Romanian Political Practice Concerning the Functions of the President

Abstract

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

Introductory Considerations

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.

The Method

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 functions , as they are wider in scope than attributions and

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 the role of the head of state , legal

literature identified three of its functions: the function of representation of the state, the function of

guarantor of certain fundamental values (for example, independence and state unity, territorial

integrity, the fundamental law), as well as the function of mediation (Constantinescu et. al., 2004: 141).

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

identified the function of defence the President exercises (Prélot, Boulouis, 1978: 671), while others

have determined his function of guarantor (Deleanu, 1992: 208).

An opinion (Deleanu, 2006: 719) concerning the function of guarantor conferred to the head of state

supports the idea that it is performed in a double direction: guarantor of the state and guarantor of the

Constitution . In this latter capacity, the president or monarch "safeguards compliance with the

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 function of guaranteeing the Constitution - which the head of state exercises as representative of

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.

As guarantor of the state , the President exercises some attributions in the area of defence.

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

society . Therefore, mediation is exercised by the head of state for the fulfilment of his complex duty of

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 arbitration , used in relation to both the President 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 the function of mediation is justified by the fact that he

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 mediation has given rise to

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, the function of mediation is reflected in numerous prerogatives

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. Neither

safeguarding nor the function of guaranteeing are achieved by passive contemplation, but by live,

concrete activity (Advisory Opinion no. 1/2007).

As noted in the doctrine, under the Constitution, the President of Romania has the function of

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 National Council to Fight Corruption , whose

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, the President has the

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 the UN Commission on Human Rights as "international conflict,

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 Decision no. 799/2011 ,

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 3 -

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 obligation of politic non-partisanship , consecrated by the Constitution, reason

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 President's obligation of politic non-

partisanshipis not absolute . The Court specified that "it cannot consider that the situation provided by

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 " the function of mediation among

state powers and between the state and society , provided by Article 80, second thesis of the

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 Law on the reform of property

and justice, as well as some additional measures have been brought into line with the Constitutional

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.

Conclusions

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

obvious.

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

above.

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.

References

1. *** (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.
2. Advisory Opinion no. 1/2007, published in the Official Monitor, Part I, no. 258 of April 18, 2007.
3. 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.
4. Constantinescu, M., Iorgovan, A., Muraru, I., Tănăsescu, E. S. (2004). The Revised Constitution of Romania. Bucharest: All Beck Publishing House.
5. Constitutional Court’s Decision no. 375 of 6 July 2005, published in the Official Monitor, Part I, no. 591 of 8 July 2005.
6. Constitutional Court’s Decision no. 419 of 18 July 2005 on the legislative package on the restitution of property nationalized during the communist regime, published in the Official Monitor, Part I, no. 653 of 22 July 2005. Constitutional Court’s Decision no. 682 of 27 June 2012, published in the Official Monitor, Part I, no. 473 of 11 July 2012.
7. Deaconu, Ş. (2011). Les conflits juridiques de nature constitutionnelle entre l’autorité judiciaire et les autres autorités publiques, dans la jurisprudence de la Cour Constitutionelle de la Roumanie. In G. Vrabie, (Éditeur), Le pouvoir judiciaire, Table ronde internationale organisée par le Centre francophone de droit constitutionnel de l’Université Mihail Kogălniceanu et l’Association Roumaine de Droit Constitutionnel, Iaşi, le 21-22 mai 2010, Publishing House of European Institute, Iaşi, 2011, p.156.
8. Decision no. 339 of 17 September 2004, published in the Official Monitor, Part I, no. 887 of 29 September 2004. Decision no. 53/2005, published in the Official Monitor, Part I, no.144 of 17 February 2005.
9. Deleanu, I. (1992). Constitutional Law and Political Institutions, vol. II. Iaşi: Publishing House of "Chemarea" Foundation.
10. Deleanu, I. (2006). Institutions and constitutional procedures in Romanian and compared law. Bucharest: C.H. Beck Publishing House.
11. Details in the Press Release of 12 July 2005, www.presidency.ro.
12. Dinu, N. (2011). AMR: Curtea Constitutionala nu se poate pronunta valid asupra initiativei de revizuire a Constitutiei.Available online at: http://www.infolegal.ro/amr-curtea-constitutionala-nu-se-poate-pronuntavalid-asupra-initiativei-de-revizuire-a-constitutiei/2011/06/16/.
13. Duculescu, V., & Călinoiu C. (2003). Constitutional Law and Political Institutions. Bucharest: Lumina Lex Publishing House.
14. Iorgovan, A. (1998). The Odissey of Constitution’s Elaboration. Târgu Mureș: Publishing House Uniunea Vatra Românească.
15. Iorgovan, A. (2005). Administrative Law, vol. I. Bucharest: All Beck Publishing House.
16. Law no. 590/2003 on treaties, published in the Official Monitor, Part I, no. 23 of 12 January 2004.
17. Prélot, M., Boulouis, J. (1978). Institutions politiques et droit constitutionnel, 7e édition. Paris: Dalloz.
18. Siserman, V. (2002). The state of siege and the state of emergency in Romania. The Journal of Romanian Law Studies, 1-2, January-June 2002, Romanian Academy Publishing House, p.154.
19. The Constitutional Court’s Decision no. 799 of 17 June 2011 on the bill on the revision of the Constitution of Romania, published in the Official Monitor, Part I, no. 440 of 23 June 2011.
20. UN Commission on Human Rights, Study of the Rights of Everyone to be Free from Arbitrary Arrest, Detention and Exile, E/CN. 4/826, 1962, p. 257.
21. Vrabie, G. (2004). The state political organization of Romania, vol. II. Iaşi: Publishing House of European Institute.
22. Vrabie, G. (2010). Le rôle et les fonctions du Président de la Roumanie. In Vrabie G., Le régime politique et constitutionnel de la Roumanie post-décembriste, European Institute Publishing House, Iaşi, pp. 91- 99.