Decision No. 7 of 8 October 2013 on Constitutional Case No. 16/2013
Essentially, 96 Members of the 42nd National Assembly claimed incompatibility that occurred on 14 June 2013 for MP Delyan Peevski who assumed office within the civil service and asked that Peevski’s prerogatives as an MP be suspended before the expiry of his term of office in Parliament.
The Constitutional Court accepted the following facts as established:
Delyan Peevski became a Member of the 42nd National Assembly on the basis of the results from the parliamentary elections on 12 May 2013 and after being sworn in on 21 May 2013 under the obligation of Art. 76, para 2 of the Constitution. On 14 June 2013 the National Assembly, acting on a proposition from the Prime Minister of the Republic of Bulgaria and in pursuance to Art. 84, item 8 and Art. 86, para 1 of the Constitution and Art. 8, para 1 of the State Agency for National Security Act (SANSA) elected him Chairman of the Agency and he was immediately sworn in under Art. 8а of the SANSA.
Upon his election to the State Agency for National Security top tier on the very same day, 14 June 2013, Delyan Peevski submitted his resignation to the National Assembly for its acceptance in keeping with Art. 72, para 2 read in combination with Paragraph 1, Item 1 of the Constitution. On that same day Delyan Peevski had working meetings with SANS senior officials, the Prosecutor General and the Minister of Interior. He spoke, in the capacity of newly elected SANS Chairman, to “Presa” daily which carried the interview on 15 June 2013.
On 17 June 2013 Delyan Peevski submitted an application by which he withdrew his resignation from Parliament which did not vote on it. On 19 June 2013 the National Assembly revoked its decision of 14 June 2013 on the election of the SANS Chairman.
Given the whole body of indisputable facts the MPs’ motion did not receive the required majority of more than half of all the Constitutional Court Justices (minimum 7) and was dismissed, accordingly.
І. Six Constitutional Court Justices found the motion unsustainable for reasons that follow:
Incompatibility, both initial and subsequent, has one and same substantive core both in public and private law. Its substantive core is the same also in cases where it touches on a public function and on a certain activity. Decision No. 5/1993 on Constitutional Case No. 6/1993 is in that vein. The legislation of incompatibility is intended to prevent and obstruct the performance of a public function or an activity in a way that would collide with or call in question the required independence and integrity in the exercise of powers and rights and in the fulfillment of obligations. Incompatibility solves the problems of as to how a concrete emergent legal relation of employment is to evolve in consideration of the chance to exercise the rights and to fulfill the obligations that this relation entails. Incompatibility presupposes two parallel legal relations of employment one of which, as the Constitution commands, must be eliminated. The elimination of incompatibility can be accomplished solely by an avowed intention that one of the legal relations of employment to which the person concerned is a party be suspended. Some other subject of law may make an avowal that the incompatibility will be eliminated by an established procedure only in the event the incompatibility has not been eliminated by the person concerned within the time period as established by law.
Incompatibility is a legal institute that is treated in the Constitution (Art. 68). The Conflict of Interest Prevention and Ascertainment Act (CIPAA) is the general law that codifies relevant principles, rules and procedures regarding the incompatibility in the assumption and performance of public functions as listed by Art. 3 of the CIPAA and including MPs, among other public office holders. Other pieces of legislation such as the Labor Code, the Civil Service Act, the Constitutional Court Act, the Judiciary Act, the Ministry of Interior Act likewise establish rules that are relevant to this institute.
The membership of the Republic of Bulgaria in the European Union has called for the passage of a general law that treats incompatibility. To comply with these requirements a Conflict of Interest Prevention and Ascertainment Act (CIPAA) was passed in 2008. As an element of the State policy designed to prevent conflicts of interest, a separate chapter in the CIPAA is devoted to incompatibility.
The Constitution outlaws incompatibility – i.e. a Member of the National Assembly shall not occupy another state post, nor shall he/she engage in any other activity which the law defines as incompatible with the status of a Member of the National Assembly (Art. 68, para 1 of the Constitution). This Constitution text is far from being an all-inclusive legal framework and refers the matter to laws. As the Constitutional Court already concluded in its Decision No. 2 of 26 February 1992 on Constitutional Case No. 2/1992, the legislating authority had not formulated a definition in legal terms of incompatibility in the meaning of Art. 72, para 1, item 3 of the Constitution; therefore the essence of such a definition should be analyzed in the context of Art. 68, para 1 of the Constitution, the legislation and the principles on which the Bulgarian Constitution is based. While the Constitution makes it legally binding on Members of Parliament to eschew situations of incompatibility, it should enable the MPs to fulfill the said obligation. The law doctrine precludes the assignment of an obligation whose fulfillment is not resourced. The incompatibility that occurs on the moment of an MP’s election or subsequently is to be eliminated subject to a procedure and a time limit. An MP’s omission to submit his/her resignation or to eliminate the incompatibility by other means beyond the time limit is a justification for the Constitutional Court to suspend the MP’s prerogatives before the expiry of the term of office.
The legislation of the Republic of Bulgaria abides strictly by the principle that the elimination of incompatibility, both initial and subsequent, is subject to a procedure and a time limit that are established by law. This principle is codified in the Constitutional Court Act (Art. 6, para 3), the Local Self-Government and Local Administration Act (Art. 41, para 3) and the Conflict of Interest Prevention and Ascertainment Act (Chapter Three). It is a legal imperative that the negative effects of incompatibility should not issue automatically; they may arise only when and if the incompatibility has not been eliminated in the proper way and in due time.
The concept that incompatibility automatically makes it binding on the Constitutional Court to suspend the prerogatives of an MP before the expiry of the term of office is not to be agreed with. The suspension of an MP’s prerogatives touches on the MP’s interests just as it touches on the political interests of the constituency that elected him/her to represent them in Parliament. Automatic suspension of prerogatives with no sober concrete assessment on a case by case basis considering the criteria that are cited in the Constitutional Court’s Binding Interpretation No. 5/1993 on Constitutional Case No. 6/1993 would entail unfavorable consequences not just for the MP; it would be an act of revision of the voters’ choice. Such a concept is a vicious circle to those MPs who as of the Election Day were magistrates, mayors, members of companies’ managing or supervisory boards or proprietorships. It is improper to let MPs who have fulfilled their obligation under the CIPAA fall under the control of their political opponents or of other factors as per Art. 150, para 1 of the Constitution who may, at any time, approach the Constitutional Court with a plea to judge incompatibility and decree suspension of prerogatives before the expiry of the term of office. The conclusion that the consequences from an MP’s incompatibility are immediate and irreversible practically curtails their right to be elected to Parliament. If such an interpretation was adopted, then the Constitutional Court would have extended the eligibility criteria that are thoroughly listed in Art. 65 of the Constitution. The concept that the nominees who run for a seat in Parliament must, in advance and at their own risk, eliminate any circumstances that, as of the Election Day, might place them in a situation of incompatibility, is unacceptable and violates the Constitution.
The Constitutional Court’s track record so far comprises just two cases of suspension of prerogatives of MPs before the expiry of their term of office on grounds of incompatibility. The motivation of Decision No. 4/1993 on Constitutional Case No. 3/1993 reads thus: if MP Stoyan Ganev who was elected President of the United Nations General Assembly chose the UN function, the suspension of prerogatives of an MP should be subject to the procedure of Art. 72 of the Constitution. Some months later the Court’s Decision No. 10 on Constitutional Case No. 10/1993 concluded that “no facts are available, no allegations have been made” about withdrawal from the position of President of the UN General Assembly and suspended Ganev’s prerogatives as a Member of Parliament on grounds of incompatibility. The two decisions vividly demonstrate the Constitutional Court’s conviction that the consequences that stem from incompatibility should not occur automatically and that a period of appropriate length should be enjoyed by MPs to make a choice between the two functions and thus to eliminate incompatibility. The other case in point implicated MP Hristofor Dochev as per Decision No. 2 on Constitutional Case No. 2/1992. The case is dissimilar and premises on the hypothesis where MP Dochev submitted his resignation which the National Assembly was unwilling to put to a vote and by doing so formally placed him into a situation of incompatibility on which the Constitutional Court ruled subsequently.
The suspension of an MP’s prerogatives before the expiry of the term of office subject to Art. 72, para 1, item 3 of the Constitution is an unfavorable legal consequence. Within the scope of its powers under Art. 12, para 1, item 9 of the Constitutional Court Act, the Court has to ascertain that an MP has violated Art. 68, para 1 of the Constitution by holding a public office other than the parliamentarian or by performing an activity that according to the law, is incompatible with the parliamentary function. The violation must be of a nature to forestall the achievement of the major objectives of this text, as noted in Decision No. 5/1993 on Constitutional Case No. 6/1993 and Decision No. 7/2010 on Constitutional Case No. 5/2010 – viz. to ensure the independence of the Legislature and to provide guarantees that the MP will regularly attend and contribute to the National Assembly sittings. Whenever the Court ascertains such a violation, it shall, against the MP’s wish, suspend his/her prerogatives before the expiry of their term of office. The MP’s right to legal defense in this procedure is ensured by Art. 26 of the Constitutional Court Act.
MP Delyan Peevski submitted his resignation on the day on which he was elected SANS Chairman. He undertook the full set of actions within the scope of his competence to eliminate the incompatibility that had stemmed and none of these actions defied the Constitution or the existing legislation. Neither the Constitution nor the legislation posed any additional requirements to make his conduct law-abiding and irreproachable as prescribed by Art. 72, para 1 of the Constitution. Regarding the view that an MP’s prerogatives are automatically suspended upon the MP’s election by the National Assembly to serve in a function other than the parliamentary one, that view is not to be shared as Art. 72 of the Constitution would be extended in this way.
ІІ. Five Constitutional Court Justices found the motion sustainable for reasons that follow:
With the resolution on the admissibility of 4 July 2013 the Constitutional Court agreed to rule on the merits within the scope of its competence as per Art. 72, para 2, proposition 1 read in combination with para 1, item 3, proposition 2 of the Constitution on the request to ascertain incompatibility under Art. 68, para 1 of the Constitution – the occupation of another state post and, accordingly, the suspension of prerogatives on these grounds. With regard to the motivation part of the request, it may be just noted that Delyan Peevski’s resignation as an MP and the resolution of the National Assembly to which it was submitted don’t constitute facts of the case that resulted in an option to choose a public office other than the incumbent one following a successful election.
In the judgment of this group of justices when on 14 June 2013, acting on the Prime Minister’s proposition, the House elected Delyan Peevski as SANS Chairman and he was sworn in accordingly as required by Art. 8а of the SANSA, all legal facts that are requisites for this public function in the sense of Art. 68, para 1, proposition 1 of the Constitution were there. The official elected was free of whatever legal constraints and therefore, free to assume the power he was vested with, as he actually did.
It is true that for the legal employment of a SANS civil servant to take effect, the appointee, in addition to the assumption of office, shall attest it in writing upon being sworn in and signing an oath sheet (Art. 57 of the SANSA). However, this requirement shall not apply to the SANS Chairman who, by virtue of 19, para 4, item 1 of the Administration Act shall be considered a body of the Executive and as such shall be exempted from the requirements that any civil servant should meet (Art. 2, para 1 and Art. 3, item 1 of the Civil Service Act).
In the performance of his duty right after being elected and sworn in on 14 June 2013 Delyan Peevski had working meetings with senior SANS officials, the Prosecutor General and the Minister of Interior to discuss the tasks of the Agency and its interoperability with counterpart law enforcement agencies and institutions. In his capacity of newly elected SANS Chairman Delyan Peevski gave an interview for the Presa daily. By doing so Delyan Peevski actually exercised the authority to organize, govern and supervise the functions of the Agency (Art. 9, para 1, items 1 and 2 of the SANSA).
The question as to whether MPs are free to perform functions as members of state agencies is answered unambiguously by the Constitutional Court’s Binding Interpretation No. 5/1993 on Constitutional Case No. 6/1993 where it is made clear that Art. 68, para 1, proposition 1 of the Constitution precludes that (cf. the motivation of Decision No. 4/1993 on Constitutional Case No. 3/1993). The conclusion is valid even more for the head of such an agency. The concept “civil service” is not legal; it is constitutional since the Constitution does not refer to any law to describe its essence. This can be traced in the Constitutional Court’s sustained record – Binding Interpretation No. 5/1993 on Constitutional Case No. 6/1993 and Binding Interpretation No. 4/1993 on Constitutional Case No. 3/1993.
Unlike the incompatibility in the hypothesis of Art. 68, para 1, proposition 2 of the Constitution – an activity that is incompatible with the MP status, incompatibility under Art. 68, para 1, proposition 1 of the Constitution is not subject to any other special law nor is its elimination subject to any time limit. So in the case in question the direct effect of the explicit provision of the Constitution precludes the applicability of Art. 13 of the Conflict of Interest Prevention and Ascertainment Act. Therefore as of 14 June 2013 when Delyan Peevski was performing the public function to which he had been elected, he found himself in a situation of incompatibility with the MP status and that was a reason to suspend his prerogatives before the expiry of the term of his office as per Art. 72, para 1, item 3, proposition 2 of the Constitution.
In the position submitted Delyan Peevski raised an objection: even if it was only supposed that for a short period of time he had performed a public function other than the parliamentary one and incompatible with the function of an MP, subsequently he withdrew from the appointment he had received by the time the Constitutional Court was approached and would be clear of it by the time the Constitutional Court issued a pronouncement. These arguments are not tenable either. Incompatibility in the meaning of Art. 68, para 1 of the Constitution, regardless of the duration, causes an irreversible damage to the MP status. When the Constitutional Court ascertains a situation of incompatibility amenably to Art. 72, para 2, proposition 3 read in combination with para 1, item 3, proposition 2 of the Constitution, the prerogatives of an MP are to be suspended before the expiry of the term of office. The only exception to this entrenched situation is to be found in Art. 68, para 2 of the Constitution reading that when a Member of the National Assembly is elected as a minister, he shall cease to serve as a Member during his/her term of office as a minister. During that period, he/she shall be substituted in the National Assembly (cf. the Constitutional Court’s Binding Interpretation No. 8/1993 on Constitutional Case No. 5/1993). Whenever an MP chooses to serve in a public function but that of a cabinet minister, he/she shall be cognizant of the possible unfavorable consequences where, in the event of removal from office, he/she would not be reinstated in his/her former position in Parliament.
The adoption of the view that the length of incompatibility, respectively the suspension of incompatibility upon the Constitutional Court’s judgment under Art. 72, para 2 of the Constitution are circumstances of legal relevance, would create objective preconditions for inadmissible circumvention of the pertinent Constitution prescriptions in the cases that are not covered by the exception as formulated in Art. 68, para 2 of the Constitution. Under such circumstances, if MPs who find themselves in a situation of incompatibility wish to retain their MP status, they might, pending the Court ruling, suspend the incompatible activity and resume it providing they are satisfied with the ruling. However, the Constitutional Court is of the opinion that the Constitution provisions, if interpreted according to their logic and real substance, preclude the emergence of such an absurd situation.
Finally, the result of this case is seen as an unfounded departure from the Constitutional Court’s sustained and consistent track record so far and that departure might create problems in the future interpretation of pertinent Constitution texts.
ІІІ. One Constitutional Court Justice found the motion unsustainable for reasons that follow:
The request to rule on Delyan Peevski’s incompatibility and to suspend his prerogatives as an MP should be dismissed for procedural reasons – Art. 22, para 3 and Art. 25, para 2 of the Rules on the Organization of the Activities of the Constitutional Court. Art. 72 of the Constitution is not applicable in the absence of incompatibility. Incompatibility is excluded by the very decision by which the National Assembly elected MP Delyan Peevski as SANS Chairman.
The 42nd National Assembly elected Delyan Peevski SANS Chairman on 14 June 2013. Delyan Peevski was sworn in accordingly. The MPs’ motion did not contest the election nor did it contest the man’s new capacity as a body of the Executive that is free to exercise the functions of the Executive branch of power.
To accept the view that MP Delyan Peevski confronted incompatibility is to agree that the National Assembly violated Art. 8 and Art. 68, para 1 of the Constitution.
The National Assembly’s decision is a two-part avowal: part one (the explicit part) comprises the effects that the law allows and prescribes, i.e. when MP Peevski becomes SANS Chairman Peevski; part two (the implicit part) implies that he no longer enjoys the MP status. The election is a fait accompli: the man will be the head of an institution and that fact cannot be reconciled with the status and powers of a Member of Parliament as enjoyed prior to the election. He was entrusted with competences outside the domain of the Legislature and different from those of the Legislature. This ensues from the act of election. It would be illogical to assume that the man would have performed functions of the Legislature in tandem with functions of the Executive. The very election and the acceptance of the choice by signing an oath sheet strip an MP of the parliamentary rights that were enjoyed prior to the election and the signature.
The Constitution (Art. 8) forbids holding offices that fall within different branches of power. The Constitution disallows multiple appointments that are split between the Legislature and the Executive. To accept the opposite and insist that the election should not bar access to legislating functions is to violate Art. 8 and Art. 68 of the Constitution. This will be an exposure that the National Assembly violates the principle of the separation of powers and that the supreme authority has unconstitutional conduct and causes incompatibility in addition to the inconclusive and ambiguous choice that it makes. Art. 8 of the Constitution would suffer a flagrant violation that the logic of the choice would not put up with.
Art. 68, para 2 of the Constitution provides confirmation to that effect. It is only in this particular case and following an explicit command from the Constitution legislator that a special aftereffect arises. Yet Art. 68, para 2 that provides for an exception goes beyond the general and same prerequisite that is valid for all cases for the performance of a public function or activity: it is the suspension of the MP position that is implied in the act of election to a new position. Just as there is no need of explicit and formal statement before the National Assembly prior to the choice to accept a public function in another branch of State power, so there is no need for this negative side of the statement of choice made to find a standalone and formal expression in an act other than the act (the decision) of choice. If an MP is elected a minister, he/she shall be reinstated as MPs upon the occurrence of a new legal fact – dismissal or withdrawal from the ministerial position and “recovery” of the prerogatives and status of MPs. Had it not been for this new fact for a person who is elected and sworn in as a cabinet minister, that person would be in a situation like all other MPs for who the National Assembly took a decision (held an election) that they should move to an office outside the parliamentary domain.
The text of Art. 72, para 1 of the Constitution is to be understood in concordance with and in subordination to the substantive provisions of Art. 8 and Art. 68, para 1 of the Constitution. Obviously that text calls for a National Assembly resolution, respectively a Constitutional Court’s decision, however, the text concerns incompatibility, if incompatibility is really detected with cases that are not covered by the hypothesis of exception: i.e. when a juristic act, namely, the National Assembly’s resolution establishes and terminates a legal relation of employment. The termination in the case under consideration was subject to the election to a position other than the incumbent one and to the special nature of this act and the position of the National Assembly which is a body that enjoys the highest confidence and wields supreme power. As formally with a separate act the National Assembly configured the new legal situation and discarded the legal situation that existed prior to the election, there is no need for ascertaining action on the part of the Constitutional Court for the very fact of election precludes it. Art. 72, para 1 has procedural significance and is applicable only in the event of incompatibility. There exists no incompatibility in the case under consideration. The maximum that the Constitutional Court can ascertain is the real fact that Delyan Peevski ceased to be an MP upon his election as SANS Chairman. And because he ceased to be an MP concurrently with the election, incompatibility is out of the question.