PERSONAL GROUNDS FOR TERMINATION OF REPRESENTATIVE MANDATES IN THE REPUBLIC OF BULGARIA

  • Vesela Mircheva Faculty of Law and History, South-West University “Neofit Rilski” - Blagoevgrad, Bulgaria
Keywords: representative mandate, parliament, mandate’s early termination

Abstract

In the present day democratic state the issue of political representation by MPs is of great current interest. In principle the mandate of the MPs is functionally connected to the term of office of the National Assembly. This means that the representative mandate follows the mandate of the Parliament with each and every hypothesis of extension or early termination of the mandate of the Parliament.

References

In 1989, deep socio-political and socio-economic changes occur in Bulgaria leading to the development of its democratic character, reflected in the new Constitution of the Republic of Bulgaria adopted on 12 July 1991.

Constitution of the Republic of Bulgaria, promulgated in State Gazette No. 56/13 July 1991, last amended SG No. 12 / 06 February 2007.

Drumeva, E., Constitutional Law, S., 1995.

As an individual ground for early termination of the parliamentary mandate, some authors also accept the annulled election of the MP by contesting its legality under Article 66 of the Constitution. See, p.257].

In the constitutional and legal literature the grounds for early termination of the parliamentary mandate are divided into general, referring to the entire Parliament, and individual, concerning the powers of a particular MP. See, p.257].

Member of Parliament in foreign states (Депутат парламента в зарубежных государствах), nagging meditor D.A. Kovachev, M., 1995.

The waiver of a mandate is explicitly provided for in the constitutions of many countries. For example, in Portugal, the refusal to take an oath means a waiver of mandate (Article 104, Paragraph 3); in the Czech Republic, an MP or senator may waive of their mandate by a declaration made in person at a session of the House of which he/she is a member (Article 24 first sentence), etc. In the Federal Republic of Germany, the mandate waiver is provided under the Federal Law on Election. The MPs may waive of office with a written declaration (Article 163, Paragraph 2); in Poland in the Bundestag (§46). For the purpose of its validity, it is required that the protocol of the Bundestag President, stating the personal waiver of the MP, is notarized in compliance with a number of other statutory requirements in this law. See, p.101].

Constitution of the Republic of Bulgaria - comments, S., 1999.

Ananieva, N., Constitutional Law, S., 2000.

Constitutions of foreign countries /compilation/ (Конституции зарубежных стран /сборник/), M., 2003.

The constitutional and legal literature supports the opinion that the submission of resignation is a matter of discretion of the MP, which is why it is inappropriate. The National Assembly shall decide whether to terminate their mandate or not. It is understood that the submission of resignation should serve only to notify the Parliament on the waiver of parliamentary mandate without requiring a decision. See, p.185-186],

, p.291]. The constitutional decision in Hungary is identical. Pursuant to Article 20/A, Paragraph 3 of the Constitution, an MP may resign by filing an application to the State Assembly, without the need for it to decide on its adoption. See, p.385].

Penal Code, promulgated SG No. 26/02 April 1968, last amendment SG No. 53/27 June 2014.

These are crimes that are prosecuted by the Prosecutor’s Office under the state prosecution.

The constitutional and legal literature argues that since the effect of the principal penalty is delayed, it may not give rise to additional sanctions resulting from conviction. See Spassov, B. Early Termination of Powers of Members of Parliament, People’s Councils Magazine, 1988, No. 12.

Spassov, B., Constitutional Law of the Republic of Bulgaria, Part I, S., 2002.

Stoytchev St,, Constitutional Law, S., 2002.

Similar wording had the provision of Article 10, Paragraph 2 of the Law on The Members of Parliament and People’s Advisors (revoked SG No. 37/13 April 2001).

Election Code, promulgated SG No. 19/05 March 2014, last amendment SG No. 53/27 June 2014.

The conditions for obtaining a representative mandate may be subject to independent research, which is why they will not be analyzed in detail in this paper.

Given such scenario, the Constitutional Court ruled Decision No. 2/13 April 1995. See The Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1995, S., 1996.

Ruling of 02 February 1992 under Constitutional Trial No. 1/1991. See The Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1991-1992, S., 1993.

Some authors assume that the challenge to the legality of the election of MPs covers both violations of the election procedure and violations of the constitutional requirements for taking on a representative office. See, p.467]. The legislative decision in Portugal is identical. See, p.61].

For example, if the candidate MP was nominated by entities that were not authorized to nominate or register it. For administrative violations of the electoral procedure, administrative sanctions shall be imposed under Article 470-498 EC.

Ineligibility may be available at the time of the candidacy and election of the MP, but it can also occur later after their selection.

The Law on the Constitutional Court, promulgated SG No. 67/16 August 1991, last amended and modified SG No. 19/05 March 2014.

Prelot, M., Constitutional Law of France (Precis de droit constitutionnel), M., 1957.

Ameller, Parliaments, M., 1967.

Maklakov, V.V., Parliaments of EU Member States (Парламенты стран-членов Европейского союза), M., 1994.

Danilov, I.S. Parliamentary (MPs) Mandate in the Russian Federation [Electronic Source]: Dis. … Candidate of Legal Sciences: 12.00.02.-M .: RGB 2003 (From the fund of the Russian State Library).

(Данилов, И.С., Депутатский (парламентский) мандат в Российской Федерации [Электронный ресурс]: Дис. … канд. юрид. наук: 12.00.02.-М.: РГБ, 2003 (Из фондов Российской Государственной библиотеки)).

The foreign constitutional and legal literature also distinguishes between absolute and relative ineligibility, but based on a spatial-temporal criterion. In absolute ineligibility the MP can be elected within the entire country. While in the event of relative ineligibility, certain categories of persons may not be elected in certain constituencies. For example, in Greece paid civil servants, soldiers and officers of the security forces, employees of legal entities of public law in general, managers and employees of state and municipal enterprises or utility institutions may not be MPs in any one of the regions where they have served for more than three months over the last three years. The same restrictions apply to those who have worked as secretaries general of ministries over the last six months of the four-year parliamentary period (Article 56, Paragraph 3 of the Constitution of Greece). Also, in France, high-ranking government officials can not be elected for a certain period after leaving their position on the state office in the respective constituencies. Depending on the category to which these officials belong, this period can range from six months to three years. See, p.442-446], p.94-95], p.115], p.65-68].

Ruling of 08 February 1994 under Constitutional Trial No. 22/1993. See Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1994, S., 1995.

In the majority of cases the official commitment is combined with a certain material dependence.

Bliznashki, G., Principles of Parliamentary Government, S., 2007.

Financial Rules for the Budget of the National Assembly, See the Rules of Organization and Procedure of the National Assembly, promulgated SG No. 53/18 June 2013, last amended and modified SG No. 97/11 August 2013.

Rules of Organization and Procedure of the National Assembly, promulgated SG No. 53/18 June 2013, last amended and modified SG No, 97/11 August 2013.

Balamezov, B. Short Glossary /Theory of the State, Theory of Law, Constitutional and Comparative Constitutional Law/, S., 1993.

Constitutional Law: Glossary / managing editor V.V. Maklakov, – M.: Jurist, 2001 (Конституционное право: Словарь / отв. ред. В.В. Маклаков. – М.: Юристь, 2001).

Decision of the Constitutional Court No. 2/26 February 1992. See The Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1991-1992, S., 1993.

Decision of the Constitutional Court No. 5/06 April 1993. See Balamezov, B. Interpretation Decisions of the Constitutional Court 1997-1999, S., 2000.

Krutogolov, M.A., French Parliament – Organization and Legal Aspects of Operation, M., 1988 (Крутоголов, М.А., Парламент Франции – организация и правовые аспекты деятельности, М., 1988).

Comments to the Constitution of the Russian Federation, M. Jurist, 2002 (Комментарий к Конституции Российской Федерации, М., Юристь, 2002).

Regarding the legal institute of incompatibility of MPs see Mircheva, V., Descriptive Scope of the Deputy Incompatibility in the Republic of Bulgaria, Scientific Research, Neofit Rilsky South-West University, Blagoevgrad, Electronic Issue, 2008, Vol. 6.

Avtonomov, A.S., Constitutional (State) Law of Foreign Countries, M., 2005 (Конституционное (государственное) право зарубежных стран, М., 2005).

Bliznashki, The Constitutional Position of Government, In: Parliamentary Control in Bulgaria, Sofia, 2009.

The direct effect of the ban on holding any other public office does not preclude the option of determining by law the government offices which an MP may not take. The incompatibility can be governed in a future law on the legal status of MPs.

In different countries early termination of the parliamentary mandate in the scenario of incompatibility takes different forms. For example, in the UK the legal effect of incompatibility is the obligation to resign; in Portugal, deprivation of parliamentary powers, p.25, p.64]. In France, when establishing illegal reconcilement of the parliamentary mandate with a prohibited profession, the Constitutional Council announces the resignation of the MP, p.174]. In Greece, the MP is deprived by law of his parliamentary office (Article 57, Paragraph 2 of the Constitution of Greece). In Brazil, the MP or the senator loses its mandate (Article 55, Paragraph I of the Constitution of the Federal Republic of Brazil).

Interpretative Decision No. 8 of 06 May 1993. See Balamezov, B. Interpretation Decisions of the Constitutional Court 1997-1999, S., 2000.

The Portugal has a similar legislative decision whereby parliamentary powers are discontinued. See, p.63].

In the discussed interpretative decision, the Constitutional Court states that the normal means of filling an early vacated office is by holding new partial elections for Members of Parliament. See, p.117-118]. Identical is the constitutional decision under Article 56, §2 of the Constitution of the Federative Republic of Brazil. According to its wording, in the presence of a vacated office and lack of a candidate, elections should be held for the purposes of its filling, if left more than fifteen months to the end of the mandate are left. The Constitution of Greece contains a similar provision. According to Article 53, Paragraph 2 a vacated parliamentary office shall be occupied by holding partial elections, provided that it has not been vacated during the last year of the Parliament’s mandate and the vacancies are more than one-fifth of the total number of MPs. Also, according to Article I, §2 of the US Constitution, the vacant representative mandates in a certain state shall be filled by holding additional elections.

An exception in this regard is the legal framework of Luxembourg, according to which in case of involvement the government the parliamentary mandate shall be immediately terminated and can not be reinstated, except with new elections. See The Comparative Analysis of the Regulations for the Organization and Procedures of Parliaments of the EU Member States and other non-EU Member States /Legislative Study/ Students Parliamentary Internship Programme, National Assembly, S., 2001.

From 1995 to 2001 the ROPNA have provided the obligation of MPs to submit to the Committee on Budget and Finance, the Committee on Budget, Finance and Finance Control, respectively, declaration of compliance with the requirements for incompatibility on a yearly basis. The failure to submit such declaration or submitting false data was not subject to certain penalties. Therefore, it was of more like ethical significance.

The municipal councils are also subjects to the right of referral to the Constitutional Court in terms of disputes on jurisdiction between local authorities and the central executive authorities (Article 150, Paragraph 1, first sentence CRB), and the Ombudsman in terms of establishing unconstitutionality of a law infringing the rights and freedoms of citizens (Article 150, Paragraph 3 CRB).

It should be noted that we refer to the status of the President in a parliamentary republic.

Bliznashki, D., Functions of the Presidential Institution in Bulgaria, In: Parliamentary Control in Bulgaria, S., 2009.

With regard to this, there is also a practice of the Constitutional Court. For example, the Constitutional Court ruled Decision No. 2/13 April 1995 on the request of the Prosecutor General for establishing ineligibility and early termination of the powers of the MP, George Ganchev Ganchev. See The Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1995, S., 1996.

The Decisions and Rulings of the Constitutional Court of the Republic of Bulgaria 1995, S., 1996.

Repealed SG No. 44/06 March 1997. A similar 15-day period was provided in France. See, p.166, p.173], p.448].

According to Article 27, Paragraph 1 of ROPCC, the interested parties may participate in e constitutional litigation in cases of prosecution by the National Assembly against the President or the Vice President for treason or violation of Constitution (Article 23, Paragraph 4 of the LCC); in case of removed immunity of a constitutional judge (Article 25, Paragraph 2 of the LCC) and when the Constitutional Court decides to hear the case in an open session (Article 27, Paragraph 2 ROPCC). Promulgated, SG No. 38/1997.

The existence of a similar committee is also provided by the wording of Article 15, Paragraph 1, Item 23 of the then current ROPNA of 2013 (Promulgated SG No. 53/18 June 2013), entitled Committee on Religious Affairs and Parliamentary Ethics.

And standing committees with similar functions exist in the parliaments of many other countries, bearing different names, such as Committees on the MP Status (Spain), Parliamentary Ethics Committee (Poland), Commission for Parliamentary Behaviour (Scotland), etc. See, p.72, p.137, p.210].

A similar obligation exists in many countries. For example, in France an MP is obliged to notify the Court Bureau of their intention to continue their previous professional occupation within 15 days of taking on the office. See, p.173]. Also, in Greece an MP shall, within eight days of his/her election, apply for the option that he/she has chosen between a parliamentary office and his/her occupation incompatible with his status. Otherwise, he/she will be deprives by law of his/her parliamentary office (Article 57 Paragraph 2 of the Constitution of Greece).

Rules of Organization and Procedure of the Constitutional Court, promulgated SG No. 106/20 December 1991, last amended and modified SG No. 50/17 June 2014.

The constitutional and legal literature appropriately notes that by means of this provision the Law on the Constitutional Court actually amends the Constitution. Pursuant to Article 151, Paragraph 2, second sentence of the Constitution, the decisions of the Constitutional Court shall become effective three days after their promulgation in the State Gazette. And the wording of Article 14, Paragraph 4 of the Law on the Constitutional Court provides that in certain scenarios, including the establishment of ineligibility or incompatibility of an MP, the Court decisions become effective as of the date of their ruling. See Spassov, B., Constitutional Law of the Republic of Bulgaria, Part Two, S., 2002
Published
2014-11-30
Section
Original Article