—Bianca Selejan-Guţan, Lucian Blaga University of Sibiu, Simion Bărnuţiu Faculty of Law
On July 29th, 2012, over 8 million Romanian citizens (i.e. over 46% of the electoral records) voted in the referendum organized for the dismissal of the President. More than 87% voted in favor of the dismissal.
On August 29th, 2012, some Western powers expressed their satisfaction that the President was reinstated in his office by the Constitutional Court. The sovereignty of the Romanian People, present to vote in a high proportion (by reference to all Romanian democratic elections to-date and to usual electoral polls in any democratic country), was thus reduced to zero.
How did the Romanian Constitution–which states that “national sovereignty belongs to the Romanian people, who exercises it by free, periodical and fair elections (…) or by referendum”–become an illusion? Rather than make any political value judgments, and having no political affiliation whatsoever, I will try to briefly present the main facts–from a legal and constitutional perspective–which led to a situation otherwise inconceivable to any Western democracy.
One of the institutions which paradoxically had a crucial role in the setting aside of the constitutional values was the Constitutional Court, once the most praised symbol of the rule of law. I am myself a fervent supporter of constitutional review (and one of the few in-depth researchers in the field in Romania) and of the kelsenian model of Constitutional Courts, and, despite what happened, I would never agree with the elimination of the Court from the Romanian constitutional system.
However, during the last half-decade, the Romanian Constitutional Court found itself regularly under crossfire, either from the political environment, or from the civil society, including media. Some of its recent decisions have started harsh reactions, sometimes disproportionate, some of them–coming from a grossly immature political class–claiming the elimination of the Court from the Romanian Constitutional System. Moreover, some politicians were in the contradictory situation to support one day the Court’s position and the second day to request its elimination from the Constitution. Regrettably, this was one of the main ways in which the existence of the Constitutional Court was acquiesced by politicians and, even more concerning, by some political authorities of the state. The latest events of June-July 2012 come as a comble of the recent past events, adding rumor-generated panic and jurisprudential chaos to the general picture.
How did the Court come to create itself such a negative image? Let’s take two of its most recent decisions. In one of them, the Court, in its attempt to justify the option for a participation quorum to the referendum for the dismissal of the President, stated that:
[T]he condition which must be fulfilled for the validity of the referendum is the same for all types of referendum, Article 5 para. 2 of the Law no. 3/2000 imposing the absolute majority, which means half plus one of the number of persons registered in the permanent electoral records. The Court states that this is an essential condition for the referendum to be able to express in a real and effective way the will of the citizens, constituting the premise of authentically democratic manifestations of sovereignty by the people, in conformity with the principle stated in Article 2 para. 1 of the fundamental law. Participation in the referendum of the majority of the citizens registered in the permanent electoral rosters represents an act of civic responsibility, by which the electoral body will decide on sanctioning or not the President of Romania, having the possibility of revoking him or of maintaining him in office. (Romanian Constitutional Court, Decision 731 of 12 July 2012).
Three weeks later, ruling on a complaint against the boycott of the referendum by one of the political parties and by the suspended President, the same Court said that
Expressing a political option may take place not only by participating in the referendum, but also by not participating, especially in situations when the relevant legislation imposes a certain quorum of participation. This way, a blockage majority may be created, by reference to the number of a country’s citizens; this way, those who choose not to exercise their right to vote consider that by a passive behaviour they can impose their political will. Therefore, by choosing not to exercise a constitutional right, citizens see achieved their own convictions by not accepting, indirectly, the contrary ones. That is why the absence from referendum, more precisely the non-exercise of the right to vote, is also a form of expressing the political will of the citizens and of participation to political life. (Romanian Constitutional Court, Resolution no. 3 of 2 August 2012).
Therefore, participation in the referendum is a matter of interpretation, in the opinion of the Romanian CC, depending on the political moment and on the political actors involved. Moreover, in the latter ruling, the Court invented the “sovereignty exercised in absentiam”, by praising the importance of the absence from the vote, disregarding thus, on one hand the actual provisions of the Constitution (Article 2 (1) National Sovereignty belongs to the Romanian people, who exercises it through its representative organs, elected in free, periodical and correct elections, or by referendum) and on the other hand the recommendations of the Venice Commission: 51. (…) Encouraging either abstention or the imposition of a minority viewpoint is not healthy for democracy (point III.7.a). Moreover, there is a great temptation to falsify the turn-out rate in the face of weak opposition – in Code of Good Practice on Referendums, adopted by the Council for Democratic Elections at its 19th meeting, Venice, 16 December 2006, by the Venice Commission at its 70th plenary session, Venice, 16-17 March 2007, on the basis of contributions by Mr Pieter van Dijk, Mr François Luchaire and Mr Giorgio Malinverni, Pct. 7, p. 23.
Nevertheless, the Court was aware of the above-mentioned document, mentioning it when considering it convenient: “From the perspective of these legislative evolutions, the Court reminds that, in the Code of good practice on referendum, adopted in 2007, the European Commission for Democracy through Law (the Venice Commission) recommended states to ensure a stability as regards legislation in the matter (…).” (Romanian Constitutional Court, Resolution no. 3 of 2 August 2012). Therefore, the Venice Commission’s Code of Good Practice is either important or not, depending on the Court’s own mysterious criteria.
By imposing the participation quorum, the Constitutional Court managed to distort not only the requirements of the Council of Europe (the Code for Good Practices on Referendum was recommended as guidelines for the authorities of the member states by the CE Committee of Ministers, in 2008), but also the spirit of the Romanian Constitution. In addition, the Court disregarded its own jurisprudence: in February and May 2007, in a similar context and ruling on the same Law on the referendum, the Constitutional Court stated, inter alia, that “[the Court] does not exclude the possibility that the legislator choose a relative majority [i.e. by reference to the number of participating voters] for the dismissal of the President of Romania (…)” (Decision no. 147 of 21 February 2007; the same statement was reiterated in Decision no. 420 of 3 May 2007). Constitutional “justice” or just a different Court, different interests, different outcome?
The Romanian Constitution does not say what happens when a compulsory referendum (organized only in the case of the suspension of the President and for the approval of constitutional revisions) is invalidated. In my view, this silence of the constitutional text means that such a referendum, compulsorily organized, must produce effects, rather than be “invalid” (invalidity is, generally, a situation in which an act does not produce any effects, like it had never existed). In this logical line, a participation quorum or any other cause making the referendum “invalid” (with the exception of massive fraud, which was never the case) were excluded by the intention of the Constitution’s drafters. Therefore, a referendum in which over 8 million voters participated voters should not be rendered “invalid”. I wonder if such a percentage would be considered as such in any of the European democratic country. Moreover, the Constitutional Court, in its last decision on the issue (from 21 August 2012), which allegedly put an end to the suspension procedure, stated that the referendum was organized according to the laws and the Constitution. No breach of the rule of law was actually decided by the Court.
Actually, in the context of the recent events, I think that, despite the unfortunate and hasty manner in which the political class acted towards the President’s suspension (which could easily lead the external observer to the conclusion that the rule of law is in danger), the real threat to the rule of law and legal certainty comes from the Constitutional Court’s inconsistency, political subordination and unprofessionalism. At this stage, in my personal opinion, the Romanian Constitutional Court is a failed experiment of constitutional transplant.
In a future post, I will develop the issues on the compulsory referendum and its potential invalidity and of the Constitutional Court’s power to actually decide on the referendum’s effects, as well as on the very hot subject of the Court’s power to review Parliament’s political decisions.