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The President of Romania Or the Slippery Slope of a Political Regime

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The President of Romania Or the Slippery Slope of a Political Regime The President of Romania or the slippery slope of a political regime Elena Simina T ĂNĂSESCU Professor at the Law School of the University of Bucharest Director of the Center of Constitutional Law and Political Institutions I. Preliminary remarks ..................................................................................................................... 1 II. Election and status of the President ............................................................................................ 3 A. Direct legitimacy ........................................................................................................... 3 1. Impossibility to cumulate more than two terms of office ........................................ 3 2. Impact of the Presidential term of office on Parliamentary elections ..................... 4 B. Political neutrality.......................................................................................................... 7 III. Presidential role and tasks ........................................................................................................ 10 A. Role of representation of the State .............................................................................. 11 1. Means shared with other public authorities ............................................................... 11 a. Guarantor of national independence, unity and territorial integrity ...................... 11 b. Guardian of Constitution ....................................................................................... 12 2. Means devoid of legal effects .................................................................................... 14 a. Mediator among State powers and mediator between State and society ............... 14 b. Advisory referendum ............................................................................................. 15 B. Ambivalent relationships with Parliament and Government ....................................... 16 1. Difficult relationships with Parliament...................................................................... 17 a. Limited collaboration in legal matters ................................................................... 17 b. Presidential messages ............................................................................................ 17 c. Unlikely dissolution of Parliament ........................................................................ 18 d. Political liability to Parliament .............................................................................. 19 2. Little or no clarity in relationships with Government ............................................... 22 a. Influence of President on Government composition ............................................. 23 b. Influence of President on Government activity ..................................................... 25 VI. A political regime hard to qualify .............................................................................................. 26 I. Preliminary remarks According to the Constitution of Romania, in force since December 8, 1991, and amended following a referendum on October 18 and 19, 2003, President and Parliament have equal legitimacy. This represents a new institutional setting for the Romanian modern state, since its establishment through the union of the two Romanian kingdoms, Wallachia and Moldavia in 1859. Back then the same person succeeded in being elected head of State ( domnitor ) by the General Estates, which included people from all social strata, while the legislative assembly was exclusively made up of the representatives of the high and middle classes. Following this 1 first experiment, the heads of the Romanian state would be either monarchs 1, or Presidents elected by Parliament 2. The tribulations of the communist epoch should have made Romanians more cautious with respect to a President who would be too powerful in comparison with weaker State authorities, and, most certainly, the choice of the lawmakers in terms of “institutional design” clearly gives more substance to this caveat. In order to prevent any possibility that people turned out to vote in simulated parliamentary elections as if it were an already made decision, the drafters of the 1991 Constitution established a Parliament and a President with equal legitimacy. In the words of one of the drafters of the Constitution, the so-called “semi-Presidential” political system was not chosen “to facilitate the totalitarianism, but quite on the contrary” 3. However, the direct legitimacy of the head of State has been perceived by the members of Parliament as an imminent danger for their authority, even for their own legitimacy. If articles of the draft Constitution that concerned President had as source of inspiration the French model, debates in the Constitutional Assembly took a completely different approach. The members of the Convention put in all necessary efforts, and even more, to reduce the powers of the head of State, in order to keep Parliament at the forefront of the political arena. Consequently, the power of the head of State must be exercised according to limitations which, in fact, make the President rather dependent on other state authorities. Moreover, every function granted to the President of Romania has been the subject matter of hard debates and the overall resulting landscape points out to a Presidential institution having rather the role of a moderator , or a regulator , than of a strong institution, with important decision-making powers and an active role to play in the State. This regulatory compromise extended during the course of the constitutional amendment exercise that took place in 2003: instead of gaining authority or importance, the President of Romania was faced with even more legal constraints than before, as some of his functions have been sharply defined in exchange for nothing more than political neutrality, which had already been there right from the start. Against this background, evolutions which occurred on the Romanian political scene, particularly after the 2004 elections, illustrate a strong power- struggle between a Presidential institution constantly trying to expand its limited powers and a Parliament or a Government fighting to retain whatever discretion there might be available for them in the Constitution. The lack of precision of various constitutional provisions coupled with strong personalities on the political arena made it so that impeachment, referenda and Government reshufflings became the other face of normality in today Romania, all against a 1 The forced resignation on May 1, 1864 of the domnitor made it possible for the Romanians to entrust their throne to a foreign prince who pushed for the adoption of a Constitutional Pact in 1866. However, the head of State continued to be called domn until 1881, when Romania was proclaimed a kingdom. It was only in 1884 that this state of affairs was enshrined in an amended Constitution. 2 Law n°363/ December 30, 1947 abolished monarchy in Romania and established the Republic, managed by a Presidium , playing the part of a collegiate head of State. After 1974, the head of State became a one-person institution, appointed by a single-house Parliament (The Grand National Assembly). 3 F. B. Vasilescu , in ***, “Geneza Constitu ţiei României 1991” (The works of the Constitutional Assembly), Monitorul Oficial, 1998, p. 511 and following. The debates that took place in the Constitutional Assembly are extremely informative in this respect, as they accurately express the fear that members of the Convention resented towards a president with a too strong a legitimacy. 2 more general background of constant strengthening of the executive at the expenses of the legislative power. Beyond the regulatory capacity of the basic law of the State, the “living Constitution” ensures that the President is the authority personifying the State. This has an enormous leverage in terms of elections and status of the President, but it is not sufficient to make of the head of State the central authority of the institutional system. The main cause for the ambiguity of the Romanian regime may very well lie in the ambivalent constitutional relationships that the President must develop with other State authorities, particularly with Parliament and Government. In fact, after the adoption of the Constitution on December 8, 1991, it seems difficult to clearly qualify the political regime in Romania: is it a semi-Presidential, or even a semi-parliamentarian one, as it had been the design of its founding fathers 4, or is it a semi- Presidential regime with Presidential tendencies, since this is the path it seems to have followed recently? II. Election and status of the President There is a direct causal link between the manner of election and the status of the President of Romania. However, if one puts it in other terms, this causal link becomes less evident: the relation between the direct legitimacy and the political neutrality required by the Constitution seems to be less obvious, despite the relevant provisions of the fundamental law. If the head of the State is a direct representative authority, then he should represent the entirety of the Romanian people and not only portions of his constituencies; however, his mode of election presupposes a quite clear and definite political commitment on his side. Despite heated debates on this issue, back in 1991 in the Constitutional Assembly, the constitutional framework has remained untouched and without any
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