Why the summon of “the three big ones” in the Legal Committee of the National Assembly is unconstitutional

Why the summon of “the three big ones” in the Legal Committee of the National Assembly is unconstitutional

"We are always violating the Constitution, constantly. We have a facade for the Constitution and we are trampling on it, whoever thinks it fit ...". The words are from Prof. Ognyan Gerdzhikov, one of the most prominent Presidents of the National Assembly in recent years. And if this statement is addressed to the legislative activity of the previous 44th Parliament, the past few days have shown that it also could be applied to the new Parliament. The legislative initiative of the members of the Parliament from the 45th National Assembly fully confirms another thesis of professor Gerdzhikov, about how "every next Parliament neglects the law".

Even the first bill, the one for amending the Constitution in the part concerning the judiciary, which was wrongly presented as submitted, is in fact absolutely null and void, because it was signed by only 27 Members of the Parliament with a requirement of at least 60, with which the new parliamentarians demonstrated fully disregard of legal provisions. In the name of pursuing the fleeting political goal - to show their attitude towards the Prosecutor General, the members from the coalition "Democratic Bulgaria" demanded a correction of the Basic Law, forgetting to specify that in this part it is impossible without convening a Grand National Assembly. Something that the Constitutional Court has ruled on with its famous Decision №3/2003.

A few days later, three members of the Parliament from the same parliamentary group - At. Slavov, I. Velov and N. Yordanova, decided that by amending the Rules of Organisation and Procedure of the National Assembly they could over-write the Basic law. The above mentioned three members are the petitioners of the text, according to which the Prosecutor General is obliged to appear before the Legal Committee of the Parliament at least once every three months in order to be subjected to a kind of "cross-examination". The proposal made from Hamid Hamid, member of the Parliament from Parliamentary Group "Movement for Rights and Freedoms", accepted by the majority of the Memebers of the Parliament, for this requirement to be applied as well as to the Chairperson of the Supreme Cassation Court and Supreme Administrative Court, although correct and reflecting the spirit of the Constitution regarding the "first three ones" in the judiciary, in its essence does not makes the text of Art. 27 of the Rules of Organisation and Procedure of the National Assembly less unconstitutional.

Atanas Slavov, member of the Parliamentary coalition “Democratic Bulgaria” who claims high expertise in regard to the Constitution and is keen to point out his doctoral dissertation, although in philosophy and not in law, should be aware that when he wants to hear the Prosecutor General, also the Chairmen of the Supreme courts, this according to Art. 84 of the Constitution is a right given to the National Assembly and not to the standing committees. The role of the committees is to exercise parliamentary control, but over the executive power bodies. Nowhere in the Basic Law the power is given to parliamentary committees to be able to oblige representatives of the judiciary to report, because this is a gross violation of the fundamental constitutional principle of separation of powers and is essentially an unlawful political interference in the work of independence of the Prosecution and the Courts. The Prosecutor General and the Chairman of the Supreme Court of Cassation and the Supreme Administrative Court can only be invited, and whether they will respect the members of the Parliament from the Committee on Legal Affairs depends on their good will.

It is good for the deputies from "Democratic Bulgaria" and "Stand up! Mutri out! ”,  so much proclaiming the rule of law, to recall Decision №5 of the Constitutional Court dated 1995, which explicitly states that the National Assembly and any of its committee may order  an official to appear, which does not apply to: the President, the Vice-president, the constitutional judges and all magistrates. Moreover, the referral to the Constitutional Court 26 years ago was also at the occasion of amendments to the Rules of Procedure of the Parliament.

And if we still assume that a considerable amount of time has passed since this decision had been adopted, there is another decision of the Constitutional Court as well regarding the hearing of the Prosecutor General before the Parliament, which is dated 2017. In connection with the latest amendments to the Constitution, adopted two years earlier, the Prosecutor General at that time Sotir Tsatsarov requested an interpretation of the provision of Art. 84, item 16 of the Constitution, concerning the scope of the expression: other reports of the Prosecutor General on the activities of the Prosecutor’s Office on the application of the law, the fight against crime and the implementation of the criminal policy and does this include a report on a specific criminal proceedings. By Decision №6/2017, the constitutional judges clearly and categorically explain the powers of the Members of Parliament regarding the hearing of the Prosecutor General:

 „The scope of the expression “other reports of the Prosecutor General on the activities of the Prosecutor’s Office on the application of the law, the fight against crime and the implementation of the criminal policy” referring to Art. 84, item 16, second sentence of the Constitution includes various summary, analytical reports regarding   the activities of the Prosecutor’s Office on the application of the law, the fight against crime and the implementation of the criminal policy

These reports are different in time and /or content from the annual reports under Art. 84, item 16, sentence one of the Constitution and are intended to contribute to the еxercise of constitutional powers conferred on the National Assembly.

The National Assembly should not require from the Prosecutor General a report on the activity of the Prosecutor's Office in a specific criminal proceeding.

The last sentence should cool off the enthusiasm of the new parliamentarian - Nikolay Hadzhigenov, a lawyer who was throwing eggs and smelly fish at the buildings of state institutions until yesterday, announced that he was ready to ask the Prosecutor General Ivan Geshev about "piles" of prosecutorial investigations. No, he will not have such possibility, for the simple reason that the Constitution does not allow it.

The same applies for the elected representatives of "Democratic Bulgaria", whose political attacks aim at destabilizing the Prosecution. Insulted to parliamentarianism and democracy is the way in which MPs carry out orders issued to them behind the scenes by their economic and legal mentors, violating clear provisions of the Basic Law, including categorical decisions of the Constitutional Court.

So it would not be surprising if the Prosecutor General and the Chairmen of the Supreme Court of Cassation and the Supreme Administrative Court refused to appear at all at the "mandatory" three-month invitation of the Legal Committee (of the National Assembly), driven not by disrespect for MPs but by respect for the Constitution.  The “three big ones” in the judicial system are not unaccountable, on the contrary - they submit annual reports on the activities of the Prosecution and the courts, which are discussed in the Committee on Legal Affairs and in the plenary hall. Any other appearance before the deputies is a matter of good will, but not an obligation of the representatives of the judiciary.

It is not clear whether the 45th National Assembly will last long enough to allow time for the "the big three ones" in the judicial system to be heard, but if it continues to work, it would be a good idea to refer the matter to constitutional judges again in order to explain flagrantly to the new parliamentarians that it is good for their legislative activity, especially as regards the rules of their work - clearly written in the Rules of Procedure of the National Assembly, to be carried out within the provisions of the Basic Law. Not for anything else, but to make it clear even to the former Minister of Justice and lawyer deprived of rights Hristo Ivanov that "square law" is not a law!

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