Current constitutional developments in Romania – 2017

di Elena-Simina Tanasescu

professor of Constitutional and Comparative Law at the Law Faculty of the Bucharest University

Introduction. The Romanian system of government

Following the events in December 1989, the Romanian President and Parliament have been elected in May 20th 1990, marking the birth of a semi-presidential system of government with a multiparty system generated by a proportional type of electoral formula.

The Constitution adopted on December 8, 1991 entrenched this system of government, providing for political pluralism, a (almost) perfect bicameralism, a directly elected President and a Government appointed by the President based on a confidence vote in Parliament.  The revision of the Constitution in 2003 changed from 4 to 5 years the duration of the mandate of the President and introduced a functional differentiation between the two houses of Parliament, maintaining the same electoral system for deputies and senators.

Electoral legislation maintained the proportional representation for parliamentary elections held in 1992, 1996, 2000 and 2004 and reverted to this electoral system from 2016 to the date. Elections organized in 2008 and 2012 were based on a so-called uninominal system, in fact a proportional representation disguised in circumscriptions divided into electoral colleges where one mandate was distributed. All elections resulted in several political parties represented in Parliament and determined coalition Governments.

 PParty system in Romania

The party system in Romania changed from extreme pluralism with a hegemonic party[1] (1990 – 2004) to moderate pluralism without a dominant party (2004 – 2012). In 2012 and 2016 more than five parties entered Parliament (as single units or as part of an electoral alliance).

Particularly after parliamentary elections of 2008, several political parties were elected as either socialist, liberal or conservative, but individual MPs split from those parties and created new ones, which thus got seats in Parliament without passing through the test of elections. This was the case of the National Union for the Progress of Romania, created by former socialist, liberal and conservative MPs or of the Popular Movement Party, created by former democrat-liberal MPs. Other political parties were created outside Parliament, either around a populist leader (People’s Party – Dan Diaconescu), or around an NGO (Save Romania Union). PP-DD entered Parliament after 2012 elections but disappeared before elections of 2016, while USR entered Parliament after 2016 elections.

The Romanian party system is not yet fully mature. Parties often split or merge, new parties emerge almost every parliamentary cycle, sometimes due to political migration. Ideological lines can be blurred, while party structure and internal regulations tend to favor the leader.

The 2017 constitutional turmoil in Romania

The general elections organized on December 11, 2016 in Romania have seen the lowest level of participation since the fall of communism in December 1989. Winning 46% of votes PSD (Social-Democratic Party) made a governing coalition with ALDE (Party of the Alliance of Liberal and Democrats), thus going beyond the simple majority of seats in the Romanian Parliament while also securing the support of UDMR (The Democratic Union of Magyars of Romania) for specific legislative initiatives

The formation of the Government proved to be difficult, as the leader of PSD could not become Prime Minister due to integrity problems. Indeed, in April 2016 the current leader of PSD had been convicted of electoral fraud during the 2012 referendum. He, therefore, had to cede the position to a rather unknown party member, who managed to get a vote of confidence in Parliament on January 5, 2017.

On January 6, 2017, the Ombudsman challenged the constitutionality of a 2001 Law that prohibits convicted persons to become members of Government. The Constitutional Court postponed twice its decision, last time until April 4, 2017, while its president declared that this is the most difficult decision the Court has to reach, at least during the current year. The current president of the Constitutional Court was a member of PDS and president of the lower house of Parliament at the time when the law in dispute had been adopted.

Within a fortnight after it was voted in Parliament the Government attempted to adopt two emergency ordinances, one pertaining to the collective pardon of criminal sanctions of less than 5 years of prison, and one decriminalising some deeds related to corruption. The motivation for the two drafts referred to an imminent condemnation by the European Court on Human Rights that Romania is facing due to the dramatic conditions in its prisons, and the fact that the Romanian Criminal Code (RCC) and the Romanian Criminal Procedure Code (RCPC) have to be brought in line with two decisions of the Constitutional Court and a European Directive (2016/342/EU).

Emergency ordinances are acts of delegated legislation provided for by article 115 of the Romanian Constitution. The Government can adopt them without an explicit delegation from Parliament but only in exceptional cases, the regulation of which cannot be postponed. The Government has the obligation to give the reasons for the emergency status within their contents. This form of legislation has the characteristic that it comes into force immediately, although emergency ordinances must be debated upon and later approved or rejected by Parliament through a law.

Faced with an explicit opposition from the President of Romania, strong resistance from the judicial system and confronted with mass protests of its citizens against what has been perceived as a blow against the fight against corruption, the Government changed course and promoted the collective pardon through a draft law in Parliament on January 31. A decision on this draft law has been recently postponed until April 11, 2017, upon request of the Minister of Justice, who declared that he intends to present Parliament with complementary legislative measures that would include a larger package of measures meant to offer a comprehensive solution to the overcrowding problem of Romanian prisons.

The Government adopted emergency ordinance n°13/2017 on January 30, 2017 in somewhat unclear circumstances.

Two weeks after the appointment of the new Government, on January 18, 2017 the President of Romania attended the weekly meeting of the Government because rumors had it that the two emergency ordinances could have been adopted. The Prime Minister declared there were no such intentions. The same day the two emergency ordinances were published on the official website of the Ministry of Justice and sent to public authorities that have to provide legal opinions according to the Romanian legal technique.

The next week, various judicial bodies (the President of the High Court of Cassation and Justice, the General Prosecutor, the Chief Prosecutors of the National Directorate for Anti-Corruption and of the Directorate for Investigating Organized Crime and Terrorism) publicly presented their negative opinions on the two emergency ordinances. In addition, the very day when the Government held its meeting, the European Commission released the CVM Progress Report on Romania, COM(2017) 44 final, noting at page 5 that some recent evolutions in the country may raise concerns on the grounds of weakening the legal framework on corruption. By that time, mass protests started to become regular.

On January 30, 2017 the Ministry of Justice organized a public debate concerning the two draft emergency ordinances and declared its good will to take into account suggestions received. In the evening of January 31, 2017, at around 9 pm, a Government meeting was scheduled in order to approve the draft law on the state budget. Without prior announcement, the Government also adopted a draft law to be sent to Parliament on collective pardon and an emergency ordinance (n°13/2017) to revise the criminal codes. Around 1:20 am on February, 1, 2017 the emergency ordinance n°13/2017 was published in the Official Journal of Romania, thus coming into force that very day. Within half an hour, protesters flooded the square in front of the Government’s headquarters.

Among other things, emergency ordinance n°13/2017:

·       Revised the criminal offence of abuse in public office: only offenses concerning more than 200,000 RON (USD$48,000) of damages were punishable; also, abuse of public office was no longer applicable for drafting, approving and enacting normative acts.

·       Decriminalized the offence of misconduct in public office.

·       Made legally irrelevant the denouncement of criminal deeds past a deadline of six months after their commission.

Over the next almost two months the public square in front of the Government’s headquarters has been the scene of mass protests. The apex was reached on February 5, 2017 when more than 600,000 people lighted their mobile phones at 9 pm in an attempt to explain to Government how it should “act in full daylight”.

On the 1st and 2nd of February, the Superior Council of Magistracy and the President of Romania lodged institutional complaints with the Constitutional Court asking it to sanction the Government for abuse of power, while the Ombudsman asked the Constitutional Court to declare void the effects of the emergency ordinance n°13/2017. The Constitutional Court rejected all complaints and declared that Government did not infringe the legislative powers of Parliament when adopting emergency ordinance n°13/2017. The Constitutional Court has never addressed the issue of the constitutionality of the substantive matter of emergency ordinance n°13/2017.

Faced with virulent reactions inside and outside Romania (in a Joint Statement of President Juncker and First Vice-President Timmermans on the fight against corruption in Romania “the Commission warns against backtracking”) on February 5, 2017 the Government abrogated emergency ordinance n°13/2017 through emergency ordinance n°14/2017. Emergency ordinance n°14/2017 has been approved by Parliament on February 14, 2017. Emergency ordinance n°13/2017 has been rejected a week later.

Meanwhile, the Minister of Justice who initiated the emergency ordinances presented his resignation and a new Minister of Justice has been appointed, in the person of a law professor, previously judge of the Romanian Constitutional Court and who is member of the Venice Commission.

With criminal investigations opened pertaining to possible misdeeds while emergency ordinance n°13/2017 was adopted, the Constitutional Court ruled upon a legal conflict of constitutional nature and found that prosecutors cannot investigate the way in which normative acts are adopted and ministers enjoy the same immunity as MPs when adopting (delegated) legislation. Based on this decision, the newly appointed Minister of Justice declared he will proceed to an evaluation of the chief prosecutors who started those criminal investigations and three weeks later presented a report concluding that, although there is not the case for sanctions so far, prosecutors should behave better.

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It is interesting to note that public protests in Romania are not necessarily linked to and do not necessarily wish to interfere with public policies. They are rather the sign of a recently awoken civil society who voices its concern with regard to what it has perceived as a possible reversal of the state governed by the rule of law.

It is also interesting to note that the Constitutional Court is becoming the ultimate arbiter not only in matters referring to the validity of laws or protection of fundamental rights but also on institutional disputes between powers of the state and even in public policy issues such as the approach to be taken with regard to combating criminal conduct. Therefore its independence is of utmost importance, just as its commitment to the core values of the state governed by the rule of law.

The judicialization of the public sphere is thus almost accomplished in Romania, putting somewhat behind other concerns such as illiberal democracies (largely debated in the cases of Poland in 2016 or Hungary in 2013), populism or extremism (no such political party passed the electoral threshold in Romania in both local and general elections held in June and, respectively, December 2016), or post-truth (despite inherently exalted political declarations none of the political or institutional actors involved in this saga contradicted the facts as presented above).


(1) National Salvation Front – Democratic Front of National Salvation (since 1992) – Social Democratic Party (since 1993).

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