Resolution No. 4 of 4 April 2023 in constitutional case No. 2/2023
Referring entity and subject matter of the case
The case has been initiated upon request of the Council of Ministers seeking binding interpretation of Article 59, para 2 read in combination with paragraph 1, first sentence of the Constitution with a view to the question, ‘Is it admissible under Article 59, para 2 read in combination with paragraph 1, first sentence of the Constitution of the Republic of Bulgaria to introduce as a legal option mandatory peacetime training for the defence of the country of reservist Bulgarian citizens within the meaning of the Military Reserve Force of the Republic of Bulgaria Act with a view to acquiring, maintaining and improving their capacity to discharge their military duties?’.
Summary of the reasons
The applicants seek interpretation of Article 59, para 2 of the Constitution, pursuant to which ‘The training of the citizens to defend the country shall be established by law’, in combination with the first sentence of paragraph 1 of the same Article, according to which ‘To defend the country shall be a duty and a matter of honour of every Bulgarian citizen’.
The fact that the provision of Article 59, para 2 of the Constitution does not provide a clear-cut answer to the specific question put forward in the request for binding interpretation does not mean that the constitutional provision is unclear as the applicants allege. The constitutional provision is clear – it delegates the broadest possible legislative competence to the legislator, without prescribing express limitations as to the manner of discharging the constitutional duty of every Bulgarian citizen to defend the country, respectively of their training for performing this duty. The legislator is restricted only by the constitutional principles and values, however the Constitutional Court may not rule on the conformity of a hypothetical legislative decision – ‘visions of the principles underlying the introduction of mandatory training of Bulgarian citizens’ for the defence of the country, but only on a specific political choice made by the legislature and put in legal terms together with the government which is responsible for the internal order, defence and security.
The Constitutional Court is not competent to make a choice through interpretation on behalf of the authority which the Constitution has entrusted with the internal and foreign policy and overall authority over the armed forces – Article 105, paras 1 and 2 of the Constitution, or on behalf of the body which according to the Constitution exercises legislative authority – Article 62, para 1 of the Constitution.
The Council of Ministers expects through the abstract interpretation of the constitutional provision in question to directly resolve in practice a question which the Constitution has expressly reserved for the legislator and which requires an assessment of expediency as it is a question of choice of policy in the area of security and defence. This choice is conditional on specific historic circumstances and is justified by the need to extend priority protection to particular constitutional values; however, it falls within the discretion of the legislature in cooperation with the government elected by it.
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 and in combination with Article 149, para 1, item 1 of the Constitution (power to provide binding interpretations of the Constitution), the Constitutional Court rejects the request of the Council of Ministers for binding interpretation of Article 59, para 2 read in combination with paragraph 1, first sentence of the Constitution and terminates the proceedings in constitutional case No. 2/2023.