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

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.