Sofia, 28 July 2016
Constitutional Case No. 8/2016
Rapporteur: Keti Markova
(Promulgated, Durzhaven Vestnik/DV, No. 60/02.08.2016)
The Constitutional Court: Boris Velchev, Chairman; and members: Tsanka Tsankova, Stefka Stoeva, Rumen Nenkov, Keti Markova, Georgi Angelov, Anastas Anastasov, Grozdan Iliev, Mariana Karagiozova-Finkova, Konstantin Penchev, Philip Dimitrov, Tanya Raykovska; and with secretary record-keeper Gergana Ivanova on 28 July 2016 heard in camera Constitutional Case No. 8/2016 that was reported by Justice Keti Markova.
The proceedings conform to Art. 149, para 1, subpara 2 of the Constitution of the Republic of Bulgaria.
The case was filed by the President of the Republic of Bulgaria in keeping with Art. 150, para 1 of the Constitution.
The Constitutional Court was approached with a challenge of the constitutionality of the Decision on the Holding of a National Referendum (hereafter the Decision for brevity’s sake), adopted by the 43rd National Assembly on 12 May 2016 (promulgated, DV, No. 37/2016), in the part comprising points 2, 4 and 6, that put the following questions:
- Point 2: “Do you agree that the number of the Members of Parliament should be reduced to become 120?“;
- Point 4: “Do you agree that voters should have an option [along with the conventional mode] of remote e-voting in elections and referendums?”;
- Point 6: “Do you agree that the appointment of the Directors of the Regional Directorates of the Ministry of Interior and of the Heads of District Stations with the Regional Directorates of the Ministry of Interior should be made conditional on a majority election system with absolute majority vote and runoff voting?”
The President’s argumentation maintained that the challenged texts of the National Assembly’s Decision are discordant with Art. 1, para 1, Art. 4, para 1, Art. 8, Art. 11, para 1, Art. 63, Art. 105, paras 1 and 2, Art. 116, para 1 and Art. 158, item 3 of the Constitution.
Regarding Point 2 of the Decision approved, the President noted that the number of Members of Parliament (MPs) (240) is part of the National Assembly’s status as prescribed by the Constitution. Therefore, a change of this status will have to be effected either by the adoption of a new Constitution or of an amendment to the existing Constitution. In either case though, in accordance with Art. 158, item 3 of the Constitution, and in consideration of the Constitutional Court’s jurisprudence of binding interpretations and inasmuch as the number of MPs is, essentially, a change of the form of government of the State, the power of doing so lies within the competence of a Grand National Assembly whereas an ordinary National Assembly is not vested with such legislating power.
A further reason of the President to claim that Point 2 of the Decision is in contravention of the Constitution is its negative impacts on the representative configuration in Parliament. The President insisted that to reduce the number of MPs to 120 would be at variance with the principle of political pluralism and would constrict the parliamentary representation of citizens.
In that sense and as the answer to the question as formulated and approved by Point 2 of the Decision lies within the competence of a Grand National Assembly, the matter, in the President’s view, should not be handled by a national referendum. The question is discordant with Art. 1, para 1, Art. 4, para 1, Art. 11, para 1, Art. 63 and Art. 158, item 3 (in the hypothesis of making changes in the form of government of the State) of the Constitution.
The challenge of the constitutionality of the Decision in the part of Point 4 is supported with reasons to the effect that a national referendum was held on 25 October 2015 on the same question which was a matter of the initiative committee’s accepted proposition and that the Central Election Commission (CEC) made the outcome of the referendum publicly known. Drawing on Art. 23, para 3 and Art. 52 of the Act on Direct Citizen Participation in State and Local Government (ADCPSLG) the National Assembly approved a Decision that supported the option of remote e-voting in elections and referendums providing legal safeguards are in place. § 145 of the Transitional and Concluding Provisions of the Act Amending the Election Code (TCP AAEC) was passed to make the legal arrangement for the future remote e-voting. By doing so the Legislature respected the citizens’ vote, therefore a second referendum on the same question will be in collision with the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution.
Point 6 of the Decision was challenged as seen as noncompliant with Art. 4, para 1, Art. 8, Art. 105, paras 1 and 2 and Art. 116 of the Constitution. The President insisted that the possibility to make the appointment of the Directors of the Regional Directorates of the Ministry of Interior and of the Heads of District Stations with the Regional Directorates of the Ministry of Interior conditional on a majority election system with absolute majority vote and runoff voting conflicts with the principle of the separation of powers since the personnel selection for the MoI’s Directorates and Stations lies entirely within the competence of the Executive branch of power. The role and position of the Executive branch of power within the system of separated powers were described with emphasis on the MoI’s operations and functions and a clear differentiation between the status and powers of the political appointees and the police officers. The President presented detailed reasons concerning the Constitution-set requirement of politically impartial civil service (Art. 116) which requirement would not be met in a reality of direct elections and the habitual canvassing and campaigning to solicit votes for a nominee, commitment of political parties and suchlike.
By a resolution of 7 June 2016 the Constitutional Court ruled on the merits of the challenge. The institutions concerned that were constituted parties in the proceedings were: the National Assembly, the Council of Ministers, the Minister of Interior, the Minister of Foreign Affairs, the Minister of Justice, the Minister of Regional Development and Public Works, the Supreme Administrative Court, the Prosecutor General, the Ombudsman, the Central Election Commission and the Supreme Bar Council.
An invitation was extended with a request for submission of an opinion in writing on the case to: the Initiative Committee with Chairman Stanislav Trifonov; the Balkan Assist Association; the Institute for Public Environment Development (IPED); the Initiative Committee “Vote without Borders” represented by Manuela Maleeva-Fragniere; Transparency International Bulgaria; the Federation of Independent Students’ Associations (FISA); the Civil Initiative for Free and Democratic Elections (GISDI); the Bulgarian Association for Fair Elections and Civil Rights; the National Youth Network; the Institute for Social Integration (ISI); the Bulgarian Helsinki Committee; the Union of Bulgarian Jurists; the Association for European Integration and Human Rights; the Institute of Modern Politics (IMP) and the Bulgarian Lawyers of Human Rights Foundation (BLHR).
The following eminent experts in the field of constitutional law were requested to submit their opinion in writing on the case: Prof. Dr Evgeni Tanchev, Prof. Dr Emiliya Drumeva, Prof. Dr Pencho Penev, Prof. Dr Snezhana Nacheva, Prof. Dr Plamen Kirov and Prof. Dr Georgi Bliznashki.
From among the opinions in writing on the case received from the institutions concerned, a well-substantiated position on the full tenability of the President’s challenge and its admissibility was expressed by the Minister of Foreign Affairs, the Minister of Justice and the Supreme Bar Council. They supported the reasons of the President’s challenge with an argumentation to the effect that the challenged parts of the Decision are in contravention of the Constitution as the questions that the Decision puts to vote lie within the competence of a Grand National Assembly and therefore are not to be tackled by a national referendum (Point 2 and Point 6), whereas the question as formulated in Point 4 is absolutely identical with the question that the latest referendum held on 25 October 2015 had to answer. A detailed argumentation was presented to support the view that the answers to the questions put to a referendum vote and accepted in Point 2 and Point 6 concern amendments to the Constitution that are intended to change the form of government of the State and that concern, in a direct manner, the constitutional status of the institutions of the Legislature and of the Executive.
The Minister of Interior submitted a position on the merits of the challenge only in the part regarding Point 6 of the Decision – on the question of the possibility to make the appointment of the Directors of the Regional Directorates of the Ministry of Interior and of the Heads of District Stations with the Regional Directorates of the Ministry of Interior conditional on a majority election system with absolute majority vote and runoff voting. The Minister found the challenge reasonable since the Ministry of Interior is an administration that makes up part of the Executive branch of power. To change the legal status of some of the staff of professionals and to make political appointments which would inevitably ensue from the election procedure would be violation of the principle of separation of powers and would, as a result, undermine the stability of the civil service.
The Minister of Regional Development and Public Works replied that the ministerial functions are within the confines of the Directorate General of Civil Registration and Administrative Services (DG GRAO) that is under the umbrella of the Ministry and with a function to make a routine check of the petition and the rolls and to give logistic support to the preparation and the holding of a national referendum and for the reasons stated he declined to take a position on the merits of the dispute which involved constitutional law matters.
The Ombudsman of the Republic of Bulgaria submitted a position in writing to say that the Decision’s challenged parts are compliant with the Constitution since the questions on which a national referendum is petitioned for are constitutionally admissible. In the Ombudsman’s view the questions do not touch the core values of the Constitution – human rights, the democratic fabric of the political system, the principles of the state committed to the rule of law, the popular sovereignty and the separation of powers. Even the questions that involve constitutional changes which a Grand National Assembly shall have the power to effect and which shall not issue from a referendum cannot be perceived as unconstitutional as they would only inform and would not be binding.
The rest of the constituted institutions concerned did not submit an opinion in writing within the preset time limit.
From among the NGOs, professional associations, trade unions and other organizations in the sense of Art. 20а, para 2 of the Rules on the Organization and Activities of the Constitutional Court (ROACC) that were requested to submit an opinion in writing, the following entities presented a reasoned position on the unsustainability of the President’s plea: the Initiative Committee with Chairman Stanislav Trifonov; the Balkan Assist Association; the Federation of Independent Students Associations; and the Bulgarian Lawyers of Human Rights Foundation. In their view none of the components of the Decision contested runs against the Constitution. In short, despite some diverging points of emphasis and shades these entities believe that the Constitution guarantees the right of citizens to take a decision by a referendum on any matter, including changes of the Constitution. This right shall not be curtailed for the people which is the sovereign has the right to address the issues that Art. 158 of the Constitution is about either by a Grand National Assembly or by a national referendum.
The Institute for Social Integration and the National Youth Network fully supported the President’s reasons as stated. They thought that the Decision’s challenged parts conflict with many constitutional standards, including the principle of the supremacy of the Constitution.
The Union of Bulgarian Jurists and the Institute of Modern Politics expressed their view which found the President’s challenge tenable in the part concerning Point 2 of the Decision that they found noncompliant with the Constitution and untenable in the remaining part. The competence of a Grand National Assembly vis-à-vis the concrete constitutional change precludes a resolution by a referendum whereas Point 4 and Point 6 do not indicate Constitution-imposed impediments. The 2015 national referendum on e-voting did not have any legally valid implications while the Constitution does not forbid revisiting a question on which a referendum has already been held. The direct election of the Directors of Police Directorates is a matter to be arranged by a law and does not necessitate adopting constitutional amendments.
The Institute for Public Environment Development and the Initiative Committee “Vote without Borders” commented only on Point 4 of the Decision that the President challenged and that they found to be incongruent with the Constitution. Drawing on the results of the 2015 national referendum and its legal implications these two entities expressed a view to the effect that the holding of a referendum again a few months later on the very same matter conflicts with the principles of the state committed to the rule of law, tarnishes the idea of direct democracy and discredits the Constitution-proclaimed principle of popular sovereignty.
The rest of the organizations that were requested to submit on opinion in writing on the case did not respond within the preset time limit.
From among the professors who are an authority on constitutional law an opinion in writing on the matter of the case was submitted by Prof. Dr Pencho Penev, Prof. Dr Snezhana Nacheva and Prof. Dr Plamen Kirov.
In the opinion of Prof. Dr Pencho Penev the Constitutional Court shall not control the National Assembly’s Decision that was challenged for conformity with the law but only for conformity with the Constitution, i.e. the Court’s check shall have to be limited to whether the manner in which the Decision was taken was valid. Alternatively he thought that though the defects of the act challenged concern conformity with the law, on the whole the Constitution-proclaimed principle of the state committed to the rule of law is betrayed. From this perspective Prof. Penev’s conclusion insists that all the three challenged points of the Decision make it noncompliant with the Constitution, yet the Court should abstain from plunging into a jurisprudence that will expand its power of control.
In her legal opinion Prof. Dr Snezhana Nacheva elaborated and supported with an argumentation the thesis that the President’s challenge is to be sustained. She thought that Point 2 and Point 6 of the Decision challenged are noncompliant with the Constitution as under Art. 158, item 3 of the Constitution the resolution of questions on which a national referendum has been held lies within the competence of a Grand National Assembly and not of an ordinary National Assembly while Point 4 is a question on which a national referendum has already been held. She gave reasons to show the importance of political representation, the constitution of a quorum, the majorities by which different acts of Parliament are adopted in view of the specifics of the parliamentary form of government and also to show the position and functions of the Executive branch of power within the system of statehood under the established constitutional model.
Prof. Dr Plamen Kirov supported his position that the challenged points of the Decision – Point 2, Point 4 and Point 6 – are noncompliant with Art. 1, paras 1 and 2, Art. 2, para.1, prop. 1, Art. 4, para 1, Art. 8, Art. 84, Art. 105, paras 1 and 2 and Art. 116, para 1 of the Constitution. He referred to constitutional jurisprudence to stress that the question of the number of MPs as formulated in Point 2 of the Decision is not a technical matter; the question pertains to the fundamental nature of political representation and is put in the context of the concrete model that the fathers of the Constitution adopted for the separation of powers. If the question is to undergo a revision in constitutional terms, the power to make the revision is vested in a Grand National Assembly and the legal problem as described in Point 6, as elsewhere, of the Decision – the direct election for the commanding positions within the Ministry of Interior. Concerning Point 4 Prof. Dr Kirov Plamen stated his view that given the previous referendum the question, as formulated, is devoid of purpose and there would be no sense to bring it to a vote again.
The check for compliance with the Constitution in the procedure of Art. 149, para 1, subpara 2 of the Constitution is a National Assembly’s act – a part of a Decision on the Holding of a National Referendum, that was approved following a proposition of an initiative committee with a petition signed by at least 400,000 Bulgarian citizens who hold voting rights and containing six question, each formulated in a separate point.
Referendums and civil society initiatives are well accepted as an essential additional pillar to representative democracy in many modern democratic states. While referendums are seen as a tool that directly brings citizens into the process of exercise of and control on the State power, they are also criticized as risky for the possible distortion of the decisions taken directly by the citizens and for the possible violation of the citizens’ rights and freedoms, in certain cases. Despite the criticisms a citizens’ initiative to hold a referendum shall be enabled by the legislation. The Constitution of the Republic of Bulgaria conforms to this tendency and reads thus: “The entire power of the State shall derive from the people. The people shall exercise this power directly and through the bodies established by this Constitution.” (Art. 1, para 2). Thus the fathers of the Constitution put on an equal footing the instruments by which the sovereign exercises power.
To check for compliance with the Constitution the propositions challenged from the National Assembly’s Decision the Constitutional Court had to outline the scope of questions that may be brought to a national referendum which is consistent with the Constitution now in force. This relates directly to the view that modern constitutional law holds, viz. of the differentiation of constituent and constituted power as treated in Chapter Nine of the Constitution. Essentially some of the Decision’s challenged points directly impact the exercise of constituent power. The Court thought it necessary to present the fundamental concepts concerning this matter that were to be its points of departure.
The Constitution of the Republic of Bulgaria of 1991 explicitly provides for enabling the people to exercise the State power that derives therefrom through a national referendum, inter alia, (Art. 10 read in combination with Art. 1, para 2 of the Constitution). Inasmuch as Art. 42, para 2 of the Constitution refers to legislation that arranges solely the organization and procedure for the holding of elections and referendums, it is to be deduced that the conditions are to be found in the Constitution itself which is the supreme law whose provisions are applied directly.
Art. 1, para 2 of the Constitution proclaims an underlying principle of the constitutional order: the sovereignty of the people. Sovereignty of the people is an element of the core of the organic law, the Constitution, where the reached value-based consensus is expressed on the organization and function of society and the State. Popular sovereignty does not play outside and independently of the remaining fundamental principles but together with them forms a single integrated entity. The interplay of the popular sovereignty, the separation of powers and the state committed to the rule of law is in the core of democratic government with constraints based on the consensus of the people governed who is the owner of the sovereignty. The principle of the separation of powers guarantees that the principle of popular sovereignty will materialize and lay down a barrage against absolute power in the constitutional systems. As constitutional law developed the organic laws became the supreme laws in societies and states and binding on all and thus lay down a barrage against the transformation of constitutional power into absolute power. Constitutionalism is incompatible with the concept that the sovereign stays beyond the law which it itself makes. Being the sovereign the people keeps a rein on public authorities (constituted powers) and at its own will accepts to obey the organic law. The differentiation of constituent power and constituted powers well entrenched in constitutional jurisprudence ensures democratic government. The direct involvement of the sovereign in the performance of functions of constituted powers is possible in the Legislature. The dynamic pace of societal relations calls for a Legislature, as a constituent power, that is able to respond adequately while the footing on which the underlying political choice rests remains untouched.
Also the 1991 Constitution of the Republic of Bulgaria provides for a path where it is possible for an ordinary National Assembly to adopt amendments to the Constitution providing the conditions, procedures and modes whose legal arrangement is found in Chapter Nine of the Constitution are abided by. The possibility for a legal and constructive manifestation of the transforming capacity of the sovereignty of the people – the constituent power – is connected with the concept of the rationalization of this power. In terms of this concept a demarcation line is drawn between originary and derived constituent power, and is made contingent on the nature and scope of the underlying political choice.
Derived constituent power is vested in the representative body. The people always owns the supreme power and joins directly in exercising it, in keeping with the rules it has put into the Constitution to be safeguards for the very constituent power. The existing Constitution explicitly proclaims the principles of popular sovereignty, of the separation of powers and of the state committed to the rule of law and systematically implements them in the legislation on the organization and function of state power which is owned by the people. A special chapter in the Constitution treats exclusively the legal status of constituent power. The Bulgarian Constitution vests the constituent power in a specially elected institution which is charged exclusively with the exercise of originary constituent power – a Grand National Assembly (GNA) whereas the derived constituent power is vested in the National Assembly. A Grand National Assembly is “set in motion” by a “gear” that is described in Chapter Nine only when changes that are explicated in Art. 158 are to be effected in the existing Constitution. The originary constituent power itself is constrained by the Constitution-vested Grand National Assembly’s prerogatives and by the organization and mode that are prescribed for a GNA “in action”. In this model the power of the sovereign is exercised by a Grand National Assembly, however the GNA is mandated by the sovereign’s (the electorate’s) choice to amend the Constitution and to do that subject to political representation that is broader than that of an ordinary National Assembly. In the view of the fathers of the Constitution election is the applicable form of direct democracy. As it is election that is specifically scheduled to constitute a Grand National Assembly, it reasserts the sovereign’s will in each particular case to pass specific amendments to the Constitution. The Constitution explicitly provides for elections as the sole form of the sovereign’s direct involvement in the mechanism of the exercise of originary constituent power.
Art. 153 of the Constitution reads that being a power delegated by the sovereign the National Assembly shall be free to amend and supplement all provisions of the Constitutions except those that are vested in a Grand National Assembly by Art. 158 of the Constitution. It is the very same representative body which is mandated by the sovereign to legislate (to perform the legislating function). Within the scope of the competence it is vested with the National Assembly shall be free to pass laws amending or supplementing the Constitution, providing the parliamentary procedures as prescribed in Chapter Nine of the Constitution are followed, i.e. the will of the sovereign is implemented.
The principle of popular sovereignty is an underlying principle of a constitution, hence the formulation of all constitution provisions in the spirit and rationale of the said principle. That principle materializes in both, in the established forms of the exercise of power of state by the sovereign and in the prohibitive provision (Art. 1, para 3 of the Constitution) reading that no part of the people, no political party nor any other organization, state institution or individual shall usurp the expression of the popular sovereignty. The major forms of the sovereign’s direct participation in the exercise of the power of state are likewise provided for in the Constitution (Art. 10, Art. 42, Art. 84, item 5 and Art. 136). The regulation is principle-abiding while the detailed arrangement of the procedure and organization of elections and referendums is assigned to Parliament.
The national referendum is directly associated with the exercise of constituent power. The decision to hold a national referendum can be taken only and solely by the National Assembly pursuant to Art. 84, item 5 of the Constitution. The National Assembly’s prerogative under Art. 84, item 5, Art. 10, Art. 42, para 2 and the provisions in Chapter Nine of the Constitution form a set of standards that have legal implications in an interplay with one another. It is to be deduced from their effect that the National Assembly shall be free to take a decision to hold a national referendum solely on matters that lie within its competence, including amendments to the Constitution. Only then will a decision to this effect be compliant with the Constitution which compliance the National Assembly must observe.
The Constitutional Court members found it was necessary to note that it is duty-bound to hand down a ruling that should not go beyond the challenge that has been brought to them, i.e. what is checked for compliance with the Constitution is part of a Decision on the Holding of a National Referendum and anything beyond the challenge should not be checked for compliance with the Constitution. The case in question does not involve a request for an interpretation of the Constitution, for if it did, that would allow an approach other than causal interpretation. The opposite would make the Constitutional Court a positive lawmaker, moreover a constitution-maker and this is inadmissible. It is exactly the effect that would have arisen if the court takes the liberty to go beyond the causal interpretation that is needed here and to move to another of the prerogatives that it is vested with – that of the provision of a binding interpretation of the Constitution for which it has not been approached in an appropriate manner.
A further clarification should be made. Some of the contributions in writing insist that all or some of the questions proposed for a referendum to answer them and forming the challenged part of the Decision are unconstitutional. From a constitutional perspective and in view of the matter of the concrete constitutional dispute, questions shall not be unconstitutional for, by definition, no such can exist. It is the parliament’s act that is entirely or partly challenged that might be in contravention of the Constitution.
On the challenge of the constitutionality of Point 2 of the Decision on the Holding of a National Referendum, adopted by the 43rd National Assembly on 12 May 2016.
Point 2 of the Decision reads thus: “Do you agree that the number of the Members of Parliament should be reduced to become 120?“
Chapter Three of the Constitution provides for the constitutional status of the National Assembly as a representative institution and for the constitutional status of the Members of Parliament. Art. 63 reads that the National Assembly shall consist of 240 members. Evidently Point 2 of the Decision, a point that is challenged by the President, is the formulation of a question that suggests that Art. 63 of the Constitution be amended. To judge whether this part of the Decision is noncompliant with the Constitution two major questions should be answered: 1) Is the proposition to amend the Constitution a prerogative of a Grand National Assembly or of an ordinary National Assembly? 2) If the proposition on which a referendum is held is a prerogative of a Grand National Assembly, is it in conformity with the Constitution to seek a resolution subject to the rules and with the ways and means of direct democracy, that is, to resolve it by holding a national referendum on it?
Art. 1, para 1 of the Constitution reads that Bulgaria shall be a republic with a parliamentary form of government; Art. 62 of the Constitution reads that the National Assembly shall be vested with the legislative authority and shall exercise parliamentary control. That is to say, the National Assembly is the supreme State authority in which the Constitution vests the most important functions of statehood. To enable the performance of these functions a broad prerogative is vested in the National Assembly, one of the functions being to resolve on the holding of a national referendum – Art. 84, item 5. With reference to this constitutional dispute the legal problem pertains to the substantive competence of the authority that is free to approve the proposed amendment of the text of Art. 63 of the Constitution.
The Constitutional Court found it was necessary to state expressly that the matter is resolved fully at constitutional level while the special law just elaborates on the constitutional postulates (Art. 9, paras 1 and 2 of the Act on Direct Citizen Participation in State and Local Government/ADCPSLG).
The Constitutional Court thought that in this particular case the competent authority is only and solely a Grand National Assembly. Such a conclusion is invited following a comprehensive analysis of the precepts of Art. 153 and Art. 158, item 3 of the Constitution for what is involved is a change that affects the form of government of the State. Such a change would be the reduction of the number of the now 240 MPs to 120. This is so as the change substantially impacts the National Assembly’s organization, structure and activities. It is not accidental that the Seventh Grand National Assembly, in its desire to create a stable democratic, law-governed and welfare state codified rules that make it practically impossible for floating majorities in Parliament to enact amendments to the Constitution within the scope of Art. 158. This is why Chapter Nine of the Constitution assigns these most essential Constitution reforms solely to a Grand National Assembly. Interpretative Decision No. 3/2003 on Constitutional Case No. 22/2002 is to that effect as it reads that any change of the number of MPs which is fixed by the Constitution should be treated as a change of the form of government of the State. The binding interpretation of Art. 158, item 3 of the Constitution as decreed by this decision is exampled by the number of MPs. The operative part of the judgment and the reasons of the judgment shall not be separated as it is only in their entirety and unity that they form the Constitutional Court’s interpretive act which is binding on all.
The question of the number of MPs and the possibility to reduce that number of 240 to 120 has yet another aspect which is relatable to the change of the form of government of the State. What is had in mind is the essential nature of political representation, the balance and the measure sought in the ratio between the number of Bulgarian citizens and the number of the Members of the National Assembly, between the political parties that are represented in Parliament, including the possibility for small parties to be represented in Parliament and the possible impact of that process on the overall look of representative democracy.
As mentioned, the number of MPs is a matter that lies exclusively within the competence of a Grand National Assembly, according to Art. 158, item 3 of the Constitution and this is not accidental at all for it has the aspect of an essential characteristics of political representation in a state with a parliamentary form of government and mirrors the measure that is accepted by the constituent power in the assessment of the ratio. In addition to the number of MPs as fixed by the existing Constitution – 240 in a National Assembly and 400 in a Grand National Assembly – the Bulgarian constitutional tradition is familiar with the other, alternative approach, too, whereby a certain number of citizens is fixed to make up a constituency that elects one MP. The former approach was taken to the Turnovo Constitution and the 1947 Constitution whereas the 1971 Constitution and the Constitution now in force fix the number of seats in Parliament.
Political representation is an activity that is intended to enable the views, opinions and interests of the citizens to materialize in the public policy decision taking process. Any reduction of the number of MPs in Bulgaria may be made meaningful if the perception is of a shift of emphasis in the concept of political representation rather than of a numerical reshuffle within the representative institution’s composition. MPs are not just delegates without recourse to the possibility to form their own position on political life issues nor are MPs expected to act first and foremost as experts. The political problems that the MPs must solve are not just a matter of expertise which is expected to take them to the correct solution. Political problems involve answers about what is to be done and include facts and values, ends and means. The judgment of facts and the commitment to values and the end and means are interwoven into political life. The need of representation arises exactly where people would be unwilling to let experts in the main solve the problems.
On the basis of the above-stated considerations and with recognition of the tradition of the standard of representation in this country, the Court took the view that any reduction of the number of MPs should be the exclusive prerogative of a Grand National Assembly inasmuch as it may be risky to make such a move for it might shift the focus in the nature of political representation to institutionalized expertise. The consequence of this would be not just an upset of the Constitution-established form of government; such a move might undermine the foundations of the democratic representation itself. Therefore, the judgment is to be made by a significantly larger number of MPs who are to be elected to sit in a Grand National Assembly for it is only a Grand National Assembly that has the capacity to reassert directly and to implement the sovereign’s will that such a change would be effected.
Any reduction of the number of MPs to make them 120 should be considered in an additional context: the constitution of a quorum and of majorities in Parliament in the exercise of the representational institution’s different Constitution-vested powers, the passage of legislation overriding a presidential veto, the adoption of a law amending or supplementing the Constitution, the vote of confidence or the vote of non-confidence in the Council of Ministers, an impeachment against the President, etc. It would be difficult to agree with the view that the enactment of a law by 32 MPs (cf. Art. 81, paras 1 and 2 of the Constitution) gives the legitimacy that is required for the National Assembly’s act. However, this hypothesis is likely to materialize in full in a situation of legislating in a 120-seat Parliament.
The National Assembly’s prerogative to resolve on the holding of a national referendum is directly bound with the other prerogatives that the Constitution vests in the Assembly. In that context the questions on which a national referendum is held shall be questions that lie within the competence of the National Assembly. The conclusion to that effect is to be drawn from the possible legal implications that might arise from the result of the popular vote at a referendum. The legal frame for a national referendum as a form of direct participation of the citizens in government makes provision for such implications, among other matters.
Thus premising on Art. 9, para 6 of the Act on Direct Citizen Participation in State and Local Government (ADCPSLG) any decision adopted by national referendum shall be subject to a subsequent approval by the National Assembly, i.e. the decision has direct effect. Parliament will intervene only when an appropriate act is to be adopted – a law, a decision and suchlike – for the purpose of enforcing the decision. Evidently, given the fact that the national referendum is overriding, it is unable to perform as appropriate to honor the citizens’ vote and to have the intended legal effect if the question(s) on which the referendum has been held turned out to lie within the competence of another institution or even of another branch of power.
There exists no cogent legal argumentation to support the holding of a national referendum to seek an answer to a question of the sort “Do you want conviction for X?” or “Do you want mercy for Y?”. It is obvious that the former lies within the competence of the Judiciary (Art. 117 ff. of the Constitution) and the latter lies within the competence of the President (Art. 98, item 11 of the Constitution). In a state committed to the rule of law and in a reality of separation of powers the National Assembly will not solve a problem that lies within the competence of any of the powers other than Parliament.
The opposite approach stands for the holding of referendums on matters of any sort, including matters that, as commonly known, will not have direct legal effect and thus may make possible to exploit direct democracy for purposes that are hostile even to it. The popular (citizens’) vote should not be abused by nurturing legally unwarranted expectations which is exactly the reason why the Constitution vests the National Assembly with the prerogative to resolve on the holding of a national referendum and in addition, with the discretionary power to judge whether the question is or is not eligible. The required verification that the matter lies within the competence of a referendum is yet another of the series of constitutional measures that the sovereign has assigned to Parliament – the function to be a filter against any risk of denigrating direct democracy.
Following the logic of combining the direct and representational exercise of sovereignty the Constitution and the ADCPSLG define the National Assembly as a particular agent in this process owing to the high measure of its democratic legitimacy but also because the National Assembly expresses and represents most directly the interests of the entire nation. This is the reason for the requirement that the Assembly should corroborate that the initiators of the initiative for the holding of a national referendum satisfy all Constitution-set and legal requirements. It is important to specify that the initiative committee, despite the support it received from a significant number of Bulgarian citizens, could not identify with the sovereign, given the prohibition as set forth in Art. 1, para 3 of the Constitution and reading that no part of the people, no political party nor any other organization, state institution or individual shall usurp the expression of the popular sovereignty. The circumstance that a question on which the holding of a referendum may be proposed will have to be formulated by an initiative committee and citizens who sign up a petition and who claim that they rightly are “part of the nation” as it is, calls for a National Assembly’s sanction. The Resolution under Art. 84, item 5 of the Constitution as an act of specific ante control should provide the guarantee that the decision that the citizens will take will be a decision that lies within the competence of the National Assembly. The need to conform this decision to the Constitution-set and legal requirements derives, inter alia, from the principle of the state committed to the rule of law, as proclaimed by Art. 4, para 1 of the Constitution.
Respect for the principle of the state committee to the rule of law requires that the Legislature equally obey the laws that it enacts. Therefore, the National Assembly violated Art. 9, para 1 and para 2, subpara 1 of the ADCPSLG, along with the remaining above-cited Constitution prescriptions when it approved the Decision challenged in the part that Point 2 constitutes and thus violated Art. 4, para 1 of the Constitution.
In view of all that has been stated so far the Constitutional Court drew the conclusion that the propositions on which the referendum was held under Point 2 of the Decision gives rise to a problem whose solution lies within the competence of a Grand National Assembly, pursuant to Art. 158, item 3 of the Constitution. Therefore that part of the Decision is unconstitutional.
On the challenge of the constitutionality of Point 4 of the Decision on the Holding of a National Referendum, adopted by the 43rd National Assembly on 12 May 2016.
This contested part of the Decision accepts the Initiative Committee’s proposed question: “Do you agree that voters should have an option [along with the conventional mode] of remote e-voting in elections and referendums?” To judge the case on its merits in that particular part of the challenge the Constitutional Court took into consideration the following relevant facts:
A national referendum was held on 25 October 2015 on the question that reads thus: “Do you agree that voters should have an option [along with the conventional mode] of remote e-voting in elections and referendums?” Decision No. 2855-НР of 30.10.2015 was released by the Central Election Commission to announce the results of the vote where, based on aggregate data, the number of citizens who enjoy voting rights was 6,885,893 and the number of citizens who went to the polling stations for the national referendum was 2,709,210 which is below the turnout of the total of 3,500,585 that the preceding parliamentary election attracted. The 2,709,210 voters who responded to the national referendum make up 39.34% of the citizens who are eligible to vote. The YES ballot was the choice of 1,883,411 citizens who account for 69.52% of the voter turnout or it makes up more than half of the voters who went to the polling stations for the national referendum. The NO ballot was the choice of 704,182 citizens who account for 25.99% of the turnout at the national referendum.
By the same decision the CEC assumed to be in the hypothesis of Art. 23, para 3 of the ADCPSLG that reads: Where the number of referendum voters is lower than the number of voters who participated in the latest National Assembly elections but constitutes more than 20 per cent of citizens who are eligible to vote, and if the "Yes" voters are more than half of the referendum participants, the referendum proposition shall be presented to the National Assembly and considered as per the procedure of Article 52. Accordingly, the CEC decreed that the decision should be sent to the National Assembly after its entry into force.
On 21 January 2016, drawing on Art. 86, para 1 of the Constitution read in combination with Art. 52 of the ADCPSLG the National Assembly adopted a decision by which: 1) The National Assembly agrees that the remote e-voting should be an option in elections and referendums subject to law-provided guarantees of secret ballot, civil society control and information systems security. 2) By 29 February 2016 the Parliamentary Committee on Legal Affairs should discuss on first voting all bills submitted previously and recently, on the Election Code, including bills that provide for remote e-voting and should consider and analyze all options and procedures of remote e-voting in the enabling systems of European legislation. 3) By the end of April 2016 the Committee on Legal Affairs should submit a report for second voting on the bills that concern the Election Code and were approved on first voting.
The passage of § 145 of the Transitional and Concluding Provisions of the Act Amending the Election Code (TCP AAEC) (DV, No. 39/2016) provides for a possibility for experimental remote e-voting after the first day of January 2018 subject to definite specific conditions.
The Decision challenged (Point 4) agreed on holding a national referendum on the same question.
The Constitution-provided regulation of elections and referendums is parsimonious – Art. 10, Art. 42, para 2, and Art. 66 of the Constitution. Unlike the fundamental principles and conditions for the holding of a national referendum that are to be found in the Constitution texts about the organization and procedure for the holding of elections and referendums, Art. 42, para 2 of the Constitution explicitly reads that the organization and procedure shall be established by a law. It is to be understood, therefore, that the procedure rules of the initiating and holding of a national referendum, for the tallying of the voting results and the judicial review are arranged in the ADCPSLG by force of the already mentioned Constitution assignment. The rules of holding elections are likewise arranged at law level (the Election Code). When the legitimacy of elections is checked, pursuant to Art. 66 of the Constitution, the Constitutional Court acts in abidance by the law-established procedure, i.e. in abidance by the Election Code rules and again on the basis of the Constitution assignment pursuant to Art. 42, para 2. The difference is that under the ADCPSLG judicial review in the event of contested results of the referendum is assigned to the Supreme Administrative Court (SAC) (Art. 6, para 2 and Art. 24), whereas the Constitutional Court powers of review are confined to the check for compliance with the Constitution of the Decision on the Holding of a National Referendum until the date is fixed on which the referendum will be held.
The existence of an explicitly Constitution-assigned legal arrangement of the organization and procedure for the holding of elections and referendums pursuant to Art. 42, para 2 of the Constitution invites the conclusion that the Decision on the Holding of a National Referendum will be in contravention of both, the law and the Constitution, if the National Assembly it its capacity of a key institution of the State breaks the ADCPSLG binding rules of procedure. The case in question is precisely such for the problem boils down exactly to the admissibility of a question on which a national referendum has already been held.
Art. 23, para 1 of the ADCPSLG reads that the proposition on which a referendum has been held shall be subject to the cumulative effect of two conditions: 1) If the number of referendum voters is not lower than the number of voters who participated in latest parliamentary election; and 2) If the YES voters constitute more than half of the referendum participants. Therefore, failure to meet either of the conditions leads to the rejection of the referendum proposition. The data to be found in the CEC’s cited decision on the results of the referendum that was held on 25 October 2015 indicate that though the YES answer was the choice of more than half of the voters who participated in the national referendum, that number is below the voter turnout at the latest parliamentary election, hence the conclusion to be made that the proposition on which the referendum was held is rejected. The hypothesis of Art. 23, para 2 of the ADCPSLG on which the CEC decision is based is a particular case of a proposition “not accepted” in the sense of Art. 23, para 2 of the ADCPSLG, the implication being that a national referendum on the same question may be initiated no earlier than two years following the referendum date. It is this requirement that the National Assembly did not conform to when it took the decision that is challenged here. The question that is the matter of the proposition of a referendum and that was not accepted when a referendum was first held on it was put up to vote again earlier and before the expiration of the term that Art. 23, para 2 of the ADCPSLG provides for and thereby violates Art. 42, para 2 of the Constitution read in combination with Art. 23, paras 2 and 3 of the ADCPSLG.
Though the reasons given are sufficient to declare the Decision challenged unconstitutional in that part, it should be noted that the Decision is in collision with the principle of the State committed to the rule of law that the Preamble to and Art. 4, para 1 of the Constitution proclaim. Given these circumstances and recognizing the fact that the National Assembly gave a legal sanction to remote e-voting, the conclusion invited is that the proposition of a new referendum on the same matter (question) collides with the principle of legal certainty and predictability of legislation that are immanent to the state committed to the rule of law. It would be appropriate to recall the Constitutional Court’s position in its Decision No. 17/1997 on Constitutional Case No. 10/1997, Decision No. 1/2005 on Constitutional Case No. 5/2002, Decision No. 10/2009 on Constitutional Case No. 12/2009, Decision No. 1/2014 on Constitutional Case No. 22/2013, viz., that the National Assembly’s decision shall conform to both: the Constitution and the legislation that the National Assembly passes, for a state committed to the rule of law stands for the exercise of sovereign power on the basis of the Constitution and within the framework of laws that conform to the Constitution in substance and in form.
On the challenge of the constitutionality of Point 6 of the Decision on the Holding of a National Referendum, adopted by the 43rd National Assembly on 12 May 2016.
Point 6 of the Decision that is challenged by the President reads thus: “Do you agree that the appointment of the Directors of the Regional Directorates of the Ministry of Interior and of the Heads of District Stations with the Regional Directorates of the Ministry of Interior should be made conditional on a majority election system with absolute majority vote and runoff voting?”
To judge whether that part of the Decision challenged is compliant with the Constitution, the same line of reasoning as that for Point 2 should be followed: Can the changes stay at the level of the law or do such changes call for amendments to the Constitution and if amendments are required, within the competence of which authority do they lie? Is that authority a Grand National Assembly or an ordinary National Assembly?
The existing Constitution establishes the pattern of statehood power and its exercise through the agency of official institutions that are vested with different powers and makes the fundamental constitutional principles – popular sovereignty, separation of powers and the state committed to the rule of law – binding on these institutions. The principle of the separation of powers that Art. 8 of the Constitution proclaims must be interpreted in the light of the provisions concerning the constitution, structure and interplay of the constituted powers and their prerogatives. The institutions established express the separation of powers but only within the framework of the complete constitutional system. With the parliamentary form of government in place the Legislature, the unicameral national assembly exercises the legislative power and control on the government; the Executive branch of power rests with the Council of Ministers; the Judiciary branch of power is vested in the relevant constitutional authorities. The existing constitutional model does not allow the separate branches of power to be fully and absolutely independent of one another. On the contrary, this model is designed in a way to ensure the stability and balance between the powers so that independence will not rule out cooperation nor will opposition rule out interaction.
By the definition of government in functional terms modern constitutional law theory describes it as an activity to perform political leadership functions. The Council of Ministers is the political apex of the Executive branch of power. The Council of Ministers is the titleholder of the Executive and, in keeping with Art. 105, para 1 of the Constitution leads the implementation of the domestic and foreign policy of the State in line with the Constitution and the laws, while under para 2 of the same article the Council of Ministers ensures the public order and national security and exercises overall guidance of the public administration and the Armed Forces. The individual ministers are members of the Council of Ministers together with the Prime Minister and the Deputy Prime Ministers and as a rule run ministries, except insofar as the National Assembly resolves otherwise (the position of a “minister without portfolio”) – Art. 108, paras 1 and 3 of the Constitution.
The analysis of the provisions that are systematically given in Chapter Five (Council of Ministers) of the Constitution, treated in an integrated manner, express the view that the Executive branch of power consists of the Government and the public administration – Arts. 105-106, 116 of the Constitution. The constitutional design functionally enables the Government [the central government] to formulate appropriate policies and to perform all formative, coordinating and controlling functions that form the concept of State leadership while the competence of the administration is described as performance of state-related functions of logistics and expertise to enable the political decisions. In that the public administration should be treated as a steady, politically impartial and expert component of the machinery of State power. Hence the conclusion that the Government [the cabinet] and the public administration are two segments of the Executive branch of power and these two segments operate in a synergetic manner and in inextricable interplay. It is important to note that the entire Executive branch of power is built on the observation of several fundamental principles that are applicable to all the components of the Executive regardless of the form of their structural particulars: continuity, hierarchy, unity, appointment, teamwork and portfolios.
With relation to the specifics of the challenge that was brought to the Constitutional Court these basics clearly show the prevailing concept that the Minister, being a central one-man State authority and along with being the head of the Ministry of Interior and the institution itself [the Ministry] are part of the structure of the Executive branch of power with a top-to-bottom structure, as a rule. The Council of Ministers shall be controlled for the performance (or failure to perform) of its Constitution-assigned duties by the Parliament that elected it and shall be politically accountable to it. Along with that the special or general administrative acts and secondary legislation of Executive are controlled by the Judiciary.
In terms of status – the structure, functions and prerogatives that fully meet the criteria of the constitutional frame of the structure of the Executive – the Ministry of Interior (MoI) is headed by a Minister who implements the government policy and its priorities, strategies, programs, objectives and tasks related to the MoI’s activities and who is responsible for their execution. It lies within the Minister’s exclusive competence to establish the District Stations with the MoI Regional Directorates (Art. 42, para 4 of the Ministry of Interior Act/MoI Act) while the Regional Directorates that are the major arms of the MoI to perform its basic functions assigned are established on a territorial principle and their areas of operation are determined with an act of the Council of Ministers upon proposal of the Minister of Interior – Art. 42, para 1 of the MoI Act. Under the legislation in force the Regional Directorates are headed by Directors and the District Stations by Heads who are appointed by the Minister of Interior. They are civil servants in the sense of Art. 142, para 1, subpara 1 of the MoI Act and their appointment is subject to selection through competition.
The Directors of the Regional Directorates and the Heads of the District Stations within the MoI’s regional directorates hold a fixed position within the Ministry’s hierarchy that is characteristic of the Executive in general, subject to the constitutional arrangements to that effect.
The dominant question that arises hereof is: if the Directors are elected directly in a two-round system with absolute majority, will this change the constitutional model of the Executive?
The Constitutional Court assumed the answer is assertive. First, any compatibility is to be ruled out between the observation of the Constitution-set requirements of Art. 105, paras 1 and 2 and Art. 108 to the Council of Ministers and the Minister of Interior that they should ensure the public order and national security and the elimination of their responsibility to the selection of the personnel who will implement the policies of the State in that field. The problem becomes particularly acute as it involves the command staff of the Ministry’s key territorial divisions that by definition perform their official duties in subordination to and within the chain of command with the MoI Secretary General on top.
Second, given the existing constitutional model, a collision would arise in the chain of the democratic legitimacy in the status and structure of concrete institutions of State and their staff. For instance, a director of a MoI’s regional directorate who is elected in a direct election cannot be in direct subordination to the MoI’s Secretary General who holds the top professional position with the Ministry while, in parallel, the position is a civil service position and the appointment is subject to a presidential decree following the nomination for the position by the Council of Ministers.
Third, the possibility to incorporate directly elected Regional Directorate Directors into the MoI’s strictly hierarchical structure to which subordination, reporting and control are inherent constitutes a risk that the officials might pursue their own policy that mirrors their vision of the directorate’s operation and ignore the Council of Ministers’ policies in the field of home affairs and security for which the cabinet bears political responsibility. The possibility, even as a hypothesis, to pursue local policies in this particular sector would be in collision with the Constitution-established unitary character of the State.
Fourth, as a rule the Constitution forbids to let individuals who have been directly elected by the popular vote accept a post in the Executive. The only exception is to be found in Art. 139, para 1 of the Constitution concerning mayors of municipalities. The mayor is a body of the Executive within a municipality; the mayor is elected directly, yet the performance of official duties abides by the law, the municipal council acts the general populace meeting decisions. If the fathers of the Constitution were willing to take such an approach to other segments of the Executive, they would have expressly codified it. The case as it is, is an exception that is to be approached with a latitudinarian interpretation. If the direct election of mayors fully corresponds with their Constitution-vested authority and responsibility, this shall not be automatically transferred to the commanding staff (chiefs) within the MoI’s centralized hierarchic system.
Fifth, a direct election presupposes an election campaign: nomination, canvassing, campaign meetings, commitments (impossible to be circumvented) made to the electorate and the election campaign financing. This suggests possible direct or indirect involvement of political parties, economic groups and other organizations in the election process while it is likely that commitments may be made that diverge from the Council of Ministers policies. However, this is incompatible with Art. 116, para 1 of the Constitution which reads that civil servants shall implement the nation’s will and serve the nation’s interests and shall obey the law and nothing but the law and demonstrate political impartiality. Art. 116, para 2 of the Constitution provides expressly for the drafting of legislation to provide for the procedure of appointment and dismissal of civil servants and for the circumstances when they will be free to join political parties and trade unions and to go on strike. Such legal arrangement is to be found in the Civil Service Act and the MoI Act. Such legislation in force builds on the basic constitutional principles concerning the status of the civil servants to whom the MoI Act poses further requirements forbidding them to be members of political parties, to engage in political activities, to express political views or within their official duties to take action that is damaging to the political impartiality that is binding on them. A possibility to politicize the MoI system is a possibility to undermine the principles upon which it functions.
The Constitutional Court finds unacceptable the automatic transfer of elections that are seen as a democratic way in which representative institutions are constituted onto elements of the organizational structure of the public administration, particularly onto politically impartial officers within the organization. Therefore a resolution of the matter on which a national referendum is proposed necessitates amendments to the Constitution since the matter is incompatibles with the existing constitutional matrix of the Executive. However, amendments to the Constitution lie within the competence of a Grand National Assembly and not an ordinary National Assembly as they involve a change of the form of government of the State. This is so since the structure and constitution, hence the status of the bodies of statehood within the Executive, change substantially. The Court reemphasized its position that matters pertaining to amendments to the Constitution in force lie within the exclusive competence of a Grand National Assembly and therefore, shall not be taken to a national referendum. That is why Point 6 of the Decision challenged is dissonant with the Constitution.
The Constitutional Court thought it was necessary to reemphasize that by nature and effect a national referendum is a powerful tool to enable citizens to exercise sovereign power and to exercise it directly. A referendum differs substantially from the other forms of civic participation and is not a subspecies of sociology survey at all. Therefore it is imperative that the National Assembly strictly exercise the powers that the Constitution and the law have vested it with and thus guard people from being misled to vote in a national referendum whose result, predictably, from the very first, would not “generate” the desired legal effects.
In conclusion, bearing in mind the above-stated argumentation, the Constitutional Court found the President’s challenge valid and concluded that it must be fully sustained. The 43rd National Assembly’s Decision on the Holding a National Referendum of 12 May 2016, the part that Points 2, 4 and 6 make up, is in contravention of the Constitution.
Actuated by the stated considerations and on the strength of Art. 149, para 1, subpara 2 of the Constitution and of Art. 22, para 1 of the Constitutional Court Act, the Constitutional Court
RULED:
THE CONSTITUTIONAL COURT DECLARES UNCONSTITUTIONAL the 43rd National Assembly’s Decision on the Holding of a National Referendum of 12 May 2016, (promulgated, DV, No. 37/2016), in the part that Points 2, 4 and 6 make up and that approved the following questions:
- Point 2: “Do you agree that the number of the Members of Parliament should be reduced to become 120?“;
- Point 4: “Do you agree that voters should have an option [along with the conventional mode] of remote e-voting in elections and referendums?”;
- Point 6: “Do you agree that the appointment of the Directors of the Regional Directorates of the Ministry of Interior and of the Heads of District Stations with the Regional Directorates of the Ministry of Interior should be made conditional on a majority election system with absolute majority vote and runoff voting?”