DECISION № 3 OF 23 FEBRUARY 2010 ON CONSTITUTIONAL CASE No 18/2009
The discharge, on grounds of decorum, of an MP who faces prosecution, by members of the leadership of a parliamentary committee which by a decision that will not prejudge the criminal proceedings outcome, falls within the National Assembly's Constitution-granted competences.
Fifty-three MPs approached the Constitutional Court with a challenge of the constitutionality of a National Assembly's decision of 9 December 2009 to discharge the Chair of the Parliamentary Labor and Social Policy Committee. The challenge maintained that the decision disagreed with Art. 22 of the Rules of Organization and Procedure of the National Assembly (ROPNA) and thus violated the Constitution-proclaimed principle of the state committed to the rule of law and justice – Art. 4, para 1, Art. 67, para 2 and the Preamble. The MPs advanced the idea that the decision they challenged infringed on the principle of the separation of powers as proclaimed by the Constitution for the Legislature had usurped prerogatives of the Judiciary just as it defied the presumption of innocence which is provided for in Art. 31, para 2 in relation to Art. 70 of the Constitution and which is valid for MPs who have been stripped of their immunity.
The facts:
MP E.M. was stripped of her immunity prior to the date the challenged decision was taken and following her consent in writing under the conditions of Art. 70, para 2 of the Constitution. The immunity was removed in response to the Prosecutor General who had approached the National Assembly to ask for its sanction to prosecute on charges of a grave premeditated indictable crime. Drawing on the prosecution premise two MPs tabled a motion that the Chair of the Parliamentary Labor and Social Policy Committee, E.M., should be discharged. They wrote that ,, it is not moral for an MP to chair a parliamentary committee when, as the prosecution insists, there exists enough evidence of actio culposa .” MPs who supported the proposition spoke in the same vein during the floor debate. After the debate a decision was taken in favor of the motion.
The law:
1. Art. 79, para 1 of the Constitution reads that the National Assembly shall elect standing and ad hoc committees from among its Members. The text referred to implicitly provides for the power of the Parliament to designate the head of each committee as a first step and to discharge him or her in consequence. The discharge of E.M. as a chair of a standing parliamentary committee was an exercise of that power of Parliament in conformity with the political will of the majority of MPs and with their understanding of decorum. The Constitutional Court shall not judge the ideas of rule on the basis of which the Parliament acted for the decision-taking body stayed with the confines of its Constitution-granted competence, as the case is. If the Constitutional Court had acted otherwise it would have transcended the binding confines of control on compliance with the Constitution and intruded inadmissibly on the sovereignty of the Legislature. The Constitutional Court has a record of cases in precedent (Decision № 13 on Constitutional Case № 9/1999; Decision № 11 on Constitutional Case № 13/2000; Decision № 12 on Constitutional Case № 16/2002).
The check for compliance with the Constitution of the decision challenged was confined to whether the decision violated the Constitution texts. Therefore, even if the decision had been taken in unconformity to the ROPNA, such noncompliance would have been irrelevant to the settlement of the constitutional dispute (see Decision № 3 on Constitutional Case № 17/1991; Decision № 5 on Constitutional Case № 2/1998; Decision № 7 on Constitutional Case № 5/1998; Decision № 1/1999 on Constitutional Case № 34/1998). Yet the Constitutional Court's interpretation of the ROPNA in the light of the Constitution found that the challenged parliamentary decision did not break them. The ROPNA Art. 18, para 7 explicitly defines the National Assembly's right to alter the number and composition of the Standing Committees and the definite conclusion that this text invites is that the Standing Committees leaderships may be altered accordingly. This ROPNA text directly transposes what Art. 79, para 1 of the Constitution empowers the Parliament with.
The ROPNA Art. 22 is not a transposition of a text from the Constitution. Therefore, noncompliance with it is irrelevant to the judgment that the Constitutional Court is to pass on the case in question. Moreover, as an element of a lower-ranking piece of legislation the text referred to could not curtail the Constitution-granted rights and is, therefore, to be seen solely as a provision about a parliamentary procedure that is necessary if certain substantive legal prerequisites occur for the earlier discharge of a standing committee chairman, deputy chairmen and members. The provision does not cover all venues available to the National Assembly to alter the standing committees' composition.
The above statement leads to the conclusion that the National Assembly's decision of 9 December 2009 to discharge E.M. as the Chair of the Labor and Social Policy Committee is not in conflict with the principles of the state committed to the rule of law and justice as proclaimed in Art. 4, para 1, Art. 67, para 2 and the Preamble of the Constitution.
2. It was already noted that the decision challenged rests on the view held by the majority in Parliament of what is moral and politically decorous. Both the motion movants and the MPs who spoke in favor of the motion did not perceive the matter of E.M.'s guilt and accountability as finalized nor did they coach the Judiciary about the criminal proceedings against her. They referred to indisputable facts only: the General Prosecutor's reason to ask that the MP implicated be stripped of immunity so that charges could be pressed against her for the commission of a grave premeditated indictable crime. The decision that the National Assembly took on 9 December 2009 has not any of the attributes of criminal jurisdiction for, in addition to the reference to the fact-finding of the Prosecution as a body of the Judiciary, it contains none of the elements that are typical of such action – an analysis on their own of the evidence gathered, an independent detection of the corpus delicti and its definition in the Penal Code, the verdict of guilty or not guilty and the imposition of punishment. The juristic act that the decision is does not infringe on an MP's constitutional status and potential to efficiently protect, as a member of a parliamentary committee included, the interests of his or her constituency and of the nation as a whole.
Therefore, in this case there has been no usurpation of the powers of the Judiciary in defiance of the principle of the separation of powers as laid down in Art. 8 of the Constitution nor has there been any disregard for the presumption of innocence of an MP who is prosecuted (Art. 31, para 3 in relation to Art. 70 of the Constitution).
Председател: Евгени Танчев