Tag Archives: President Băsescu

Bogdan Dima – The Romanian Presidency and the Constitutional Court

This is a guest post by Dr Bogdan Dima, Lecturer in the Faculty of Law, University of Bucharest

Note: The first two sections of this study are part of a larger paper presented at the 5th Semi- presidentialism and Democracy International Conference: Constitutional Development: A Dialogue between Asia and Europe, held on May 17th, 2014, in Kaohsiung, Taiwan. The paper will be published in a volume at Wunan Publishing House, Taiwan. The full text was published in Manuel Gutan, Bianca Selejan Gutan (eds.), Judicial Culture and Europeanization in Contemporary Democracies (Bucharest: Hamangiu, 2014).

bogdan_dima_m

Shaping the Role of the President: The Influence of the Romanian Constitutional Court’s Jurisprudence

1. The primary intentions of the Romanian constitutional legislator

Caught between the fears of the past and the fears of an unknown process of democratization, the emergent political forces of the new post-communist regime achieved in the end a hard negotiated compromise: a President with a relevant symbolic role, but with diminished formal powers. It was a negotiated compromise between the supporters of a strong President (the political majority of the 1990 and 1991) and the partisans of parliamentarism (the opposition of the 1990 and 1991).

The classic opinion regarding specific characteristics of the Romanian system of government was firstly articulated at the beginning of the nineties by two experts involved in drafting the post-communist Fundamental Law. They were Florin Vasilescu and Antonie Iorgovan[i]. The Romanian system of government is a mild semi-presidentialism or parliamentarized semi-presidentialism, in contrast with the French system of government, which has a strong and influential President.

The President’s constitutional prerogatives are limited in comparison to other presidents` prerogatives in various European states (e.g., France, Finland, and Poland). Most presidential powers are subject to the control of other institutions, such as the Government and the Parliament. As such, not all formal presidential powers regulated by the Constitution can be freely carried out by the chief of state. As a consequence, the role of President within the political system depends not only on the number of his prerogatives, but also on the effective and independent/exclusive use of these powers.

I shall present 10 arguments in favor of the mild semi-presidentialism, most of them of a normative nature, as they were proposed by the Romanian doctrine[ii]:

  1. Both the Parliament and President are elected in direct universal elections, and they are representative authorities at the national level. Nevertheless, only the Parliament is the “supreme representative body of the Romanian people” according to Art. 61 (1) of the Romanian Constitution.
  2. The President’s power to dissolve the Parliament implies the achievement of six preliminary conditions, which make this prerogative almost impossible to be effectively used in practice (Art. 89 of the Constitution).
  3. The Constitution regulates for two types of President`s responsibility: political responsibility for grave acts infringing upon constitutional provisions (Art. 95), and a special criminal responsibility for high treason (Art. 96).
  4. Even though initiated and finalized by the President, the procedure for appointing a Government implies a vote of confidence from the parliamentary majority. Hence, it is the political majority within the Parliament which is essential for the birth of a new Government, not the formal prerogative of the President to appoint a candidate for the PM’s office.
  5. According to Art. 109 (1) of the Romanian Constitution, the Government and each member of the cabinet are only politically and jointly liable for their activity in front of a parliamentary majority.
  6. Not only the President, but each Chamber of Parliament, may demand legal proceedings to be taken against members of the Government for acts committed in the exercise of their office. Moreover, the President may suspend these ministers from office if criminal proceedings are undertaken against them – according to Art. 109 (2) of the Romanian Constitution (see also Decision of the Constitutional Court no. 270/2008).
  7. The President does not have the authority to initiate draft laws. Only the Government, members of Parliament, and a certain number of citizens have this authority according to Art. 74 (1) of the Romanian Constitution.
  8. The right of the President to refuse the promulgation of a law adopted by Parliament can be exercised only once after the law is received from Parliament (Art. 77 (1) and (2) of the Romanian Constitution).
  9. The most important presidential powers in foreign affairs are submitted to governmental or parliamentary control (Art. 92 and 93 of the Romanian Constitution).
  10. Presidential decrees (President`s official acts) adopted by the President in order to exercise his most important constitutional prerogatives are countersigned by the Prime Minister according to Art. 100 of the Romanian Constitution.

All of the above mentioned arguments are viable considering their normative logic. Nevertheless, the main problem is to find out if these arguments remain viable when analyzed from the perspective of political and institutional practice of the last quarter of a century. Vasilescu and Iorgovan`s opinion regarding the Romanian system of government is not enthusiastically shared by all scholars. For example, Tudor Drăganu makes a strong case arguing that the constitutional provisions and the institutional post-communist practice have created rather a classic semi-presidential system than a mild or parliamentarized one.

First, the President holds significant powers which are exercised without the Prime Minister`s or other ministers’ consent (for example, the appointment of civil servants).

Second, regardless of whether or not they are countersigned by the Prime Minister, the President is liable for his decrees: “Thus, following the logic of the 1991 Constitution, the decrees for which the Prime Minister’s countersignature is not necessary and those for which a counter-signature is mandatory directly engage the liability of the President; hence, one can say today, in our country, the principle according to which the chief of state reigns but does not govern has been changed with this rule stating that the President reigns and governs (my translation, B.D.)”[iii].

Third, because he is elected directly by the people, the President exercises from the beginning of his mandate a higher authority than the Prime Minister’s. The latter owes his office to political negotiations and compromise between leaders of the parliamentary majority and the chief of state.

Fourth, when parliamentary elections overlap with presidential elections, the key elements of the electoral campaigns focus on the presidential candidates` personalities and their political programs. Basically, the electoral interests of the members of Parliament are subordinated to the major electoral interests of the presidential elections.

Finally, the President represents the Romanian state according to Art. 80 (1) of the Constitution. He meets with other heads of state at official international conferences and reunions. This constitutional provision provides significant symbolic authority to the President (see also the Constitutional Court decision no. 683/2012).

2. The practice of Romanian semi-presidentialism

The practice of semi-presidentialism in Romania shows that the Romanian President played and plays a relevant role within the political system. Even though his formal powers are limited, the President exercises a lot of political influence. The symbolic and formal powers of the President create an independent institution, scrutinizing and controlling the political action flow of other institutions.

In Romania, from a normative perspective, we have a mild semi-presidentialism, but from the political practice perspective, we developed a true semi-presidential system, with a strong chief of state and with many intra-executive conflicts and also conflicts between the legislative and executive branches of government.

The institutional system regulated by the 1991 Romanian Constitution created relative stability for the political regime following the collapse of communism; even so, there were political struggles between the opposition and those in power; struggles within the legislative and governmental coalitions were often harsh and ruthless. There are at least two kinds of factors explaining the stability of the new democratic regime. On one hand, there are factors related to the political party system and extra-normative relations between political actors; on the other hand, there are factors related to the institutional matrix regulated by the Constitution, laws, and the jurisprudence of the Constitutional Court.

In the logic of the Romanian system of government, the dissolution of Parliament is constitutionally restricted to the point of being nearly impossible. Nevertheless, in a certain political context, the President might threaten with dissolution procedures, hence influencing the decisions of the parliamentary majority. At the same time, the President cannot be dismissed by the Parliament; he is dismissed only by the citizens via a referendum or by the High Court of Justice and Cassation for high treason. The Parliament can sanction the President by suspending his term in office (art. 95), or it can decide to impeach the chief of state for high treason, the final decision being taken by the High Court of Justice and Cassation (art. 96). From this perspective, the Romanian constitutional architecture seems closely related to a presidential system, with a more rigid separation of powers between the President and Parliament, or a mutual independence, according to Stepan and Skach.

Because the post-communist presidents could not dissolve Parliament, they were also unable to fully and directly control parliamentary majorities. Hence, they searched for alternative means for exercising political control over these parliamentary majorities. One solution was to maximize their political influence within the process of Government appointments, regardless of whether or not they were held at the same time as the presidential elections. The symbolic prerogative of designating a candidate for the Prime Minister’s office became an extremely powerful weapon in the hands of post-communist presidents, who used it to its full capacity in order to create or demolish parliamentary majorities.

I shall make an inventory of several explanatory factors emphasizing the President`s political influence within the Romanian post-communist constitutional system. Of course, institutional practice and the extensive research of the archives could bring to the table other explanatory factors and even invalidate the ones identified in this study.

The extra-normative factors influencing the power relations between the chief of state and other political actors are numerous and heterogeneous. They include personality, style, psychological profile of any incumbent President or Prime Minister, the political strategy of each chief of state or Government leader, and also their public messages. In fact, the political messages construct the public perception regarding the persons occupying high state offices and their personal political projects. The public perception is measured via different sociological methods, and the results of these studies generate political support or rejection of a politician or political party.

The selection process of the presidential candidates is a highly important factor which might have a relevant influence on the power relations between the chief of state, the Prime Minister, and the Parliament. Generally, in the former communist states from Central and Eastern Europe, those winning the presidential office were the most important and visible leaders of major political parties. The Romanian post-communist presidents (Ion Iliescu in 1990, Emil Constantinescu in 1996, Ion Iliescu in 2000, Traian Băsescu in 2004) were strongly mediatized public personalities, they ruled over strong political parties or electoral alliances, and maintained a strong influence over the political structures of their parties long after they won the presidential elections.

The political leaders managing the transition process from a communist non-democratic regime to a post-communist democratic regime were massively trusted by the electorate. As leaders of the transition, their popular legitimacy was huge and well consolidated before the drafting of the first democratic constitutions (the case of Czech Republic, Romania, Poland, and Hungary). Some of these leaders maintained their initial political influence over the institutional system, and transformed the President’s office in the nervous central system of the national politics (e.g., Romania, Poland, and Bulgaria cases).

In Romania, the institutional building process of the new democratic regime was influenced by the first institutional power structures of the 1989 Revolution. The relevant factor was the political parliamentary majority concentrated around the most influential political leader, also legitimized by the first free democratic elections of the new regime. This political leader became the chief of state; hence, from the beginnings of the Romanian post-communist democracy, the presidential office was perceived by the people and political actors as more important and influential than the Prime Minister’s office.

Since presidential term lengths were modified from 4 to 5 years in the constitutional revision process of 2003, different cohabitation periods have emerged between a chief of state with certain political views and a parliamentary majority supporting a Prime Minister with different political views. In such circumstances, the influence of the President over the decision making bodies (the Government and the Parliament) was diminished, yet not eliminated.

3. The jurisprudence of the Constitutional Court

The Constitutional Court not only protected, but also enforced the role of the President. It is not clear if the Court has taken upon itself this mission in order to assure a more rigid separation of power between the executive and the legislative branches of power or it has just adjudicated from case to case, influenced by the political context, the specific facts of the case, and the constitutional doctrine.

In the same time, there are couple of Constitutional Court’s decisions which did not favor the President or enforce his role; moreover, some of these decisions have the potential to significantly change the relations between the President and the parliamentary majority in the years to come.

3.1 A key decision

A key piece of Constitutional Court’s jurisprudence regarding the Romanian system of government is Decision no. 683/2012. The incumbent chief of state asked the Court to judge a legal dispute of constitutional nature between the President and the Government, represented by the Prime minister. The substance of the conflict referred to a sensitive matter, meaning who had the right to represent the Romanian state at the European Council Summit on 26-28 of June 2012: the President, who is representing the state according to art. 80 (1) of the Constitution or the Prime minister, head of the Government, who is implementing the foreign policy of the country, according to art. 103 (1) of the Constitution?

Judging this case, the Court expressed its view about the Romanian system of government, invoking Duverger’s definition of the semi-presidential system of government and the French Fifth Republic’s Constitution as a source of inspiration for the Romanian constitutional legislator in 1991.

According to the Court, the role of the President regarding the foreign policy of the state, the position of chief commander of the armed forces, president of the Supreme Council of National Defense, the competence to return the law to the Parliament for reconsideration, the competence to ask the Constitutional Court for a judgment, the competence to designate the candidate for the Prime Minister`s office, the competence to appoint an interim Prime Minister, the competence to appoint ministers, the competence to demand criminal proceedings for the members of the Government, the competence to consult the population of the country via referendum, the competence to appoint civil servants for public offices, the competence to grant individual pardons are all relevant arguments to qualify the political regime regulated by the Romanian Constitution as semi-presidential.

Following this logic, the Court ruled in favor of the chief of state, recognizing his essential role for conducting and engaging the State`s foreign affairs policies. Art. 80 (1) of the Constitution enables the President to design the main guidelines for the State`s foreign policy, thus determining the general direction of the foreign relations, always taking into consideration the national interest. Such an interpretation was based on the representative character of the presidential office, the chief of state being elected by the citizens via universal, equal, direct and freely expressed vote.

The Prime Minister, as representative of the Government, has the right to implement the country’s foreign policy, meaning that the Government will adequately implement the obligations engaged at state level. Therefore, the role of the Government in such matters is more technical than strategic.

Moreover, in regard to the participation at European Council meetings, the Court stated that the President could delegate the representation of the state to the Prime Minister when the former finds it necessary.

In two recent decisions, the Court tries to develop this argument and states that the President`s discretionary power to delegate the representation of the state to the Prime Minister is not unlimited and arbitrary; the chief of state has to take into consideration from case to case the following objective criteria: (i) which is the public authority better equipped to understand the topics debated in the European Council`s meeting; (ii) the opinion of the President or of the Prime Minister regarding such topics should be legitimized by a point of view of the Parliament consistent with the one expressed by the executive authorities; (iii) the difficulties generated by the obligation to implement the decisions of the European Council. Therefore, the President’s decision to delegate the representation of the state to the Prime Minister has to take into consideration all these criteria in order to construct a consensus among the authorities and also to take into consideration the constitutional principle of loyalty (see also Decision no. 441/2014).

Moreover, following Duverger’s definition of the semi-presidential system of government, the Court stated also that its previous jurisprudence has favored the recognition of significant powers for the President:

  • Decision no. 375/2005: the Court recognizes that the President could refuse only once, by reasoned decision, the appointment of a magistrate at the proposal of the Superior Council of Magistracy; otherwise, the presidential power to appoint a judge or a prosecutor would have been symbolic, void of any content, and this was not the intention of the constitutional legislator.
  • Decision no. 384/2006: the Court states that the President grants the ranks of Marshall, General and Admiral without any constraint or limitation provisioned by the law (see art. 94 of the Constitution).
  • Decision no. 98/2008: the Court states that the President could refuse once, by reasoned decision, the proposal of the Prime Minister to appoint a person for a vacant ministerial office. The Prime Minister is constrained to nominate another person and the President cannot refuse his/hers appointment as minister.
  • Decision no. 799/2011: the Court recognizes the need to amend the current constitutional provision of art. 85 (2) so that the Prime Minister could consult with the President before the former asks the latter to appoint or revoke one the Government’s members.

3.2 Other decisions favouring the president

In the Advisory opinions nos. 1/2007 and 1/2012, the Court states that not any acts infringing upon constitutional provisions are “grave acts” triggering the suspension of the President’s mandate. The seriousness of an act infringing upon constitutional provisions is appreciated by taking into consideration couple of factors: (i) the social value which was harmed, (ii) the already established or potential damages, (iii) the person of the offender, (iv) the scope of the action. The Court considers that “grave acts infringing upon constitutional provisions” refers only to the President`s avoidance of carrying out certain mandatory decisions, hence preventing the good functioning of the state authorities, restricting the rights and liberties of the citizens, disturbing the constitutional order or pursuing the changing of the constitutional order and other acts generating similar effects. Such an argument aims at restraining the discretionary power of the Parliament when deciding upon the suspension of the President`s mandate.

In the Advisory opinion no. 1/2007 the Court shows that the constitutional provisions as also the democratic legitimacy bestowed by the direct elections of the people “impose” an active role for the President, a vivid presence in the political life. His activity cannot resume to a symbolic role. Therefore, the President can express political opinions and options, criticize the performance of the public authorities and their representatives, and propose specific reforms and measures relevant for the national interest. Nevertheless, the President`s opinions, observations or demands do not have a decisional character; hence they do not produce legal effects. The public authorities are free to acquire or reject the President`s opinions. In any case, according to the Constitutional Court`s jurisprudence, “[…] the practicing of an active role by the President in the political and social life of the state cannot be characterized as a behavior contrary to the Constitution”. The same arguments are also used in Decision no. 53/2005 and in Decision no. 284/2014. In fact, in the latter, the Court states that the President`s right to express political opinions in accordance with his political program or to militate in order to materialize these opinions is not contrary to the constitutional interdiction regarding the membership of a political party.

In the Decision no. 682/2012, the Court considers that a referendum, regardless of its decisional or facultative nature, represents a mechanism through which national sovereignty is expressed. Therefore, even though the law does not specify a procedure for implementing the results of a consultative referendum, this type of referendum produces effects. In a democratic society, it should not be acceptable for the popular will expressed with a vast majority to be ignored by the elected representatives. The will of the people expressed both in consultative and decisional referendums cannot be ignored by the elected representatives, mainly because the referendum is the expression of the national sovereignty.

In Decision no. 80/2014, the Court rejects as unconstitutional the amendment modifying art. 103 of the Constitution, regarding the appointment procedure of the Government. According to the constitutional draft law adopted by the Special Committee for the revision of the Constitution in February 2014, the discretionary power of the President to nominate a candidate for the Prime Minister`s office was eliminated, hence cutting off the most important prerogative of the chief of state. In the Court’s opinion, the President does not play the role of a decision-maker within the procedure of appointing a new Government, but the role of a moderator between the parliamentary political forces. Nevertheless, the Court says nothing about the influence that a President could have on the outcome of the political negotiations between the parliamentary parties due to the fact that the decision to nominate a candidate for the Prime Minister`s office remains within the fully discretionary power of the chief of state.

3.3 Decisions limiting the influence of the president

Even though in its previous jurisprudence the Court established a quorum of participation of at least 50% plus one of the total number of the electors in order to validate a referendum for the dismissal of the President, the same Court agreed in 2013 that a quorum of participation of 30% of the total number of electors for all referendums (including the one for the President’s dismissal) was constitutional, but the law on referendum would enter into force one year from the date of its publication in the Official Journal (see Decision no. 471/2013). The Decision no. 471/2013 sets up the basis for a new relation between future Presidents and parliamentary political majorities; as it would be easier for an anti-presidential parliamentary majority to suspend the President and force his dismissal by referendum.

This is a clear case of politically contextualized judgment on behalf of the Court. I do not address here the issue of rightness or wrongness from a political point of view. I just say that the Court should be clearer and more decisive in its judgments. This totally different judgments of the Court offers no predictability and makes no service to the Court`s credibility.

In the Decision no. 270/2008, the Court makes it clear that the General Prosecutor will address the President to demand criminal proceedings to be taken only against those members of the Government which are not members of the Parliament. The General Prosecutor will address the Chamber of Deputy or the Senate to demand criminal proceedings to be taken only against those members of the Government which are also members of the Parliament. Such a decision diminished one of the most important prerogatives of the President, as most of the members of the Government are also deputies or senators.

At last but not least, in the Decision no. 285/2014, the Court establishes that the Prime Minister can refuse to countersign the presidential decrees conferring decorations and titles of honor. The countersignature engages the political responsibility of the Prime Minister as chief of the Government in front of the Parliament for the content of the presidential decree. According to the Court, in the absence of the Prime Minister`s countersignature, these presidential decrees cannot generate legal effects.

4. Conclusions

The practice of semi-presidentialism strayed from the initial intentions of the 1991 and 2003 constitutional legislator. From a normative perspective, the Romanian Constitution established a mild semi-presidential system of government. From an institutional practice perspective, the Romanian system of government is a classical semi-presidentialism, with a strong and influent President.

One key factor to fully understand the dynamics of the power relations between the Parliament, President and Government is the Constitutional Court`s jurisprudence. The Court was influenced by the political pressures within specific contexts, and also by the French doctrine regarding the Fifth Republic`s semi-presidentialism. As a result, our constitutional judges recognized and legitimized an influential role for the Romanian President within the constitutional architecture; hence enforcing the presidential features of an otherwise mild semi-presidentialism.

Due to the fact that the President`s role was enforced by the Court, a more rigid separation of powers was generated between the President, on one hand, the Parliament and the Government, on the other hand. Basically, no political institution gathered all the political and state power in its hands. Metaphorically speaking, the Romanian system of government looks like a broken mirror, so that no political actor could see the full reflection of his face.

[i] Mihai Constantinescu, Ion Deleanu, Antonie Iorgovan, Ioan Muraru, Florin Vasilescu, Ioan Vida, Constituţia României – comentată şi adnotată [The Romanian Constitution – analyzed and annotated] (Bucureşti: Regia Autonomă Monitorul Oficial, 1992), p. 184.

[ii] Antonie Iorgovan, Tratat de drept administrativ, vol. I [Treaty of Administrative Law, vol. I] (Bucureşti: All Beck, 2005), p. 295.

[iii]Tudor Drăganu, Drept constituțional și instituții politice, vol. I [Constitutional Law and Political Institutions, vol. I] (București: Lumina Lex, 1998), p. 228.

Bogdan Dima is a Doctor of Law of the Faculty of Law, University of Bucharest, where he is also teaching Administrative Law since 2007. He is a graduate of the same Faculty and has Bachelor and Master Degrees in European Law from Collège Juridique Franco-Roumain d’Etudes Européennes de Bucarest, Université Paris 1 Panthéon-Sorbonne. His extra-academic background and expertise are highly diversified focusing mainly on strategic communication, political and electoral strategies, legislative analysis and institutional building processes. He is currently working as a counselor for the Presidential Administration in Romania, within the Institutional and Constitutional Reform Department.

Romania – Prime Minister Victor Ponta to face Mayor of Sibiu, Klaus Iohannis, in gripping presidential run-off

Presidential elections were held in Romania on 2 November. 14 candidates took part in the race to succeed President Băsescu, who will step down on 21 December after serving his two-term limit. Among them were the incumbent prime minister (Victor Ponta), the Senate speaker and former prime minister (Călin Popescu-Tăriceanu), the ethnic German mayor of Sibiu (Klaus Iohannis), an MEP and former justice minister (Monica Macovei), a former minister of tourism and regional development (Elena Udrea), and the head of the Romanian Intelligence Agency who resigned in order to contest the election (Teodor Meleşcanu).

As none of the candidates passed the 50% threshold, a run-off will be organized on 16 November between Victor Ponta, the social-democratic prime minister, and Klaus Iohannis of the centre-right alliance between the National Liberal Party (PNL) and the Democratic Liberal Party (PDL). The Central Electoral Bureau has announced a turnout of 53,16%, slightly lower than in 2009, and the following results:

  • Victor Ponta, (PSD-UNPR-PC Alliance) – 40,33%
  • Klaus Iohannis (PNL-PDL Christian-Liberal Alliance) – 30,44%
  • Călin Popescu-Tăriceanu (Independent/Liberal Reformist Party) – 5,4%
  • Elena Udrea (People’s Movement Party, PMP) – 5,18%
  • Monica Macovei (Independent) – 4,46%
  • Dan Diaconescu (People’s Party Dan Diaconescu, PP-DD) – 3,99%
  • Kelemen Hunor (Democratic Union of Hungarians in Romania, UDMR) – 3,5%
  • Corneliu Vadim Tudor (Greater Romania Party, PRM) – 3,66%
  • Teodor Meleşcanu (Independent) –1,1%
  • Szilagyi Zsolt (Hungarian People’s Party of Transylvania, PPMT) – 0,56%
  • Gheorghe Funar (Independent) – 0,48%
  • William Brînză (Ecologist Party of Romania, PER) – 0,45%
  • Constantin Rotaru (Socialist Alliance Party, PAS) – 0,3%
  • Mirel Mircea Amariţei (Prodemo) – 0,08%

As usual in Romania, the presidential race has left its mark on the party system. While the social-democrats ran alone on the centre-left, the opposition centre-right was represented by four candidates in the contest. Centre-right parties underwent some important changes in the pre-electoral period and their transformation may continue even further after the presidential run-off.

The governing coalition between the social-democrats (PNL) and the national liberals (PNL) broke down in February 2014, as the social-democrats refused to accept the PNL leader as a joint candidate in the presidential race. Following their disappointing results in the European Parliament election, the PNL and the PDL decided to support a common candidate in the presidential contest, running under the Christian-Liberal Alliance (ACL).

The PNL-PDL merger and the nomination of Klaus Iohannis as a joint candidate in the presidential election led to split-ups in both parties. Călin Popescu-Tăriceanu, a former PNL leader and prime minister under President Băsescu between 2004 and 2008, quit the PNL and formed the Liberal Reformist Party as a springboard for his own presidential candidacy. His defection was encouraged by PM Ponta, who also tipped him as a potential successor to the prime minister position.

Monica Macovei, an MEP and former minister of justice well known for successful anti-corruption reforms, resigned from the PDL and entered the presidential race as an independent candidate. Her electoral campaign targeted rampant corruption in the state administration and she is well positioned now to form an anti-system party.

President Băsescu also followed up on his promise to found a new political party after he broke with the PDL in March 2013. He supported Elena Udrea, the former minister of tourism and regional development in the PDL government (2008-2012), in setting up the centre-right Popular Movement Party (PMP). The newly established party won 6% in the European Parliament election and ended up nominating Udrea as a presidential candidate. Băsescu threw his support behind Udrea and announced that he will join the PMP at the end of his term. However, the low score obtained by Udrea, which is less than what PMP got in the European Parliament election, might alter these plans.

The results of the first presidential round confirmed the pre-election opinion polls, which constantly put the incumbent prime minister in a comfortable lead. Victor Ponta qualified in the presidential run-off with a ten-point lead over the centre-right candidate. This is the largest difference between the top-two presidential candidates registered since 1992 (see table below). The only other instance when a candidate was able to recover a similarly sizeable gap was in 2004, when Traian Băsescu of the PNL-PD alliance narrowly defeated PM Adrian Năstase of the PSD in the run-off despite the latter’s seven-point lead in the first round. The two races are indeed similar as far as the political alliances involved in the run-off are concerned. Both centre-right candidates also ran as mayors of major cities. Whether or not the centre-right will be able to mobilize the electorate again and bring more undecided voters to the polling booths remains to be seen.

 

Presidential elections in Romania, 1992-2014

Another peculiarity of the latest presidential race is the absence of a strong candidate on the third position. For the first time in the post-communist period, the third-placed candidate obtained a score below 10%. Thus, a lot will depend on the extent to which the two top contenders will be over to win over the electorate of several centre-right candidates.

Victor Ponta might gain a substantial share of the electorate supporting Călin Popescu-Tăriceanu, whom he already indicated as a likely successor for the prime minister position. On the other hand, Klaus Iohannis, who obtained more votes than PNL and PDL did separately in the European Parliament election, should benefit from the support gained by the other two centre-right candidates, Elena Udrea and Monica Macovei.

Unanticipated events could still change the course of the electoral campaign in the next two weeks. Several corruption scandals involving former ministers and senior PSD members broke out during the electoral campaign. For example, the Microsoftgate scandal exposed nine ministers for taking bribes in the acquisition of IT licenses between 2002 and 2005. However, none of these scandals seems to have dented the prime minister’s popularity. Nor did President Băsescu’s accusation that Victor Ponta served as an undercover intelligence office between 1997 and 2001. Nevertheless, more high-level corruption scandals could be disclosed in the next two weeks.

Romanians living abroad might also influence the final results. The poor organization of the voting process in polling stations across Europe has sparked a number of protests that could lead to the mobilization of Romanians abroad in even greater numbers for the run-off. Time will show if their votes will end up tipping the scales again on 16 November, as they did in 2009.

Romania – Constitutional interpretations of investiture votes

Among the many issues raised by recent events in Ukraine, whether or not the removal of President Yanukovych from office was constitutional is still being debated. Events there point to the inherent problems of interpreting constitutional laws.

In Romania a problem of constitutional interpretation has also arisen. This problem relates to the investiture of the new government. Last week the coalition government there collapsed. When the National Liberal Party (PNL) withdrew from the government, PM Ponta of the Social Democratic Party (PSD) sought a new coalition ally. He found it in the Hungarian minority UDMR party. Once the coalition had been agreed, it had to be approved by parliament, which is where the controversy begins.

Generally, investiture votes can be slippery constitutional things. For example, Article 49-1 of the 1958 French constitution might be taken to imply that an incoming government has to seek an investiture vote, but only some governments have chosen to do so and there have been no constitutional consequences. In Romania, the vote of the new PSD/UDMR government has caused a different type of controversy.

In Romania, there are two ways in which new governments can be formed. Normally, the president nominates the prime minister and appoints the government on the basis of a parliamentary vote of confidence (article 85-1).  The parliament votes to approve the government’s programme and the list of cabinet ministers by a majority vote of deputies and senators (article 103). However, parliamentary approval is also needed when the cabinet is reshuffled to such an extent that its structure or political composition changes, but this time a vote on the programme is not required (article 85-3). The issue raised by President Băsescu after PSD and UDMR agreed to form a new coalition government last week was that the parliament should approve not only the new composition of the cabinet but also a new governing programme (i.e. 85-1, not 85-3).

President Băsescu argued that PNL’s withdrawal from government entailed the termination of the governing programme presented by the USL coalition at the investiture vote that took place in December 2012. Furthermore, the president argued, a new governmental programme was deemed necessary by UDMR’s agreement to join the coalition cabinet. On the other hand, PM Ponta argued that the government aimed to continue the implementation of the USL programme approved by the parliament in December 2012. From his point of view, the parliament only needed to approve the government’s new political composition, in accordance with article 85-3 of the constitution.

On March 4th the parliament approved PM Ponta’s new cabinet in a joint sitting of the two chambers by 346 votes to 191. Subsequently, the Liberal Democratic Party (PDL), president Băsescu’s former ally and the main opposition party, asked the Constitutional Court to rule on the legality of this decision. The PDL argued that the UDMR’s inclusion in the new cabinet had modified the governmental programme and that there are two ways in which this change should be formalized. The cabinet can resign, in which case a new government formation process must begin (in accordance with article 103). Alternatively, the incumbent government can assume responsibility for a new programme, which passes if no censure motion is tabled or passed within three days (according to article 114). Given that neither of these procedures was followed when the parliament approved the cabinet reshuffle on March 4th, PDL asked the Court to declare PM Ponta’s new cabinet unconstitutional.

After the parliament’s vote, President Băsescu declared that he would not appoint the new ministers until either the Court rules on PDL’s request, or the government assumes responsibility for a new programme in accordance with article 114 of the constitution. Following another round of negotiations on March 5th, the prime minister agreed to go back to the parliament for a second time and assume responsibility for a new programme. On the same day, President Băsescu signed the new minister appointments.

Despite the apparent resolution of this matter between the president and the prime minister, the Constitutional Court still needs to rule on PDL’s appeal regarding the legality of the vote cast by the parliament on March 4th. In this way, a precedent may be created for the formation of new governments outside general elections.

This would not be the first time President Băsescu created a precedent for cabinet appointments. In December 2007, when he was cohabiting with a PNL-UDMR government, President Băsescu refused to appoint Norica Nicolai as Minister of Justice. The liberal prime minister challenged his decision to the Constitutional Court. In the absence of clear constitutional provisions on this matter, the Court ruled that the head of state can refuse a ministerial appointment only once on grounded reasons. In this way, the president obtained an increase in the extent of his formal powers over the executive. This time around, and also during a period of cohabitation, a precedent may be created as far as cabinet reshuffles, investiture votes, and the requirement of adjusting governing programmes when the political composition of the government changes are concerned.

Romania – Government coalition breaks down ahead of EP and presidential elections

Romania’s governing coalition broke down on February 25th, when the National Liberal Party (PNL) decided to withdraw its ministers from government and leave the Social Liberal Union (USL) with the Social Democratic Party (PSD). Formally, the liberals’ decision came as a result of the social democrats’ refusal to grant them several key positions in a reshuffled cabinet. However, the gradual deterioration of the relationship between the two parties has been put down to their competing interests in the 2014 presidential election.

The USL was formed in February 2011, when both parties were in opposition. The coalition’s aim was to join forces against President Băsescu’s Liberal Democratic Party (PDL) in the 2012 local and general elections. The two parties signed a political protocol that committed them to stand by a common candidate in the next presidential election. While no particular name was included in the protocol, the understanding was that Victor Ponta, the social democratic leader, would take the prime minister position, while Crin Antonescu, the liberal leader, would become the coalition’s presidential candidate.

The USL came to power in May 2012 without an election, after two successive PDL-led governments collapsed as a result of street protests and after losing a no-confidence vote in the parliament. The USL opposition formed a government with Victor Ponta as prime minister, beginning a period of cohabitation with President Băsescu. Afterwards, the USL majority voted to remove President Băsescu from office but the referendum organised in July 2012 to consult the population on this decision was invalidated due to low electoral turnout. Meanwhile, the USL came first in the 2012 local election and went on to win a supermajority of nearly 70% of the parliamentary seats in the general election later that year.

The 2012 parliamentary election prolonged the period of cohabitation between the USL majority and President Băsescu. However, after a new government was formed by Victor Ponta, the relationship between the liberals and social democrats started to deteriorate.

The two parties clashed over several issues, including the cohabitation pact signed by PM Ponta and Train Băsescu in December 2012. Crin Antonescu was particularly vocal in opposing this document, as he aimed to be perceived as the incumbent president’s most devoted adversary. The liberals also disagreed with the social democrats as far as the Hungarian minority party’s (UDMR) participation in government was concerned as well as on several key appointments to the national anti-corruption agency and the general prosecutor office. During 2013 the main tensions concerned several cabinet appointments, the co-operation between the two parties at local level, and the different stands they took on outstanding pieces of legislation, such as the controversial bill on the Roşia Montana gold mine plan and the amnesty and ‘super-immunity’ bills.

The rift between the two coalition parties deepened in early 2014 and for two reasons. First, the liberals and the social democrats decided to run separate lists at the European Parliament elections, while PSD and the other two parties in the broader USL coalition signed an agreement to run together in these elections as the Social Democratic Union (USD).

Second, the liberals insisted on changing the coalition’s political protocol so that it specifically designates Crin Antonescu as the member parties’ common candidate at the presidential election scheduled for November 2014.  The social democrats opposed this move not only because Antonescu was losing ground in approval ratings but also because the PSD has not held the presidency of the country since 2004 and has only spent relatively short periods of time in power since then. In short, the party expects its own leader to run in the presidential race.  

The situation is still in flux after PNL left the government. PM Ponta announced that the new cabinet will include the UDMR, which together with the smaller parties in the former USL coalition and the representatives of the national minorities guarantee the formation of a new parliamentary majority. The social democrats also expect to stand their own candidate in the presidential election. However, while Victor Ponta emerges with the best chances of winning this contest, he would rather stay in office as head of government.

The USL’s breakdown could contribute to a further fragmentation of the centre right. Călin Popescu Tăriceanu, the former leader of the PNL and prime minister between 2004 and 2008, has already left the party as a result of Crin Antonescu’s decision to break the governing coalition. He aims to set up a new liberal party and to contest the presidential race. Antonescu’s falling popularity could also lead to the emergence of alternative candidacies within the PNL.  After the 2012 general election, when it obtained only 14% of the parliamentary seats, the PDL lost President Băsescu’s support and many of its high-profile members have now formed a new Popular Movement Party. Both parties are preparing to field their own presidential candidates. In this context, the European Parliament elections could be used as a test for the relative strength of the centre-right groupings and might be followed by new electoral alliances and joint candidacies that would stand a better chance against the social democratic contender.

Romania – President Băsescu’s veto activity (2004-2014)

Since December 2012, when the last general election took place in Romania, President Băsescu has vetoed 26 bills. By comparison, during the first legislature of his first term (2004-2008), President Băsescu vetoed over 80 bills, while during the second legislature (2008-2012) he vetoed about 40 bills. Thus, the incumbent president appears to be particularly active at the beginning of the third legislature, which coincides with the end of his second presidential term.

It is tempting to put down such a high level of presidential activism to the cohabitation between the president and the ruling coalition composed of the Social Democrats (PSD) and National Liberals (PNL). We can test this hypothesis by comparing the number of vetoes President Băsescu has cast since May 2012 with his overall veto activity since he took office in December 2004.

According to the Romanian Constitution, the president can ask the parliament to re-examine any bill once before promulgation (art. 77). The graph below presents the number of vetoes President Băsescu has cast since December 2004. The data was collected from the press releases published on the website of the presidency and from the online records of the Chamber of Deputies.

graph vetoes

(click to enlarge image)

The graph shows the monthly distribution of presidential vetoes and indicates the political relationship between the president and the government. Periods of unified executive take place when the president and the prime minister belong to the same party, a divided executive occurs when the president and the prime minister belong to different parties but the president’s party is represented in government, and cohabitation occurs when the president’s party is not represented in government.

Thus, President Băsescu took office under a scenario of divided executive, as the coalition government formed by Băsescu’s Democratic Party (PD/PDL) and the National Liberals (PNL) in 2004 was led by PM Popescu-Tăriceanu, the PNL leader. The first period of cohabitation started in April 2007, when PD/PDL left the coalition, and lasted until December 2008, when PDL won the general election. The second period of cohabitation started in May 2012, after the ruling coalition led by PDL was defeated in a confidence motion and the PSD-PNL opposition formed a new government that excluded the president’s party. The period of cohabitation continued after the 2012 election, when the PSD-PNL incumbent government won a huge majority in the general election.

The data does seem to confirm that President Băsescu has used his veto powers more frequently during periods of cohabitation than under unified or divided executive. However, the differences in veto activity are not so great in quantitative terms across the three executive scenarios. For example, President Băsescu vetoed over 40 bills between 2009 and 2012, when the government was led by his designated successor as PDL leader.

The increase in the number of vetoes cast by the president might also be explained by a change that has taken place in his relationship with the PSD-PNL government.

In October 2013, President Băsescu accused PM Ponta, the PSD leader, of violating the so-called cohabitation pact signed in December 2012. The pact concerned both parts’ commitment to respect their constitutional roles, following several months of ongoing institutional conflict that included a referendum to impeach the president in July 2012. Thus, the increase in the president’s veto activity could be put down to the worsening relationship between the president and the government. For example, in December 2013 the president threatened to veto the 2014 budget unless the government agreed to give up a new excise tax on fuel. In the end the president promulgated the budget law, but only after the prime minister agreed to postpone enforcing the new tax. Thus, as the next presidential election scheduled for November 2014 is coming closer, we may expect the president’s veto activity to remain at a high level.

Romania – Cohabitation

A new debate on the operation of political institutions under cohabitation is now taking place in Romania. The discussions concern the validity of a so-called cohabitation pact that has framed the relationship between the presidency and the government since December 2012, when the current centre-left coalition won the parliamentary election.

The period of cohabitation in Romania started in May 2012, when the ruling coalition, which included the president’s party, lost a no-confidence vote. Subsequently, Victor Ponta (the new prime minister and leader of the social-democratic party) and Crin Antonescu (the leader of the national liberal party) formed a coalition government that excluded the president’s party. The change of government was followed by several months of ongoing conflict between state institutions, including a referendum to impeach the president. The period of cohabitation was extended in December 2012, when the incumbent government won a huge majority in the legislative election. After the re-formation of the government, an ‘Agreement on Institutional Collaboration between the President of Romania and the Prime Minister of the Government’ was signed. The agreement’s main purpose was to send a positive signal to international institutions regarding the Romanian decision-makers’ commitment to avoid further political deadlock. More details about this unusual document can be found here.

Recently, however, President Băsescu accused PM Ponta of violating the cohabitation pact on foreign policy, and justice and the rule of law.

First, the prime minister was criticised for taking a different position than the president on the recognition of Kosovo’s independence and on Bashar Assad’s political regime.

Second, President Băsescu condemned the general prosecutor’s decision to release the prosecutor who had been in charge with the case against the deputy prime minister, who was accused with vote-rigging in the presidential impeachment referendum. According to Băsescu, the general prosecutor had acted at the order of the prime minister, who overstepped his constitutional responsibilities and interfered with the independence of justice. The president also criticised Ponta’s decision to allow the deputy prime minister to continue in office during the investigation and expressed concern for the next EU report monitoring the progress of law-enforcement in Romania.

In line with the conflict-resolution mechanism laid down in the working agreement, the conditions for its continuance are currently analysed by two representatives of the presidency and the government.  The prime minister is represented by the ministers of justice and foreign affairs. While the president and the prime minister have expressed their willingness to safeguard their institutional collaboration, their political allies have already denounced the pact.

Strictly speaking, the pact has no constitutional or legal basis. As a result, there can be no legal sanctions for its violation. Moreover, given the commitment of both parts to respect their constitutional roles, denouncing the pact would be the equivalent of a decision to no longer respect the constitution. It is therefore likely that, despite their differences, the president and the prime minister will reiterate their commitment to avoid political deadlock for as long as the cohabitation period may last. The next presidential election is scheduled for November 2014.

Romania – President Băsescu sends new referendum law to Constitutional Court

On 21 September President Băsescu sent the bill lowering the participation threshold of national referenda to the Constitutional Court. According to the new law, the results of national referenda will be binding if 30 per cent of the registered voters turn out to vote, and if 25 per cent of the registered voters cast a valid ballot.

This is the second time that the Court has had to examine this bill since it was first adopted in late May 2013 by the Chamber of Deputies, where the governing parties – the Social Democrat Party (PSD) and the National Liberal Party (PNL) – hold a two-thirds majority. The main opposition party – the Democratic Liberal Party (PDL) – which is also President Băsescu’s former party, opposed the reduction of the participation threshold and referred the new bill to the Constitutional Court in June 2013. The Court ruled that the new referendum law does not violate the constitution as long as it is used for referenda held one year after its enforcement. The president has now referred the bill to the court again on the same grounds regarding the reduction of the participation threshold.

The debate on what constitutes a valid referendum in Romania started in 2007. At that time, President Băsescu was suspended by the parliament and a referendum was held to decide whether he should stay in office. Then, the governing parties attempted to remove any participation threshold thinking that there might be a low turnout. They were unsuccessful and the referendum went ahead in May 2007 without a minimum participation requirement. On that occasion, a large majority voted against the president’s dismissal. In July 2012 President Băsescu was suspended once again and another destitution referendum was held. This time the referendum failed because only 46 per cent of the electorate turned out to vote, which was lower than the 50 per cent threshold required.

The timing of the new attempt to change the referendum law is related to the PSD-PNL government coalition’s plans to ease the adoption of a revised constitution, which is expected to weaken the powers of the president. The government plans to hold the referendum for the adoption of the new constitution simultaneously with the first round of the presidential election, which should take place in November 2014. However, the president may be able to compromise the government’s schedule by delaying the promulgation of the referendum law.

According to the Romanian Constitution, the president can return bills to parliament for a new examination and can also send bills to the Constitutional Court before promulgation. President Băsescu has used both of these powers to delay the promulgation of the new referendum law. He first asked the parliament to re-examine it in July 2013 on the grounds that a participation threshold lower than 50 per cent plus does not assure the representativeness of popular consultations. The president’s veto was overturned by the Chamber of Deputies on 11 September. On September 21, President Băsescu asked the Constitutional Court to rule on its constitutionality on the same grounds.

The Court is expected to issue its second decision on this bill on 23 October. However, due to the Court’s previous ruling on the bill, the government may not be able to take advantage of a lower participation threshold in any referendum if the constitutional referendum is held simultaneously with next year’s presidential election.