In relation to what they can reasonably hope, Romans had a Constitution proper enough that it does not wax a rewrite from scratch. In fact, it is not so bad, not echivoca, because statueaza illegitimate, but clearly some rights and freedoms in the way. Their guarantee is conditioned by the existence of subsequent laws written to protect the special interests. In these circumstances, the rights guaranteed by the Constitution are no longer guaranteed equally to all, but preferentially, to some.
A typical example is the case of indemnity in case of too small a land confiscation, made in the name of a public project. Is it an abuse of the Executive or the Constitution itself in action? In accordance with article 44, paragraph 3, "no one may be expropriated except for a cause of public utility, established by law and prior compensation". And (6): "the compensation stipulated in paragraphs 3 to 5 shall be laid down by mutual agreement with the owner or, in case of divergence, through justice". At first glance, the Constitution and private property even better than in the u.s., where the Constitution says only that "private property will not be seized for public use without just compensation". In Romania, we also "in agreement with the owner," who shall admit and could evaluate the property more than predicting the market.
The reality is, however, different. Author of the article seems to have lost sight of the roman legal system it's French, and not type Anglo-Saxon. In the French legal system type to the city judges noted if the law was respected, which is why the corollary "in case of divergence, by Justice" lean inevitably balance in favor of the State and against the person. The State simply set through regulations that the person is not right! And the Constitution itself requires that there is a law, because the expropriation cannot be of "public utility" than by law. Consequently, recourse to an independent judiciary is illusory. While the Constitution is partasa to abuse, because it gives itself to his methodology.
The two paragraphs should be simplified: (3) no one may be expropriated except for the public utility cause, with prior compensation right. " And (6): "the compensation stipulated in paragraphs 3 to 5 shall be laid down by mutual agreement with the owner." In addition, it should be stipulated in the Constitution, not in the law, what is a "public utility". Only in this way could be an independent justice and removed from the depiction of simple Government close aide.
This kind of analysis can be applied to many types of constitutional guarantees. Here's another example: according to articles 138 and 139 (1): "the national public budget State budget, State social insurance budget and the local budgets of communes, towns and counties …" and (4): "local budgets shall be drafted, approved and executed in accordance with the law". And (2): "the local taxes and fees shall be determined by the local councils or County, within the limits and in accordance with the law". This last paragraph seems to establish local autonomy. But don't do it because of the appeal to the "law". As in the previous example justice was actually created by the Government in all situations related to the expropriation, in this case local authorities remain subordinated to Bucharest.
In order to establish truly self-governing. 4 of article 138, paragraph 2, should be removed. 1 must be reduced to: "national public budget of the national budget and the budget of State social insurance" (thus eliminating local budgets), and para. 2 of article 139 shall be reduced to: "local taxes and fees shall be determined by the local councils or County." In terms of autonomy, we would be lucky witnesses to the pressures from the territory toward the Center to lower national taxes (to retain local resources) and of a fiscal and institutional competition between regions.
Those familiar with Hayek's the Constitution of liberty will recognize behind my proposal on one of the fundamental principles of Hayek: that Parliament must be stopped to make laws which do not have universal applicability laws tailored to serve the interests of certain groups or special classes. The State is far from this ideal, the less we can say that it is a State of law. It is absurd to talk of "rule of law", in opposition to the rule of arbitrary desires and interests of those in power, if they can be harming laws tailored to serve special interests according to their wishes. Laws become then only a method of domination of some over others. Exactly in this position we are today: in their current form, the entire pension system, education and health are special laws. And this, as the Constitution provides for the rights. We have a Constitution so that is basically the adjustable employment laws-which contradicts the purpose of a Constitution. How to decide if a law instituting the expropriation is unconstitutional or not, if the Constitution says that situated between kilometeres is done "according to law"? We cannot introduce today in the Constitution the principle of hayekian. But if we limit the cases in which too much power harms through customized "smart" laws gradually, politicians would be intelligence-oriented directions less hostile to the public good.