On the Nature of the Romanian Political Regime
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www.ssoar.info On the nature of the Romanian political regime: reflections on the recent jurisprudence of the constitutional court Carp, Radu Veröffentlichungsversion / Published Version Zeitschriftenartikel / journal article Empfohlene Zitierung / Suggested Citation: Carp, R. (2013). On the nature of the Romanian political regime: reflections on the recent jurisprudence of the constitutional court. Studia Politica: Romanian Political Science Review, 13(3), 411-425. https://nbn-resolving.org/ urn:nbn:de:0168-ssoar-447247 Nutzungsbedingungen: Terms of use: Dieser Text wird unter einer CC BY-NC-ND Lizenz This document is made available under a CC BY-NC-ND Licence (Namensnennung-Nicht-kommerziell-Keine Bearbeitung) zur (Attribution-Non Comercial-NoDerivatives). For more Information Verfügung gestellt. Nähere Auskünfte zu den CC-Lizenzen finden see: Sie hier: https://creativecommons.org/licenses/by-nc-nd/4.0 https://creativecommons.org/licenses/by-nc-nd/4.0/deed.de On the Nature of the Romanian Political Regime 411 On the Nature of the Romanian Political Regime Reflections on the Recent Jurisprudence of the Constitutional Court RADU CARP The participation to the European Council, an issue that generated vivid debates during the summer of 2012 and it was one of the episodes that have amplified the conflict between the Prime Minister and the President which culminated with the suspension from office of the former and the referendum that invalidated the suspension, has led to the emergence of another topic that unfortunately did not benefit from the same intensity in the public debate: the nature of the Romanian political regime. Since the issue had not been permanently clarified within the public law doctrine, the Constitutional Court has added a new episode concerning the clarification of this regime. From the moment the Court was notified regarding the issue of the participation to the European Council, there were two options: that this conflict would not fall under the category of legal conflicts of constitutional nature that the Court is entitled to judge, or that this conflict would fall under this category and, in order to find a solution, to determine more precisely the nature of the political regime. The Court has chosen the second option. An option that proved to be an extremely difficult one, since the Decision no. 683/20121 was adopted with a majority of 5 to 4, and all the 4 judges that voted against felt the need to express separate opinions. In order to resolve the notification of the Presidential Administration, the Court wished to decide first upon the fact whether the given situation corresponds to a legal conflict of constitutional nature. A positive answer in this regard was given by the Court invoking the letter exchange between the Minister of Foreign Affairs and a deputy minister from the Ministry of Foreign Affairs, on the one hand, and a presidential counselor, on the other hand. Thus, the conflict situation is, according to the Court, ”born and present” due to certain concrete acts already committed, which means that this conflict cannot emerge only with the effective participation of the President to the European Council. From this article’s perspective, it does not matter that much why this conflict has been labeled as having a legal nature, but mostly why it has been decided that it has a constitutional nature. In order to reach this conclusion, the Court stressed the fact that this conflict concerns the interpretation of article 80, paragraph 1 and article 102, paragraph 1 from the Constitution and, according to a previous decision of the Court, if the public authorities interpret and apply differently a constitutional disposition, the existence of a legal conflict of constitutional nature is proven2. Thus, the answer to the first question (the existence of a conflict that the Court is entitled to judge) is strongly linked to the answer to the question that has to right to represent Romanian to the European Council. 1 Official Journal, no. 701/12.10.2012. 2 Decision no. 270/2008, Official Journal, no. 290/15.04.2008. Romanian Political Science Review • vol. XIII • no. 3 • 2013 412 RADU CARP In order to provide an answer to the second question, the Court has analyzed first the nature of the European Council and of the representativeness of the EU Member States. The Court notices that it is not possible to partition the agenda of the European Council on certain issues that could possibly justify the participation of the President in certain situations and of the Prime Minister in other situations, because the mandate of representation of the state is ”a permanent one and not one divided between two public authorities”. Furthermore, the appointment of the right person to represent a Member State is aimed at ”ensuring the representation of the Member State at the highest level by the competent public authority”. Why is it important to clarify the nature of a political regime in order to decide who participates to the European Council? The Court states that the participation at presidential level occurs due to the existing political regime (the case of France – semi-presidential regime and of Cyprus – presidential regime) or due to an agreement between the political actors (case of Lithuania – semi-presidential regime). As a consequence, if in Romania the Constitution does not divide the competences within the executive in order to affirm without any reservation the right of the President to participate to the European Council, if there is no agreement between the political actors as in Lithuania, it remains only the solution of interpreting the norms from the Constitution by the Court in order to determine the nature of the political regime. In order to carry out this analysis, the Court based itself on certain interpretations from the doctrine. The first such interpretation used is that of Maurice Duverger, the first author who theorized semi-presidential regime1. The Court quotes two of his contributions in order to affirm that the semi-presidential regime shall fulfill three conditions: – The President to be elected by universal suffrage; – The President to be empowered with considerable competences; – The President to be assisted by a Prime Minister and ministers, part of the executive power, who can stay in power unless the Parliament opposes. According to the Court, the first and the third conditions are fulfilled in the case of Romania, remaining to discuss the second condition based on the analysis that Robert Elgie dedicates to Duverger’s model2. The nature of ”the considerable competences” is argued by the Court as follows: ”Along with other elements, in addition to the Romanian President’s role in the foreign policy, as well as his capacity as head of the armed forces, president of the Supreme Council of National Defense, his competence to request the reexamining of a law, to notify the Constitutional Court, to designate the candidate for the Prime Minister seat, to appoint an interim Prime Minister, to appoint ministers, to request the prosecution of the members of the Cabinet, to consult the country’s population through referendum, to make appointments to public offices, to grant individual pardons, the political regime must be labeled as a semi-presidential one” (our emphasis). 1 Maurice DUVERGER, Échec au roi, Albin Michel, Paris, 1978; IDEM, ”A New Political System Model: Semi-presidential Government”, European Journal of Political Research, no. 8, 1980, pp. 165-187. 2 Robert ELGIE, ”Duverger,Semi-presidentialism and the Supposed French Archetype”, West European Politics, vol. 2, no. 32, 2009, p. 248 et seq. Romanian Political Science Review • vol. XIII • no. 3 • 2013 On the Nature of the Romanian Political Regime 413 The Court did not limit itself to give this verdict based exclusively on the interpretation of the constitutional norms, but withheld to invoke its own jurisprudence1 to prove the existence of the President’s ”considerable competences”. Regarding the participation to the European Council, the Court stated that, in accordance with art. 80, paragraph 1 of the Constitution, the President represent the Romanian state, which ”allows him to draw the future guidelines that the state will follow in its foreign policy”. Such a statement is, according to the Court, ”legitimated by the representative character of his office, the Romanian President being elected by the citizens through universal, equal, direct, secret and freely expressed vote”. The Prime Minister has the competence to ensure the achievement of the foreign policy, in accordance with art. 102, paragraph 1 from the Constitution, which means that the Government ”is due to duly implement the measures the state has committed to”. The representation of the state can be thus delegated by the President to the Prime Minister. The Court has also analyzed the Parliament’s Declaration no. 1/2012, which established a division of competences between the President and the Government in the field of foreign affairs. The Declaration credited the idea of a horizontal division of competences but this division is in practice vertical, between the definition of the foreign policy guidelines (President) and their implementation (Government). This Declaration was invoked by the Government in front of the Court in order to justify the participation of the Prime Minister to the European Council. In a separate opinion, three judges of the Court consider that there was no legal conflict of constitutional nature to justify the Court’s competence, but rather the problem of deciding who represents Romania, a problem of political nature ”that needs to be settled by the Parliament when there are disagreements regarding this between the President and the Prime Minister”, hence justifying the relevance of the Parliament’s Declaration mentioned above. In another separate opinion, it was considered that this Declaration cannot be subject to the Court’s control, being a political act, and this act does not create a legal conflict of constitutional nature between the President and the Prime Minister.