Judgment No.10 of 12.07.2012

JUDGEMENT on constitutionality control of some provisions on the status of the Member of Parliament


The subject of complaint: Member of the Parliament

Type of judgment: constitutionality review of laws, regulations and decisions of Parliament

Provision: Provisions recognized in part constitutional / unconstitutional


Complaints:

1.  ( 27.03.2012)


Communication:

1.  ( 12.07.2012)


Keywords:   Article 2 Sovereignty and State Power  | Article 60 Parliament as the Supreme Representative Body and Legislative Authority  | Article 64 Internal Structure  | Article 66 Basic Powers  | Article 68 Representational Mandate  | Article 72 Classification of Laws  |

PROCEDURE 1. The case originated in the complaint filed with the Constitutional Court on 27 March 2012 by Members of Parliament, Mr. Serghei Sirbu, Artur Resetnicov and Igor Vremea, under articles 135 paragraph (1) letter a) of the Constitution, 25) letter g) of the Law on the Constitutional Court and 38 paragraph (1) letter g) of the Code of Constitutional Jurisdiction, for the control of constitutionality of certain provisions of Law No. 26 of 1 March, 2012 for the amendment and addition of some legislative acts (hereinafter referred to as Law No. 26), by which in the Law on status of parliamentarian in the Parliament and in Parliament s Regulation were introduced norms to provide for the loss of a part of the parliamentarian s salary and other allowances in the event of repeated absence without good reason at plenary sessions of the Parliament or of the meetings of the Standing Committee to which he/she is part of (article I and article II of the Law No. 26). 2. In the public plenary session the representative of the authors of the referral stated that he did not request the control of constitutionality of the provisions as amended by the article III of Law No. 26. 3. The authors of the complaint claimed, in particular, that the provisions of the Article 16 paragraph (3) and (4) of the Law on status of MP and articles 129 and 131 of the Parliament s Regulation, in the redaction of Law No. 26, were in conflict with articles 1 paragraph (3), 2, 7, 16, 18, 43, 46, 47, 54, 60, 64, 66, 68, 69, 70 and 71 of the Constitution and Article 1 of the Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 4. By the decision of the Constitutional Court of 12 April 2012 the complaint was declared admissible, without prejudice to the merits of the case. 5. In the examination of the referral, the Constitutional Court requested the opinion of the Parliament, President of the Republic of Moldova and Government. 6. In the public plenary session the authors of the referral were represented by Mr. Serghei Sirbu, Member of Parliament. The Parliament was represented by Mr. S. Chirică, Senior Adviser in the Legal Directorate of the Parliament Secretariat. The Government was represented by Mr. Vladimir Grosu, Deputy Minister of Justice, and Sergiu Sainciuc, Deputy Minister of Labor, Social Protection and Family.

RELEVANT LEGISLATION 

7. The relevant provisions of the Constitution (O. G. No.  1/1, 1994) are as follows:

Article 1

The State of the Republic of Moldova

"[...] (3) The Republic of Moldova is a democratic rule of law, in which human dignity, citizens  rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values and are guaranteed."

Article 2

The sovereignty and State power

"(1) National sovereignty belongs to the people of the Republic of Moldova, who directly exercise it and through its representative bodies in the forms laid down in the Constitution. 

(2) No individual, no part of the people, nor a social group, political party or other public party may exercise State power in their own name. The usurpation of State power constitutes the gravest crime against the people."

Article 7

Constitution, the Supreme Law

"Constitution of the Republic of Moldova is the Supreme Law of the country. No law and no other legal act contrary to the provisions of the Constitution have any legal power."

Article 43

The right to work and protection of labor

"(1) Every person has the right to work, to free choice of work, fair and satisfactory conditions of work and to protection against unemployment. [...]"

Article 46

The right to private property and its protection

"(1) The right to private property, as well as financial receivables from the State are guaranteed. 

(2) No one may be expropriated except for the public interest, established by law, with fair and prior compensation. [...]"

Article 47

The right to assistance and social protection

"(1) The State is obliged to ensure that every person has a decent standard of living, to ensure the health and well-being, to him/her and his/her family, including food, clothing, housing, medical care and the necessary social services. 

(2) All citizens have the right to insurance in the event of unemployment, sickness, disability, widowhood, old age or other situations of loss of livelihoods as a result of circumstances independent of their will."

Article 54

Restricting the exercise of certain rights or freedoms 

"(1) In the Republic of Moldova there cannot be adopted laws that would suppress or diminish the rights and freedoms of man and citizen. 

(2) The exercise of rights and freedoms may not be subject to restrictions other than those prescribed by law, and which are unanimously recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic welfare of the country, public order, in order to prevent mass disorder and crime, to protect the rights, freedoms and dignity of other persons, prevent the disclosure of confidential information or to ensure the authority and impartiality of the justice. 

(3) The provisions of paragraph (2) do not allow restricting the rights set forth in articles 20-24. 

(4) The restriction enforced must be in proportion with the situation that caused it, and may not affect the existence of the right or freedom."

Article 60

Parliament, the supreme legislative and representative body

"(1) Parliament is the Supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the State. 

(2) The Parliament consists of 101 members."

Article 64

Internal organization

"(1) The structure, organization and functioning of Parliament are established by internal regulations. The financial resources of the Parliament are provided for in the budget approved by it."

Article 68

The representative mandate

"(1) In the exercise of their mandate, the parliamentarians are in the service of the people. 

(2) Any imperative mandate is null."

Article 69

The mandate of Members of Parliament

"(2) The office of a Member shall terminate on the date of the legal meeting of the newly- elected Parliament, in case of resignation, waiving of mandate, incompatibility or death."

Article 70

Incompatibilities and immunities

"(1) The members of Parliament are incompatible with any other public or private remunerated position, except for teaching and scientific activity. 

(2) Other incompatibilities shall be established the by organic law. 

(3) The parliamentarian may not be detained, arrested, searched, except in cases of flagrant infringement or sent to court without assent of Parliament after listening to him/her."

 

8. The relevant provisions of Law No. 26 of 1 March, 2012 for the amendment and additions of some legislative acts (O. G. No. 54-59/174, 2012) are the following:

"Art. I- Article 16 of Law No. 39-XIII of 7 April, 1994 on status of parliamentarian (republished in the Official Gazette of the Republic of Moldova, 2005, No. 59-61, art. 201), with subsequent amendments, shall be supplemented by two new paragraphs, which are paragraphs (3) and (4), with the following contents:

"(3) Any absence of the Member who does not hold the functional duties of Parliament and the Standing Committee which is part of shall be considered as absence without good reason. 

(4) The absence of the Member at a sitting of the Parliament in protest against a draft law included on the agenda, announced by the head of the faction or by unaffiliated Members, is considered absence with good cause."

Art. II. - Parliament s Regulation, passed by Law No. 797-XIII of 2 April 1996 (republished in the Official Gazette of the Republic of Moldova, 2007, No. 50, art. 237), with subsequent amendments, shall be amended and supplemented as follows:

1. To Article 129:

paragraph (2) shall be supplemented with the following sentence: "The absence of reasons other than those specified in this paragraph shall be regarded as absence without good reason."

The Article shall be completed with paragraph (3) with the following contents:

"(3) The Permanent Bureau shall determine how to register the presence of Members at sittings of Parliament and standing committees of which they are part of."

2. Article 131 shall have the following contents:

"Article 131.  Truancy to sessions

The truancy of the parliamentarian during a month to 3 sessions of the Parliament or of the Permanent Commission of which is part of shall be sanctioned with the loss of 50% of the salary and other allowances for next month. The absence without good case of the Member during a month to 4 and several sessions of the Parliament or of the Permanent Commission of which he/she is part of shall be sanctioned with the loss of 75% of the salary and other allowances for the next month."

 

9. The relevant provisions of Law No. 39-XIII of 7 April, 1994 on the status of parliamentarian (O. G.  No.  4/78, 1994, Republished: O.G. No. 59-61/201, 2005) are as follows:

Art.1. - (1) The status of parliamentarian is determined by the Constitution, by this Law and the Parliament s regulation. 

(2) certain matters relating to the exercise of the mandate of a Deputy can be regulated and other normative acts.

Art.2. - (1) Parliamentarian is the official person and the representative of the supreme legislative power. 

(2) In the exercise of their mandate, the Members of Parliament are in the service of the people. 

(3) Any imperative mandate is null. 

(4) Parliamentarians enter into the exercise of their mandate since the election provided its further validation. 

(5) The term of office of Members is four years. This time limit may be extended under the conditions laid down in the Constitution. 

(6) Member s mandate shall cease on the date of the legal meeting of the newly elected Parliament, in the event of resignation or death.

[...]

Art.3. - The mandate of lawmaker is incompatible with: a) the function of President of the Republic of Moldova;

b) the mandate of member of the Government;

c) the Ombudsman;

d) the exercise  of any other paid functions, including the function provided by a foreign country or international organization, except in teaching or scientific research carried out outside of the program established by the Parliament s Regulation.

[...]

Art.14. - (2) Parliamentarians exercise their rights and fulfill their duties throughout the legislature for which were elected. 

Art. 15. - (1) A parliamentarian is required to comply strictly with the Constitution, laws, and ethical and moral norms. 

(2) A parliamentarian shall be obliged to be worthy of the trust of the voters, to contribute through personal example to the strengthening of the State, to meet the civic obligations, to ensure human rights and compliance of law.

[...]

Art.16. - (1) The parliamentarian participating in collective and free examination of issues related to the competence of Parliament, to the debate and the passing of projects put on the agenda of the sitting of Parliament. 

(2) Member s participation in meetings of the Parliament and of the Commission, to which he/she is a part of shall be obligatory. If the parliamentarian cannot be present for reasons of good cause to Parliament or Standing Committee meetings, he/she is bound to inform the permanent Bureau or the secretary to the Commission concerned the reasons for his/her absence. 

(3) Any absence of the Member that does not relate to the exercise of functional duties of Parliament and the Standing Committee to which is a part of shall be considered as absence without a good reason. 

(4) The absence of the Member at a sitting of the Parliament in protest against a draft included on the agenda, announced by the President of a faction or by the unaffiliated lawmakers, shall be deemed as absence of good reasons.

[...]

Art.26. - (1) For the efficient exercise of the mandate, the parliamentarian has the right to:

 a) a monthly salary in the way, conditions and amounts laid down in Law No. 355-XVI of 21 December 2005 on salary system in budgetary sector;

b) subsistence expenses and other compensatory payments, in the amount established by the Permanent Bureau, which are not included in the monthly wage shall not be taken into account in determining the amount of social security benefits. [...]" "

 

10. The relevant provisions of Parliament s Regulation, passed by Law No. 797-XIII of 2 April 1996 (O. G.  No.  81-82/765, 1996, reprinted: O.G. No. 50/237, 2007), are the following:

Article 129

Absence of parliamentarians from sessions 

"(1) No Member may be absent from the Parliament sessions or Standing Committee of which he/she is a part of otherwise than for good reasons. 

(2) The parliamentarian that performs a task given by the Parliament, the Permanent Bureau, the Parliamentary Commission or the faction to which he/she is a member, as well as the Speaker of Parliament that does not allow him to attend Parliament meeting, shall be considered as absent for good reasons. The absence from a Parliament sitting of a Member who performs a task of the Parliamentary Committee or faction to which he/she is a member shall be coordinated beforehand with the President of the Parliament. The absence for reasons other than those specified in this paragraph shall be regarded as absence without good reason. 

(3) The Permanent Bureau shall determine how to register the presence of parliamentarians at sittings of Parliament and Standing Committees."

Article 131

Truancy from sittings

"The absence without a valid reason of the Member during a month to 3 meetings of the Parliament or of the Standing Committee to which he/she is a member shall be sanctioned with the loss of 50% of the salary and other allowances for the next month. Absence without good reason of the parliamentarian during a month to 4 and several sessions of the Parliament or of the Standing Committee to which he/she is a member shall be sanctioned with the loss of 75% of the salary and other allowances for next month."

 

11. The relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by the additional protocols to this Convention (signed at Rome on 4 November 1950 and ratified by the Republic of Moldova through the Parliament Decision No. 1298-XIII of 24 July 1997, O.G. No. 54-55/502, 1997), hereinafter referred to as "the European Convention", are as follows:

Article 1 of the additional Protocol No. 1 to the Convention

Protection of Property

"Any natural or legal person has the right to respect for his/her property. No one can be deprived of his/her property except for public interest and under the conditions provided for by law and by the general principles of international law. 

The preceding provisions shall not affect the right of countries to enforce such laws as they deem necessary relating to regulation of the use of the goods in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

 

 

 

 

For these reasons, pursuant to article 140 of the Constitution, the Law on the Constitutional Court, articles 6, 61, 62 (a) and  article 68 of the Code of Constitutional Jurisdiction, the Constitutional Court

DECIDES:

1. To declare as unconstitutional the phrase "the head of the faction or by" and "the unaffiliated" from paragraph 4 in Article 16 of Law No. 39-XIII of 7 April, 1994 on the status of parliamentarian, in the redaction of Law No. 26 of 1 March, 2012 for the amendment and completion of some legislative acts. 

2. To recognize as constitutional:

-paragraphs (3) and (4) of Article 16 of Law No. 39-XIII of 7 April, 1994 on the status of parliamentarian, in the redaction of Law No. 26 of 1 March, 2012 for the modification and completion of some legislative acts, except for the sequences "the head of the faction or by" and "the unaffiliated" in paragraph (4);

-the last sentence of paragraph (2) and (3) of the Article 129 of Parliament s Regulation, passed by Law No. 797-XIII of 2 April, 1996, in the wording of Law No. 26 of 1 March, 2012 for the modification and completion of some legislative acts. 

3. To be ceased the process for the control of constitutionality of Article 131 of Parliament s Regulation, passed by Law No. 797-XIII of 2 April, 1996, in the wording of Law No. 26 of 1 March, 2012 for the modification and completion of some legislative acts. 

4. This decision is final, and cannot be subject to any appeal, and it shall enter into force on the date of passing and shall be published in the Official Gazette of the Republic of Moldova. 

 

PRESIDENT OF CONSTITUTIONAL COURT

Alexandru TANASE


Chisinau, July 12, 2012.

 

No. 10.

 

 

 

 

IN LAW

12. On 1 March, 2012, by the Law No. 26, Parliament passed a series of amendments to the Law on status of parliamentarian and the Rules of the Parliament. 

13. Article 16 of the Law on status of parliamentarian has been supplemented with two new paragraphs, which have become paragraphs (3) and (4). 

14. According to the new paragraph (3) of the Article 16 of the Law on status of parliamentarian, any absence of the Member that does not relate to exercising the functional duties of Parliament and the Standing Committee to which he/she is a member shall be considered as absence without good reason. 

15. According to the new paragraph (4) of the Article 16 of the Law on the status of parliamentarian, the absence of the Member from a sitting of the Parliament in protest against a draft included on the agenda, announced by the head of the faction or by the unaffiliated lawmakers, shall be deemed as absence for valid reasons. 

16. Article 129 of the Parliament s Regulation, which governs cases of absence for good reason of the Member from meetings of the plenary of the Parliament and the meetings of its special committees, was completed at the end of with a sentence, according to which the absence for reasons other than those specified shall be regarded as absence without good reason. 

17. The same article was filled with a new paragraph (3), according to which the Permanent Bureau will determine how to register the presence of parliamentarians at sittings of Parliament and Standing Committees of which they are a member. 

18. Article 131 of the Parliament s Regulation was exposed in a new redaction, according to which the absence without good reason of the MP during a month from 3 meetings of the Parliament or of the Standing Committee to which he/she is a member shall be sanctioned with the loss of 50% of the salary and other allowances for the next month, and the absence without good reason of the lawmaker during a month from 4 and several sessions of the Parliament or of the Standing Committee to which he/she is a member shall be sanctioned with the loss of 75% of the salary and other allowances for the next month. 

19. The authors of the referral consider that the disputed norms are unconstitutional, because they prejudice the parliamentarian s status, in particular in the light of the prohibition of any form of imperative mandate, being groundlessly limited the rights of the parliamentarians and affected the integrity of members of Parliament s mandate  and the independence of the parliamentarian in his/her capacity as representative of the people, contrary to the rules contained in articles 1 paragraph (3), 2, 7, 16, 18, 43, 46, 47, 54, 60, 64, 66, 68, 69, 70 and 71 of the Constitution, as well as in Article 1 of the Protocol No. 1 to the European Convention. 

20. The contents of the referral reveal to the Court that it regards in essence the possibility of losing a part of the salary by the Member, in the case of non-participation in the plenary sessions without a good reason of Parliament or at meetings of special committees of it. 

21. During the public meeting, the representative of the authors of the referral also invoked the non-constitutionality of Article 16 (4) of the Law on the status of the parliamentarian in terms of limiting parliamentary protest. 

22. In this regard, the Court holds that the complaint refers to a set of interconnected elements and principles with constitutional value, such as the representative nature of the Member s mandate, the nullity of the imperative mandate, the principles of democracy and political pluralism. 

23. The Court holds that the power with which was vested by Article 135 paragraph (1) letter a) of the Constitution requires the correlation between legal norms and the text of the Constitution, taking into account the principle of its supremacy. 

24. The Court holds that the Regulation of the Moldovan Parliament, passed by organic law, has the status of an organic law and susceptible to control of constitutionality. 

25. In this context, the Court holds that the passing of laws and regulations through regulation of the structure, organization and functioning of Parliament are duties of the Parliament established at constitutional level by articles 64, 66 and 72 paragraph (3) letter c), so that the claim of the authors of the referral that the Parliament would exceed its powers by passing the contested provisions is manifestly unfounded. 

26. The Court also considered inapplicable to this case the Article 69 of the Constitution, because it concerns the termination of a Member s mandate, and not the loss of a part of salary rights. 

27. The Court holds that Article 16 of the Constitution, which enshrines the principle of equality of citizens, and Article 18, which stipulates the protection of citizens both in the country and abroad, are irrelevant to this case. 

28. In the same context, the Court holds that Article 54 of the Constitution has no meaning, and shall be examined by reference to a fundamental right guaranteed by the Constitution. 

29. The Court reiterated that the principles of the rule of law and supremacy of the Constitution, set out in articles 1 and 7 of the Constitution, which represents the quintessence of any procedures for control of the constitutionality of normative acts, do not have a meaning. 

30. Also, the Court will take into account the fact that, in public session, the representative of authors of referral disputed the constitutionality of the norms only in terms of the salary rights, so that Article 47 of the Constitution is inapplicable. 

31. Therefore, in order to elucidate the compliance of disputed provisions with the constitutional rules, the Court shall operate, in particular, with the provisions of articles 68, 43 and 46 of the Constitution, with its previous case-law (in particular, Decision No. 8 of 19 June 2012 on the interpretation of articles 68 paragraphs (1), (2) and 69 paragraph (2) of the Constitution), as well as with the principles enshrined by international law, using all the methods of legal interpretation.

 

THE ALLEGED BREACH OF ARTICLES 68, 43 ŞI 46 OF THE CONSTITUTION

32. The authors of the referral claim that the disputed norms violate the interdiction of any form of imperative mandate, stipulated by Article 68 of the Constitution, according to which:

"(2) Any imperative mandate is null."

33. Subsequently, the authors of the referral consider that, by the prejudice brought to the status of the parliamentarian, legal norms disputed breach Article 60 of the Constitution:

"(1) Parliament is the Supreme representative body of the people of the Republic of Moldova and the sole legislative authority of the State."

34. The authors of the referral claim that as consequence the disputed rules cause prejudice to the provisions of Article 2 paragraph (1) of the Constitution, according to which the people are the sole bearer of national sovereignty, which it exercises directly and through its representative bodies. 

35. According to the authors of the referral, this fact also affects the independence of lawmakers in expressing opinions, disputed rules being contrary to the guarantee enshrined in this respect through Article 71 of the Constitution. 

36. In the vision of the authors of the referral, because constitutional norms were not observed, disputed provisions have no legal power pursuant to Article 7 of the Constitution, which provides:

"The Constitution of the Republic of Moldova is the Supreme Law of the country. No law and no other legal act contrary to the provisions of the Constitution have any legal power."

37. The authors of the referral consider that, therefore, the disputed norms do not correspond to the principle of the rule of law, established by Article 1 paragraph (3) of the Constitution.

 

A. Arguments of the authors of the complaint

38. The authors of the referral consider that, through the loss of part of the salary, a substantial material limitation of the exercise of Parliament Member s mandate occurs, because the salary is the only source of income for the parliamentarian, the capacity of Member being, according to Article 70 of the Constitution, incompatible with any other public or private remunerated position, except for teaching or scientific research. 

39. According to the authors of the referral, this material limitation, with the goal to determine the lawmakers to forego parliamentary protests in the form of absence from meetings of the plenary of the Parliament or of the meetings of the specialized commissions, is tantamount to a form of imperative mandate because it requires an action contrary to the will of the legislator, and it violates the Article 68 paragraph (1) of the Constitution. 

40. In the vision of the authors of the referral, the parliamentary protest is a opinion expressed, so that the loss of wages for the absence from meetings of the plenary of the Parliament or of the meetings of its special committees is tantamount to a form of legal liability for opinions expressed by the parliamentarian in the exercise of the mandate, contrary to the prohibition laid down in Article 71 of the Constitution. 

41. The authors of the referral consider that by limiting people s elected representatives in the Parliament emerges a limitation of the people itself to participate indirectly in political decision-making, thus causing prejudice to Article 2 paragraph (1) of the Constitution.

 

B. Arguments of authorities

42. According to the authorities, the invalidity of the imperative mandate does not mean that MPs are relieved of any obligations. 

43. According to the authorities, by Law No. 26 the legislator only completed the legislation in force for the purposes of determining the penalty for failure by the Member to the obligation to attend meetings of the plenary of the Parliament and at the meetings of its special committees, obligation laid down in Article 16 paragraph (2) of the Law on the status of parliamentarian. 

44. According to authorities, activity of Members is carried out mainly in the Parliament and the objective is the legislation. For this activity the parliamentarian receives a salary, legal relations that are not related, in essence, to the political status of the lawmaker, but to labor law. 

45. According to the authorities, Parliament has full autonomy in terms of establishing legal norms that govern its organization and operation. In this regard, the Parliament s Regulation is a set of legal norms designed to organize and discipline the parliamentary activity concerning, inter alia, the legislative procedure, appointment or investiture of the most important institutions or public authorities in the State. At the same time, the regulations are legal instruments which allow and ensure parliamentary activities in fulfillment of the constitutional powers of the Parliament, the representative authority through which the people exercise their national sovereignty, in accordance with the provisions of Article 2 paragraph (1) of the Constitution.

 

C. Findings of Court

46. According to Article 1 paragraph (3) of the Constitution, the Republic of Moldova is a democratic rule of law, in which human dignity, citizens  rights and freedoms, the open development of human personality, justice and political pluralism represent the supreme values and are guaranteed. 

47. For the purposes of Article 2 of the Constitution, a genuine democracy can be established only by the people through the exercise of national sovereignty, directly or through its representatives, elected in a democratic election. 

48. Article 60 of the Constitution stipulates that the Parliament, the Supreme representative body of the people and the sole legislative authority of the State is made up of 101 lawmakers elected, in accordance with Article 63 paragraph (1) of the Constitution, for a term of 4 years. 

49. To achieve this goal, in accordance with the provisions of Article 64 paragraph (1) of the Constitution, based on the principle of the regulatory autonomy, by the organic Law No. 797-XIII of 2 April 1996, the Parliament has passed its own rules of activity. 

50. The Court holds that the rules of articles 64, 66 and 72 paragraph (3) letter c) of the Constitution, authorizing the Parliament to regulate the organization and functioning of Parliament, include its right to determine the amount of the salary rights of the Member according to several criteria, such as participation in legislative activity, participating in delegations, commissions etc. 

51. The Court holds that, in accordance with Article 26 of the Law on status of parliamentarian, the Member has the right to the monthly salary in the manner, conditions and amounts laid down in Law No. 355-XVI of 23 December 2005 on salary system in budgetary sector, for the effective exercise of the mandate. 

52. In accordance with Article 128 of the Labor Code and Article 2 of the Law on Wages No. 847-XV of 14 February 2002, the wage shall mean any reward or gain rated in money, paid to an employee for work carried out or to be carried out. 

53. In this context, the Court reiterates the findings of Decision No. 8 of 19 June 2012, according to which:

"26. [...] The parliamentarian  work of lawmaking is difficult to quantify. It is not enough to be able to measure the absence of lawmakers from voting, the number of questions they formulate or draft law proposed. 

36. [. . .] Exercise of the parliamentary mandate covers the entire political activity of the Member, both the parliamentary and the extra-parliamentary, including the passing of laws in the plenary sittings of Parliament, attending meetings of the special committees of the Parliament, other activities related directly to the legislative creation process or monitoring of governance, participation in the parliamentary delegations and meetings with voters."

54. Participation of the Member in the plenary sessions of Parliament and meetings of the Standing Committee, to which he/she is a member, is mandatory, in accordance with Article 16 paragraph (2) of the Law on the status of parliamentarian. This paragraph, moreover, was not disputed by the authors of the referral.

55. In this context, the Court points out that there is no rule in the Constitution that would prohibit deductions from lawmakers  salary if they are absent without a good reason from Parliament meetings or meetings of its special committees. 

56. The Court holds that the depriving the parliamentarian of salary payments in the case of absence without a valid reason from the plenary sittings of the Parliament and meetings of special committees does not constitute his/her penalty of as part of the exercise of the lawmaker s mandate in the political aspect, but it is a component of the labor relations. 

57. At the same time, the Court considers it necessary to reiterate the distinction to be made between truancies and parliamentary protest.

58. Thus, Decision No. 8 of 19 June 2012, referred to above, the Court held that:

"61. [...] as opposed to truancies, parliamentary protest constitutes, essentially, a politically motivated absence [...]."

59. In the same context, the Court holds that the politically motivated absence of the parliamentarian shall not allow the majority to deprive him of the mandate, but it does not mean that this absence cannot generate differentiated wages of Members according to the effective time actually devoted to the activity of lawmaking. In the same logic also falls the norm disputed in Article 129 paragraph (3) of the Parliament s Regulation, according to which the Permanent Bureau shall establish the way to register the presence of Members at sittings of Parliament and Standing Committees to which they are members. 

60. Therefore, the Court holds that the Parliament has a wide margin of appreciation in respect of legislative solutions of lawmakers  wages, and regulations disputed in Article 131 from the Parliament s Regulation constitute matters of opportunity. The Court is not competent to rule on issues of opportunity, so that, in this part of the referral, the process is to be stopped. 

61. Given that the rules of the Article 131 from Parliament s Regulation constitute matters of opportunity, the Court will not examine additionally the provisions disputed in terms of violations of the right to work and the right to property, as guaranteed by articles 43 and 46 of the Constitution. 

62. In the same context, the Court holds that, according to Article 16 paragraph (4) of the Law on status of parliamentarian to be considered founded, the absence of the Member at a sitting of the Parliament in protest against a draft on the agenda is announced only by the head of the faction or by the unaffiliated lawmakers. 

63. Therefore, for the purposes of this regulation, the Member of a Parliamentary faction, when willing to manifest protest, in order to give his/her protest a legal form, is to obtain the agreement of the head of the faction, otherwise his/her absence is likely to be considered without a good reason. 

64. The Court considers that this provision runs counter to the principles of the representative mandate and the nullity of imperative mandate, stipulated by Article 68 of the Constitution. 

65. For the purposes of the constitutional provision of Article 68, although the parliamentarians are elected on party lists, under the proportional system, each of them has an individual mandate that forces him/her to be in the service of the whole people and for which he/she bears individual liability.

66. In this respect, the Decision No.  8 of 19 June 2012 on the interpretation of article 68 paragraphs (1), (2) and article 69, paragraph (2) of the Constitution, the Court held that:

"34. [...] In the exercise of the mandate, MP is subject only to the Constitution, the laws and shall adopt attitudes which, according to his/her conscience, serve the public welfare.  [. . . ]

35. [...] In defining those interests, the parliamentarian s option is free, even though he/she belongs to a party that he/she represents in Parliament.  [. . . ]

43. [. . .] The elected do not have the legal obligation to support the party or the decisions of their group in the Parliament. Furthermore, if the legislator, by his conduct, causes damage to it, the party or the group to which he/she belongs can exclude him/her, however, this exclusion does not entail the loss of parliamentary mandate. This, obviously, does not prevent the lawmaker, once elected, to honor his/her commitments and to comply with the voting discipline of the parliamentary group to which she/he belongs."

67. Therefore, the obligation of the parliamentarian to obtain the consent of the head of the faction to manifest the parliamentary protest is contrary to the principles of the representative mandate and nullity of the imperative mandate, stipulated by Article 68 of the Constitution, and the conclusions set out by the Constitutional Court in Decision No. 8 of 19 June 2012 on the interpretation of article 68 paragraphs (1), (2) and article 69 paragraph (2) of the Constitution. 

68. Also, limiting the parliamentary protest only to drafts included on the agenda is contrary to the interpretation of the ruling by the Constitutional Court in Decision No. 8 of 19 June 2012, according to which parliamentary protest actions can be carried out also in the political activity of the Member that is not linked directly to the legislative creation process (§ 62):

"61. [...] the parliamentary protest is [...] an action of a parliamentarian or a group of Members, that responses to a specific action of the majority, by which is expressed a manifestation, without violence, of the opposition against acts or decisions which are illegal or contrary to the common interest, in order to get concessions."

69. In the same vein, the Court considers that it is unjustified the differentiation of the Members of the parliamentary factions and of the unaffiliated ones regarding the manner to declare parliamentary protest. 

70. On the basis of the above, the Constitutional Court considers constitutional the paragraphs (3) and (4) of the Article 16 of the Law on status of parliamentarian, except for the sequences "head of the faction or by" and "the unaffiliated" from the paragraph (4). 

71. The Court also considered that the last sentence of paragraph (2) and (3) of the Article 129 of Parliament s Regulation does not violate constitutional provisions. 

72. At the same time, taking into account the findings of the above, the Court considers it necessary to make an address to Parliament in order to bring the legal provisions relating to parliamentary protest in accordance with the Decision No. 8 of 19 June 2012.  

 

 

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