In recent months, the semi-presidential republic of Romania saw the unravelling of a new episode of intra-executive conflict in the context of cohabitation. A dispute over the procedure to dismiss the chief prosecutor of the Anti-Corruption National Directorate (DNA) confirmed the inherent confusion in semi-presidential constitutions about the chains of accountability and responsibility of political decision makers and the patterns of hierarchical control. The conflict between the president and the government was mediated by the Constitutional Court in favour of the government. The president accused the ruling majority of being determined to reduce his powers.
No breathing space for the president
The current minimum-winning ruling coalition is composed of the Social Democrat Party (PSD) and the Alliance of Liberals and Democrats (ALDE). They have a stable legislative majority on their own, but also count on a formalised legislative support agreement with the Democratic Union of Hungarians in Romania (UDMR). The main opposition party, the National Liberal Party (PNL) and first-time parliamentary party, Save Romania Union (USR), only have half of the voting size of the majority supporting the coalition. The other newcomer parliamentary party, the Popular Movement Party (PMP), is slowly being dismantled due to party switching to the side of the government. Consequently, it is safe to say that the government and the parliament are united and stable. The lack of incentives for a united parliament and government to collaborate with the president – as a whole or individually – leads to the increased isolation and irrelevance of the head of state.
The Constitutional Court has recently increased the political resources available to the government with a decision that considerably limits the president’s role in the dismissal of the chief prosecutor of the DNA. This blog has previously reported on the role of the president in the justice system, emphasizing his limited formal powers, while also mentioning his non-negligible informal powers stemming from his legitimacy as an elected official. However, the use of informal and veto powers can only come willingly, as shown in the case of Poland. In addition to a highly hostile political environment, the only marginally combative attitude of the Romanian president Klaus Iohannis, coupled with his decision not to politically coordinate with his own party, the PNL, has led to further accentuation of the peripheral nature of his activity.
An all men’s game: the justice system
For years, the fight against political corruption has dominated the Romanian system. Revising the powers of the judicial branch – to strengthen or constrain them – has also remained high on political agenda across the political spectrum. Revisions were voted by the current ruling coalition only two years after other revisions had been made by a technocrat government in 2016. In addition, the incumbent majority also sought to clarify the chains of command in the absence of any government/president consensus on key appointments and dismissals in the judiciary. The president’s ability to refuse only once the proposal of the justice minister for the general prosecutor, the chief prosecutor of the National Anti-corruption Directorate (DNA) and that of the Organised Crime and Terrorism Investigation Agency (DIICOT) was introduced in the legislation to clarify the procedure and was deemed constitutional by the Constitutional Court. The Constitutional Court also ruled that the president has no powers to oppose the decision of the justice minister to dismiss the head of the DNA, emphasizing an article of the Constitution which states that ‘prosecutors carry out their activity (…) under the authority of the minister of justice’. Consequently, the highly popular DNA chief prosecutor, Laura Kovesi, will now have to be dismissed by the president to conclude a procedure of removal that was initiated by the ministry of justice.
The politics of the Constitutional Court
The role of the Constitutional Court in mediating inter-institutional conflict is pivotal. Less easy to disentangle are its politics. The nine judges are changed in cohorts of three, every three years. A balance of representation between the Chamber of Deputies, the Senate and the Presidency has to be maintained, each having the right to nominate one judge in the changing group. The shifting majority in parliament and a period of cohabitation under two presidents that goes back to 2012 also leads to fluctuating majorities in the Court. Some correlation can be found between the agenda of the current president and the decision of the judges nominated by the presidency, but the overlap is not complete. Equally, the agenda of the opposition (PNL) is not fully endorsed by the judges they once nominated. The PSD-nominated judges are the ones that mostly correlate with a PSD agenda. Under the current composition of the court, the ruling coalition has a majority of at least 5 to 4. This adds strength to the coalition’s agenda to increase the power of the government.
Recent rulings of the Constitutional Court have led to a clarification of some procedures and the hierarchical control within the executive. They have also increased the power of executive control over the judiciary branch to the impairment of judicial self-regulation through their own institutions, such as the Supreme Council of the Magistracy. Collaterally, they have also diminished the formal impact of the president on these matters in periods of cohabitation.