Marieta Safta

Constitutional Court of Romania: The Constitutionality of the Citizens’ Initiative for the Revision of Article 48 (1) of the Constitution (‘Family’)

Abstract The Constitutional Court found that Article 48 of the Constitution of Romania enshrines and guarantees the right to marriage and family relations resulting from marriage, apart from the right to family life/respect for and protection of family life, a concept with a much broader legal content, which is also embodied and protected by Article 26 of the Constitution. Insofar the analysis is limited solely to the scope of the right to marriage, the proposed amendment of Article 48 of the Constitution, ie replacement of the words ‘of the spouses’ with the words ‘between a man and a woman’, constitutes a mere indication as regards the exercise of the fundamental right to marriage, namely the specific determination of the fact that marriage is concluded between partners of different biological sex. The amendment proposed is not likely cause the disappearance, removal, deletion or cancellation of the concept of marriage. Furthermore, the safeguards of the right to marriage, as enshrined in the constitutional text of reference in its original form, remain unchanged. Therefore, the initiative for revision of the Constitution is constitutional in respect of the provisions of Article 152 of the Constitution, as it does not remove the right to marriage or the safeguards thereof and it does not bring into question any other limit on matters of revision.

Special Topic: Procedural Rules and Practices Grounding the Decisions of the Constitutional Court of Romania

The significant powers given by the Romanian Constitution to the Constitutional Court represent various and effective instruments to achieve its main role, meaning to guarantee the supremacy of the Constitution. Since the Constitutional Court’s decisions are generally binding, and given their role to ‘remodel’ the entire legal system, for the purposes of its constitutionalisation, it is vital to make them known and understood, also with reference to the underlying decision-making process. In this regard, the configuration of the procedure to settle the cases referred to the Constitutional Court represents in itself a framework ensuring the transparency in the decision-making process, in particular through the involvement in this process of public authorities representing the three State powers which are asked, according to the law, to express their written opinions in almost all cases judged by the Court. There are also other professionals, bodies, and authorities that may be requested to submit information and opinions and, furthermore, we have to underline the legal duty of publication of the decisions of the Constitutional Court in the Official Journal of Romania. This framework, as well as other instruments such as the system which provides for an online, direct access of the media, or the viewing/listening of Constitutional Court’s public sessions, press releases, other tools and practices aiming at informing on the activity of the Constitutional Court provide openness and transparency to its activity.

Constitutional Court of Romania: Postal Voting

The Court decided that the regulation of postal voting for the Romanian citizens domiciled or resident abroad is aimed at ensuring the highest participation of the Romanian citizens in the electoral process, taking account of the need to apply in full the principle of universal suffrage. The regulation shall ensure a fair balance between universal suffrage on the one hand, and free and fair elections as well as direct, secret and free suffrage, on the other.

Constitutional Court of Romania: Religion in Schools

The Constitutional Court ascertained the unconstitutionality of the provisions of National Education Law which established the possibility that pupils may not attend Religion classes provided that a request in this respect is made in writing by parents or the legal guardian, because these provisions constituted an infringement of the constitutional provisions of Article 29 on freedom of conscience. The Court stated that in adopting its regulations in education, the legislature must take into account that Article 29 para 6 of the Constitution guarantees the right to religious education and not the obligation to attend Religion classes. In this respect, free expression of options necessarily involves the person’s own initiative to attend the subject of Religion and not the tacit consent or the express refusal to attend Religion classes.