Senate opens a parliamentary inquiry into the meeting between the interim Prime Minister and the President of the Constitutional Court

The question behind the resolution is a legitimate one and does not depend on anybody’s political camp: if the head of the executive and the president of the constitutional court meet ten days before that court is due to rule, the public is entitled to know what they talked about. The trouble is that the act through which the Senate asks the question is not built to obtain an answer. Of its three articles, one gets the constitutional basis wrong, one mixes the mandate up with its own conclusion, and the third imposes a deadline with no beginning. These are not drafting slips, they are precisely the things on which it depends whether the September report will be taken seriously by those who did not vote for the resolution.

The second thing the text shows is that the mandate steers clear of the very person who could answer one of the four questions. Art. 2 asks the committee to clarify „motivul pentru care întrevederea s-a desfășurat în biroul președintelui Senatului”, the reason why the meeting was held in the office of the President of the Senate. That office belongs to the President of the Senate, who signs this resolution, Mircea Abrudean. The inquiry is thus approved by the chamber whose president hosted the meeting, and the host’s role appears neither in the subject matter set out in art. 1 nor among the objectives in art. 2. It is the one element in the whole file that the Senate could have clarified without asking anything of anybody outside.

The third element is what the committee can actually do. Art. 111 para. (1) of the Constitution requires the Government and the other bodies of the public administration to supply the information and the documents requested by parliamentary committees. The Prime Minister falls under that obligation. The Government had at that point been dismissed by a motion of censure and was left with limited powers, and the investiture procedure restarted only in September, when the President signed the decree designating a candidate for the office of Prime Minister. The Constitutional Court is not a body of the public administration, and its president cannot be compelled to appear before a committee of the Senate. The inquiry can therefore end, perfectly lawfully, with a report in which half the table is missing, and the resolution provides nothing for that scenario, not even an obligation to record it.

What is worth noting in the act’s favour is that the reasoning was placed in the body of the resolution and not in an explanatory memorandum left in a drawer. The closing sentence of art. 2, that „Curtea Constituțională nu este o autoritate politică, ea este garantul supremației Constituției și unica autoritate de jurisdicție constituțională”, the Constitutional Court is not a political authority, it is the guarantor of the supremacy of the Constitution and the sole authority of constitutional jurisdiction, is published in the Official Gazette of Romania and stays there, binding on those who voted for it as well. The same transparency ought to have been applied to the rest: if the premise about the pending cases was solid enough to set an inquiry in motion, it was solid enough to be written down with case numbers.

What should be changed

• Replacing the basis given in the preamble with art. 64 para. (4) of the Constitution. A one line corrigendum, published in the Official Gazette of Romania, removes the only formal argument on which the resolution could be challenged. As long as the basis invoked is the quorum rule, mounting that challenge takes no imagination at all.
• Fixing the moment from which the 14 days run, and what kind of days they are. The formula „în termen de 14 zile calendaristice de la data publicării prezentei hotărâri”, within 14 calendar days of the publication of this resolution, closes the question. Without it, the committee sets its own deadline, and any overrun becomes arguable.
• Bringing the host’s role within the subject matter of the inquiry. If the venue of the meeting is one of the four questions, then who made the office available, and in what capacity, is part of the answer. Left outside the mandate, the question in art. 2 can only receive half an answer.
• Documenting the premise in art. 2, or taking it out of the text. The cases „cu miză instituțională”, with institutional stakes, then pending before the Court have case numbers and public hearing dates. Listing them turns a political assertion into a fact that can be checked; their absence leaves the committee to investigate starting from a conclusion already written into the act that gives it its mandate.
• A rule on what happens after the Standing Bureau. The resolution stops at the handing over of the report. It does not say whether the report is debated in plenary, whether it is published, or by when. A report that never becomes public does not serve the declared purpose, maintaining public confidence, it serves only the Senate’s internal procedure.
• A general protocol for the relationship between Parliament and the constitutional judges. The situation will recur, and improvising case by case is the worst option for both institutions. A written procedure, distinguishing between an invitation and an obligation to appear and expressly ruling out any discussion of decisions already delivered, would protect both parliamentary oversight and the independence of the jurisdiction.