Resolution No. 2 of 7 March 2023 in constitutional case No. 1/2023
Referring entity and subject matter of the case
The case has been initiated upon a request of 50 MPs of the 48th National Assembly. It seeks a constitutional review of Decision for Extending Military and Military-Technical Support to Ukraine and for Reinforcing Bulgaria’s Defence Capabilities adopted by the National Assembly on 3 November 2022 and Decision for Extending Military and Military-Technical Support to Ukraine adopted by the National Assembly on 9 December 2022. The applicant challenges the texts of both decisions in whole, alleging that they ‘violate the constitutionally established balance between the three powers and disregard the Constitution, which violates the rule of law principle enshrined in Article 4, para 1 as well as principle of precedence of the Constitution laid down in Article 5, para 1 of the Constitution’.
Summary of the reasons
The Constitutional Court assumes that the two acts of the National Assembly, viewed as a whole in their overall context and taking into account the chronology of their adoption, have been challenged in view of the position taken thereby on a foreign policy issue – a manifestation of political expediency (and a choice made on the basis thereof) granted to the National Assembly which enjoys the highest democratic legitimacy in the representative governance being the only nation-wide representative institution.
The Constitutional Court should not interfere in relation to acts of the political institutions which project the position they have acquired on priorities of values and specific foreign policy objectives in a given political context. Ruling on political disputes as far as they are susceptible to assessment by legal standards and jurisdictional means is inherent to every constitutional jurisdiction. However, the Constitutional Court is not facing a necessity dilemma to choose between supporting the act challenged before it or declaring it unconstitutional.
Rejecting a request for constitutional review is an important jurisdictional means of which the Court avails for the purpose of administering constitutional justice and performing the role every court with constitutional functions has, namely, to guarantee primacy of the Constitution as an essential manifestation of the constitutional state based on the rule of law. It is this role of the Constitutional Court dominates in the case at hand and requires the Court to respect the discretion granted to the political institutions with the highest degree of democratic legitimacy to determine the priority values and choice of policies, including in the area of foreign policy. In this way the Court will not only preserve the supremacy of this constitutional solution but will strengthen its authority as its guardian. The opposite would mean that a constitutional jurisdiction is better equipped than citizens or politicians that represent them to assess the ethical aspects of foreign policy.
Certainly not every case involving foreign policy aspects excludes the jurisdictional competence. Yet, to judge whether the measures taken by the political institutions are adequate for exercising the state power delegated to them in this sphere requires the constitutional jurisdiction to adhere to the Constitution as a binding standard. The constitutional boundaries of reign as essential characteristics of modern democracy require adherence to the rule of law. In other words, the constitutional jurisdiction in a democratic governance under the rule of law should take account of the boundaries of the power it has been entrusted with and duly deliberate in every individual case whether or not the issues referred to it should not due to their nature and by virtues of the constitutionally imperative be resolved by institutions granted the discretion of political expediency.
Grounds for the ruling
Pursuant to Article 13 (the Constitutional Court alone decides whether the issue referred to it falls within its competence) and Article 19 (the Court shall rule on the admissibility of the request) of the Constitutional Court Act, the Constitutional Court rejects the request of 50 MPs of the 48th National Assembly seeking to establish anti-constituionality of Decision for Extending Military and Military-Technical Support to Ukraine and for Reinforcing Bulgaria’s Defence Capabilities adopted by the National Assembly on 3 November 2022 and Decision for Extending Military and Military-Technical Support to Ukraine adopted by the National Assembly on 9 December 2022.
The ruling terminating the proceedings has been signed by one constitutional judge with a dissenting opinion.