Decision No. 9 of 3 July 2014 on Constitutional Case No. 3/2014

 

 

        Proceedings under Art. 149, para 1, item 1 of the Constitution.

The case was filed on 6 February 2014 upon a request from the Plenum of the Supreme Court of Cassation for interpretation of Art. 8; Art. 84, para 1; Art. 86; Art. 114; Art. 115; Art. 117, para 1; Art. 129, para 1; Art. 130, para 6 and Art. 130а of the Constitution of the Republic of Bulgaria.

It was claimed that the Bulgarian Constitution has no text to provide the Constitution-established authorities that carry out activities in one sector or another of the powers of the State with the rule-proclaiming, assignment and exercise of the competence to draft and pass secondary legislation. This gap calls, pursuant to the existing Constitution regulations, for a binding legal interpretation to answer questions concerning the performance in practice of the subdelegated competence: viz. Who can entrust whom with the competence and under what conditions? Or: What is the importance of the principle of separation of powers in such entrustment? In the understanding of the Applicant the query is particularly relevant to the conferment and the exercise of statutory competence within the Judiciary considering its guaranteed normal operation which shall have to abide by the Constitution-proclaimed principle of the independence of the Judiciary. Therefore in the view of the Applicant the Constitutional Court is bound to interpret severally and jointly some Constitution articles: Art. 8 (proclamation of the principle of separation of powers); Art. 84, para 1 and Art.  86 (enumeration of the National Assembly’s legislating competences); Art. 114 and Art. 115 (enumeration of the secondary legal instruments that the Council of Ministers is free to adopt or a cabinet minister is free to issue); Art. 117, para 2 (proclamation of the independence of the Judiciary); Art. 129, para 1 and Art. 130, para 6 (provision for the functional competence of the Supreme Judicial Council) and Art. 130а (description of the functional competence of the Minister of Justice within the domain of the Judiciary), and shall give an answer to the following questions that demand interpretation:

- Which authority shall vest in statutory competences, under what conditions and by what type of act?

- Which authority may be vested with statutory competences and shall they tally with the functional competence of the Constitution-established authority thus entrusted?

- Can the Supreme Judicial Council (SJC) be vested with statutory competence to enable it to perform its Constitution-conferred functions regarding the maintenance of a well staffed and well resourced institution and the administration of the Judiciary?

- Is it permissible to let a law expand the functional powers of the Minister of Justice within the domain of the Judiciary as enumerated in Art. 130а of the Constitution, in particular, is it compliant with the Constitution to vest the Minister of Justice with statutory powers that grant him/her functions that the Constitution does not grant them as they reside in a Constitution-established authority, other than the Minister, namely, in the Supreme Judicial Council?

- Shall Art. 114 and Art. 115 be interpreted to the effect that the central government holds apriori a universal statutory competence that covers, inter alia, areas where the Executive branсh of power has no prerogatives even if the prerogatives at issue happen to be within the domain of another branch of power, the Judiciary for example, or else are vested in some other independent authorities or institutions (for instance, in the Constitutional Court, the Bulgarian National Bank or the National Audit Office)?

The Constitutional Court found the request tenable and therefore eligible for consideration on merit in the part that contains the question whether the Supreme Judicial Council may be vested with statutory competences that are requisite if it is to perform its Constitution-conferred functions regarding the maintenance of a well staffed and well resourced institution and the administration of the Judiciary inasmuch as the Constitutional Court case-law is inconsistent and thus presupposes the existence of a legal dispute over the matter at issue. In the Court’s understanding a binding legal interpretation should be made regarding Art. 130, para 6 with a view to the question whether the SJC’s competences that are listed there imply that the Council shall be free to pass secondary legislation.

The Constitutional Court dismissed the part of the request for a binding interpretation of Art. 8; Art. 84, para 1; Art. 86; Art. 114; Art. 115; Art. 117, para.1; Art. 129, para 1 and Art. 130а of the Constitution of the Republic of Bulgaria on the questions: Which authority shall vest in statutory competences, under what conditions and by what type of act? Which authority may be vested with statutory competences and shall they tally with the functional competence of the Constitution-established authority thus entrusted? Is it permissible to let a law expand the functional powers of the Minister of Justice within the domain of the Judiciary as enumerated in Art. 130а of the Constitution, in particular, is it compliant with the Constitution to vest the Minister of Justice with statutory powers that grant him/her functions that the Constitution does not grant them as they reside in a Constitution-established authority, other than the Minister, namely, in the Supreme Judicial Council? Shall Art. 114 and Art. 115 be interpreted to the effect that the central government holds apriori a universal statutory competence that covers, inter alia, areas where the Executive branсh of power has no prerogatives even if the prerogatives at issue happen to be within the domain of another branch of power, the Judiciary for example, or else are vested in some other independent authorities or institutions (for instance, in the Constitutional Court, the Bulgarian National Bank or the National Audit Office)?

The Constitutional Court discussed the arguments as presented in the submission and based its ruling on the following considerations:

Two Constitutional Court decisions (Decision No. 13/2002 and Decision No. 10/2011) allow for incidental interpretation of the hypothesis that the Supreme Judicial Council may draft secondary legislation on the basis of the power it is vested with by the Constitution whereon the solutions advanced in these two decisions differ in substance and meaning. This presupposes the need that the constitutional jurisdiction should make a binding interpretation of Art. 130, para 6 in view of the question whether the SJC powers as enumerated in the Constitution suggest the SJC may pass secondary legal instruments. Decision No. 13/2002 of the Constitutional Court did not see any constitutional impediments to the SJC competence to draft secondary legal instruments as part of its prerogatives, including the prerogative to approve ethical rules of the profession or to pass regulations that describe the procedure of performance appraisal for the magistrates. Though the judgment to the contrary in Decision No. 10/2011 does not acknowledge the JSC’s inherent administrative and organizational powers that make it up an administrative body of the Judiciary, it precludes the SJC from drafting and passing secondary legal instruments. The Constitutional Court’s Decision No. 10/2011 insists that it is the Executive branch of power that may pass secondary legal instruments as a tool that will specify the legal rules tailored to the needs of the current government of the State. The same decision assumes that such a power is not vested in all institutions as it is determined by the nature of the institution’s operation and by the position of the institution within the hierarchy. The pillar of the constitutional jurisdiction act is the thesis that „in states where Parliament is the supreme institution as it is in modern Bulgaria, secondary legal instruments shall be passed by the central government – the Council of Ministers and the cabinet ministers as, unlike institutions outside the Executive branch of power, these shall be subject to direct control to be exercised by the National Assembly“.

The Constitution of the Republic of Bulgaria provides definitively for what pieces of legislation some of the Constitution-established State bodies shall have the power to pass, viz. the Grand National Assembly (Art. 158); the National Assembly (Art. 86); the Council of Ministers (Art. 114); and the cabinet ministers (Art. 115).

The nature of State institutions is also evident in their power to make declarations of intention in the form of legal instruments. Such legal instruments are classified in different ways, yet in the case under consideration the classification that seems to be most significant is the classification as legislative (acts that contain legal rules pertaining to an indefinite and unlimited range of subjects of law and that have multiple applications and legal effects), general (acts that have a single effect and that create rights and responsibilities or that immediately affect rights and legitimate interests of an indefinite range of persons who are not individually identified) and individual (acts that give rise to, change or terminate relationships and that pertain to concrete subjects of law who are not individualized).

The prerogatives of sovereign institutions to issue legal acts derive from the imperium, i.e. the power that is wielded by these institutions that are bodies governed by public law. Hence the public-law nature of the competence that includes a definite system of prerogatives. The legal act is a jural fact of the category of juristic acts that have legal implications. In principle, the legal act is an outcome of valid legal operation.

The constitutional concept of legal instrument encompasses acts of different hierarchy from top to bottom, from the Constitution to bylaws. The only competence that the Constitution expressly provides for is the adoption of a new Constitution, the approval of amendments to the Constitution provisions by a Grand National Assembly (Art. 158 of the Constitution) and for the passage, amendment and rescission of laws by the National Assembly (Art. 84, item 1 и Art. 153 of the Constitution). The Constitution of the Republic of Bulgaria does not definitively provide for a body that is vested with the competence to draft and pass bylaws. The passage of a regulation concerning only the secondary legislation by the bodies of the Executive who are vested with such a power – the Council of Ministers and the cabinet ministers – does not preclude the possibility to delegate the competence of drafting and passing of bylaws to bodies other than those of the Executive branch of power. Art. 114 of the Constitution contains an express provision concerning the decrees that the Council of Ministers adopts and the ordinances and resolutions that are passed pursuant to these whereas Art. 115 provides for the statutory acts that cabinet ministers are free to issue – rules, regulations and instructions.

Secondary legal instruments may be issued by bodies of the Executive branch of power subject to an express Constitution requirement pursuant to and in implementation of the laws. Therefore it is within the prerogatives of the National Assembly alone to vest the competence of drafting and passing secondary legislation in the sense of the Constitution and the empowerment shall be subject always to an express legal provision. Secondary legal instruments shall not be defined in constitutional terms which a priori preclude the National Assembly from conferring some secondary legislation regarding the enforcement of a law that the Assembly has passed to a sovereign institution outside the Executive branch of power, the Supreme Judicial Council being such an institution.

Art. 133 of the Constitution reads thus: „The organization and the activity of the Supreme Judicial Council, of the courts, the prosecution office and the investigating magistracy, the status of the judges, prosecutors and investigating magistrates, the conditions and the procedure for the appointment and removal from office of judges, court assessors, prosecutors and investigating magistrates and the materialization of their liability shall be established by law.“ The Constitution-enshrined principle of the state committed to the rule of law forbids, among other things, to transfer the competence of the passage of secondary legislation. The non-admission of the delegation of legislating power forbids transferring the arrangement of a matter that is subject to law onto a bylaw irrespective of the body to be vested with the power to do it. The delegation of legislating power is constitutionally inadmissible. Being compliant with the Constitution prescription that main relations within society shall be treated by law, the National Assembly is bound to create the primary legislation for any matter that the precepts of the Constitution explicitly provide that it should be treated by a law. Thus Art. 133 of the Constitution calls imperatively for primary legislation on matters concerning the institutional resource and the personnel management of the Judiciary.

The intention of the Constitution is to make the Supreme Judicial Council the highest administrative and personnel authority that will organize the operation and decide on the recruitments for the Judiciary. The SJC manages the operation of the Judiciary in general terms but does not infringe on the independence of the court, the prosecution or the investigation. The Supreme Judicial Council has been set up to implement an independent personnel policy within the Judiciary. The SJC administrative and organizational powers are precisely defined in the Constitution and in the Judiciary Act that has been passed pursuant to the Constitution. The Supreme Judicial Council is a body that performs administrative functions, and is not a judicial body. Under the Constitution the SJC does not enjoy any directional or administrative authority over the judges, prosecutors and investigating officers who shall be independent in the performance of their functions.

To exercise its Constitution-granted prerogatives in keeping with the Judiciary Act the SJC engages in a broad range of activities that are subject primarily to law (Art.133 of the Constitution). Therefore the National Assembly is bound to establish the rules that govern the SJC’s overall activity. The functioning of the Judiciary would be considerably impeded because of the inexistence of a detailed and thorough regulation in conjunction with the impossibility for the SJC to pass secondary legal instruments that concern major aspects of the Council’s work in line with Constitution-established prerogatives.

Inasmuch as the Supreme Judicial Council is neither a juridical nor a tribunal body and is an administrative body of the Judiciary, it will be compatible with its constitutional functions if the passage of secondary legislation is conferred onto it by law. In that particular case this will not conflict with the principle of separation of powers as the SJC does not exercise a lawmaking competence nor does it engage in the dispensation of justice.

As an institution that administers the Judiciary the Supreme Judicial Council shall not exercise a bylaw-making competence that derives directly from the powers that Art. 130, para 6 of the Constitution vests it with. Though these powers are entrenched in the Constitution, they do not divest the SJC of its law-established prerogative to issue bills pursuant to and in implementation of the law. This is so as Art. 133 of the Constitution prescribes that the organization of the activity of the Supreme Judicial Council, of the court, the prosecution and the investigation shall be established by a law. Evidently whenever a need arises to issue rules and regulations that derive from the Judiciary Act, neither the Council of Ministers nor the Minister of Justice can do that. Moreover, any SJC bylaw would not provide for SJC internal organizational matters only but to exercise its Constitution-granted power the SJC should enjoy the competence to bring under regulations the relationships that pertain to the general functioning of the system of the Judiciary.

It is a broadly accepted concept that in addition to the internal organizational activity and law-enforcement, the State institutions should engage in the passage of legal instruments some of which may be prescriptive. In that sense the agencies of the Executive are free to pass acts of State and to establish rules of conduct within the State administration. In principle, bylaws are passed by the Executive branch of power to specify the legal rules for the needs of the operating government. Understandably, this power is not vested in all institutions as it is conditional on the nature of their functional competence and also on their position within the system of State institutions. The rules and regulations that the Council of Ministers and the cabinet ministers adopt are legal instruments that have the inherent elements and that are passed in conformity with Art. 114, para 1 of the Constitution „pursuant to and in implementation of the laws“. These instruments are passed by the Executive branch of power, yet they cannot pertain to matters of the organization and functioning of the Judiciary because of the principles of separation of powers and of the independence of the Judiciary that are entrenched in the Bulgarian constitutional system. It is unacceptable to hold the view that in a state with a parliamentary form of government that the Republic of Bulgaria is, bylaws should be passed by the central government alone, i.e. by the Council of Ministers and cabinet ministers, which and who, unlike institutions outside the Executive branch of power, are subject to direct control that is exercised by the National Assembly. Evidently the logic of the parliamentary form of statehood does not fit into the above view. If the above logic is to be applied, it would be solely the Minister of Justice who shall enjoy the prerogative to issue bylaws within the Judiciary for what the Government shall be subject to direct parliamentary control and shall be held responsible for such lawmaking. Within the framework of his/her functional competence any Minister of Justice shall be free to issue bylaws that provide for the Judiciary but only if such bylaws do not impinge on the Judiciary’s Constitution-guaranteed independence.

In principle it is the Constitution that vests a State institution with the power to pass secondary legal instruments providing the passage is part of the institution’s functional competence. Alongside, it is lawful to let a law vest the possible passage of bylaws in an institution that the Constitution provides with the functional competence to do it as necessary. The bodies of the Judiciary – the court, the prosecution and the investigation – shall not, understandably, pass bylaws that concern their proper activity. Concurrently within its competence under Art. 130, para 6 of the Constitution the SJC shall be free to pass bylaws providing it is vested with the power to by a law that treats the matter which is reserved by Art. 133 of the Constitution. Therefore, if the Legislature deems it appropriate, some SJC acts may have characteristics that are typical of such enactments. It is up to the Legislature to approve a thorough and detailed regulation of all aspects of the SJC’s competence under Art. 130, para 6 of the Constitution or supply the SJC with a particular domain where the Council produces bylaws that are pertinent to the said competence.

The primary regulation of societal relations on matters of the Judiciary shall be subject to law only. Concurrently, considering the legal framework that the National Assembly has created, the SJC may be entrusted with the specifics and completion of the relevant secondary legislation. Upon abidance by the principle of separation of powers the Legislature cannot engage the agencies of the Executive branch of power to pass bylaws on the enforcement of a law on the Judiciary. However, concurrently there is no impediment in the Constitution to disallow the National Assembly to do that vis-à-vis an institution of the Judiciary in full compliance, moreover, with the functional competence of the institution, whichever it is, as per Art. 130, para 6 of the Organic Law. Argumentation to support such a thesis is to be found in the very Constitution in its version of 1991. Art. 133 of the Constitution provides that the organization and the activity of the Supreme Judicial Council shall be established by a law like the special Judiciary Act that sets forth the structure of the judiciary system. To regulate the organization and the activities of the SJC the Judiciary Act may provide for the SJC to pass appropriate secondary legislation that enables the Judiciary Act enforcement. It is admissible and justified to vest the SJC with power to adopt secondary legal instruments as these enable it to exercise its Constitution-granted prerogatives.

Art. 133 of the Constitution provides that the organization and the activity of the Supreme Judicial Council, of the courts, the prosecution office and the investigating magistracy, the status of the judges, prosecutors and investigating magistrates, the conditions and the procedure for the appointment and removal from office of judges, court assessors, prosecutors and investigating magistrates and the materialization of their liability shall be established by law. Yet, at the same time there is no reason to preclude a text in the Judiciary Act to the effect that the SJC shall pass secondary legal instruments in the exercise of its prerogatives under Art. 130, para 6 of the Constitution. Such an option a priori is not a form of delegation of legislating authority and is not inconsistent with the Constitution. In each individual case the Constitutional Court can judge, whenever a constitutional dispute is brought to it, whether it will be consistent with the existing constitutional arrangement to vest the Supreme Judicial Council, by virtue of a law, to pass rules that pertain to the performance of its functions pursuant to Art. 130, para 6 of the Constitution. Alternatively, there exists an avenue to control inasmuch as the SJC’s legislating activity is strictly confined to secondary legislation and is performed within the confines of the Judiciary Act. This duty of control is imposed on the Supreme Administrative Court.

The Constitution provides no option where the National Assembly may vest legislating power in whatever institution so that it passes legislation concerning the Judiciary. The legal arrangement of societal relations as per Art. 133 of the Constitution is one of the mechanisms of impact by the Legislature on the Judiciary. Yet at the same time the passage of secondary legal instruments by a body of the Judiciary, the SJC as the case is, does not violate the Constitution-proclaimed principle of separation of powers (Art. 8); just the opposite, guarantees are furnished that the principle will be complied with. From this perspective the Supreme Judicial Council shall have the power to pass secondary legal instruments only if the Judiciary Act vests such a power in it in pursuance to Art. 133 of the Constitution and shall exercise that power in the capacity of a body that administers the Judiciary in implementation of Art. 130, para 6 of the Constitution.