The promulgation of the enabling law

Author:Tudor Oniga
Position:University Lecturer Tudor Oniga Ph.D. 'Dimitrie Cantemir' Faculty of Law, Cluj-Napoca
Pages:218-221
SUMMARY

The objective of this article is to make a succinct analysis of the issues that may arise in the legislative procedure finished with the promulgation of an enabling law by the President of Romania and, particularly, whether the President is compelled or not to promulgate a law and the consequences of a potential refusal of promulgation.

 
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THE PROMULGATION OF THE ENABLING LAW
Tudor Oniga*
Abtract
The objective of this article is to make a succinct analysis of the issues that may a rise in the legislative
procedure finished with the promulgation of an enabling law by the President of Romania and, particularly, whether
the President is compelled or not to promulgate a law and the consequences of a potential refusal of promulgation.
Key words: law, enabling, promulgation, term, President.
Introduction
Taking into account the role, place and importance of the Parliament in the nowadays constitutional
climate of the rule of law, and making reference to the fundamental la w text, especially the provisions of a rt. 61
paragr . (1) of the Romanian Cothe Parliament is the supreme representative body of
the Romanian people and the sole legislative aut       
enactment would have pr iority within the current functions of the Par liament
1. Certainly, other parliamentary
functions ar e equally important even if they are only deduced from the constitutional text, only that the legislative
function of the enactment function is the first to be r ecalled when reviewing the functions of various repr esentative
Assemblies.
Acts of Parliament
In the light of its legislative function, as “a specialised form of its general co mpetence by virtue of
which the debate of general political matters of the nation are finished by adopting a rule of la w, as an expression
of the general will in regulating certain social rapports”2, the House of Deputies and the Senate, as stipulated by
art. 67 paragr. (1) of the Constitution, passes laws, ca rries resolutions and motions, in the presence of the
majority of their members. T he law, as main le gal act of the le gislative body, although the legislation in force
does not define it, is a legislative act, a unilateral act of will o f the Parliament3, for the purpose of producing legal
effects. As we try to define it, in our opinion the law is the legislative normative act resulted upon the deliberation of
the legislative body set up following free, periodic and correct elections, passed under a certain technique and
procedure previously established, subsequently promulgated and officially published, and which expresses general
behaviour rules, impersonal, repetitive and compulsory, having the most important legal force and whose violation
leads to specific sanction from the public power. The content and form of the law are conditioned by the
particularities and the specificity of the field that is to be regulated.
The Laws of Enabling Type of Ordinary Law
The Constitution consecrates itself the types of laws in our constitutional system, i.e.: constitutional laws,
organic laws and ordinary laws4. But examining art. 115 paragr. 1 of the fundamental law which stipulates that “the
Parliament may pass a special law enabling the Government to issue ordinances in fields outside the scope of organic
laws”, we question the legal nature of this enabling law as we are talking about a “special law” without stating its
constitutional, organic or ordinary nature. One may wrongfully believe that a new category of laws is being
introduced this way, the enabling laws, as distinctive law in regard to the previously analysed ones. But the enabling
laws are nothing but a species of the ordinary laws, specially denominated to emphasise on their importance within
the larger context of the institution of legislative delegation. The coming into effect of the enabling law, as type of
ordinary law, is the outcome of a long and complicated p rocess that, in our opinion, implies three main phases:
a) the first phase, pre-parliamentary, of governmental nature, has as purpose the adoption in a Government
session of an enabling bill; b) the second phase, parliamentary, ends with the passing o f the bill by the
Parliament, and at this moment we are talking about an enabling law; c) the third phase, post-parliamentary,
completes the e ntire process and implies the promulgation of the law by the President of Romania and the
entering into effect of the enabling law.
* University Lecturer Tudor Oniga Ph.D. “Dimitrie Cantemir” Faculty of Law, Cluj-Napoca, tudor_ oniga@yahoo.com
1 In details about the state’s functions, G. Vrabie, , in the “Studii şi cercetri juridice” Magazine,
no. 4/1981, p. 23 et seq.
2 I. Muraru, M. Constantinescu, , “Actami” Publishing House, Bucharest, 1999, p. 121.
3 From the perspective that the law is the will of the legislative authority, see: Couderc et Becanne, , Dalloz, 1994.
4 art. 73, ¶ (1) of the Constitution.

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