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Billet de blog 16 août 2012

The “Russian mountains” constitutional court

On July 29th, 7.4 million Romanians voted in a referendum for the impeachment of President Traian Basescu (87% of votes cast). But the participation rate did not reach the 50% threshold necessary to validate the ballot. Since the publication of the official results on August 1st, the Constitutional Court has requested several delays before ruling on the validity of the referendum.

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The Romanian constitutionnal Court © 

On July 29th, 7.4 million Romanians voted in a referendum for the impeachment of President Traian Basescu (87% of votes cast). But the participation rate did not reach the 50% threshold necessary to validate the ballot. Since the publication of the official results on August 1st, the Constitutional Court has requested several delays before ruling on the validity of the referendum.

Traian Basescu, the Romanian President belonging to the centre right wing has lost parliamentary support at the end of April 2012. After a change in parliamentary alliance, the President was forced to appoint an opponent as Prime Minister (PM): Victor Ponta, the leader of the Social Liberal Alliance. However, the cohabitation turned sour and the new Prime Minister (affiliated to the PES – Party of European Socialists) has blamed the President of Romania (PR) (affiliated to the EPP – European Popular Party) for the inability of the Social Liberal Alliance to agree on an economic and fiscal policy to overcome the economic crisis.

On July 6th, the Social Liberal Alliance skipped steps in order to impeach the PR Traian Basescu as soon as possible. However, the July 6th PR’s suspension by Parliament had to be approved by referendum. The new chairman of the Senate, the National Liberal Crin Antonescu was appointed Acting President until the July 29th referendum.

The referendum for the Impeachment of the Romanian President

By the end of July, the polls were very bad for the suspended PR Basescu made responsible for the very severe austerity policy. One the last week of July, in a final move, the PR called for a refusal of the vote. From this point, the main issue of the impeachment referendum was the participation rate, since a 50% threshold was necessary to validate the vote.

On August 1st 2012, the Central Electoral Bureau published the final results: 7 400 000 Romanians had voted for Basescu’s impeachment (87%), while only 950 000 had voted against it (13%). However, the 46.3% participation rate was not high enough to validate the referendum.

The suspended President Basescu claimed victory, alleging the support of all the abstentions. Given the very high stakes, the warning concerning electoral fraud but also the boycott of the most recent census, those results were nevertheless contested even by the Minister of Administration (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

Challenged results and electoral tourism

The results were challenged especially based on the opportunity given to Romanians during the summer to vote on their vacation site even without being enrolled on the electoral lists (with the verification of their identity code). However, the tourist sites are not the only ones that showed participation rates exceeding 200%. Moreover, in Constanta, the main city on the Black Sea coast, the Social Democrat mayor Radu Mazare walked on the beaches with two dozen young models who took forgetful swimmers by the hand in order to take them to the polls (see our paper of August 10th, Sea, sex and silence).

In three Danubian southern counties (see map), the participation rate was far higher than the national average (46%): Mehedinti (69.2%), Teleorman (70.2%), and Olt (73.9%), each time over 10 to 15% more than for the last elections (June 2012). And the tourist areas were not the ones with the most voters (see graph). For instance, the village of Vlaici (Colonesti, Olt) had 299 people on the electoral roll, it received 609 ballots and declared 605 ballots cast, i.e. a 202% participation rate. Hospitals, prisons, isolated villages have participation rates much higher than 120% and it is difficult to understand why they received so many ballots in the first place (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

Nonetheless, since July 29th, the Social Democrat PM Ponta and the National Liberal Acting Antonescu have tried to blame the Hungarian minority and the expatriates (only 75 000 voters abroad) and make them responsible for the failure of the referendum to reach the quorum.

The Constitutional Court comes in (and out)

On August 1st, the Romanian Constitutional Court asked for a first delay in order to examine the various appeals and the doubts cast by the Ministry of Interior after the elections with regard to the accuracy of the electoral lists. The following day, it refused to decide before the full verification of the electoral lists, postponing its ruling until September 12th. Then, on August 3rd, the Constitutional Court decided to press forward its decision to August 31st 2012. Finally, yesterday, Tuesday August 14th, the Constitutional Court met anyway and decided to advance its decision to August 21th. Why the hesitations and changes of calendar? 

On Tuesday, August 6th, the Constitutional Court sent a letter to the Venice Commission of the Council of Europe and the European Commission to expose the continuing “pressure and threats against individual judges”. The letter apparently restate that a 2/3 majority of the 9 judges was required to validate the results of the impeachment referendum and that the vote was only 5/3 with one judge refusing to vote because he was totally terrified. This may explain why the Constitutional Court has been blowing hot and cold during the last two weeks at least.

The Romanian Constitutional Court is composed of nine judges who are renewed by thirds for terms of eight and 10 years; each time, one judge is nominated by President of the Republic, a second by the Chair of the Senate and a third by the President of the House of Representatives (see table above). This reveals that the Romanian Constitutional Court is actually very close to the French Constitutional Court, which had a much more “political” than “legal” structure and nominations, at least before the adoption of the Priority Preliminary rulings on the issue of constitutionality in 2010.

At present, 4 of 9 members the Romanian Constitutional Court were appointed by Social Democrats (PSD) elected officials, but their terms expire very soon: the mandate of 3 out of 4 members appointed by the PSD comes to an end this Fall. Note that Iulia Antoanella Motoc has been appointed by the President of the Senate (Mircea Geoană, PSD). However, she had been nominated by the Democrat Liberals senators (PDL), the other candidate was Teodor Melescanu, nominated by the National Liberals senators (PNL). 

This summer, it was therefore very important for the Social Democrats (PSD) to secure control of the Presidency of the Republic, the Chair of the Senate and the President of the House of Representatives in order to appoint the third turn of the Constitutional Court. And the people in those three key positions are precisely the ones that have been dismissed and replaced during the first week of July (see the paper with Catherine Durandin and Violette Rey of July 19th, En Roumanie, une crise politique qui secoue l’Europe [in French]).

Moreover, in the morning of Monday, August 6th, the Minister of the Interior resigned. Clandestine recordings were released a few days later, revealing that he had refused to sign new electoral lists, with fewer people enrolled, because he was frightened to “spend his old days in jail” (see our paper of August 10th, Sea, sex and silence).

On Monday, August 6th at noon, the PM Ponta made cabinet reshuffle, replacing the Ministers of Interior, Foreign Affairs and Administration. The PM failed to find a suitable candidate for the Ministry of Justice and decided to keep it for himself, despite plurality of offices.

On Friday, August 10th, The Romanian General Prosecutor’s Office sent a note to the Parliament asking for its assent for the opening of criminal proceedings against the former Minister of the Administration Victor Paul Dobre on charges of aggravated abuse of power against the public interest for having declared after the referendum that the Department could not verify the accuracy of electoral lists (see our papers of August 1st, Has Romania fallen into the hands of anarchists? and August 10th, Sea, sex and silence).

And on Tuesday, August 14th, the General Prosecutor’s Office and the National Anticorruption Direction have seized all the electoral minutes for its investigation of the accusations of misconduct in the case of the former Minister of Administration in charge of the organization of the referendum. They started to investigated as much as 260 allegations of ballot fraud in over 15 (of 42) Romanian counties.

Legal debates on the quorum and the electoral lists

So, is it still possible to establish the results of the July 29th impeachment referendum despite the challenging of the electoral lists by the Ministry of Interior and the opening of criminal proceedings on ballot fraud by the General Prosecutor’s Office?

On July 17th 2012, the Parliament adopted Law 131/2012 on the modification of Article 10 of Law 3/2000 on the organisation and conduct of the referendum. The sole article of the said law states that the impeachment of the President of Romania is validated if, following the referendum, the proposal gathered the majority of the votes cast.

Article 10 had already been modified by Law 62/2012 (April 2012). The modified text stated that the impeachment of the President of Romania is validated if it gathered the majority of the votes of the citizens enrolled in the electoral lists. Therefore, the July modification eliminated the quorum necessary to impeach the President.

However, on July 10th 2012, the Constitutional Court stated that the Law on the modification of Article 10 of Law 3/2000 on the organization and conduct of the referendum is constitutional if the participation to the referendum is of half plus one of the persons enrolled on the permanent electoral lists.

Once the Constitutional Court reinstated the quorum, the debate focused on the applicable law governing the permanent electoral lists.

The Central Electoral Bureau decided on July 28th 2012 that the applicable law was Title I of Law 35/2008 on the election of the Chamber of Representatives and the Senate. This law states that citizens are enrolled of the list of their residence address and that Romanian citizens living abroad are enrolled on supplementary lists (there are MP candidates for Romanians living abroad). Using this reference, the Social Liberal Alliance wanted to eliminate Romanian citizens living abroad from the quorum (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

The Government said that, although they have the right to vote for the referendum (which, for a while they tried to suppress), they should not be counted for the quorum since they are not on the permanent electoral list (they are on supplementary lists). 

The Constitutional Courtasserted that the applicable law is Article 2 (1) (c) of Law 370/2004 on the election of the President of Romania, as well as Law 3/2000 on the organization and conduct of the referendum. Art. 2 (1) (c) mentioned above states that the permanent electoral lists include the Romanian citizens with the right to vote that are 18 years-old on the day of the election. The Constitutional Court detailed the fact that the lists include Romanian citizens living abroad. The Constitutional Court argued that this was the applicable law on grounds of symmetry.

On August 2nd, the Constitutional Court asked the Government to send it the permanent electoral lists updated according to Article 17 (2) of Law 3/2000 that were used for the organization of the referendum. Article 17 (2) stipulates that the permanent electoral lists are updated by mayors, according to the provisions of Law 68/1992, Law 70/1991 respectively, as modified, within 5 days from the date setting the day of the referendum.

At first, the Government interpreted the request of the Court as a call for a new population “mini-census” in order to update the lists (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

The Court explained on August 6th that it had asked for the updated permanent electoral lists used for the organization of the referendum. PM Ponta that said the “mini-census” was over and made the August 6th cabinet reshuffle (see our paper of August 10th, Sea, sex and silence).

However, the Acting PR Antonescu accused the Government of timidity and went on with the discourse on the August “mini-census”. Furthermore, on August 6th, the Constitutional Court issued an erratum saying that there was a clerical error and that a paragraph was missing in its previous statement. The said paragraph stated that the permanent electoral lists included Romanians living abroad. Since then, several judges of the Court have denied being consulted on the erratum and have asked for a meeting in plenum of the Court.

On August 7th 2012, the Romanian Government issued a Memorandum on the measures necessary for the update of the permanent electoral lists in which the local authorities were asked to check the persons who have died, who have lost their right to vote, who have become a Romanian citizens or who have lost their Romanian citizenship, who have changed address without being deleted from the lists of their previous address, who are registered at the same address in a number too large to match the size of the housing, who have changed their name following marriage, divorce or through administrative change of name, or who live abroad. The deadline for the verification is August 24th. It seems the “mini-census” is still ongoing. It is also unclear what data that “mini-census” will use: will the “mini-census” give an image of the situation on July 29th (date of the referendum) or August 24th (initial deadline for transmitting the data)?

Also, as the current Minister of the Interior and Administration said on August 10th that on August 14th the Central Census Commission could validate the preliminary results of the census. The preliminary results of the census show a decrease in the population living in Romania, but does not give an accurate account of the population living abroad (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

If the results are validated, it is unclear for the moment whether there will be a retroactive application of those numbers to the quorum. The quorum was set according to the results of the previous census. However, the local elections in June 2012 (won with a large majority by the Social Liberal Alliance) were also organized according to the same population number (see our paper of August 4th, Bucharest, a test for the Party of European Socialists (PES)).

The August 14th Constitutional Court surprise meeting

On Tuesday, August 14th the Constitutional Court improvised a meeting at 10am and issued a new statement at 5.30 pm (local time). It says the Court has asked the Government to send the number of people enrolled on the permanent electoral lists (until July 10th 2012), according to the provisions of Article 17 (2) of Law 3/2000 on the organization and conduct of the referendum. Article 17 (2) stipulates that the permanent electoral lists are updated by mayors, according to the provisions of Law 68/1992, Law 70/1991 respectively, as modified, within 5 days from the date setting the day of the referendum.

The statement adds that the permanent electoral lists are, according to Article 2(1)(c) of Law 370/2004 on the election of the President of Romania, the lists that “include the Romanian citizens with the right to vote that are 18 years-old on the day (included) of the election”. And the Court also says that “in the cases where this operation (updating of the lists) did not occur, it will be done in the delay set by the Court”.

So, why didn’t the Constitutional Court rule on the same day on the results of the referendum if it ended the legal debates?

The statement seems unequivocal, so it looks like the Court can now only rule that the referendum is invalidated on the basis of the participation rate that did not reach the quorum. However, it also seems that the judges are reluctant and/or unable to decide by a 6/9 majority unless they feel that everyone will acknowledge that it’s the only decision that they could possibly have made.

Maybe the Constitutional Court has decided once again to buy some time. The judges are perhaps waiting for the results of the investigations made by the General Prosecutor’s Office concerning allegations of ballot fraud in over 15 (of 42) Romanian counties.

But Romania is may be running out of time.

Is Romania a sitting duck?

The conflicting statements made by the Romanian Constitutional Court are extremely dangerous. It seems that the Romanian judges are reluctant to do exactly what the French “Sages” refused to do after the 1995 presidential elections: to challenge an election on the choice of head of State and produce a political cataclysm (see our paper of August 13thIn Europe: from pride to civil war?).

First, speculative attacks on the local currency (leu) have occurred after those conflicting decisions of the Romanian Constitutional Court. Besides, the EU and the IMF are waiting to see who the head of state is now before granting new funds to Romania (see our paper on August 6thBucharest, a collateral victim in the 2014 battle for Europe). Moreover, in a analysis of the first 100 days of the Ponta Government, Ziarul Financiar shows that in the first half of this year, the direct foreign investments have dropped 28.9% compared to the same period of last year. 

Second, since the mandate of the Chair of Senate as Acting President of the Republic in Romania ended with the July 29th ballot, it is no longer possible to know who the head of State is since the Constitutional Court has failed to rule on the validity of the referendum on Friday, August 3rd. Romania seems to have now two Presidents of the Republic, one suspended but neither deposed nor reinstated - Basescu, the other acting, but whose term expired - Antonescu (see our paper of August 1st, Has Romania fallen into the hands of anarchists?).

Third, Romania appears to be under the phantom menace of a military coup. Repeatedly, on Saturday, August 11th and Sunday, August 12th Mircea Dogaru, retired Colonel and head of the Union of militaries made redundant asked for “the abolition of the Constitutional Court of Romania”, threatening “if the Constitutional Court of Romania does not validate the referendum [on the dismissal of the head of State], we will launch a call for disobedience and take it to the streets to create chaos” (see our paper of August 13th, In Europe: from pride to civil war?).

Meanwhile, the enormous stakes remain the same since the beginning of the summer and the political turmoil: the political struggle against the austerity policy in Europe, the launch of the campaign for the 2014 European elections with more or less achievable historic political change, the Nabucco gas pipeline project, NATO’s ABM missile system etc. (see our previous papers).

Fortunately, and despite the fact that The Voice of Russia keeps trying to create chaos (i.e. Romania is governed from Budapestand confusion in Romania (i.e. comparing the Basescu regime to a military junta), there is still an honourable way out.

A political and European solution to a political and European crisis:

For the PES and EPP, the two strongest political parties in Europe, to take a clear position now on the enduring political chaos in Romania and to move both their European Congresses scheduled this Fall in Bucharest at exactly three weeks apart in a quieter place in the world than today’s Romania (and Hungary) in order to alleviate political pressure as soon as possible.

In view of the risks involved, it is vital that the crisis

ends now

These analyzes are based on discussions with colleagues from different countries. We wish to thank them all.

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