Constitutional principles as fundamental directions of the organization and functioning of the political system

Serghei ŢURCAN, Ph. D., Associated professor
Andrei CUCULESCU, Master degree in law

The constitutional principles are on the basis of the organization and functioning of the political system, and they are determined by the nature of political and socio-economic relationships. They reflect and consecrate in the political and legal formulas the social-politic and economic structure of the society, the essence of a democratic political system, relations that are established between its various components, fundamental directions of the regulation of social relations and management system of the political organization of society. Keywords: constitutional principles, political system, sovereignty, legal norms.

Principiile constituţionale ca direcţii de bază ale organizării şi funcţionării sistemului politic Principiile constituţionale, aflate la baza organizării şi funcţionării siste­mului politic, sunt determinate de natura relaţiilor politice şi social-economice. Ele reflectă şi consacră în formule politico-juridice structura social-politică şi economică a societăţii, esenţa democratică a sistemului politic, raporturile ce se stabilesc între diferitele sale componente, direcţiile fundamentale ale organizării statale, ale reglementării relaţiilor sociale şi conducerii la nivelul sistemului de organizare politică a societăţii. Cuvinte-cheie: principii constituţionale, sistem politic, suveranitate, norme de drept.

The notion of principle was stated since ancient times, with the meaning of the source, essence or founder principle, fundamental to a particular domain of activity. If we change essentially the domain of activity on which we report, it changes also the guiding principles of that domain, this is the conclusion reached by Mircea Djuvara1. The term principle has its origins from the Greek word arhe which designate the act of administration. Latinos have translated from the ancient Greek verb arhe with principium, which means beginning, basis.

The legal sense, of the term principle means basic, leading ideas. In legal literature principles of law have been defined in different ways2. Costică Voicu believes that fundamental principles are those general ideas underlying leading to elaborate and apply the law3. In the vision of Nicolae Popa, principles of law are the leading ideas of the content of all legal norms4. Boris Negru believe that the principles of law are those fundamental ideas of leading system of law and of its departments, as well as the coordination of legal norms guiding around an idea5.

In the exercise of political power, the driving ideas, legitimacy, authority, representatively, subordination, coercion met in the activity of institutionalization, organization and functioning of the power structures each one takes the value of political principle.

To the extent that it acquires a legal content, in the sense that it is imposed on the whole community by the public force through specific methods and instruments, it can be said about the principle that it is a principle of law, located at the confluence of politics and law. Once formulated and consecrated in a conventional language, law principles are transposed in legislative texts, at which point it can be accepted formally that they have general binding force and are being integrated into the general system of law, law appears as Eugeniu Sperantia says, as a totality of binding social norms6.

It is a proven fact in the constitutional history of each State that the exercise of political power is conditioned to use by the governors the legal instruments. In this quality, law gets, especially through its guidance instruments, results, related to the proper political activity, thus contributing to the achievement of functions and purpose of the political system. They are used, on the one hand to the institutionalization of organizational forms in which set up and operate institutions of power and their device, and, on the other hand, by the instrumentality of law political decisions are turned into general binding rules, whose violation is sanctioned by State through its coercive force7.

It is natural, therefore, that the constitutional principles have a high political content. The fact that they are written in a law, such as the Constitution, and because of this they have a legal form, cannot lead to the conclusion that these principles have only a legal form. Their content is complex, given by interference of politic and law8.

In modern states are found the amplification of interdependence between politics and law, of the connection between political and legal decisions, between political acts and legal norms.

Through the instruments of law, the State as a fundamental politic institution of administration of the society, implementing politic decisions in legal norms, giving them needed attributes authority provided by its coercive force. The law holds in this context an important role as an act of social administration, acquired a growing role in the implementation and achievement of political decisions, as prefiguration of social normativity9. Through its functions of regulating social life, legal norm transposes into the practice the sovereign prerogatives of power, give expression to his normative will, acts as one of the fundamental factors ensuring the expression of sovereignty as inalienable attribute of the whole nation. Constitutional principles support the full influence of this interference, especially visible at the level of proclamation of the fundamental political and legal norms. It can be said that, that the constitutional principle will contribute to accomplishment of the political finality but also in achieving of law, because in one case and in another the constitutional principle ensure through generality and obligation of its normative prescriptions, unity and stability of the political and legal decisions10.

Nistor Prisca define the constitutional principles as fundamental directions of organizing and functioning of the political system, according to which is organized and functions all political bodies, state institutions, established all the relationships between them, the unit of the entire political system11.

In our opinion the constitutional principles represent the fundamental directions of the organization and functioning of the State, guarantees of fundamental human rights, ensure the separation and balance of State functions, are taken by, or on behalf of the nation and enshrined in the fundamental political-legal act of the State, Constitution.

Cristian Ionescu proposed the following classification of constitutional principles: a) uniqueness, completeness and sovereignty of the people’s power; b) political pluralism; c) separation of powers; d) the principle of representation; e) equal rights and duties of citizens; f) supremacy of the Constitution12.

In the category of constitutional principles Teodor Cârnaţ assigns the following principles: a) separation of powers; b) universality and equality in rights; c) sovereignty of the people; d) the fundamental principles of property; e) political pluralism; f) the unity of the people and the right to identity; g) access to justice13.

Although, most of the authors use the term separation of powers, it doesn’t mean that it’s about separation of State power, because State power derives from the national sovereignty and belongs exclusively to a single owner, the people. When we talk about legislative, executive and judicial power, we know that State power is exercised in the name of the people by certain authorities, therefore certain authorities are entrusted with certain empower and not with power as such, so, we think that a more correct formulation of this principle would be the separation of functions in: legislative, executive and judiciary.

A result of the above, we propose the following constitutional principles classification:

1) Uniqueness, completeness and sovereignty of the people’s power;

2) Political pluralism;

3) Separation of state functions;

4) Protection of human rights and freedoms;

5) Supremacy of the Constitution.

Whether these principles are expressly stated or not in the fundamental law of the State, they extract their content from the Constitution14.

 

1. Uniqueness, completeness and sovereignty of the people’s power.

Popular sovereignty or the sovereignty of the people’s power is the principle that the authority of the government is created and sustained by the consent of its people, who are the source of all political power. It is one of the fundamental principles which emerge from the article 2 of the Constitution of the Republic of Moldova and states that „National sovereignty resides with the people of the Republic of Moldova, who shall exercise it directly and through its representative bodies in the ways provided for by Constitution”15.

Popular sovereignty in its modern sense, that is, including all the people and not just noblemen, is an idea that dates to the social contracts school (mid-17th to mid-18th centuries), represented by Thomas Hobbes (1588—1679), John Locke (1632—1704), and Jean-Jacques Rousseau (1712—1778), author of The Social Contract, a prominent political work that clearly highlighted the ideals of „general will” and further matured the idea of popular sovereignty. The central tenet is that legitimacy of rule or of law is based on the consent of the governed. Popular sovereignty is thus a basic tenet of most democracies. Hobbes, Locke and Rousseau were the most influential thinkers of this school, all postulating that individuals choose to enter into a social contract with one another, thus voluntarily giving up some of their natural freedom in return for protection from dangers derived from the freedom of others16.

The people, who hold the supreme power, as Montesquieu says, must do everything himself that can do well and what cannot do well must do through its representatives.

In the opinion of Jean Jacques Rousseau’s, people are all persons that reside in a given territory, each of them possess an equal share of sovereignty, in proportion to the total number of population17. Sovereignty is thus considered as the sum of individual wills, people give to governors not the sovereignty, but only its exercise in their name, and governors are in fact simple delegates of the people18.

The representative democracy means that political regime in which people express their will through its representatives. So the representative democracy embodies the political systems that are characterized by the fact that the supreme power in the State are not exercised directly by the people, but through an elected parliament for a certain period of time19.

Victor Popa proposes two definitions for the representative regime, he says that the representative regime turns out to be: „form of indirect exercise of national sovereignty by the people through their elected representatives” or „all public authorities designated by the people to exercise sovereignty (political power) in their names”20.

French scientist Pierre Pactet, affirms that the representative regime represents „the exercise of power of the representatives elected by universal suffrage, empowered to decide on behalf of the nation”21.

The Moldovan people exercise national sovereignty directly and through its representative bodies. The exercise of the sovereignty of the people through its representative bodies supposed that representative bodies are formed (elected) in accordance with the provisions of the Constitution, the electoral legislation and that their activity is conducted in the manner and within the limits established by the Constitution and legislation.

In the Constitution of the Republic of Moldova aren`t specified a particular body. It is essential to body which exercises the national sovereignty to be a representative. Are representative bodies that which their members act as mandatory of the people, and taking decisions on behalf of those who have given them the mandate.

The Constitution provides as representative bodies: Parliament (article 60-76), local councils and mayors (article 112-113). Representativeness is ensured by elections, so the Constitution provides that above mentioned authorities are elected by universal, equal, direct, secret and freely expressed suffrage. The vote is the legal instrument of investment with legal power the public authorities, whom it shall delegate the continuous exercise of national sovereignty22.

Popular sovereignty is the basis of constitutional government. The Constitution clearly establishes government in the name of the people. Popular sovereignty is government based on the consent of the people. Government, established by free choice of the people, is expected to serve the people, who have sovereignty, or supreme power.

2. Political pluralism.

Political pluralism one of the fundamental constitutional principles of modern democracy, being understood on the one hand, as the diversity of interests, ideologies, cultures, social groups, values and political conceptions, religious, each of them having a specific configuration and a certain content, and on the other hand, as the diversity of political and social organizations, subject of specific interests23.

The Constitution of the Republic of Moldova in article 5 establishes that „Democracy in the Republic of Moldova is exercised under conditions of political pluralism, which is incompatible with dictatorship or totalitarianism”24.

Pluralism in society is a condition and a guarantee of democracy. Referring to political pluralism, Professor Pierre Pactet shows that „democracy means that the people can choose their governors. However, there are no truly free votes unless voters can choose between several possibilities”25.

Political pluralism is a political system where power is exercised by the socio-political organizations which cooperates and balances each other. In democratic politics, pluralism is a guiding principle which permits the peaceful coexistence of different interests, convictions and lifestyles. The most important value of pluralism is the mutual respect and tolerance, so that different groups can coexist and interact without conflicts that will naturally arise out of diverging interests and positions. These conflicts can only be resolved durably by dialogue which leads to compromise and to mutual understanding26.

Political pluralism is based on the following principles and legal norms:

— Legal equality between parties, which means that each party must meet the same legal conditions in order to be registered and to function, as well as the fact that all parties have the same electoral status;

— Political dialogue between the parties, which implies the mutual respect, reducing the political struggle at the crossroads of ideas, avoiding violent confrontations;

— Political consensus, which means the conscious participation, on principles of legal equality, of all political forces at social activity, in order to harmonize the diversity27.

From the perspective of political science, political pluralism means a mentality and politic actions that takes place in a democratic competition for the conquest and exercise the political power in a society. In the political doctrines about pluralism, the stand on is on the instruments of consensus between different political forces with some social weight.

In a pluralist society, political power is not disputed in the violent forms of class struggle, but in peace and democratic ways, through electoral instruments. In this way, the legitimacy of the diversity of social concepts, interests, is converted into a true political legitimacy conferred to parties by electoral support28.

3. Separation of state functions.

In the 17th century, has contoured a new trend in political philosophy, represented by illustrious Englishman John Locke, who supported and proved that absolute power could be diminished through the separation of functions of the State and the exercise of their by different bodies and structures29. In John Locke’s conception, legislative and executive power should not be entrusted in the hands of one person, because „legislative power is that which has the right to determine how the State must use force to protect the community and its members”. Locke’s conclusion is not a categorical formulation of the principle of separation of powers, but a distinction between legislative and executive power.

The one who give a precise formulation of the theory of separation of powers is Charles Louis Montesquieu, thus being considered the father of the principle of separation of powers. In his book „The spirit of laws” he shows that in every State, power is divided in three branches: legislative, executive and judicial, which must be separated in order to eliminate the despotism, to balancing and harmonizing social forces30. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights. Montesquieu’s theory comes as a guarantor of human and citizen’s freedom against the excesses of power.

This principle has been regarded as generator of political freedoms and has been one of the basic principles of the U.S. Constitution of 1787 and of the French Constitution of 1791. Later, this principle has been taken over by other states. The application of this principle has been changed over time, passing from the absolute separation of powers at their separation through collaboration31.

If two hundred years ago the separation of powers into legislative, executive and judiciary, along with other democratic principles, ended the absolute monarchy and favored the establishment of the democratic system of government, today this principle is a guarantee against dictatorship and the autocratic regime.

The importance of the principle of separation of powers is put in value by including these norms in the majority of constitutions of modern States. The principle of separation of powers is set in art. 6 of the Constitution of the Republic of Moldova „The Legislative, the Executive and the Judicial Powers are separate and cooperate in the exercise of their prerogatives in accordance with the provisions of the Constitution”32.

The State as a political-legal and social structure, has to fulfill many functions, the main of them according to the Constitution of the Republic of Moldova are:

— Legislative function — performed by the Parliament by issuing general binding rules (laws);

— Executive function — carried out by the President and the Government through the application and implementation of legislative acts;

— Jurisdictional function — carried out by the Judicial Courts and expressed through the settlement of disputes that arise in the process of application and implementation of normative acts.

As we mentioned above, although is used the term separation of powers, it doesn’t mean that it’s about separation of State power, it means that State power is exercised in the name of the people by certain distinct authorities.

The Constitution of the Republic of Moldova in Title III „Public authorities” regulates the public powers, their competence and the relations between them. It is structured in full compliance with the principle of separation of the three powers. Each of these three powers is invested with certain prerogatives, between the bodies which exercise the prerogatives of certain powers is a functional connection, close cooperation, designed to ensure the harmony of government process of the society and to prevent the abuse of one power over another. For these reasons, on the basis of the principle of separation of powers is mutual control mechanism between powers and ensuring a functional balance between them33.

Today humanity has gone to democratic principles and forms of governance, in which the principle of separation of powers has gained a special importance and has become an indispensable institution. Separation of powers is meant to ensure the realization of democratic governance and avoiding abuse of power. The theory of separation of powers can be considered as one of the most advanced and better suited to modern concepts of State powers34.

Separation of powers is a system of institutions and mechanisms responsible for ensuring democracy and political pluralism, to guarantee fundamental rights and freedoms of people, to ensure the existence of State for people and not people for the State35.

4. Protection of human rights and freedoms.

Human rights are those rights which belong to the human being from birth, are inalienable and inherent to every person by virtue of his membership to the human species and which are universally recognized36.

The notion of fundamental human rights defines fundamental rights as essential for the existence and integrity of the mental, physical and intellectual development of man, as well as for his active participation in the management of the State, established and guaranteed by international law, Constitution and national laws of the State37.

Fundamental rights are essential for freedom, personality, even for life and human existence. Subjects have the legal power to act in one way or another, asking other topics for appropriate attitude and behavior, which result from prescribed regulations.

The Constitution of the Republic of Moldova, along with other articles, devotes an entire Title (II) to rights, freedoms and duties of man, revealing the importance of these institutions in the life of society and of our State.

Although the Constitution did not make a separate classification of fundamental rights and freedoms, their classification is very important because it allows emphasizing their essential character for each person.

Ioan Muraru divides fundamental rights based on content criterion in: a) inviolabilities, b) socio-economic and cultural rights and freedoms, c) exclusively political rights, d) socio-political rights and freedoms, e) rights guarantees38.

Tudor Drăganu classifies fundamental rights in: a) individual freedoms, b) socio-economic rights, c) political rights, d) socio-political rights39.

Taking into consideration the specifics of the Constitution of the Republic of Moldova, we believe that fundamental rights and freedoms provided by the Constitution of our country can be classified in:

— Individual rights and freedoms — including the rights that have as their object the protection of the human person and her private life, without any illegal intervention from the outside: the right to life and physical and mental integrity, the inviolability of domicile, private and family life etc.;

— Political rights and freedoms — with the purpose of ensuring the participation of citizens in the State management: the right of voting and being elected, the right to information, the freedom of assembly etc.;

— Economic, social and cultural rights — with the purpose of ensuring the cultural and material development of citizens: the right to private property, the right of working and work protection, the freedom of creation etc.;

— Constitutional guarantees — their content plays the role of constitutional guarantees: free access to justice, right of defense, presumption of innocence etc.

To be emphasized and have a maximum legal authority, principles or rules of human rights must be the subject of a legislative document of major importance such as the Constitution. Fundamental rights are covered and guaranteed by State institutions which cover effective legal procedures. In this context, appear the issue of guarantees of fundamental rights, which means, among other things, punishes the violations of these rights.

5. Supremacy of the Constitution.

The Constitution of the Republic of Moldova in article 7 states that „The Constitution of the Republic of Moldova is the supreme law of the country. No laws or other legal acts and regulations in contradiction with the provisions of the Constitution may have any legal power”40.

The supremacy of the Constitution establishes the place of the Constitution in the legal system, taking into account the hierarchy of normative acts, legal system and the place of constitutional law in the legal system. In a society organized in the State, the Constitution is the source of all regulations in the economic, political, legal and social domain. So the supremacy of the Constitution is not a strictly a legal category, but one which express political and legal fact that the fundamental law is the result of the development of the society and marks a historic step in the life of a country and give expression to the politico-legal stability and prospects of historical realities in which it was adopted41. This special position in the socio-political system involves a complex legal content, but of course the important state and legal consequences.

The supremacy of the Constitution is a complex notion in content that includes political and legal features and elements that express the highest position of the Constitution, not only in legal system but also in the entire socio-political system of a country.

In support of the supremacy of the Constitution we can found in literature several arguments. Through its essence as its social function, the Constitution has a legal value superior to any other rule of law. As a result, all normative acts adopted by the Parliament and Government, as well as other acts of public authorities, must be conform to the constitutional norms and principles. If a normative act, including a law adopted by the Parliament or the rules of organization and functioning of Parliament are contrary to the Constitution, this act can`t take effect42. The theoretical justification of the supremacy of the Constitution lies precisely in its legal and political character. This, in the Constitution finds expression as supreme will of people power what concerns to the objectives and instruments of the exercise of political power. Constitutional norms sets out the main instruments of governance, establish the authorities which will do the government and relationships between them. At the same time, the Constitution is the basis of the citizens` rights and freedoms. In addition, the Constitution is the structural factor of legal order that provides the fundamental principles.

The bases of the supremacy of the Constitution are:

— it legitimizes the power, by converting individual or collective wills in the will of the State;

— it gives authority to governments, justified their decisions and guarantees their implementation;

— it determines the functions and powers of the public authorities;

— consecrating the fundamental rights and duties of citizens, manage the relationships between them and the public authorities;

— indicates the meaning or scope of State activity, political, ideological and moral values under the sign of which is organized and functioning the political system;

— is the fundamental basis and guarantee of the rule of law;

— it is, ultimately, the decisive benchmark for assessing the validity of all acts and legal facts43.

We note that the supremacy of the Constitution is a quality that situated the Constitution at the top of political and legal institutions of the State, being the source of all regulations in the economic, political, legal and social domains.

The social relationships which are regulated by fundamental legal norms, according to constitutional principles, acquired the character of the constitutional relationships44. Regulating the most important domains of social life according to law principles with a fundamental character, law is therefore a factor which made the nucleus of the social order45. In this quality, law gets, especially through its guidance instruments, results, related to the proper political activity, thus contributing to the achievement of functions and purpose of the political system46.

In conclusion we can say that the guiding principles underlying the functioning of the political system are the principles with a fundamental political and legal content. Based on them, the legislator regulates the most important normative social relationships, that interesting, first of all, the organization and exercise of power, which establish the socio-economic structure of society, rights and freedoms of citizens, the establishment and functioning of the State apparatus.