Brief history about the Constitution of Romania (II)

If in the previous article we were discussing what the Constitution is and what stages it went through to create one, now we will focus strictly on the constitutions we have had over time.

The first proper Constitution of Romania still remains the Constitution of 1866

  • it had as its model the Constitution of Belgium from 1831, but adapted to Romanian realities.
  • is made up of 133 articles divided into 8 titles, and the third title is divided into 5 chapters. Title number 8 includes an express indirect repeal of all provisions contrary to the provisions of this Constitution.
  • transformed Romania into a hereditary constitutional monarchy and provided for democratic principles such as: separation of powers in the state, ministerial responsibility, citizen rights and liberties, but at the same time maintained the census vote (people could vote based on an amount of money, so those who voted were often the big owners of lands, mostly conservatives)
  • it was the first constitution drafted without foreign competition and without external approval, becoming an act of manifestation of independence, ceasing its applicability when the Constitution of 1923 came into force.

Constitution of 1923

  • after it was adopted by the Parliament, the constitution was promulgated by King Ferdinand 1 on March 28, 1923 and published in the Official Gazette no. 282 of March 29, 1923, the date on which it entered into force.
  • it had 138 articles (78 were preserved from the one from 1866), contained in 8 titles, and contained provisions referring to the constituent elements of the state, the organization and functioning of the state powers, the composition and functioning of the electoral system, the financial organization, the armed and the administrative one.
  • specified better than the Constitution of 1866, the principle of national sovereignty (art. 1), declaring Romania a “national, unitary and indivisible state”, whose territory is “inalienable” and which cannot be colonized with foreign populations or ethnic groups. The form of government, proclaimed by the new constitutional establishment, was a constitutional monarchy.
  • also, this constitution was one of the most democratic of the time, introducing universal suffrage, the prohibition of the death penalty, the prohibition of confiscation of assets and the guarantee of property, compulsory and free primary education, and the prohibition of censorship.
  • The powers of the state were divided as follows: (they could only be exercised by delegation)
  • Legislative power: collectively by the King and the National Representation (the Senate and the Assembly of Deputies). The Assembly of Deputies was composed of deputies elected by the Romanian citizens, by universal, equal, direct, secret and mandatory electoral vote. The Senate consisted of elected senators and de jure senators.
  • Executive power: it was entrusted to the King. The government exercised executive power in the name of the King.
  • Judicial power: it is exercised by her organs. Court decisions were pronounced by virtue of the law and executed in the name of the King. As for judging the constitutionality of the law, this could only be done by the Court of Cassation and was binding only for the case being tried.

The 1938 Constitution

  • is the most criticized Constitution among those published during the period of royalty, which is caused by its undemocratic character.
  • this Constitution repeals the text of the 1923 Constitution and establishes a series of undemocratic rules:
  • The king exercises both legislative and executive power.
  • The universal vote is replaced by the centrist vote.
  • Disciplinary sanctions applied to judges were applied by royal decree.
  • The constitution could only be revised at the initiative of the King.
  • represents a regression in terms of the democratization of Romanian constitutional life. It provided, for example, first the obligations of citizens and then their rights.

Constitution of the Romanian People’s Republic of 1948

  • it is the first constitution of Romania from the communist period. Although she did not mention it explicitly, she abrogated the Romanian Constitution of 1938.
  • it was divided into 10 titles that referred to: the Romanian People’s Republic, the social-economic structure of the state, the fundamental rights and duties of citizens, the Grand National Assembly as the supreme corpus of state power, state administration bodies, local state power bodies, judicial bodies, rules regarding the coat of arms, the seal, the flag and the capital of the state.
  • the amendment could be made at the proposal of the government or one third of the members of the Grand National Assembly.
  • as for its revocation, only the possibility of revoking the people’s representatives through the will of the voters was possible. Revocation was done only under the conditions established by law.
  • provided that expropriations can be made for reasons of public utility on the basis of a law and with compensation made by justice.

The Constitution of the Romanian People’s Republic of 1952

  • under the conditions of the U.S.S.R. interference in the internal affairs of the Romanian state, a new constitution was adopted which did not bring fundamental changes in the political organization, but very seriously violated the independence of the Romanian state.
  • the introductory chapter specifies the aid granted by the U.S.S.R. for the liberation of Romanian territory from German occupation and the fact that Romania’s foreign policy is one of friendship with the U.S.S.R. The usual provisions about state independence and sovereignty were missing.
  • The constitution confirmed the fact that Romania did not have its own foreign policy. The 1952 constitution was changed in 1965, when Romania regained its attributes as an independent state.

Constitution of the Socialist Republic of Romania of 1965

  • reflects a distancing from the dominant political power in the region of the Soviet Union.
  • through this Constitution, Romania ratifies most of the international agreements and pacts regarding human rights and freedoms (eg: the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights.
  • it also bears the name of the “Constitution of Victorious Socialism”, the state passing from the stage of the People’s Republic to that of the Socialist Republic.
  • it preserves the characteristic elements of the other constitutions, such as: the removal of the separation of powers in the state, the monopoly of the single party, the different guarantee of public and private property, but we notice some essential changes in terms of state organization, thus the sovereign holder of power becomes the people.
  • in terms of external relations, it is stipulated that the Socialist Republic of Romania maintains and develops friendly relations with socialist countries in the spirit of socialist internationalism.

The 1991 Constitution

  • in the context of Romania’s return to pluripartidism, in 1989, the communist Constitution had to be replaced in order to mention the new state of affairs, but also to guarantee the respect of citizens’ rights and to allow the development of the democratic political regime.
  • the usual rights and freedoms in a democratic constitution are specified: freedom of the person, freedom of assembly and association, freedom of the press, inviolability of domicile, inviolability of property, right to vote. Unlike the democratic constitution of 1923, the one of 1991 also specifies the protection from the Romanian state enjoyed by Romanian citizens abroad, foreign and stateless citizens (those who do not have any kind of citizenship) on the territory of Romania, compliance with all treaties regarding human rights, signed by Romania. The 1991 Constitution also provides for the right to life, the prohibition of torture, forced labor and the death penalty, the protection of the disabled, the protection of the family, children and young people. In order to guarantee the protection of citizens’ rights, the institution of The Poeple’s Attorney (Avocatul poporului) is established, to which any citizen who considers himself wronged can appeal.
  • it reinstates the principle of separation of powers in the state and enshrines those characters on the basis of which the state is organized: rule of law, democratic and social.
  • also created the institution of the Constitutional Court, which is guaranteed for the first time in Romania the control of the constitutionality of laws.
  • with regard to the revision of the 2003 Constitution, its necessity was motivated by the reforms of structure and substance that occurred in the social, political and economic life of the country, especially by the prospect of fulfilling the two major objectives of the Romanian foreign policy:
  • Integration into the European Union
  • Joining the North Atlantic Alliance

Amalia Micsodan

Legal Intern R&R Partners Bucharest

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