Tag Archives: semi-presidential

Romania: the strategic use of referendums. Power to the people (later)!

by Veronica Anghel, Johns Hopkins University – SAIS Europe and Institute for Central Europe, Vienna

Spontaneous anti-government protest followed the result of EU elections and referendum on justice  under the eye of the gendarmerie. Bucharest has witnessed several large scale  protests that resulted in clashes with police forces  ©Marius Tudor

In broad strokes, we may identify the purpose of referendums as a useful tool to enhance democracy and citizen participation in policy outcome ( e.g. Bowler et al. 2007) or a populist weapon to mobilize supporters for electoral gains (e.g.Nemčok and Spáč 2019). Considering the increase of the use of referendums during the past decades (Qvortrup 2018), we are further motivated to better understand elite incentives to resort to this tool. In this text, I introduce the case of Romania as a study into the strategic use of this electoral institution by the executive branch– whether government or presidency. The Romanian case comes in support of the latter strand of scholarship and emphasizes how a referendum reveals its main use for the initiating actors to spread their message and gain popularity while the actual act of popular vote is irrelevant and has rather limited ability to shape policy outcome.  

During the past legislative year (2018 – 2019), the tool of referendum was used twice. In October 2018, Romanians voted to narrow the constitutional definition of family from a ‘marriage based on the union of spouses’ to ‘marriage between man and woman’. The governing Social Democrat Party (PSD) and coalition partner Alliance of Liberals and Democrats (ALDE) organised the referendum faced with a petition in favour of the constitutional change signed by 3 million citizens and supported by the Orthodox Church. Turn-out did not reach the 30% quorum needed. From the 21,1% of voters who turned –out for the referendum, over 90% supported the change.  This figure represents about 3,5 million Romanians. The referendum was boycotted by the opposition in a display of anti-government protest. This strategy was less as a show of solidarity with the human rights demands of the LGBTQ community than an oppositional stance.  President Klaus Iohannis, the most vocal contender of the government, nevertheless turned out to vote in the referendum. In a largely conservative country, it is of little worth to antagonise potential voters.   (see European Values Study and The Romanian Group for the Study of Social Values for useful data-bases). In this case, the motivation to organise the referendum lacked on all political sides, but mitigating potential loses not to have it became paramount.

The lack of interest in this issue was evident from the start. The PSD led cabinet set up a helpful legal context for the referendum to pass (lower threshold, two day voting process) and counted on the conservative values of the electorate and the involvement of the Orthodox Church to take effect. However, in a country where voter turn-out has constantly decreased in the last 30 years – averaging 40% – main parties’ ability to mobilise their active electorate is key for any election outcome. This requires willingness to invest significant financial and human resources and see potential gains out of such a feat. The dominant PSD calculated a lower investment return for this referendum and had no incentives for party activism compared to their usual display of organisational force during local and legislative elections. However, not organising it was a risk the government was not willing to take. The Orthodox Church has always served as an ally for the PSD. As in many Eastern European countries, politics and religion have an interdependent relationship. Incumbent politicians who associated their image with the church benefit from public acclaim and a positive standing with the well organised ecclesiastical network. The referendum had no actual effects over policy outcome and it did not lead to greater debate regarding same-sex marriage.

The second referendum was triggered by President Klaus Iohannis and organised on May 26th together with elections for the European Parliament. According to the Romanian semi-presidential constitutional system, the president has little formal powers to constrain the government or the parliament (see a previous blog post). Mr. Iohannis decided to use one of his prerogatives in response to what he considered ‘an assault through emergency ordinances on the justice system’ led by the PSD – ALDE governing coalition. In a country which witnessed massive anti-corruption and anti-justice reform protests, all association with this issue is electorally beneficial.  

Citizens were asked two yes/no questions: whether they agree to prohibit granting amnesty and pardons for sentences of corruption and whether they agree to outlaw issuing emergency ordinances regulating crimes, punishments and the reorganization of the judiciary. The results showed great support in favour of limitations to government led justice reform. Despite the complexity of the questions, their actual meaning was less debated. The underlying message was rather understood as a separation between those in favour of ‘tough justice’ vs. ‘lenience for corruption’. The referendum results are thus mostly symbolic. It is highly unlikely to see written into law the outcome of the vote.  They reconfirm the anti-corruption sentiment of Romanians who in recent years have often mobilized in protest to stop the governing elite from delivering self-serving justice reforms. 

The electoral gains of anti-government parties were far greater. With six month to go before the presidential elections in December 2019, front-runner and incumbent Klaus Iohannis benefited from an early electoral platform. Calling for this referendum gave him the opportunity to participate in rallies for the EU elections organised by his party, the National Liberal Party (PNL), despite the constitutional ban for the president to engage in partisan politics. The ‘anti-corruption’ rhetoric primarily benefited newcomer Save Romania Union (USR) – PLUS 2020 Alliance and their leader and presidential hopeful Dacian Ciolos. USR – PLUS received 22% of the vote, a significant feat for a new comer. Mr. Ciolos is now also in the run for the same anti-government votes of enraged citizens. Similar to Mr. Iohannis, he will also employ an anti-corruption, anti-establishment strategy in the upcoming elections.

Conclusion

In the first case, the exercise of the referendum was a way to fend off unwanted criticism and mostly employed a ‘nothing to lose strategy’. It failed as a result of lack of party mobilization in its favour, despite a favourable social values milieu. The second referendum benefited from heavy mobilisation on a salient issue. Regardless of the technicality of the questions, the mobilising message was perceived. Electoral gains were at the core of both of these decisions, while neither referendum will shape policy outcomes.

Romania – Intra-executive conflict and confusion about patterns of hierarchical control

President Klaus Iohannis clashes with Justice Minister Tudorel Toader Source: b1.ro

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.

Conclusion

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.