Romanian Elections: An “Original” Democracy?

–Bianca Selejan-Guţan, Lucian Blaga University of Sibiu, Simion Bărnuţiu Faculty of Law

The long-awaited process in which Romanians were called to elect their representatives in the country’s Parliament came to an end last month. The Central Electoral Office announced the final results. However, some of the most controversial issues related to these elections have just begun to start being debated.

The elections’ results were very harsh to the democrat-liberals, formerly the governing party until last May and condoned by the President of Romania, Traian Basescu. The former opposition, oddly united under the alliance USL (Social-Liberal Union, composed of the Social-Democratic Party, the National Liberal Party and two other small parties) obtained almost 60% of the valid votes, whereas the competing electoral alliance, ARD (led by the democrat-liberals) only a little over 16% of the votes. In the future Parliament, USL will thus have over two thirds of the seats.

Interesting and striking for a EU member state, after 23 years from the 1989-Revolution and the fall of Ceausescu’s blind personal dictatorship, a brand new party entered the Parliament, with a score, alone, of around 14%, thus not much less than the ARD: “the People’s Party Dan Diaconescu”. How was it possible that, in 2012’s Romania, a party bearing the name of a person (who is a “celebrity” owning a TV station located in a small flat and dealing mainly with “tabloid” scandals), associated with the “people”, obtain such a score in elections and enter the Parliament? This is one first questions to which an answer has to be found. It probably gathered the votes of those who wouldn’t trust the main competitors – both of them having been in power in the last 2 decades – and needed “fresh faces” in politics to hang their hopes on, no matter whose those faces belong to.

Another hot subject, of a more constitutional nature, is the very electoral system and its adverse effects. Here are some background details: in 2008, a major change has occurred in the Romanian electoral system, as regards parliamentary elections: the shift from a scrutiny based on lists of candidates proposed by political parties, to the uninominal vote. This was thought to be a progressive steo for the representativeness of the members of parliament and in the democratic participation of the voters. Nevertheless, the system introduced by the new law (no. 35/2008) was a hybrid one, according to which a “redistribution” operation allocated seats to candidates with a low score in their electoral constituencies, but whose party obtained a certain score at the national level. It is a complicated mathematical algorithm, whose application means that the Parliament always has a variable number of members. In the 2008-2012 legislature, the Parliament had 471 members. Following the last elections, it now has 588. It is worth mentioning here that in 2009, a consultative referendum was organised (at the initiative of President Basescu) to question the people on the opportunity of reducing the number of the members of Parliament to 300 and the introduction of a monocameral Parliament in Romania. Despite the low participation rate, the result was in favour of both questions.

How then was such a large increase in seats possible? Only as the direct effect of the redistribution process. Another strange effect of this process was that candidates who obtained, for instance, 27% of the votes in their constituency, entered the Parliament, to the detriment of a candidate who obtained, in the same constituency, 48% of the votes. It is very difficult to explain to the ordinary voter how such an anomaly is possible.

The shortcomings of the new electoral legislation were signaled soon after the 2008 elections. The Constitutional Court criticised in a few decisions the “deficiencies” or “imperfections” of the electoral system. For instance, in 2010, the Court stated that the new law: “instantiated an electoral mechanism which has nothing to do with the elements of a uninominal majoritary scrutiny with a single tour, as it is present in other countries. It is worth bearing in mind that no such electoral system based on uninominal majoritary scrutiny with a single tour provider for an electoral threshold, whereas the Law no. 35/2008 provides for two types of alternative electoral thresholds. (…) [t]he mechanism used for distributing the [parliamentary] mandates had as a consequence results which did not correspond to a uninominal majoritary scrutiny, as they were determined by the mathematical operations provided for by the law. Therefore, the appointment of some members of parliament was made based on such operations,and not as a result of the expression, by vote, of the political option [of the citizens].” (Decision no. 61/2010).

Nevertheless, in June 2012, the Constitutional Court refused to endorse a bill which tried to correct, in part, the aforementioned deficiencies, on the grounds that the principle of legal certainty would be infringed if changes to the electoral law were made with less than 6 months to go before the elections. The Court provided a very detailed obiter dictum, citing documents of the Venice Commission (for more on the attitude of the Court towards the Venice Commission’s other documents, see my previous post on this blog) and judgments of the European Court of Human Rights. Thus, the 2012 elections’ outcome was even more distorted that the one in 2008, with over 100 members of the parliament more than in the precedent legislature. The Court itself admitted, in the same decision of 2012, that “even though the present electoral legislation has been modified less than 1 year before the elections, there were no criticisms raised before the Court back then, whereas this time, the Court was called to establish the consequences of an untimely change of the electoral legislation”.

There is hope that, by the next electoral call, the necessary corrections will be performed.

The next step after the elections was the nomination, by the President, of a candidate for the Prime-Minister office. Surprisingly or not, despite the elections’ outcome, this matter too has been under controversy for a while, as the President refused, at first, to acknowledge the political coalitions as partners to the consultative process which leads, according to Article 103 of the Constitution, to such a nomination. The final word in appointing the new Government is that of the new Parliament, which, at its turn, had to be summoned in 20 days from the elections’ date. In the end, President Basescu gave up his radical view on political coalitions and nominated the candidate proposed by the majority, the sitting prime-minister Victor Ponta, who also obtained the vote of confidence from the new Parliament.

But this did not happen before the two “parties” – Basescu and Ponta – had signed an informal document, with the alleged title of Agreement of cooperation and good governance between the President and the Government of Romania. It seems that after the events in the summer, the main Romanian political actors were in need of a document to rely on in their mutual relationship, and in which to “undertake to fulfil and refrain from engaging in political disputes on theme pertaining to Romania’s commitments to international institutions. (…) avoid useless public confrontations, try to solve differences behind closed doors» and, furthermore, to « refrain from encouraging divergent approaches in the institutions they each represent and [to] reprimand excessive public positions taken by party colleagues or members of staff trespassing such rules of conduct, politeness, decency and courtesy». This “gentlemen’s agreement” supposedly was the incentive the President used to start his “co-habitation” with the new and quite overwhelming parliamentary and governmental political majority. The measure in which this majority – dangerously sufficient for constitutional amendments – will leave room for dialogue and plurality of ideas is a subject of concern for the future.

Last but not least, the Venice Commission gave, on December 17^th, its Opinion  on the main events that took place in July-August 2012 (Opinion no. 685/2012 on the compatibility with constitutional principles and the rule of law of actions taken by the government and the parliament of Romania in respect of other state institutions and on the government emergency ordinance on amendment to the law no. 47/1992 regarding the organisation and functioning of the constitutional court and on the government emergency ordinance on amending and completing the law no. 3/2000 regarding the organisation of a referendum – CDL-AD(2012)026), in which it concluded that “ (…)the  Romanian  state institutions  should engage in loyal co-operation between themselves and [the Venice Commission] is pleased about the statements from both sides expressing their intention to respect their obligations. The Commission warmly welcomes the fact that its interlocutors were of the opinion that constitutional and legislative reform is required to ensure that a similar situation should not arise again.” However, although I mostly agree with the Commission’s findings and conclusions as regards the scope and purpose of the rule-of-law in the difficult constitutional context, I am not entirely certain that the Commission, as an outsider constitutional interpreter, fully grasped some of the main issues at stake, especially as regards the conduct of the Constitutional Court. A more thorough analysis of the Commission’s opinions and proposals will await my next post, in the context of the constitutional revision.