Bearing in mind the importance of the question in relation to the initiated procedure for assessing the constitutionality of the Law on Prevention and Protection against Discrimination and the importance of authoritative interpretation of Article 75 of the Constitution, having regard to the different interpretations of this Article, without interfering into the authority of the Constitutional Court, we consider it necessary to convene a preparatory session or a public hearing in the Constitutional Court in which the expert public would have the opportunity to give its legal argumentation.
In its decision to implement a constitutional review procedure, the Constitutional Court stated “it is clear and unequivocal that the challenged Law may be brought under suspicion in relation to Article 75 paragraph 3 of the Constitution. This is because of the fact that it is about the adoption of a law that is being reconsidered by the legislature – the Parliament, which was returned and the Decree was not signed by the President of the Republic. In that case, in accordance with Article 75, paragraph 3 of the Constitution, it is necessary for the Law to be adopted by an absolute majority, i.e. by a majority vote of the total number of MPs, which means that at least 61 MPs must vote for the Law to be adopted.”
Pursuant to Article 75, the Constitution does not prescribe a mechanism for prohibiting or impeding the President to sign a decree. Article 75 of the Constitution does not regulate the issue of the majority needed to pass a law, but the issue of the promulgation of laws. The necessary majority for passing laws is regulated by the residual norm of Amendment X (simple majority) and certain articles of the Constitution which prescribe a separate majority (absolute or qualified). Paragraph 3 of Article 75 of the Constitution does not, in that sense, stipulate that any law passed by a simple majority must be adopted by an absolute majority when it is adopted a second time after the President of the Republic has previously refused to sign the decree, but only that if it is adopted by an absolute majority at the second reading, then the President shall be required to sign the decree.
If Parliament adopts the law by the required majority, in the case the majority of votes of present MPs, then this is in accordance with Amendment X of the Constitution. Namely, Amendment X provides that Parliament can decide only if a majority of the total number of MPs is present and decides by a majority of the total number of MPs present and at least one-third of the total number of MPs, which in this case is unquestionably fulfilled. The fact that the Law was not adopted by an absolute majority (in this case 61 votings “in favor”) only means that the president was not obliged to sign the decree, and not that he did not have the right to sign it if passed by the required majority (simple). The provision of Article 75, paragraph 3 of the Constitution does not impose such a prohibition on the President. Namely, the President would be obliged to sign the Decree on the Law after it was adopted by an absolute majority, even if he did not want to sign it. But if he had wished, he could have signed the decree on the Law even though it was adopted by a simple majority.
We cannot prohibit the constitutional right of the Assembly to pass laws by a majority of the total number of MPs present and by at least one-third of the total number of MPs, unless the Constitution provides for a separate majority. We cannot even deny the President the right to decide on the signing of the decree. It is up to the Parliament to secure an absolute majority on the return of the Law so that signing becomes a responsibility of the President.
—————————————————25 February 2020