–Bianca Selejan-Guţan, Lucian Blaga University of Sibiu, Simion Bărnuţiu Faculty of Law
July 2012 was the scene of the most important constitutional crisis in Romania since December 1989. I explored some salient aspects of the crisis in an earlier post on this blog.
One year after these events, the constitutional amendment process, initiated by the Parliament in April-May 2013, created the context for a new controversy over the referendum law. The new legislature, elected in December 2012 (which I have also discussed in an earlier post), adopted a draft law amending again the referendum law. The main target of the amendment was the participation quorum, which was lowered to 30% of the total number of persons registered in electoral lists. This meant that a referendum–regardless of its nature, compulsory or optional–would be valid if 30% of the total number of voters expressed their vote. There was a further condition: at least 25% of the votes must be valid.
On June 4, 2013, a group of 83 opposition MPs challenged the amendment at the Constitutional Court. The Court issued its judgment on June 26, marking the fourth major decision since 2007 by the Court on the referendum law.
In this post, I explore the apparent inconsistencies between the Court’s earlier rulings on the referendum law and its most recent judgments.
Here is what the Court has said in previous cases:
2007: “[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 [referendum for] dismissal of the President of Romania (…).” (RCC, Decision no. 147 of February 21, 2007; the same statement was reiterated in Decision no. 420 of May 3, 2007)
July 2012: “[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 Law no. 3/2000 imposing an absolute majority, which means half plus one of the persons registered in the permanent electoral records. The Court states that it 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 lists represents an act of civic responsibility (…).” (RCC, Decision no. 731 of July 12, 2012) (emphasis added)
August 2012: “Expressing a political option may take place not only by participating in the referendum, but also by abstaining to participate, 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 (…). 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 in political life.” (RCC, Resolution no.3 of 3 August 2012) (emphasis added)
Now here is what the Court says in its latest decision of 2013:
June 2013: “By analysing the constitutional texts and of international documents in the field, the Court states that the Constitution (…) does not impose expressly a certain participation threshold. The Court has not identified any text to impose or recommend a participation quorum for the referendum. (…) As a consequence, regulating or changing the conditions on the validity of a referendum is of the exclusive competence of the legislator, who is the only entitled, according to Article 73 para. 3 d) of the Constitution to settle the organisation and procedure of this popular consultation instrument (…).” (RCC, Decision no. 334 of June 26, 2013) (emphasis added)
Whereas one year ago, the Court completely disregarded the Venice Commission Code of Good Practice on Referendums, which clearly disapproves the imposition of a participation quorum for obvious reasons, in the present decision, this Council of Europe document underpins the Court’s entire argumentation:
In the Code of Good Practice on Referendums of the Venice Commission it was established the recommendation not to provide for rules applicable to quorums. In the Explanatory report of the same document, it was stated that a turn-out quorum (minimum percentage) means that it is in the interests of a proposal’s opponents to abstain rather than to vote against it but also that encouraging either abstention or the imposition of a minority viewpoint is not healthy for democracy. Moreover, there is a great temptation to falsify the turn-out rate in the face of weak opposition. These recommendations (…) cannot be ignored, although they do not have a compulsory character (…).
Strange how the Court decided suddenly to take into account in an imperative way these recommendations, which were available also one year ago and on which we commented in posts and articles.
However, it is not so strange if we follow the entire reasoning of the Court’s decision, this time in terms of “stability of legislation.” One must not forget that all this is happening in the context of a forthcoming constitutional amendment by referendum (a process which was initiated by the same political majority against which the Court ruled one year ago). Although it stated that reducing the turn-out quorum to 30% is constitutional, the Court went further in invoking the Venice Commission’s Code of Good Practice in Electoral Matters, this time regarding the “stability of electoral legislation”. Thus, the Court stated that the amendment of the referendum law cannot be applied to referendums organised less than one year from its entering into force. It is worth mentioning that the CoE document does not expressly include participation quorums among the main elements of “electoral heritage” that may not be changed within less than a year from the elections simply because they are not part of the mentioned European electoral heritage. What the Court omits to mention is that the Explanatory Report of the Code of Good Practice refers to the Interpretive Declaration on the Stability of the Electoral Law, stating that stability of referendum law cannot be invoked to maintain a situation contrary to the norms of Europe’s electoral heritage in the area of direct democracy or to prevent the implementation of recommendations by international organisations. One of these recommendations, against a participation quorum, is stated in the Code of Good Practice on Referendums, which was set guidelines for the authorities of the member states by the CoE Committee of Ministers in 2008.
In addition, according to a study on electoral law made at the level of the Council of Europe, “most states do not provide for a quorum to validate the result of a referendum.” Even when a quorum is imposed, in one of its two forms (of participation or of approval), the quorum of approval is considered preferable to a participation or turn-out quorum, “which poses a serious problem.” Therefore, reducing or eliminating an existing turn-out quorum, considered by its effects indirectly to be “not healthy to democracy” should not be viewed as affecting one of the “fundamental aspects of the European electoral heritage” so that its application should be postponed for one year for stability reasons.
The final wording of the Court’s dictum was that of an interpretive decision: the criticised dispositions “are constitutional insofar as they do not apply to referendums organised within a year from the entering into force of the amended law.” The Constitutional Court, under its present constitutional status and competence, as a negative legislator, may not indicate a delay in which a law should be applied, especially without a clear constitutional basis for striking down instability.
As regards the first part of the decision, it is interesting to mention that only two judges from the former “Court-majority” which imposed the turn-out quorum in July 2012 had now a clearly stated separate opinion (JJ. Zegrean and Minea), where, in the context of noticing a fundamental change of jurisprudence, they wonder “which are the new elements appeared in the one year interval from the Decision 731/2012, so important as to determine a reassessment of the authenticity of the sovereignty of the Romanian people?” In my view, this is a live proof of the Court’s politically driven inconsistency.
Suggested Citation: Bianca Selejan-Guţan, One Year After: How the Romanian Constitutional Court Changed its Mind, Int’l J. Const. L. Blog, July 14, 2013, available at: http://www.iconnectblog.com/2013/07/oneyearafter
 Adopted by the Venice Commission in 2005, see CDL-AD(2005)
 Electoral Law, Council of Europe Publishing, 2008, paragraph 109, p. 284.
 Ibidem, paragraph 111, p. 284
 Code of Good Practice on Referendums, Explanatory Report, paragraph 51.