The Romanian Anticorruption Bill
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THE ROMANIAN ANTICORRUPTION BILL LAVINIA STAN Studies in Post-Communism Occasional Paper no. 6 (2004) Centre for Post-Communist Studies St. Francis Xavier University www.stfx.ca/pinstitutes/cpcs Successive Romanian post-communist governments Romania.” These programs contain an impressive list of have made halfhearted attempts to adopt the legislative objectives alongside measures to accelerate the framework needed to fight corruption, a serious affliction anticorruption campaign, whose fulfillment will provide key impacting that country’s chances for consolidating benchmarks for judging the commitment of the government democracy and gaining acceptance into the European Union. to stem out corruption. Their importance is boosted by the More than a decade after the collapse of communism, the fact that, for the first time, Romanian authorities seemingly legal anticorruption framework remains deficient both admitted that the political establishment may be more the because key pieces of legislation are missing and because source of than the solution to corruption, a phenomenon already adopted laws allow for numerous loopholes and endemic to a wide range of Romanian public institutions. lenient sentences or blatantly contradict each other. Before A number of reports have already established that 2000, no government approached corruption holistically or corruption thrives in that country and tends to be connected wished to clear out the ambiguities plaguing the disparate (directly or indirectly) with the political class. Romania has laws, governmental ordinances and ministerial orders dealing consistently ranked among the most corrupt East European with various facets of the phenomenon, although all post-communist countries in terms of the Corruption governments declared anticorruption an utmost priority. Perception Index (see Table 1). Almost daily, the local press With respect to unpopular measures such as state-owned reports cases of politicians of all ideological persuasions, age company privatization and restructuring Romanian cabinets and educational background engaging in nepotism, pull, chose to bypass reluctant legislatures and draft ordinances in cronyism, bribe taking and giving, misappropriation of order to move the process forward, but no such political will public funds and embezzlement, with journalists deploring was evident with regard to the fight against corruption. the many terms that the Romanian language reserves for Since the Social Democratic Party won the late 2000 describing corruption. Romanian and Western observers general elections and the Adrian Nastase cabinet was sworn alike have detailed not only the extent of corruption in that in, Romania has seen a flurry of anticorruption activity, country, but also the role of political corruption in stalling partly in response to repeated criticism from the European the dual political and economic transformation which post- Union and NATO, and partly as an attempt to win over some communist countries have embarked on.1 of the electors supportive of the main opposition party, the nationalist Greater Romania Party, which made anti- corruption the cornerstone of its electoral campaign. The 1 Among studies on corruption in Romania, see Diagnostic Surveys of other formations currently represented in the Romanian Corruption in Romania (World Bank, 2001), Corruption and Anti- Parliament are the Liberals, the Democrats, the Democratic Corruption Policy in Romania (Open Society Institute, 2002), A. Mungiu-Pippidi, “Breaking Free at Last: Tales of Corruption from the Union of Magyars in Romania, and the Humanist Party (up Post-Communist Balkans,” East European Constitutional Review vol. 6, to September 2003 a junior partner to the ruling Social no. 4 (Fall 1997), and V. Stoica, “Romania’s Battle Against Corruption,” Democrats). As part of the anticorruption campaign, the Public Management Forum vol. 3, no. 2 (1997). The most important Justice Ministry drafted a “National Plan for Preventing studies analyzing high political corruption and its impact on East Corruption” and a “National Plan for Fighting against European democratization and economic transition are Anti-corruption in Transition: A Contribution to the Policy Debate (World Bank, 2000), S. Corruption (2001-2004),” while the government adopted a Ross-Ackerman, Corruption and Government: Causes, Consequences comprehensive strategy for “Combating Corruption in and Reform (Cambridge: Cambridge University Press, 1999), and L. 1 2 Table 1: Corruption Perception Index Rankings, East Europe As it will become apparent, while significant progress has been accomplished, there is yet much to be done in order to Country 2002 2001 2000 1999 1998 1997 bring political corruption to an acceptable level, and root out Albania 81 84 the practice of using public funds for private interests. Bulgaria 45 37 52 63 66 Czech 52 37 42 39 37 27 Republic Conflict of Interest and Office Incompatibility Hungary 33 31 32 31 33 28 Poland 45 44 43 44 39 29 Conflict of interest and office incompatibility were Romania 77 69 68 63 61 37 legislated by the 1991 constitution and the law on public Slovakia 52 51 52 53 47 local administration (Law 215/2001), but provisions were Slovenia 27 34 28 25 unclear and prone to interpretation, and the procedure for Croatia 51 37 51 74 Blank cells indicate unavailable rankings. applying sanctions remained unspecified. The Law 215/2001 described and punished cases placing local and county elected officials in incompatibility. According to Articles 30 This article discusses recent efforts of the Romanian and 112, councilor positions were incompatible with those of authorities to tackle political corruption by presenting the prefect, deputy prefect, mayor, government and Parliament legislative framework governing conflict of interest, office member, employee of decentralized ministerial territorial incompatibility and asset disclosure affecting elected and offices, and administration board member or manager of non-elected public officials, detailing the political bargaining public utilities and companies set up by the council. Mayors preceding the setting up of the National Anticorruption were further banned from holding management positions in Prosecutor’s Office and during the first year of its activity, state-owned companies and public utilities, and other public analyzing the new anticorruption bill for which the offices and activities, except those of university professor or government assumed responsibility, examining the results of foundation member (Article 62). While providing the first initial attempts to implement the bill and force politicians to markers for office incompatibility, the law had several distance themselves from direct private interests which might shortcomings. ‘Incompatible’ councilors and mayors could affect their decisions, and pointing out the most important lose their mandate, but the dismissal procedure was unclear. drawbacks of the anticorruption strategy. None of these Elected officials were not banned from managing private themes were analyzed in the English-language literature, companies which were not under the council’s direct though they were the topic of many Romanian press reports. authority, but had won lucrative contracts from it. As the law The anticorruption measures presented here have pitted the was adopted during their mandate, local officials who government against both the opposition and some Social assumed office in 2000 were considered exempt from Democrat members unwilling to see their privilege of observing the law, which was to be implemented only after combining public office and private business compromised. the 2004 elections. Equally unclear were the constitutional provisions Holmes, The End of Communist Power: Anti-Corruption Campaigns and outlining the incompatibility of deputy and senator positions. Legitimation Crisis (Cambridge: Polity Press, 1993). According to Article 68 of the constitution, an individual 3 4 cannot be deputy and senator at the same time, and 2002), which banned local elected and non-elected public Parliament members cannot hold any “public function of officials from simultaneously holding mayor, deputy mayor, responsibility” except that of cabinet member. But the article local and county councilor positions, on the one hand, and failed to provide details on those public functions, as did positions of shareholder, manager and board member of other pieces of legislation subsequently adopted. All these public utilities and companies subordinated to the local legislative shortcomings meant that by late 2001 no local and administrative body which they represented, on the other central public official had admitted to incompatibility or had hand. Officials had to choose between positions by 17 chosen between the public office and the private business. February, otherwise they risked losing their public office by In early 2002, the Romanian Parliament decided on a order of the prefect. The ordinance also banned local set of anticorruption laws to be adopted before the Prague officials from using their position of influence for helping summit, scheduled later that year, when the country hoped to companies to obtain contracts from local governmental be accepted as a NATO member. The decision responded to bodies and their subordinated companies. Already drafted demands from international actors that Bucharest take contracts were to be annulled. The ban applied not only to conflict of interest seriously and separate public from private