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How can the Romanian Constitution be revised

Although its stability over time represents the essence of the Romanian Constitution (the “Constitution”) and of any constitution, such fundamental law within the Romanian legal system should at the same time, at any moment, represent both a frame of reference for the Romanian social, political and economical life and a reflection of such. Given the accelerated changes within the society, in order for the Constitution to be brought in line with the overall social, political and economical evolution and perspectives, a procedure for its revision and also the limitations in what regards the possibility for the Constitution to be revised are established by this fundamental law itself. .

Taking into consideration the parliamentary elections of November 2012 that were won by the center-left USL coalition and in the context of the explicit plans of such coalition to modify the Constitution, an analysis of the legal procedure which can lead to such revision may be of interest.

Description of the legal procedure for the Constitution's revision 

The utmost importance of the Constitution within the Romanian legal system is reflected, among others, by the procedure required for its revision, which differs from the one applied for the ordinary enactments within the Romanian legal system by being more complex and strict (formally, materially and temporally - as can be seen from the below comments) and requiring higher voting majorities.

In accordance with article 151 of the Romanian Constitution, the exercise of national sovereignty materialized by the initiative for the Constitution's revision belongs to the Romanian executive authority (i.e. the Romanian President, based on the Government's proposal), to the Romanian legislative authority (i.e. at least a quarter of the number of deputies or senators) or to the Romanian citizens (i.e. a number of 500,000 citizens with voting rights).

Citizens initiating the Constitution's revision must originate from at least half of Romania's counties and, at the same time, in each of such counties or in Bucharest 20,000 signatures must be registered in support of the revision initiative. This territorial distribution rule is established in order for a minimum degree of representation of the Romanian population to be reached. 

The revision initiative, materialized in a revision project or proposal (the "Revision Project") shall be subject to the consultative endorsement of the Legislative Council (i.e. the specialized consultative body of the Romanian Parliament), as per article 3, paragraph (1) of the Law no. 73/1993 on the establishment, organization and functioning of the Legislative Council.

As per article 146 of the Constitution, the prerogative to verify whether the Constitution's revision initiative is constitutional (both from a normative and a procedural perspective) belongs to the Constitutional Court, which, in accordance with article 19 of Law no. 47/1992 on the organization and functioning of the Constitutional Court, within a term of 10 days as of the receipt of the Revision Project, together with the Legislative Council's endorsement, shall decide on the compliance of the Revision Project with the constitutional provisions.

Following the obtaining of the endorsements from the Legislative Council and, respectively, the Constitutional Court, the Revision Project shall be submitted, for adoption, to the Deputies Chamber and Senate, which shall decide with a qualified majority of at least two thirds of the members of each of such Chambers. Such quorum is significantly higher than the one necessary for the adoption of organic or ordinary laws.

Should any discrepancies exist between the versions of the Revision Project adopted by each Chamber, the divergence shall be settled by resorting to a mediation procedure. The mediation procedure entails the designation of an equal number of representatives of each of the Deputies Chamber and Senate, assembled in a temporary joint commission. Said joint commission is vested to negotiate on the divergence points between the two aforesaid versions

of Revision Law, for the purpose of agreeing a common version of such. However, given that the abovementioned joint commission is not a decision-making body, the version of the Revision Project negotiated by the joint commission shall be subject to the approval of each of the Romanian Parliament's Chambers.

In case that, after being subject to each of the Deputies Chamber and Senate vote, the adoption of a common version of the Revision Project has not been achieved, the two parliamentary Chambers shall decide on the adoption of the Revision Project, in a common meeting, with a majority of votes of at least three quarters of the total number of senators and deputies. Should the Revision Project be passed by the Parliament's Chambers in common meeting, the Constitutional Court shall pronounce ex officio on the constitutionality of such and, in case the Constitutional Court considers that the constitutional requirements for the Constitution's revision have been breached, its decision in this respect shall be transmitted to the Deputies Chamber and the Senate, in order for the Revision Project to be brought in line with the provisions of such Constitutional Court decision. Furthermore, in order for the Constitution's revision to enter into force, it must be approved by a popular referendum, organized within at most 30 days as of the Revision Project's adoption date.

Limitations

The Constitution's revision is materially limited only to aspects which do not refer to the national, independent, unitary and indivisible character of the Romanian State, the republican form of government, the territorial integrity of Romania, the independence of justice, the political pluralism and the official language.

Likewise, no revision of the Constitution should result in the suppression of fundamental rights and freedoms of citizens or of their guarantees. As regards temporal limitations in relation to the Constitution's revision, it is forbidden for such to be initiated during a state of siege or emergency, or during wartime, due to the exceptional character of said contexts, during which the national sovereignty is more difficult to be exercised. 

Sebastian Radocea

Managing Associate at Ţuca Zbârcea & Asociaţii

sebastian.radocea@tuca.ro

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