Abstracts Nr 4, 2013
Valentin Constantin, Legitimacy, legality and the preeminence of law
Abstract: The article is dedicated to a recent phenomenon: the excessive usage of the term ”legitimacy” in our constitutional law. The term is not used in its usual sense, as legitimacy that derives from a legal title. Autonomous legitimacies are stated, that derive from superior ”democratic attributes” certain state institutions possess, according to the authors, when in a conflict over competence with other institutions. The author suggests that a praeter legem or contra legem use of the concept of legitimacy in conflicts over competence between state authorities contradicts the principle of preeminence of law.
Keywords: legitimacy, legality, constitution, Constitutional Court, President of Romania, infra legem, praeter legem
Diana Botău, The good governance standard and the institutionalized mechanism of protection against discrimination
Abstract: The study analyzes the activity of the National Council for Combating Discrimination, as the main instrument of protection against discrimination, from a good governance perspective. It analyzes: its institutional justification, the opportunity and legitimacy of creating CNCD, its purpose beyond individual remedies, its effectiveness, its institutional design, its functional and budgetary autonomy, its independence, responsibility, transparency, its extended competence, its activity. Data from the yearly activity Reports of the Council show a gradual increase in efficiency in regard to number of petitions, trust in the institution and its prominence.
Some deficiencies are also identified, in implementing European directives regarding non-discrimination, in the persistence of some discriminatory behaviors and attitudes, especially against Roma, HIV positive, and LGBT individuals, the persistence of anti-Semitic, racist and nationalistic acts, the inequality between men and women, the neglect of persons with disabilities. The study states that a collective effort is needed in order to foment a culture of non-discrimination.
Keywords: discrimination, good governance, functional autonomy, budgetary autonomy, European directive, National Council for Combating Discrimination
Măriuca Oana Constantin, Minors and minorities. Religion and medical treatment
Abstract: The study looks at religiously motivated refusals of medical treatment by parents in the name of their underage children, starting from an individual case. The internal restrictions of a cultural-religious minority come into conflict with an external, superior restriction – to not violate a non-derogable fundamental right. The hypothesis that the cultural exception clause operates in a Romania was only partially confirmed. The legislation doesn’t create mechanisms for turning such medical and moral situations into cases before a court. Hence, there is no jurisprudence of refusal of medical treatment by parents in the name of underage children under their guardianship. Potential cases disappear before getting to the courts, either because the parents are persuaded to consent to medical treatment, or the child dies and those responsible are not prosecuted when there is a link between this death and the refusal. Public authorities have a difficult time identifying cultural customs and hence can respond only to a limited extent. Only an extensive quantitative study can provide a global image of the situation in Romania, an image needed as a basis for the elaboration and promotion of a draft law that addresses the issue of cultural customs with negative consequences on the integrity of children.
Keywords: minors, religiously motivated refusal by parents, medical treatment, cultural exception clause, cultural custom