institutions and those of the parliamentary minority.

The Venice Commission is of the opinion that the Romanian state institutions should engage in loyal co-operation between themselves and it is pleased about the statements from both sides expressing their intention to respect their obligations.

The Commission warmly welcomes the fact that its interlocutors were of the opinion that constitutional and legislative reform is required to ensure that a similar situation should not arise again. In section X above, this opinion refers to elements, which could become part of such reforms.

The Venice Commission remains at the disposal of the Romanian authorities for assistance in the implementation of such reforms.

 Text of the opinion CDL-AD(2012)022