Type of act
Decision
Date
18-12-2013 year
To the case
17/2013

Decision No. 14 of 18 December 2013 on Constitutional Case No. 17/2013

 

The case was filed by 93 MPs who approached the Constitutional Court with a request for an interpretation of Art. 72 of the Constitution of the Republic of Bulgaria on the following questions:

1. Is the list of occurrences in Art. 72, para 1, items 1-4 of the Constitution complete and are they subject to a latitudinarian interpretation?

2. Do the hypotheses in Art. 72, para 1, items 1-3 of the Constitution call invariably for a National Assembly’s resolution, respectively a Constitutional Court’s decision, as provided for by Art. 72, para 2 of the Constitution?

3. Can the National Assembly’s resolutions, respectively the Constitutional Court’s decisions, be retroactive or shall they have legal implications for the future only/ex nunc?

4. Shall an MP remain in his status pending a National Assembly’s resolution, respectively a Constitutional Court’s decision?

Proceedings under Art. 149, para 1, item 1 of the Constitution about the interpretation of a Constitution text which arranges for the occurrences and the mode of an MP’s divestment.

The Constitutional Courts Resolution on Constitutional Case No. 1/2013 admitted to issue on merit a request from the President of the Republic of Bulgaria for an interpretation of Art. 84, item 8 read in combination with Art. 72, para 1, items 1 and 2 and Art. 68, para 1 of the Constitution and for an answer to the following questions:

1. Whenever premising on Art. 84, item 8 of the Constitution the National Assembly elects an MP as the head of an institution established by law, will the resolution of the election incorporate elements of the decision under Art. 72, para 2 of the Constitution on the MP’s divestment?

2. Whenever premising on Art. 84, item 8 of the Constitution the National Assembly elects an MP as the head of the institution established by law and the MP expresses in Parliament his or her willingness to take public office, will he or she necessarily submit their resignation under Art. 72, para 1, item 1 of the Constitution?

Since the request by the President of the Republic of Bulgaria for an interpretation of Art. 84, item 8 read in combination with Art. 72, para 1 and para 2 of the Constitution is related to the issue of the foregoing Constitutional Case No. 17/2013, the Constitutional Court’s Resolution on Constitutional Case No. 21/2013 joined it to Constitutional Case No. 17/2013 to be issued upon its merits under the numeration of the preceding constitutional case.

The Constitutional Court discussed the arguments as adduced in the request of the National Assembly and in the request of the President of the Republic of Bulgaria just as it discussed the position as submitted by a group of MPs and ruled as follows:

1. Art. 72, para 1 of the Constitution gives the following occurrences as reasons for an MP’s divestment: resignation  presented before the National Assembly; entry into force of a final sentence for an intentional criminal offence if the enforcement of the imprisonment sentence has not been suspended; establishment of ineligibility or incompatibility; and death. There have been cases in the Constitutional Court’s track record when it was maintained that the list in Art. 72, para of the Constitution is complete (Decision No. 20/1992 on Constitutional Case No. 30/1992), as the Court drew on the literal interpretation of the text and on the nature of each occurrence. However, the Constitutional Court’s recent track record shows options for a different stance whereby the list in Art. 72, para 1  of the Constitution is seen as incomplete (Decision No. 13/2010 on Constitutional Case No. 12/2010).

The Constitution contains some other texts that specifically deal with the MPs’ term of office and given the specifics of the matter that the texts concern, they relate directly to the question of an MP’s divestment. In particular, the Constitution sets definite requirements for an MP to be eligible (Art. 65, para 1 of the Constitution) as a sine qua non for the existence of passive suffrage. It is beyond doubt that while these requirements shall have to be present on the Election Day, they have to continue after the day from which the four-year term of office in Parliament is reckoned. Should an MP be placed under judicial interdiction or should he or she acquire dual citizenship subsequently and after the Election Day from which his or her term of office is reckoned, (Decision No. 5/2001 on Constitutional Case No. 5/2001), these count as sufficient reasons for divestment.

Apart from the cases of an MPs divestment for individual reasons, a similar rationale should be applied to an MPs divestment in consequence of dissolution of the National Assembly (Art.  99, para 5 of the Constitution). The Constitutional Court has already explicitly ruled on that matter, assuming that in the hypothesis of Art. 99, para 5 of the Constitution whereby an MP ceases to exercise his or her prerogatives (Decision No. 20/1992 on Constitutional Case No. 30/1992). However, the logic of such a decision is more special. This logic derives from the rule that the dissolution of the National Assembly (Art. 64, para 3 of the Constitution) results in the divestment of each one of the 240 Members of Parliament (Decision No. 8/1993 on Constitutional Case 5/1993).

The enumeration in Art. 72, para 1 of the Constitution does not constitute a full set of arrangements for an MP’s divestment. Art. 65, para 1 of the Constitution likewise relates to the possibility of withdrawal of prerogatives before expiry inasmuch as it sets conditions that make an individual eligible and the nature of these conditions makes them a sine qua non for passive suffrage. It has to be underscored, however, that the occurrences upon which an MP ceases to exercise his or her prerogatives can be subject solely to Constitution arrangement and therefore, their enumeration is confined to the Constitution. Such a decision is called for by the need to provide the strongest possible guarantees that the structure and composition of Parliament are stable and that the Legislature functions properly. In the spirit of the conclusion drawn it should be added that it is inadmissible to apply the Constitution rules about the earlier termination of the term of institutions of the State be they collegiate or one-man by way of analogy to the Members of Parliament just as it will be inadmissible if it was vice versa. This is so for it is the nature of competences that determine the reasons for an earlier dissolution of an institution of the State as a holder of power and its placement in the system of separation of powers. This is the explanation for the disparity of the reasons for the divestment of an MP, the President and the Vice President (Art. 103 of the Constitution) and of a Constitutional Court Justice (Art. 148 of the Constitution).

An MP enjoys the confidence of a constituency who delegate their representation to him or to her (Art. 67, para 1 of the Constitution). Once established, the relationship of political confidence, owing to its nature and the objectives that it serves, shall be stable, that is to say any change or termination of the political relationship shall be rare and subject to preset rules. To allege the contrary would be tantamount to a trial for the functioning of the Legislature and of the political system in general inasmuch as in the long run the core of these two is the conferral of political confidence by parliamentary election over certain intervals. On the other hand, the very idea of a free mandate that the Bulgarian Constitution has adopted (Art. 67 of the Constitution) would be discarded. It has to be recognized that the stability of the relationship of political confidence is part of the social contract that citizens make for the purpose of the exercise of sovereign power that is tied up with the Constitution-provided legal arrangements. Hence the conclusion that an MP’s divestment shall be subject to a specific occurrence that the Constitution provides for by a definite State institution and a definite piece of legislation. It is only the National Assembly and the Constitutional Court that are free to decree on an MP’s divestment. Each of these vested prerogatives derives from the Constitution: the National Assembly is the legislating authority and the Constitutional Court is the independent institution that is bound to see that the Constitution is complied with. Inasmuch as these are exclusive powers, it is important that they should be exercised strictly within the confines of authorization and that the authorization should not be subject to latitudinarian interpretation.

2. Art. 72, para 1, item 1 of the Constitution states as a first reason for an MP’s divestment the resignation that they submit to the National Assembly. It is a naked promise by the MP and is addressed to the National Assembly. The resignation has to be in writing (Art. 131 of the National Assembly’s Standing Orders). The motives shall be irrelevant and therefore, are not an indispensable element of a resignation. What is essential is that the MP, at his or her own will, has expressed a clear wish to retreat. A resignation shall not be discussed by a standing or an ad hoc parliamentary committee (Art. 85 of the National Assembly’s Standing Orders). As the MP’s resignation has an addressee it shall be accepted and the National Assembly shall pass a resolution to that effect (Art. 72, para 2 of the Constitution), and the resolution shall be promulgated in the official rubric of Durzhaven Vestnik (Art. 4 of the Durzhaven Vestnik Act). An MP who resigned shall cease to be an MP on the date on which the decision was adopted. The explanation as to why the National Assembly is bound to adopt an act to that effect should be sought in the very nature and substance of the relationship of political empowerment, on one hand, and in the structure and composition of the National Assembly which shall consist of 240 members (Art. 63 of the Constitution), on the other hand.

In the hypothesis of Art. 72, para 1, item 2 of the Constitution a second reason is cited for an MP’s divestment. This second reason should be discussed in combination with Art. 70, para 1 and para 2 of the Constitution where a permission is required from the National Assembly for initiating criminal prosecution or for the detention of an MP upon a request from the Prosecutor General (Art. 132 of the National Assembly’s Standing Orders). On being granted the permission the Prosecutor General shall supervise the prosecution and notify the National Assembly of the findings. Since a criminal court’s final verdict is binding on all institutions, the National Assembly shall see solely whether the verdict decrees imprisonment and if so, that there is no deferral of the sentence so as to adopt a resolution on the MP’s divestment. The National Assembly is vested with the power by Art. 72, para 1, item 2 of the Constitution to strip an MP of his or her prerogatives subject to a resolution and that derives from the fact that the sovereignty of the people makes the Legislature the only authority that can make a pronouncement on an issue that directly concerns it in view of Art. 63 of the Constitution that reads that the National Assembly shall consist of 240 members. The criminal court’s final verdict shall be binding and for that reason the National Assembly shall comply with it and to that effect shall adopt a resolution whose consequences are relevant to the divestment and to the Constitution-set requirement that the National Assembly shall consist of a fixed number of members.

Art. 72, para 1, item 3 of the Constitution reads that an MPs prerogatives shall expire before the expiry of his or her term of office on the establishment of ineligibility or incompatibility. Art. 72, para 2 of the Constitution definitively states which institution shall pronounce on such matters – the Constitutional Court. In this particular case unlike the previous reasons as in Art. 72, para 1, items 1 and 2 of the Constitution what is involved is a legal dispute that the Constitutional Court has to resolve by the decision that it will take. The Court’s decision ascertains the fact of ineligibility or incompatibility and strips the MP of his or her prerogatives. Evidently the idea as developed in the Constitution arrangements is that whenever a legal dispute arises, the divestment of an MP shall require a Constitutional Court ruling. But whenever the matter is not a legal dispute – that is to say a resignation or a final verdict or non-deferral of the sentence of imprisonment – the relevant circumstance is ascertained by the National Assembly which strips the MP of his or her prerogatives. There is one single case – death – when the MP’s divestment is automatic and no pronouncement is required (Art. 72, para 1, item 4 of the Constitution).

In conclusion, as per the Constitutional Court’s judgment, an MP’s divestment is subject only to the occurrences that are precisely enumerated in the Constitution. A law or the National Assembly’s Standing Orders shall not provide for reasons other that the ones enumerated. The legal nature and the substance of the relationship of political representation preclude such outcome. Whenever the MP’s divestment involves a legal dispute that makes it imperative to draw legal conclusions on the basis of concrete facts, the power to resolve is vested in the Constitutional Court by the Constitution. Other cases to come under this umbrella are the adoption of a foreign citizenship by the MP after the election or judicial interdiction. Conversely, it is only the National Assembly that is competent to judge on cases that are specifically prescribed in the Constitution and that dont involve a legal dispute over an MPs divestment but for in the event of death which automatically ends all relationships to which the deceased was a party, so there is no need to rule on it.

The Constitution premises on the understanding that given the nature and purpose of political representation it shall ensure the stability of the relationship and therefore makes divestment subject solely to the occurrences that are enumerated in it. Hence the conclusion that the texts that describe these occurrences shall be strictly interpreted and enforced and this circumstance precludes the extension of the content of the hypotheses that they cover and vice versa – the “tie-down” of certain legal consequences to hypotheses other than those.

3. Art. 151, para 2 of the Constitution reads that the Constitutional Court’s rulings shall come into force three days after their promulgation. Specifically vis-à-vis the decisions that pronounce unconstitutional a law or other acts of the National Assembly or the acts of the President of the Republic of Bulgaria, the Constitution provides that they shall cease to apply as of the date on which the decision shall come into force. Art. 14, para 3 of the Constitutional Court Act in principle repeats Art. 151, para 2 of the Constitution while para 4 gives the date of entry into force of decisions other than those that pronounce texts to be anticonstitutional under Art. 149, para 1, item 2 of the Constitution. The Constitution reads that rulings on disputes on the legality of the election of the President, the Vice President or an MP, on the ineligibility of incompatibility of an MP, on permanent de facto inability to perform duties and on the incompatibility of a judge shall come into force on the date on which they are issued and before their promulgation (Decision No. 17/1995 on Constitutional Case No. 2/1995). The Constitutional Courts Decision No. 11/1993 on Constitutional Case No. 15/1993 decreed that a decision by which the Court suspended the authority of the Vice President of the Republic before its expiry on the basis of a resignation that was submitted before the Constitutional Court (Art. 97, para 1, item 1 of the Constitution) likewise comes into force on the date on which it was issued.

The text of Art. 151, para 2 of the Constitution and the supplement in Art. 14 of the Constitutional Court Act invite the conclusion specifically concerning the Constitutional Courts decisions that they become effective in future or, to refer to the Constitutional Court’s Decision No. 22/1995 on Constitutional Case No. 25/1995 and Decision No. 24/1995 on Constitutional Case No. 30/1995, “henceforward”/ex nunc. The Constitution formulates a general rule and shall not allow an alternative even in the form of an exception in view of the nature of the prerogatives that the decisions decreed or other reasons concern. The decisions take effect in future and it is irrelevant to speculate from which point in time they go into effect – three days after the promulgation (Art. 151, para 2 of the Constitution) or upon adoption (Art. 14, para 4 of the Constitutional Court Act) and whether the exception is conformant with the Constitution arrangements. Decisions under Art. 72, para 1, item 3 in combination with Art. 72, para 2 of the Constitution, just like all other Constitutional Court’s decisions shall take effect in future. Unlike decisions under Art. 149, para 1, item 2 of the Constitution, these shall go into effect on the date of adoption as Art. 14 of the Constitutional Court Act provides for.

Given the unambiguous text of Art. 151, para 2 of the Constitution it is difficult to justify the retroaction of a Constitutional Court’s decision on the basis of an argumentation that the specifics of the legal dispute calls for that.  The matter might be brought up mostly in view of decisions rendered on a legal dispute over the ineligibility of an MP (Art. 72, para 1, item 3 of the Constitution). Within the framework of such proceedings the Constitutional Court ascertains the fact of ineligibility which should have existed as of the Election Day and ignores as irrelevant any changes that might have occurred in relation to substantive law-related prerequisites for an individual to be elected Member of Parliament (Art. 65, para 1 of the Constitution), and suspends the MP’s prerogatives (Decision No. 2/1995 on Constitutional Case No. 1/1995). In such cases the Constitutional Courts decision will go into effect in future. The thinking that the decision shall be retroactive as it merely ascertains the fact of the initial inexistence of a relationship of political representation is not to be accepted for it presumes a declaratory judgment. The decision shall ascertain facts and circumstances and in addition, suspend the prerogatives as explicitly provided for by Art. 72, para 2 read in combination with Art. 72, para 1, item 3 of the Constitution. The decision shall go into effect in future, in keeping with the general rule, in the nonexistence of an explicit text on retroactive force. To insist that the suspension of an MP’s prerogatives before the expiry of his or her term of office shall be subject to retroactive legislation is legally unsustainable unless the Constitution incorporates an unambiguous text to be attuned to the system of rules concerning the National Assembly’s activity. Regarding the reason as to why the Constitution should set a rule to make the Constitutional Court’s decisions valid only in future, this reason should be sought in the need to guarantee that the National Assembly’s acts are valid and their legal implications remain.

Art. 72, para 2 of the Constitution reads should a resignation be presented before the National Assembly along with the entry into force of a final sentence imposing imprisonment for an intentional criminal offense, or if the enforcement of the imprisonment sentence has not been suspended, an MP ceases to exercise prerogatives subject to a National Assembly’s resolution. These resolutions of the National Assembly and in general, most of its resolutions don’t have an aspect of legal acts. National Assemblys resolutions under Art. 72, para 2 of the Constitution are covered by the general rule that the National Assemblys resolutions shall go into effect upon adoption and shall be valid only for the future (ex nunc).

4. Art. 72, para 2 of the Constitution reads that an MP’s prerogatives shall expire before the expiry of the term of office upon any of the following occurrences: resignation presented, or the entry into force of a final sentence imposing imprisonment for an intentional criminal office, or if the enforcement of the imprisonment sentence has not been suspended and that shall require a resolution of the National Assembly, or, in the event of establishment of ineligibility or incompatibility, that shall require a ruling by the Constitutional Court. The suspension of an MP’s prerogatives before the expiry of the term of office is made contingent upon a National Assembly’s resolution or a Constitutional Court’s ruling and from the moment of their adoption onwards an MP is stripped of his status. Therefore, an MP retains his or her status until the relevant resolution is adopted or the relevant ruling is handed down.

5. The joinder to the Constitutional Case No. 21/2012 issued upon its merits on the request of the President of the Republic of Bulgaria to the Constitutional Court brings up the question: whenever the National Assembly elects an MP as the head of an institution established by law, will its decision on the election incorporate elements of a resolution under Art. 72, para 2 of the Constitution on the expiration of an MP’s prerogatives before the expiry of his or her term of office. The joinder to the constitutional case and in his position that was prepared in reply to a group of MPs the President of the Republic of Bulgaria noted that whenever the National Assembly elects an MP as the head of an institution established by law with a constitutive decision and has the MP’s explicit assent to be elected, there should be no other legal act on the suspension of prerogatives before the expiry of the term of office. The National Assembly makes a pronouncement on two issues: the election of the MP as the head of an institution and the suspension of the MP’s prerogatives before the expiry of the term of office. The purpose is to prevent the incompatibility that will confront the MP.

Art. 67, para 1 of the Constitution reads that  Members of the National Assembly shall represent not only their constituencies but the entire nation. The mandate is vested in the Members of the National Assembly by the voters and the term of office is reckoned from the Election Day (Decision No. 5/2001 on Constitutional Case No. 5/2001). In this way the fact of election establishes a relationship of political representation in the National Assembly. Therefore, prerogatives are vested in MPs directly by the voters and not by the National Assembly. There exists no legal relationship by which prerogatives are vested between the National Assembly and the MP. The relationship between an MP and the National Assembly does not stretch beyond the fact that the MP is one of the 240 MPs who make up the National Assembly to enable its constitution as a political representative body to exercise the legislating authority (Decision No. 5/2001 on Constitutional Case No. 5/2001). Once constituted the National Assembly shall not oust the electorate as a party to the existing relationship of political representation. Advocacy for definite political ideas and programs and their advancement and implementation, respectively, continues to be the MPs commitment to the voters. The parliamentary status makes an MP the political representative of the voters. Power is vested in an MP as a holder ofa free mandate” (Art. 67, para 1 of the Constitution) to voice the interests of the nation in the legislating body. The fact that the Constitution allows the National Assembly to make a pronouncement on the suspension of an MP’s prerogatives before the expiry of the term of office is not a result of a metamorphosis concerning the parties to the existing legal relationship whereon the National Assembly acts as a substitute of the sovereign. The National Assembly’s intervention into the existing legal relationship is confined to definite hypotheses and draws on the special Constitution-vested powers.  As the National Assembly terminates the relationship of political representation between an MP and the nation, it acts on its own reasons – the Constitution vests in it, as a body that represents the people, the power to intervene in definite cases in order to ensure the institution’s stability. What is meant is an exclusive right which, naturally, is acceptable inasmuch as it is explicitly granted and may therefore be exercised under definite conditions and in a definite mode.

Power is vested in the National Assembly by the Constitution (Art. 84, item 8) to elect and remove the heads of institutions established by law. In such circumstances the National Assembly acts as a supreme sovereign authority. In addition to the fundamental prerogatives – that is, the legislating authority and the exercise of parliamentary control – the Constitution bestows upon the National Assembly some powers that have elements of administrative nature. These are prerogatives that essentially belong to the domain of a power other than the Legislature and the Constitution bestows them for the sake of the balance within the separation of powers. The same holds true of the other powers (Art. 98, item 7, item 11 of the Constitution). Legal relations that arise as such prerogatives are exercised have their own subject and substance. In any case though, it is a National Assembly’s prerogative that contains elements of administrative nature.

The National Assembly’s prerogatives to divest an MP or elect an MP as the head of an institution established by law have multiple aspects and are exercised for the sake of a goal pursued. The legal consequences are predetermined by the nature of these prerogatives while the domains of their materialization don’t congregate. Given this reality there exists no footing to step on in order to formulate a possible conclusion that it is natural for a declaration of intention to elect the head of an institution established by law to automatically predetermine the fate of a relationship of representation of the people by the discontinuation of the relationship. To state that the election implicitly calls for the earlier discontinuation of the relationship of political representation is to agree that the individual act of the exercise of power as the source from which the concrete relationship derives can go beyond the proper purpose and goal. The more so that its legal consequences are not a function of who the author and the addressee are but of the substance, the intended purpose and the nature of the relationship that emerges. Jurisprudence allows only by way of exception to interfere into an alien relationship but since the interference is by way of exception, latitudinarian interpretation and enforcement are ruled out.

The termination of a relationship on the basis of the emergence of another relationship is impossible to achieve when the Constitution allows for a relationship of political representation to be discontinued earlier only on the basis of reasons that are definitively and explicitly formulated in the Constitution. Such being the situation it is improper to presume the will of an MP to resign or the will of the National Assembly to release an MP on the basis of a declaration whose substance and goal are other than what the presumption suggests. Furthermore, it is impossible to make conclusions about a resignation that is presented to the National Assembly and that asks that a relationship of political representation be terminated and to base the conclusions on actions that were performed before the election of the head of an institution established by law.  Regarding the fact of an MP’s being sworn in in order to assume office upon his or her election as the head of an institution, inasmuch as the solemn act is required under a special law, that act per se cannot fulfill a purpose other than the one in the National Assembly’s previously stated declaration of the election. Specially vis-à-vis MPs whose term is reckoned from the Election Day, the legal effect of the act of being sworn in pertains to the exercise of their prerogatives (Decision No. 1/1992 on Constitutional Case No. 18/1991). The Constitution does not provide any reasons to attach to the act of being sworn in some other legal consequences, in particular the legal consequences that a resignation entails. The same holds true of the law which requires that the head of the institution that the said law is about should be sworn in.

Therefore, there is no reason to assume that when the National Assembly exercises a prerogative of administrative nature (Art, 84, item 8 of the Constitution), the National Assemblys declared will meets the parameters that distinguish the exercise of another prerogative before the expiry of the MPs  term of office (Art. 72, para 1, item 1 of the Constitution) and that when the Assembly acts at its own initiative though the Assembly’s pronouncement presupposes an MP’s initiative.

6. The premise that an MPs divestment is an issue resolved upon his or her election as the head of an institution established by law leads to the argumentation that the decision about the election eliminates yet a further factor that might bring the National Assembly to a violation of the Constitution.

Being the fundamental law the Constitution sets in a legal form the parameters on which Bulgarian political life stands and along which it develops: however, this presupposes the enforcement of built-in safeguards against unpredictability and abuse of power. It is not just the principles on which the Constitution stands and which are a sine qua non for its definition as a democratic constitution, inter alia, the principle of the separation of powers (Art. 8 of the Constitution), the principle of the law-abiding state (Art. 4, para 1 of the Constitution), the principle of political pluralism (Art. 11 of the Constitution), and, not to a lesser degree, the system of specific rules, institutions and tools of the exercise of power – all this has been conceived and functions notably to parry such a risk. The Constitutional Court features prominent in the context of the safeguards against any departure from the rules of democratic governance owing, inter alia, to the position that the Constitution assigns to it in the system of governance the prerogatives that are vested in the Court by the Constitution and the procedure that the Court is prescribed to follow by the Constitution. In general, the question of any violation of the Constitution should be treated exclusively in the context of the Constitution-established system of rules, tools and institutions.

Specifically regarding the concern that the National Assembly might refuse to accept an MP’s resignation and to divest him or her, such a case does exist.  In defiance of its obligation the National Assembly declined an MP’s resignation and refused to make a pronouncement. So a group of MPs approached the Constitutional Court that had not discussed the National Assembly’s resolution which had not been brought to it and asked the Court to rule on the compliance of the resolution with the Constitution as the Court had ruled that the MP should cease to exercise prerogatives before the expiry of the term of office on grounds of incompatibility (Decision No. 2/1992 on Constitutional Case No. 2/1992). Therefore, the risk that the National Assembly might refuse to divest an MP who resigns before the expiry of the term of office can be addressed within the framework of the existing Constitution prescription while there is no need of an interpretation to answer whether the exercise of a prerogative might achieve a broader effect than the prerogative is capable to generate.

7. The request of the President of the Republic that an interpretation be provided pursues a legal result by means of reconsideration of the content and scope of the National Assembly’s power under Art. 84, item 8 of the Constitution at the expense of a power deriving from Art. 72 of the Constitution on account of a similar goal in a form to eliminate incompatibility and to guarantee that the State institutions function impartially. In the Courts understanding a Constitution-granted prerogative shall not incorporate, fully or partly another Constitution-established prerogative. The prerogatives are conceived and established in a way to enable different functions of the National Assembly and to entail legal consequences that, in turn, predetermine the different effect of the resolution that the National Assembly pronounces and in particular the emergence of a legal relationship or the discontinuation of an existing relationship. It is another matter that a National Assemblys resolution as a formal act may incorporate more than one declarations of intention by which the Assembly exercises its different prerogatives, including the prerogative to elect the head of an institution established by law and to divest an MP upon the presentation of resignation.

8. In law the juristic fact of the assumption of office following a contract of employment or an appointment of a civil servant has precisely defined legal consequences. Obligations under a contract of employment (subject to the Labor Code or the Civil Service Act) arise upon the assumption of office as do rights like remuneration, recognition of the length of service, leave and coverage by the social security schemes. For this reason the assumption of office shall be in writing. The assumption of office may have a legal effect solely with regard to a prior employment contract relationship that is established upon the assumption of office. The function of the assumption of office is tounlockthe employment contract relationship. The assumption of office is solely a matter of the exercise of rights and the fulfillment of obligations that arise by virtue of the contract of employment.

The election of an MP establishes a specific legal relationship of political representation between the MP and the voters (the constituency). When the National Assembly elects an MP as the head of an institution, this entails the establishment of another legal relationship. It is evident that given their subject these are two different legal relationships. Yet the parties to the relationships are not overlying as the National Assembly doesnt oust the voters from the relationship of political representation. Therefore, the discontinuation of the relationship of political representation cannot be made subject to the declaration of intention to occupy a post under a different employment relationship. A conclusion about the one cannot be premised on the other as their purpose and content as couched in the valid act clearly show that these are different declarations of intention.