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).
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]:
- 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.
- 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).
- 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).
- 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.
- 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.
- 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).
- 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.
- 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).
- The most important presidential powers in foreign affairs are submitted to governmental or parliamentary control (Art. 92 and 93 of the Romanian Constitution).
- 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.
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.