Decision No. 9 of 28 July 2016 on Constitutional Case No. 8/2016
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the President of the Republic of Bulgaria to the Constitutional Court seeking a declaration of unconstitutionality of the Decision on holding a national referendum (hereinafter referred to as “the Decision”), adopted by the 43rd National Assembly on 12 May 2016 (promulgated in the State Gazette, issue No. 37 of 2016), in the parts under items 2, 4, and 6, by which the following questions were approved:
- under item 2: “Do you support reducing the number of Members of Parliament to 120?”;
- under item 4: “Do you support the possibility of remote electronic voting in the conduct of elections and referendums?”;
- under item 6: “Do you support the election of the directors of the regional directorates of the Ministry of Interior and the heads of district police departments within the regional directorates of the Ministry of Interior by a majoritarian electoral system with an absolute majority in two rounds?”.
Summary of the Court’s Reasoning
Under item 2
The Court finds that a quantitative reduction in the composition of the National Assembly falls within the exclusive competence of the Grand National Assembly, insofar as such a change entails the risk of shifting the emphasis in the nature of political representation towards transforming it into an expert body. This would not merely constitute a breach of the form of government established by the Constitution, but could also undermine the very foundations of democratic representation. For this reason, such an assessment is entrusted to a significantly broader representative body, ensured through the election of a Grand National Assembly, as only it can directly reaffirm the will of the sovereign for such a change.
The reduction of the number of Members of Parliament to 120 must also be considered in another context - namely, with regard to the formation of a quorum and parliamentary majorities in the exercise of the various constitutional powers of the representative institution. […] It would be difficult to support the position that the adoption of a law by the votes of only 32 Members of Parliament (see Article 81, paragraphs 1 and 2 of the Constitution) could ensure the required legitimacy of the acts adopted by the National Assembly. However, this is an entirely possible scenario in a 120-member parliament.
The subject matter of the referendum under item 2 of the Decision raises a question whose resolution falls within the competence of the Grand National Assembly, pursuant to Article 158, item 3 of the Constitution. Therefore, the Decision in this part is unconstitutional.
The existence of an explicit constitutional mandate for legislative regulation of the procedure and organization of elections and referendums under Article 42, paragraph 2 of the Constitution leads to the conclusion that a Decision to hold a national referendum would be contrary not only to the law but also to the Constitution if, in its capacity as the deciding state authority, the National Assembly violates the binding procedural rules of the Direct Participation of Citizens in State Power and Local Self-Government Act. The present case is precisely such, as the issue concerns the admissibility of a question that has already been submitted to a national referendum.
In these circumstances, and taking into account the fact that the National Assembly has already adopted a legislative solution regarding remote electronic voting, it must be concluded that the reintroduction of the same question as a subject of a new referendum violates the principles of legal certainty and legal predictability, which are inherent elements of the rule of law.
Under item 6
The directors of the regional directorates and the heads of district police departments within the regional directorates of the Ministry of the Interior occupy a precisely defined position within the established hierarchical structure of the Ministry, which is characteristic of the executive branch as constitutionally organized.
The central question here is whether their direct election - by means of a majoritarian electoral system with an absolute majority in two rounds - would alter the constitutional model of the executive power.
The Constitutional Court finds that the answer is in the affirmative.
First, any compatibility between compliance with the constitutional requirements under Article 105, paragraphs 1 and 2, and Article 108 of the Constitution - imposing obligations on the Council of Ministers and the Minister of the Interior to ensure public order and national security - and the removal of their responsibility for the selection of personnel through whom state policy in this field is implemented, is inconceivable.
Second, under the existing constitutional model, such a change would give rise to a conflict within the chain of democratic legitimacy concerning the status and structure of specific state authorities and their officials.
Third, the inclusion of a directly elected director of a regional directorate within the strictly hierarchical structure of the Ministry of the Interior - characterized by subordination, accountability, and control - creates a risk that such an official may pursue an autonomous policy based on personal views regarding the activities of the directorate, disregarding the policy of the Council of Ministers in the field of internal affairs and security, for which the Government bears political responsibility. Even the hypothetical possibility of pursuing local policies in this particular sector would come into conflict with the constitutionally established unitary character of the State.
Fourth, as a rule, the Constitution does not allow for persons directly elected by the people to form part of the structure of the executive branch. The only exception is that provided under Article 139, paragraph 1 of the Constitution with regard to the mayor of a municipality, who is an executive authority at the municipal level, is directly elected, but in the exercise of his or her functions is bound by the law, the acts of the municipal council, and the decisions of the population. Had the constituent power intended to permit such an approach in other areas of the executive branch, it would have provided for it expressly.
Fifth, direct election presupposes the conduct of an electoral campaign - procedures for nominating candidates, campaigning in their support, pre-election meetings, the inevitable assumption of commitments towards voters, and it also raises issues concerning campaign financing.
For the Constitutional Court, the mechanical transposition of elections - understood as a democratic means for constituting representative bodies - onto elements of the organizational structure of the state administration, particularly with regard to politically neutral civil servants, is inadmissible.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 (the competence to rule on requests for a declaration of unconstitutionality of laws and other acts of the National Assembly) of the Constitution, in conjunction with Article 22, paragraph 1 of the Constitutional Court Act, the Constitutional Court declares unconstitutional the Decision on holding a national referendum, adopted by the 43rd National Assembly on 12 May 2016 (promulgated in the State Gazette, issue No. 37 of 2016), in the parts under items 2, 4, and 6, by which the following questions were approved:
- under item 2: “Do you support reducing the number of Members of Parliament to 120?”;
- under item 4: “Do you support the possibility of remote electronic voting in the conduct of elections and referendums?”;
- under item 6: “Do you support the election of the directors of the regional directorates of the Ministry of Interior and the heads of district police departments within the regional directorates of the Ministry of Interior by a majoritarian electoral system with an absolute majority in two rounds?”.