Access to power in the state through the principles of national sovereignty and democracy

Serghei ŢURCAN, Ph. D., Associated professor
Andrei CUCULESCU, Master degree in law, Post–graduate student

Accession to the power in state can take place in two ways: democratic instauration by way of election (universal, equal, direct, secrete and freely expressed vote) or undemocratic form of using force, violence, by way of revolutions, insurrections. In a democratic state the access to power and formation of power authorities in state take place by elections, within which the single holder of sovereignty and power in state is the people, by means of the vote is given the right of exercising the sovereignty on their behalf to some representatives. Keywords: power, elections, sovereignty, democracy, people.

Rezumat: Accederea la putere în stat poate avea loc prin două modalităţi: instaurarea democratică pe calea alegerilor (vot universal, egal, direct, secret şi liber exprimat) sau forma nedemocratică a folosirii forţei, violenţei, pe calea revoluţiilor, insurecţiilor. Într–un stat democratic accesul la putere şi formarea organelor puterii în stat are loc prin alegeri, în cadrul cărora unicul deţinător al suveranităţii şi puterii în stat — poporul, transmite prin intermediul votului dreptul la exercitarea suveranităţii în numele său unor reprezentanţi. Cuvinte–cheie: putere, alegeri, suveranitate, democraţie, popor.

The Concept of Power. Political Power and the State Power. Always, members of any social collectivity tended or aspired to a political state which gives them favorable conditions for self–governing or at least for participating, by representation, at the process of social governance. To persuade the government to recognize this aspiration, a true natural law, the masses used the force of weapons or the force of mind and often they succeed. During the historical development of each nation can be identified various organizational forms, rudimentary at the beginning, then more and more developed, through which the members of the community participated, or were attracted, somehow or other, to exercise some governmental attributes1.

If in ancient, antique, less numerous communities (Greek slavery democracy), the direct democracy was possible through citizens’ meeting and adoption in common of important decisions, in the modern states the direct democracy is not anymore possible in forms known in antiquity. That is why the access to democratic exercise in contemporary era is made through representation, which confers to the concept of mass participation at the execution of power, a practical, material content. Of course the forms of participation are diverse from state to state according to political regime, real–historical conditions, democratic traditions, political culture of citizens, interests of the political circles and forces which debate the options of the electorate etc.

Thus, according to the political dictionary, power (lat. Potestas: power, ability) is an ability or a right to make something, a capability to impose own will or to exercise authority over others. The power can be of different types: political, legislative, judicial, spiritual, etc2. The power designates the group or the system of power relations constituted in a historical determined society, expressing the authority which a person or a group of persons has over others in order to realize a common purpose, committed by the members of the community or imposed by those who are exercising the power.

The power, as such, existed and was manifested as an act of command, domination and enforcement in any human community. Such a power had a social character and it was carried out individually or collectively, but not organized over another persons. Only after appearance of social organization instinctively appeared the question of ensuring a union of the group which could receive a constant feature3. The unique method to achieve this purpose was systematic use of power by a person or a close group and determining through it of a set of compulsory prescriptions for the whole group.

Any society, no matter how primitive is it, must depend on a certain organization and distribution of power, even for the elementary function of its conservation. The power appears as a social requirement; its utility can be explained primarily from the point of view of the importance represented by maintaining the balance, the internal cohesion of any society. The power supports fundamental order of society and social organization within it. It stands behind any association and supports the structure4. Without power there is no organization and order. The peculiarities of each power consists of the ability of its bearers to impose their will to others, to cause others obedience and subordination. The power is manifested only within social relations and cannot conceive outside society.

In a sociological meaning the power designates „a force placed in service of an idea, a force born from social consciousness, intended to lead the group in search of „the common good” and able, at need, to impose its members the attitude which they order”5.

In opinion of Professor Tudor Drăganu, power consists in the ability to take, by way of some manifestations of unilateral will and without any subordination to any higher or competitive authority, binding measures, susceptible to be imposed with general respect by means of binding force which was constituted for this purpose6.

In a similar way, Professor Ion Deleanu defines power as the group or the system of power relations constituted in a historical determined society, expressing the authority which a person or a group of persons have over others in order to achieve a common purpose assumed by the members of the community or imposed to them by those who exercise the power7.

Based on the above, we can conclude that the power is the capacity which is expressed within the social relationships which a person or a group of persons have for enjoining their own will over other members of the society, for realization of a common purpose, undertaken by members of the society or imposed to them by those who exercise power.

From historical point of view, political power appeared on the background of the social power, namely of the power exercised by the gentilic–tribal authorities (chiefs of gentes or tribes, common authorities of tribal communities)8. This social power becomes political with the transformation of human collectivity into society.

The term political comes of the Greek word polis which means state–fortress. The term politics signifies in contemporary language „activity held by persons elected or appointed who take decisions, which regulate and ensure the organization of society on the whole”. The term political also means authorities and institutions, invested with functions of government and administration of public affairs. This domain is named also political system9. This term means social feature of power, reason for which political power suppose power of people. For these reasons many doctrinarians acknowledge as single holder of political power the people or the nation, calling it power of people (nation).

As a phenomenon, political power is described as a power exercised within a collectivity, in order to organize, to maintain and defend it or as a generalized capacity to obtain accomplishment of some compulsory duties by social persons and groups in a system of common organization, when the duties are legitimated by their connection as common purposes. The power is a force born from social conscience, intended to govern the social group (society) looking for the common good and capable to enforce if needed to the members of the group which it command, the attitude they command10.

Political power is distinguished from other forms of power where it occurs only in societies where exists social differentiation between those who govern and those governed. Since people cannot exercise directly political power, this creates the state. Once created, the state exercises a power within the limits established by the Constitution, which is the state power11. Some doctrinaires equate the political power and the state power. We believe that according to the field of activity the notion of political power is larger then the state power.

Between the category of political power and state power is a relation as between the whole and the part. The features of political power are found within the state powers, but not all state features are found in the ensemble of the political power. The state power is a power specialized and delegated by people as holder of political power to certain bodies or public authorities. The state power is thus a power derived and conditioned by the political power hold by the people. Except this condition, the state power could be a competitive power and with equal heft to political power. The fact that state power is a delegated power or in other words a derived and conditioned power means that it cannot be opposed to people and used against it.

Therefore state power is legitimated only if it resides in the sovereign power of people, the illegitimate state power is a power resulted from usurpation of legitimate power or of the power exercised against people12.

In this regard, political power is defined13 as an abstract collective capacity, inherent to social life, politically organized and non–personalized, belonging to the entire human community residing on a specific territory, consisting in the power to enforce general observance of certain social commands.

While the state power is a political power of a social group, through which the group makes real the will of the people, ensures its realization by means appropriate exclusively to state14. According to Professor Gheorghe Iancu15 the state power is exercised by specialized institutions, endowed by law with those abilities required to carry out the state functions.

The force of domination, restraint exercised by state is based on a superior will, which is of people or nation. This is not about the total amount of personal wills, but the collective and abstract will resulting from the tacit consent of the individuals and of the people awareness of its role and force within a defined territory. The collective supra–individual will of the people is situated at the basis of its own power (sovereignty) and represents its content, while the state (power of state) constitutes „the political form”, institutional exteriorization of people’s sovereignty.

The political power is called sometimes sovereignty, whereas within the state territory does not exists another power to restrict or to compete it and in order to emphasize its supreme character over any other forms of authority, such as the church, the family, the school and even the state.

The political power (sovereignty) does not erode over time and does not change its content, while the state power is primarily a power liable to changes both regarding content and forms of exertion, and regarding the holder. The political class or the ruling elite changes itself depending of the sovereign will of the people (in constitutional democracies), while the holder of the political power (the people) remains unchanged, irrespective of the process of passing from a generation to another or from a political regime to another.

Therefore, the power appears as a social necessity that manifests itself as an act of control, domination and restraint in any human collectivity. Similarly, the notion of power is broader then that of state power. In this context the political power means the people’s power and the state power means political power of a social group, through which the group exposes the will of the people, the state power is this way a derived and conditioned political power hold by people.

However, the fundamental goal of the political power achieved by means of the state is to ensure the internal security and the functionality of the social system to the benefit of all members of the social entity and at the same time protection against competition of other politically organized socio–human collectivities.

Sovereignty. The English legal dictionary defines Sovereignty as the supreme, absolute, and uncontrollable power by which an independent state is governed and from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign interference16.

Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws; imposing and collecting taxes; making war and peace; and forming treaties or engaging in commerce with foreign nations.

In modern constitutional concept, sovereignty is a complex, important and crucial dimension both for international law and for constitutional law.

Ion Deleanu17 believes that the sovereignty is that quality of state power under which this power has the destination to take any political, juridical, military, economical or other decision.

Teodor Cârnaţ18 defines the sovereignty as the supreme right of the state to govern the society, to establish relations with other states based on the international law and to solve its internal and external problems freely without interference of any foreign power.

All of the above lead to the conclusions that the sovereignty is the fundamental and inalienable right to lead the society, to establish relations with other countries and to solve its internal and external problems freely and according to its will, without any interference from exterior, respecting the sovereignty of other states, as well as the directions of the international law.

The sovereignty is a supreme authority that the state was provided by the people through democratic constitutional forms and as supreme power of state, implies the exclusive competence over the national territory and the independence from any other external power. This implies that sovereignty is manifested:

• both internally, consisting in supremacy of state power on the territory and population, reflected in development of general directions and supervision of their application in everyday life;
• and externally, consisting in state independence in relations with other states or any other foreign powers.

In modern constitutional doctrine it is considered that the content of sovereignty at domestic level is characterized by certain general features, such as:

• The primary and plenary feature: are reflected in the fact that the sovereignty is exercised and emanate directly from people and cannot be attached to other powers outside the country. The prerogatives of the sovereignty are plenary, because contain all domains of activity of the society organized in state: political, economical, cultural, social, domestic, foreign, etc.
• The unique feature of sovereignty: consists in existence of other power of the same nature, which may compete. If sovereignty of people is unique, it shows that already the state sovereignty is essentially unique, that does not except dividing and separate exercise of state functions.
• The feature of indivisibility: reveals that sovereignty, being unitary, cannot be divided in shares belonging to different holders.
• The feature of inalienability: reveals that the nation cannot abandon, concede, lend or definitive and irrevocable alienate the sovereignty, to a state or a group of persons, or to any international organizations.
• The imprescriptibly feature: acknowledges that the sovereignty exists as long as exists the holder, the people or that nation.
• The feature of integrity: expresses the fact that sovereignty cannot be restricted, abusively limited by a domestic or foreign power. The territory of a state can be subject only to a single total sovereignty19.

Externally, national sovereignty is freely performed, without restrictions and in scale spreads up there where begins the sovereignty another state. Being the sole subject of international law endowed with sovereignty, the state holds full capacity to promote in foreign the interests of the people, acting according to international rules and directions.

In most of the modern state constitutions declare the people as holder of national sovereignty, this rule being elevated to the class of constitutional principle that determines the form of state.

This principle, which forms the base of modern constitutional law, is theoretically grounded since ancient time.

From the normative point of view this is expressed in historical French Declaration of the Rights of Man and Citizen of 26 august 178920 that proclaims „The principle of all sovereignty rests essentially in the nation. No body and no individual may exercise authority which does not emanate expressly from the nation”.

The authority which exercises the national sovereignty is the general will of the social body which forms the legal provision for existence of state and denomination of the nation21.

The main event of national sovereignty in modern state is materialized in the process of enactment. The enactment is produced directly by people, with the terms of direct democracy or through deputies who enacting exercise the sovereignty in the name of people, in the process of government of representative democracy.

The general will never be able to constitute the unanimous will of all members of the social body, which is impossible to be realized, it will represent only the will of the majority. Not being able to realize the unanimous will, it is logical and natural to be admitted the will of the majority. The minority, by the essence of the social will have to comply with the will of the majority, without which it cannot conceive a social and political organization.

The principle of national sovereignty considers the people as a subject of constitutional law having an inherent existence, different from the lives of the persons who constitute it at a given moment. This being with inherent existence has its own will which embodies the product instinct of nation, historical evolution, traditions, manners, culture; a will to which the individual wills will certainly obey, at need even by enforcement, in the interest of the society. But this presence, being not a natural person, cannot express the will through itself. The counterpart of this will cannot be found anywhere, but in the concordant wills of a certain number of persons taken from the body of the nation, of the majority of citizen. The value of their votes will be considered as expression of the national will.

Within direct democracy, citizens invested with the right to vote decide immediately and directly the acts of sovereignty. In the system of representative democracy, citizens invested with this right choose deputies who exercise the sovereignty in the name of people22.

As the general will, expression of national sovereignty can only be the will of the majority, so the majority of the ballots delivered to the same effect will determine those elected as deputies.

For these reasons it seems to be logical and imminent the majority principle in electing the deputies of the people. Compared to the principle of national sovereignty, it can not imagine another system for expression of general will.

Citizens that exercise the sovereignty with the right of vote action not on their behalf, as holders of a share of sovereignty, but on the behalf of people they represent in that moment.

In this respect, sovereignty belonging to people as an indivisible whole, the exercise of sovereignty belongs to the whole body of voters and the vote in a certain meaning of the majority of this body will express the national will.

According to the Declaration of Sovereignty of the Republic of Moldova, the source and the holder of the sovereignty is the people. Similarly, the Constitution of the Republic of Moldova23 in Article 2 establishes that: „National sovereignty resides with the Republic of Moldova people, who shall directly and through its representative bodies exercise it in the manners provided for by the Constitution”.

The exercise of sovereignty of the people is done through its representative bodies. We see that in the Constitution of the Republic of Moldova disclaimers regarding a certain body do not exist. It is important that the authority through which is executed the national sovereignty to be a representative authority.

Representative are that authorities in which their members action as mandatories of people, taking decisions on behalf of those who gave the mandate24.

The Constitution of the Republic of Moldova appoints as representative authorities the Parliament (Article 60—76), the Local Councils and the Mayors (Article 112—113). The representativeness is ensured through elections; consequently the Constitution appoints that the above mentioned authorities are elected through universal, equal, direct, secret and freely expressed ballot.

The vote is a legal instrument of conferring with legal powers the public authorities, which in this way are delegated the continuous exercise of national sovereignty. Exercise of sovereignty directly and through representative authorities can take place only in the forms given by the Constitution.

That provision is meant to conclude the fact that national sovereignty cannot be arbitrarily exerted. Thus, at the direct exercise of sovereignty people can participate only in the form provided by the Constitution, which is by referendum (Article 75), that is performed in the manner prescribed by the law25.

The exercise of sovereignty of people through its representative authorities suppose that representative authorities are formed (balloted) according to the directions of the Constitution, Electoral legislation and their activity is evolved according and within the statements of the Constitution and the law.

The majority of constitutions of the Member States of the European Union determines the people as holder of national sovereignty, the people’s will manifested during the election and the referendum, is the foundation of State power that is exercised by and for the people. The Spanish Constitution of 27 December, 1978 in art. 1 states that: „The national sovereignty resides in the spanish people, the one from wich emanating the powers of the State”. Similar provisions are included in the French Constitution of 4 October 1958 (art. 3), Italian Constitution of 22 December 1947 (art. 1), Austrian Federal Constitutional Law of 10 November 1920 (art. 1), Constitution of Greece of 11 June 1975 (art. 1), Constitution of Ireland of 29 December 1937 (art. 6), Constitution of Finland of June 11, 1999 (paragraph 2), Czech Constitution of 19 December 1992 (art. 2), the Constitution of Latvia of 15th February 1922 (art. 2), Constitution of Romania of 8 December 1991, in the edition of 29 October 2003 (art. 2), the Bulgarian Constitution of 13 July 1991 (art. 1), the Constitution of Estonia of 28 June 1992 (art. 1) etc26.

Elections — the democratic mechanism of organizing the bodies of the state power. The explanatory dictionary of the Romanian language determines the notion of democracy as „form of political organization and government of a society (or a restricted community) based on the principle of the rights of each people (member) to participate at acts of decision and management”27.

Democracy is a form of moral perfection. It dimensions both organization and function of power, to humanize it, as the way of life of the citizens, to moderate it. The most concise, but also most dense constitutional definition of democracy is in the Constitution of the French Republic which in the article 2 acclaims: „government of the people, through the people and for the people”28. Democracy is a concept and a phenomenon which accumulate articulating the moral, political and legal values of the society, in socio–historically determined context. It implies:

a) exercise of sovereignty by the people;

b) ensuring participation of people in solving public affairs by means of a universal suffrage, as well by means of a authentic representative legislative body;

c) distribution of prerogatives of public authorities;

d) administrative decentralization;

e) social pluralism (especially that ideological, organic or institutional, political, syndicalist and of other intermediary bodies);

f) application of the principle of majority in deliberative activity of collegial bodies;

g) constitutional dedication and guarantee of fundamental rights and freedoms of man and citizen.

Ideological foundation of democracy is „freedom”. But the principle of freedom must be dedicated and controlled, by conjugation with other two principles: that of equality and that of legality. Thus, „freedom, equality and legality” is the trinomial of democracy29.

Democracy marks emancipation of people, becoming the subject of the government, but emancipation implies power to self–determination of each person, so equipping them with rights which are inherent as man and citizen30. The democratic regime is valorized as one of the ways to exert the power, based on the representative principle, but placement of this principle implies of course recognition of the right to elect and to be elected, recognition and guaranteeing the voting rights as the most important political rights.

In a democratic state subject to rule of law, government of people has to be performed through people and for people, because only people are the holder of national sovereignty. But the holder of sovereignty cannot execute it continuously in a direct way. Most time the power of state is executed in the name of people by certain organs, which are deputed with particular functions through a general authorization expressed through election of representative bodies.

The exercise of sovereignty in a direct way by people takes place through participation in referendums and elections, as well as by taking directly some decisions.

In a democratic society it is essential that any government is based on the consent of the governed. According to this requirement, democracy is based on the principle that no government (parliament, president) is not legitimate if the authority and its functions do not result from the consent of the governed, based on the freely formed belief that government programs comply with the their expectations and needs. Because there cannot exist a tacit consent for government, the consent of the people in a state subject to rule of law arises from a manifestation of will of certain actions which are not nothing but elections31.

Elections are the barometer of political life in their confronting the interests of different political forces, opinions and platforms whose exponents are parties and other socio–political organizations, and political results are objective reflection of the influence of the parties, the mood of the electorate and tendencies of political life in state32. It can be argued that elections are a means of selection of parties and political leaders whom citizens entrust for a certain period the management of affairs in the state and of local interest.

Elections have a multifunctional character because in a broad view they:

1) Allow voters to exercise the right to participate in government by means of the elected representatives and to participate directly in social political life of society and local communities by electing some electoral programs and proposals;

2) Bring legitimacy to political, government, local administration systems and government parties;

3) Select political leaders for authorities of local government and national administration, that is a collective act of designating a management team;

4) Allow voters to express their opinion regarding the activity of political parties in power and in prospective directions;

5) Acknowledge or invalidate the work of the elected, delegating them or replacing by others, etc33.

After elections are formed and begin exercise of mandate various public power authorities: the parliament, the president, and the authorities of local public administration. So, elections are the main instrument of legitimacy of power and one of the main elements of state power and of the state in the whole. Elections are a means of exercising of the prerogatives of the sole holder of sovereignty and power in state: the people, who in this manner deliver the right to exercise sovereignty within the limits, set by the Constitution. In other words, through elections the people and each citizen have the possibility to empower their representatives with legitimate mandate, thus realizing one of the main fundamental rights: to vote and to participate in public affairs.

Though relatively recent, the history of electoral rights regulation, seen especially in the aspect of representing the will of people, still it is quite rich, starting from the relations of vassalage in absolute monarchies, continuing with concerns of illustrious philosophers and thinkers of the XVIIIth and ending by including these rights in constitutions of the majority of modern states, as well as in international acts regarding fundamental human rights and freedoms, universally accepted by the international community34.

The Universal Declaration of Human Rights35 in Article 21 paragraph (3) provides: The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

The International Covenant on Civil and Political Rights36, in Article 25 letter b), ascertains that any citizen has the right and the possibility: To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

The first additional Protocol to the European Convention on Human Rights37, Article 3 ascertains the right to free elections, postulating in this regard: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Concerning these rights, Article 38 paragraph (1) of the Constitution of the Republic of Moldova38 stipulates that: The people’s will shall constitute the basis of the State power. This will is expressed by free elections periodically conducted and based on universal, equal, direct, secret and freely expressed suffrage. This provision will be linked with Article 2 of the Constitution, which provides that, National sovereignty resides with the Republic of Moldova people, who shall directly exercise it and through its representative bodies. Elections are the basic and primary legal method of forming the state institutions and organs and official persons with public responsibilities.

It is necessary to point out that in the modern representative regimes through the election system are formed diverse authorities of state power: parliament, authorities of local public administration, are chosen presidents, judges, etc.

In other words elections legitimate power. Through elections the people select their representatives and according the mandate they receive powers to realize sovereignty, exercising functions with specific responsibilities39.

By virtue of its power people take through their rightfully appointed representatives, decisions binding for the entire society, according to its general and fundamental interest and ensure compliance by those for whom they are intended. Also, people have the right to control and political sanction of their representatives40.

For the purposes of the above, we can conclude that elections represent the democratic mechanism of forming the power authorities in state by which the sole holder of sovereignty and power in state, the people, give the right to exercise sovereignty on behalf of them to designated representatives.

In conclusion, we can say that the power appears as a social necessity, which is manifested as an act of command, domination and coercion in every human community, having an organizational purpose, of maintaining the balance and interior cohesion in any society. In a democratic state the access to power and formation of power authorities take place by elections, where the single holder of the sovereignty and power in state, the people, give by vote the right to exercise sovereignty on its behalf to some appointed representatives, who act as proxies of people, taking decisions on behalf of those who gave that mandate.

At the same time, we propose that article 2 paragraph (1) of the Constitution of the Republic of Moldova will be completed thus: „The people’s will shall constitute the basis of the State power. This will is expressed by referendum and free elections which are periodically conducted by way of a universal, equal, direct, secret and freely expressed suffrage”.