The aim of this presentation is to make a comparative analysis between the constitutional regulation of the role of the President in Romania, defined by the functions exercised while in office, and the political practice in this matter, in the light of some decisions of the Constitutional Court. This paper is a study structured in two parts. The first one presents a general overview of the Romanian president’s functions, according to the constitutional provisions, namely representation of the state; guarantee of certain fundamental values, such as national independence, unity and territorial integrity of the country; mediation among state powers, as well as between the state and society. The second part of this study refers to some relevant aspects from Romanian political practice concerning the performance of the last two functions previously enumerated. The actual manner in which Romanian presidents exercised their role determines us to outline certain tendencies. In this regard, by its decisions pronounced in the matter, the Constitutional Court has provided a broad, even subjective interpretation of the prerogatives of the head of state in the execution of the two functions mentioned above. The attitude of the Constitutional Court has encouraged excesses of power – up to the limit of the constitutional provisions and even with their violation – committed by the presidents which have held the office of head of state.
Keywords: Romanian Presidentfunctionspolitical state practiceConstitutional Court’s decisions
The issue approached in this study raises a special interest at the international level, highlighting the
increase of the President’s importance in Romanian political practice, through excess of power in the
exercise of prerogatives. This fact is not in accordance with the increasing trend of attenuation of the
President’s role in European semi-presidential regimes.
This paper is structured in two parts. The first one presents a general overview of the Romanian
president’s functions, according to the constitutional provisions, namely representation of the state,
guarantee of certain fundamental values, mediation among state powers, as well as between the state
and society. The second part of this study refers to some relevant aspects concerning the execution of
the last two functions previously enumerated.
By presenting and commenting upon some decisions of the Constitutional Court, we may deduce the
arbitrary vision of the Constitutional Court on the manner of transposition of the two analysed
functions of the head of state, vision which facilitated repeated violations of the constitutional
prerogatives of the President.
As main research methods, we have used qualitative and quantitative analysis, as well as
comparative and the systemic methods.
The comparative approach aims at detecting the similarities and differences concerning the head of
state in the Romanian political regime, examined in the light of both constitutional previsions and
political practice. Therefore, the first part analyses the head of state from the perspective of legislation
and doctrine and the second emphasizes different aspects of practice.
At the same time, the method used allows us to understand how the institution has evolved over
different time periods and to appreciate his direction at present.
In our exposure, the systemic method is really useful due to its global approach to different
problems regarding the head of state in the overall political regime existing in a specific state, namely
the Romanian semi-presidential regime, in this case.
Overview of the functions of the President
To clarify a terminological problem, it is necessary to specify that, in our analysis, the president’s
attributions were derived from a series of
refer to the performance of acts necessary for the proper functioning of the whole system. In this way, a
function can be reflected through a series of attributions which determine its essence.
In light of Article 80 of the Constitution of Romania expressing
literature identified three of its functions: the function of representation of the state, the function of
integrity, the fundamental law), as well as
3.1.The function of representation of the state
Representing the state internally is materialized in the exercise of some attributions laid down in
Article 94 of the Constitution: conferring decorations and honorary titles; conferring the ranks of
marshal, general, admiral; appointment to public office, under the law (Article 94, letter c), in other
cases than the ones where appointments to public offices rest with the Parliament, according to Article
65, letters h, i; Article 142, paragraph 3; Article 133; Article 140, paragraph 4 of the Constitution.
These appointments will be made by the President under the strict conditions determined by law.
The function of representing the state externally is highlighted in the provisions of Article 91, in
conjunction with those of Article 148, paragraph 4 of the Constitution. In this respect, a first attribution
concerns the conclusion of international treaties on behalf of Romania, treaties negotiated by the
Government and subject to ratification by Parliament within a reasonable time. This provision reflects
the cooperation between Parliament, Government and President, and this is one of the fundamental
requirements of the principle of separation and collaboration of powers consecrated in Article 1,
paragraph 4 of the Constitution. Article 91 must be corroborated with the provisions of Article 11
paragraph 1 and of Article 20 of the Constitution as well as with the regulations contained in Law
nr.590/2003 on treaties.
Another prerogative of the head of state, which is part of foreign policy, is the fact that the
President, on the Government’s proposal, accredits and recalls the diplomatic envoys of Romania, and
approves the establishment, dissolution and the change in rank of diplomatic missions (Article 91
paragraph 2 of the Constitution). In these situations, it is necessary that, under Article 100 paragraph 2
of the Constitution, the President’s decrees be countersigned by the Prime Minister. A prerequisite on
the accreditation of diplomatic representatives of Romania is for the foreign policy committees of the
legislature, according to parliamentary regulations, to give an advisory opinion. If the above mentioned
attributions are performed in collaboration with the Government, the accreditation of the diplomatic
representatives of other states falls exclusively under the competence of the head of state (Article 91
paragraph 3, Article 80 paragraph 1 of the Constitution).
In the area of European affairs, the constitutional legislator establishes the responsibility of the
Parliament, the President of Romania, the Government and the judiciary, the obligation to guarantee
the fulfilment of obligations resulting from the accession, as well as the principle of priority or primacy
of EU law. This principle states that the whole Community legal order, without distinction between the
norms arising from institutive treaties and the regulations of secondary law, has greater legal force than
internal laws, regardless of their rank. This duty of the President refers to activities associated with
further integration of Romania, which involves both taking over and applying in national law the whole
Community acquis, as well as the effective participation of the Romanian state in all activities within
the European Union's institutional system.
3.2.The function of guaranteeing certain fundamental values
With regard to the function of guaranteeing certain fundamental values, some authors have
have determined his
An opinion (Deleanu, 2006: 719) concerning
supports the idea that it is performed in a double direction:
Constitution", that is he contributes to the fulfilment of a function which is achieved through the
cooperation of authorities and, at the same time, by mutual control.
the state and as organ of the executive power (Vrabie, 2004: 86) - is implemented, under the provisions
of the fundamental law, through a series of prerogatives: the promulgation of laws, the sending back of
laws for reconsideration in Parliament, or the notification of the Constitutional Court or the
Constitutional Tribunal in order for it to perform the constitutional review of the law. The duty of
defending the values enshrined in the Constitution also rests with the other public authorities, which, by
their action, contribute to the maintenance, within the constitutional framework, of the activity of the
whole "organizational apparatus" exercising state power.
Accordingly, he is the head of the armed forces or of a state institution that unitary organizes and
coordinates the activities concerning national defence and security. Hence the President may order
certain measures in exceptional circumstances, such as imminent danger of armed aggression or a
serious internal political crisis.
3.3.The function of mediation among state powers as well as between the state and society
Through a teleological interpretation of Article 80 paragraph 2 of the Constitution, we conclude that,
in Romania, in order to safeguard compliance with the Constitution and the proper functioning of the
public authorities, the President acts as a mediator among state powers and between the state and
safeguarding the fundamental act and the proper functioning of the activities of the institutions vested
with public authority.
The notion of mediation reminds the concept of
the French Republic and the Head of state in Spain (Article 5 of the Constitution of France and article
58 of the Constitution of Spain).
The head of state being entrusted with
personifies the power, continuity and unity of the state and also, unlike the other authorities, he is not -
or should not be - the exponent or promoter of the aspirations of a party.
It is noteworthy that the comprehensive meaning of the concept of
controversy in political practice and doctrine, on the exercise of the function of mediator by the head of
state. Moreover, it is indeed difficult to outline a coherent framework of this concept due to its
complexity and the varied way in which mediation can actually be exercised.
We appreciate that mediation does not intervene only to reconcile already existing conflict
situations, but also to alleviate or avoid certain tensions that could create major conflicts between
public authorities or between them and society.
Doctrine has considered (Deleanu, 2006) that such a function conferred to the head of state finds its
legitimacy in the President’s election by universal and direct suffrage and in that the head of state does
not belong to any political party, thus being obliged to adopt a policy of neutrality, of prevention of
disagreements that can happen at time on the political stage between various state authorities.
Nevertheless, practice has shown manifest involvement on the President’s part in the purview of the
bodies exercising state power.
The impartial position (Duculescu & Călinoiu, 2003) the head of state must adopt on existing
dissensions within the scope of the exercise of state power, justified by the provisions of Article 84
paragraph 1 of the Romanian Constitution, allows the President to mediate between the political party
which he was part of and the opposing one. The absence of the mentioned provisions would have
resulted in the President being "judge and party in the same case” (Iorgovan, 2005: 292).
In Romania, according to doctrine,
conferred by the Constitution: convening an extraordinary session of Parliament; sending messages to
Parliament on the main political issues of the nation; notifying the Constitutional Court, before the
promulgation of the law, to perform constitutional review of the law; dissolution of Parliament, under
the conditions set by the Constitution; designating a candidate for Prime Minister, after consultation
with the party which has absolute majority in Parliament, or, if there is no such majority, with the
parties represented in Parliament; in the event of government reshuffle or vacancy of office, removing
or appointing, at the Prime Minister's proposal, some Government members; consulting with the
Government on issues of particular importance; participating in the Government’s meetings; appointing
magistrates; appointing some members of the Constitutional Court; organizing a referendum on matters
of national interest (Vrabie, 2010).
Discussions and results
4.1.Attributions exercised in performing the function of guaranteeing certain fundamental values
Explaining the contents of the function of guaranteeing certain fundamental values, the
Constitutional Court considered that the functions of guarantee and safeguard consecrated in Article 80
paragraph 1 of the Constitution involve the careful observation of the existence and functioning of the
state, the vigilant supervision of the manner the actors of public life act – the public authorities, the
organizations legitimized by the Constitution, civil society – of compliance with the principles and
norms established by the Constitution, defending the values enshrined by the fundamental law.
safeguarding nor the function of guaranteeing are achieved by passive contemplation, but by live,
As noted in the doctrine, under the Constitution, the President of Romania has
president of the Supreme Council for National Defence (Article 92 paragraph 11 of the Constitution)
and is forbidden to preside over other specialized central bodies of state administration, which can only
be established by law, under Article 116. The establishment of a central specialized body is done by
means of organic law, according to Article 116, paragraph 3 in conjunction with Article 64 and Article
74 paragraph 1 of the Constitution. Contrary to these constitutional provisions, President Emil
Constantinescu established, under his presidency, a
members were, along with cabinet members and leaders of other government structures, the chiefs of
the intelligence services, the Attorney General and the President of the Court of Accounts. Moreover,
the Presidency issued a circular to the presidents of county councils for the formation of similar bodies
at county level. Legal literature concluded that this case was not only a violation of the constitutional
provisions on the attributions of the President of the Republic as head of the Executive, but also of the
principle of separation of powers (Iorgovan, 1998: 736).
In order to safeguard the fundamental values enshrined in the Constitution,
prerogative of declaring the state of siege or of emergency. The official declaration of President
Constantinescu of 21 January 1999 stated that the state of emergency would automatically produce
legal effects on 22 January, according to the actions of the miners. However, the anticipated measure
was not taken, although, in the context of the events in the mentioned period, it would have been
required (Andreescu, ***; Siserman, 2002). That measure was all the more necessary, as the actions of
the miners from Jiu Valley represented a situation in which the state of emergency could be imposed,
as such situations were defined by
war, invasion, defence or security of the State or parts of the country; civil war, rebellion, insurrection,
subversion, or harmful activities of counterrevolutionary elements; disturbance of peace, public order
or safety; danger to the constitution and authorities created by it; natural or public calamity or disaster;
danger to the economic life of the country or parts of it; maintenance of essential supplies and services
for the community" (UN Commission on Human Rights, 1962).
Regarding the President’s attribution to initiate the revision of the Constitution, at the
Government’s proposal (Article 150 paragraph 1), on 9 June 2011, President Traian Băsescu sent to the
Constitutional Court the bill for constitutional revision - together with the opinion of the Legislative
Council -, to check the fulfilment of the conditions for the initiation of revision. As a result, the
Constitutional Court convened on 16 June 2011, for a ruling to that effect. In
the Court found that the bill for constitutional revision had been initiated in compliance with Article
150 paragraph 1 of the Constitution, contrary to the opinion expressed by the Association of
Magistrates in Romania. Correspondingly, certain provisions of this bill are found unconstitutional and
others - listed by the Court - are referred to the attention of the President of Romania, in the sense that
he must comply with the observations in this decision.
The Association of Magistrates in Romania considered that, through the bill for revision submitted
by the President to the Constitutional Court, he seriously violated Article 150 paragraph 1 of the
Constitution, as it was not possible for the President of Romania to elaborate his own bill of
Constitution, under the constitutional provisions in force (Dinu, 2011). They also stated that from the
provisions of the fundamental law resulted that this proposal rested with the Government; therefore the
bill for revision should be elaborated by the Government and not by the head of state. This conclusion
can also be drawn from the fact that in Chapter II of Title III of the Constitution dedicated to the
President, he is not conferred legislative initiative and also from the fact that in Chapter I (Section
Legislation) the President is not part of the holders of the right of legislative initiative. We believe that
some of the arguments of the Association of Magistrates in Romania are pertinent.
On March 21st, 2012, the head of state sent a letter to the President of the Chamber of Deputies,
Valeriu Zgonea, by which he requested keeping on the agenda of the Chamber the bill for revision of
the Constitution, initiated by the President in June 2011. He said he had sent this letter because the
legal term for the bill to be debated by the Legal Committee had been exceeded. Therefore, the
president notified the Chamber of Deputies on its obligation under the Constitution, to continue
debating procedure on the bill for revision of the Constitution. The letter sent to the Chamber of
Deputies was also based on Article 227 of the Regulation of the Chamber of Deputies, according to
which "the bills and legislative proposals entered on the agenda of the Chamber of Deputies and the
Senate, whose mandate has expired, shall follow their procedure in the newly-elected Chamber of
Deputies". This request is justified on the basis of some provisions in the Constitution of Romania:
Article 63, paragraph 5 ("the bills and legislative proposals entered on the agenda of the former
Parliament, shall follow their procedure in the new Parliament"); Article 2 on the direct exercise of
sovereignty by the people through referendum and Article 90 by whose interpretation "the referendum
is the expression of the will of the people". The head of state also invoked the Constitutional Court’s
Decision no. 682/2012 whereby it was decided that "the authorities with decision-making competences
in the field of the issue subjected to referendum, in this case the Parliament, must consider, analyse and
identify ways of implementing the will of the people. Another view of the effects of consultative
referendum would reduce it to a purely formal exercise, a simple opinion poll" (Decision no. 682 of
June 27, 2012, Constitutional Court).
In response, the President of the Chamber of Deputies declared that he submitted the bill for
revision of the Constitution, introduced in Parliament in 2011 – bill that transposed the result of the
referendum in December 2009 -, to the Constitutional forum for consultation and to the committee
especially constituted for the amendment of the fundamental law. This bill was considered "politically
illegitimate", as it did not have the support of parliamentary majority, since politicians had not been
consulted on the matters in this bill subject to revision (*** Zgonea, 2013).
4.2. Attributions exercised in performing the function of mediation
As previously mentioned, legal literature has emphasized the association between the exercise of the
function of mediation and the interdiction of the head of state being member of a political party.
In the political practice concerning the exercise of the presidential mandate, the head of state in
office did not fulfil his
for which he was repeatedly accused of violating the fundamental law and suspended from office.
It was consistently noticed that after his election in office, the President remained attached to the
doctrine of the party that propelled him in elections, by permanently supporting and promoting that
political party in the struggle for the exercise of state power. The Constitutional Court considered that
"the President of Romania may, given his prerogatives and his legitimacy, express opinions and
political options, formulate remarks and criticisms concerning the functioning of public authorities and
their representatives, propose measures or reforms, which he considers desirable for the national
interest. The opinions, remarks, preferences or demands of the President do not have decisional
character and do not produce legal effects, the public authorities being entirely responsible for
assuming or ignoring them" (Advisory Opinion no. 1/2007).
The Constitutional Court stated in a decision that the
Article 84 paragraph 1 of the Constitution which establishes a temporary political incompatibility for
the Romanian President, could, in the absence of a constitutional provision, have the consequence of
forbidding the right of being elected for President of Romania, under the conditions of him not
becoming member of a political party". It was also considered that it is inconceivable to prohibit the
President in office to run in elections on the lists of a political party, a political alliance or an electoral
alliance even for a second successive term, since this way the text of Article 81, paragraph 4 "would
become inapplicable, devoid of substance" (Decision no. 339 of 17 September 2004).
The Constitutional Court concluded by means of a decision that "
Constitution, requires impartiality on the part of the President of Romania, but does not exclude the
possibility of expressing his opinion on the best manner to resolve the occurred divergences. The right
to express one’s political opinion is also guaranteed for the President of Romania by Article 84
paragraph 2 of the Constitution, which provides for the head of state the same immunity as for deputies
and senators, Article 72 paragraph 1 of the Constitution being applied accordingly" (Decision no.
53/2005). Likewise, the Constitutional Court also held that "the interdictions laid down in Article 84 do
not exclude, however, the possibility of expressing further the political opinions, commitments and
goals presented in his electoral program or to advocate and act for their achievement, in compliance
with the constitutional prerogatives" (Decision no. 53/2005).
Based on this direction of the Constitutional Court, the doctrine considered that the President of
Romania can mediate a legal conflict of constitutional nature between public authorities, but he may
not establish a solution for it. Moreover, the president can express his opinion on the best way of
resolving such a conflict (Deaconu, 2011).
In 2005, there was a direct confrontation between the parliamentary majority and the opposition on a
legislative package on the reform of justice and the restitution of property nationalized during the
communist regime, which was subject to the review of the Constitutional Court. The Court delivered a
judgement of partial constitutionality (Decision no. 375 of 6 July 2005), ruling that certain legal
provisions are not in accordance with the Constitution.
Following this political crisis in the summer of 2005, President Băsescu reunited at Cotroceni the
Presidents of both Chambers, the Prime Minister, the leaders of the parliamentary groups, the Minister
for Relations with the Parliament, the members of the Constitutional Court; on this occasion, as
mediator in some dissension occurred between state institutions, the head of state asked the Chambers
and the Government to find suitable formulations for the four articles - which were rejected by the
Constitutional Court’s decision – in a package of laws on the reform in the areas of property and justice
on which the Government assumed its responsibility (www.presidency.ro).
In the same context, following referral by the President to the Constitutional Court, the latter ruled a
decision (Decision no. 419 of 18 July 2005), in which it held that the
Court’s Decision no. 375 of 6 July 2005, by the texts adopted in the joint session of the Chambers of
Parliament of 13 July 2005.
Following the presentation of several relevant aspects of the Romanian political practice concerning
the exercise by the President of the function of guaranteeing certain fundamental values and of that of
mediation among state powers as well as between the state and society, some tendencies become quite
In this regard, through its decisions, the Constitutional Court gave a rather broad, non-objective
interpretation of the prerogatives of the head of state in the fulfilment of the two functions mentioned
The attitude of the Constitutional Court has favoured the excesses of power - up to the limit of
constitutional provisions and even with their violation - committed by the presidents who held the
office of head of state.
- *** (2013). Zgonea: The 2011bill for the revision of the Constitution, politically illegitimate http://www.romanialibera.ro/actualitate/politica/zgonea-proiectul-din-2011-de-revizuire-a-constitutieiilegitim-politic-296946.html.
- Advisory Opinion no. 1/2007, published in the Official Monitor, Part I, no. 258 of April 18, 2007.
- Andreescu, G. (***). The theme of the state of emergency in light of an attempted coup. Sfera politicii, 67, http://www.dntb.ro/sfera/67/mineriade-1.html; Article 5 of the Constitution of France and article 58 of the Constitution of Spain.
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Verga, C. M. (2016). Romanian Political Practice Concerning the Functions of the President. In A. Sandu, T. Ciulei, & A. Frunza (Eds.), Logos Universality Mentality Education Novelty, vol 15. European Proceedings of Social and Behavioural Sciences (pp. 1084-1093). Future Academy. https://doi.org/10.15405/epsbs.2016.09.134