Constitutionality of nullity of unexamined legislative initiatives within one legislature is validated
(Complaint no. 18a/2012)
On 4th of December 2012 the Constitutional Court ruled on the constitutionality of the provisions pertaining to the exercise of the right to legislative initiative (Complaint no. 18a/2012). The judgment is to be published in the Official Gazette.
The case is rooted in the application lodged at the Constitutional Court on 9 July 2012 by the MP Serghei Sîrbu and Artur Reşetnicov, on the constitutional review of the articles I and II from the Law no. 115 from 18 May 2012, concerning the amendment of the article 47 from Parliament's Regulations, providing for the nullity of legislative initiatives, which following their registration in the Parliament, have not been examined and adopted within the legislature they were registered.
The authors of the application claimed, in particular, that the contested norms affect the statute of the MP, thus there being limited the right to legislative initiative, the integrity of the deputy's mandate in his position of people's representative, and that they go against the principle of law's non-retroactivity, contrary to the norms comprised by the articles 1 para (3), 2, 22, 54 para (1) and (3), 60 para (1), 73 and 76 from the Constitution.
The Judgment was given by the Constitutional Court before:
Mr. Alexandru TĂNASE, President
Mr. Pentru RĂILEAN, Judge-Rapporteur
Mr. Dumitru PULBERE,
Mr. Victor PUŞCAŞ,
Mrs. Elena SAFALERU,
Mrs. Valeria Şterbeţ, Judges.
The reasoning of the parties being heard, the Court noted that the norms provided by the articles 64, 66 and 72 para (3) letter (c) from the Supreme Law authorise the Parliament to regulate its organisation and functioning, including when setting the technical phases of the regulation process, within the limits provided for by the constitutional norms and in line with them.
The Court noted that, in accordance with Parliament's Regulations, the legislative procedure is complex and comprises the issuing of opinions on the legislative act by the permanent committees, Legal Division of the Parliament's Secretariat and, depending on the case, the Government and preoccupied institutions, and it also comprises the phase of its examination with the plenary session of the Parliament. Considering Parliament's prerogative of being the sole legislative authority, the examination of a bill implies it being debated in plenary sessions, when the deputies have the possibility to express themselves on the concept of the respective bill.
Based on those mentioned above and considering the legislative procedure's phases, the Court stated that the provision of the art. 47 para (12) from Parliament's Regulations, which nullifies the bills that have not been examined within one legislature, is in line with Constitution's provisions.
In this regard, the Court accepted the reasoning of the authorities according to which establishing a validity term for legislative initiatives is focused on relieving the legislative process from the bills which have not been examined for a long time, many of them being outdated. The Court noted that constitutional provisions do not prohibit establishing due dates for the examination of bills. Furthermore, even in cases on the initiatives on the review of the Constitution, the art. 143 para (2) from the Primary Law states: "If, within a year from the date when the initiative on the amendment of Constitution was launched, the Parliament has not passed the appropriate constitutional law, the proposal shall be deemed null and void". Thus, the Court noted that there is a fortiori justified the possibility of establishing by the legislative body the nullity of the bills on organic or ordinary law and of draft decisions unexamined during one legislature.
On the other hand, the Court noted that according to article 63 para (4), "the bills or legislative initiatives from the agenda of the previous Parliament shall be dealt upon by the new Parliament". The Court noted that the constitutional provision stipulated by the art. 63 para (4) deals with situations when the bills included in the agenda of the Parliament's plenum have been approved on the first day and, depending on the case, in the second reading, but which have not been passed for the final reading. This is the case of constitutional and organic laws, when there are provided two, or depending on the case, three readings. Thus, given the previous Parliament has passed all the necessary phases of preliminary examination in order to have a bill or a legislative proposal on the agenda and they have been included on the agenda, but due to certain reasons had not been examined within the plenary session of the Parliament, this duty is passed to the new Parliament.
In this context, the Court noted that the nullity of the bills that have not been passed, which comprises the bills on the agenda, approved in the first reading or, depending on the case, in the second reading, but which have not passed the final reading, exceeds the provision of the art. 63 para (4) from the Constitution. Or, for these cases, the constituent law making body has expressly established that these bills go on in the legislative procedure. In the light of the above mentioned, the Court noted that the contested norm shall only be applied with regards to unexamined bills, not included in the agenda of Parliament's plenum.
The Court also noted that though it is formally referring to the right to legislative initiative, the core of the application made by Sergei Sîrbu and Artur Reşetnicov refers to the possibilities created by the modifications made in Parliament's Regulations of obstructing the parliamentary opposition's legislative initiatives. In this context, the Court reiterated the opposition's role in a functioning democracy. In this regard, the Court stressed the necessity of establishing by the Parliament of mechanisms aimed at ensuring the examination of the bills submitted by the parliamentary opposition, such as carrying out special sessions of Parliament's plenum session specifically devoted to have them discussed, similarly to the practice of other states in the field, this being the reason for deciding to issue an address to the Parliament in this regard.
The Court equally noted, due to the same reasons that the norm comprised in the Art. II of the Law № 115 from May 2012, which stipulates that nullity, is applied to all the bills registered in the Parliament, this being contrary to the art 63 para (4) from the Constitution, as it comprises the bills included in the agenda of the Parliament.
Judgment of the Court
Commencing with the above stated reasoning, the Constitutional Court validated the constitutionality of the article 47 para (12) of the Parliament's Regulations, with the exception of the collocation "and passed", which has been declared unconstitutional. The Court also declared unconstitutional the provision from the Art. II of the Law № 115 from May 2012 on the amendment of the article 47 from the Parliament's Regulations. This decision is final, cannot be subjected to any remedies, shall enter into force upon adoption and be published in the Official Gazette of the Republic of Moldova.