Challenges of the Knowledge Society (Jun 2022)
THEORETICAL AND PRACTICAL ASPECTS REGARDING THE CONSTITUTIONAL AND LEGAL REGIME OF GOVERNMENT EMERGENCY ORDINANCES AND THEIR RELATIONSHIP WITH GOOD GOVERNANCE AND DISCRETIONARY POWER
Abstract
In a state governed by the rule of law in which democratic principles recognized, enshrined by the Constitution, are the basis for the organization and functioning of the public authorities and institutions in that state, the principle of separation and balance of power in the state cannot be ignored. According to this constitutional principle, governments are part of the executive branch and their main role is to implement the most important normative acts, the laws, adopted by parliaments. In order to achieve this role, generically identified, governments have constitutionally recognized the possibility of adopting legal acts, of a normative or individual nature, through which it is possible to them to organize the enforcement of laws or even to ensure their enforcement. Although, according to this above mentioned principle, we could not identify a "legislative power" recognized to governments, the reality has led even the constitutional legislator to recognize them the possibility of adopting legal acts with a legal force similar to that of laws to solve different special, exceptional, extraordinary, situations, even crisis. The legislative delegation thus enshrined in the constitution, allowed governments to "legislate", to adopt primary normative acts by which, even only temporarily, to adopt measures that otherwise could not have been adopted except by law, by parliaments. Although, in principle, for the adoption of such normative acts with a legal force similar to the law, governments need the "permission" of parliaments expressed by adopting a law under the conditions established by the Constitution itself, however in some constitutional systems it is also recognized the possibility the issuance of such acts by governments, without the need to issue such a law in advance. Taking into consideration that some governments, as well as ours, develop a "true passion" for the adoption of such acts, as emergency ordinances are in our constitutional system, by this article, we intend to analyze the possibility that by exercising a such attributions, usually and not of an extraordinary character, should be affected even by the Government the good governance that it has to ensure, thus exercising even a true discretionary power.
