1

The President of Romania or the slippery slope of a political regime

Elena Simina TĂNĂSESCU

Professor at the Law School of the University of Bucharest

Director of the Center of Constitutional Law and Political Institutions

I. Preliminary remarks ..................................................................................................................... 1

II. Election and status of the President ............................................................................................ 3

A. Direct legitimacy ........................................................................................................... 3

1. Impossibility to cumulate more than two terms of office ........................................ 3

2. Impact of the Presidential term of office on Parliamentary elections ..................... 4

B. Political neutrality.......................................................................................................... 7 III. Presidential role and tasks ........................................................................................................ 10

A. Role of representation of the State .............................................................................. 11

1. Means shared with other public authorities ............................................................... 11

a. Guarantor of national independence, unity and territorial integrity ...................... 11

b. Guardian of Constitution ....................................................................................... 12

2. Means devoid of legal effects .................................................................................... 14

a. Mediator among State powers and mediator between State and society ............... 14

b. Advisory referendum ............................................................................................. 15

B. Ambivalent relationships with Parliament and Government ....................................... 16

1. Difficult relationships with Parliament...................................................................... 17

a. Limited collaboration in legal matters ................................................................... 17

b. Presidential messages ............................................................................................ 17

c. Unlikely dissolution of Parliament ........................................................................ 18

d. Political liability to Parliament .............................................................................. 19

2. Little or no clarity in relationships with Government ............................................... 22

a. Influence of President on Government composition ............................................. 23

b. Influence of President on Government activity ..................................................... 25 VI. A political regime hard to qualify .............................................................................................. 26

I. Preliminary remarks

According to the Constitution of Romania, in force since December 8, 1991, and amended

following a referendum on October 18 and 19, 2003, President and Parliament have equal

legitimacy. This represents a new institutional setting for the Romanian modern state, since its

establishment through the union of the two Romanian kingdoms, Wallachia and Moldavia in

1859. Back then the same person succeeded in being elected head of State (domnitor) by the

General Estates, which included people from all social strata, while the legislative assembly

was exclusively made up of the representatives of the high and middle classes. Following this

2

first experiment, the heads of the Romanian state would be either monarchs1, or Presidents

elected by Parliament2.

The tribulations of the communist epoch should have made Romanians more cautious with

respect to a President who would be too powerful in comparison with weaker State authorities,

and, most certainly, the choice of the lawmakers in terms of “institutional design” clearly

gives more substance to this caveat. In order to prevent any possibility that people turned out

to vote in simulated parliamentary elections as if it were an already made decision, the drafters

of the 1991 Constitution established a Parliament and a President with equal legitimacy. In the

words of one of the drafters of the Constitution, the so-called “semi-Presidential” political

system was not chosen “to facilitate the totalitarianism, but quite on the contrary”3.

However, the direct legitimacy of the head of State has been perceived by the members of

Parliament as an imminent danger for their authority, even for their own legitimacy. If articles

of the draft Constitution that concerned President had as source of inspiration the French

model, debates in the Constitutional Assembly took a completely different approach. The

members of the Convention put in all necessary efforts, and even more, to reduce the powers

of the head of State, in order to keep Parliament at the forefront of the political arena.

Consequently, the power of the head of State must be exercised according to limitations

which, in fact, make the President rather dependent on other state authorities. Moreover, every

function granted to the President of Romania has been the subject matter of hard debates and

the overall resulting landscape points out to a Presidential institution having rather the role of

a moderator, or a regulator, than of a strong institution, with important decision-making

powers and an active role to play in the State.

This regulatory compromise extended during the course of the constitutional amendment

exercise that took place in 2003: instead of gaining authority or importance, the President of

Romania was faced with even more legal constraints than before, as some of his functions

have been sharply defined in exchange for nothing more than political neutrality, which had

already been there right from the start. Against this background, evolutions which occurred on

the Romanian political scene, particularly after the 2004 elections, illustrate a strong power-

struggle between a Presidential institution constantly trying to expand its limited powers and a

Parliament or a Government fighting to retain whatever discretion there might be available for

them in the Constitution. The lack of precision of various constitutional provisions coupled

with strong personalities on the political arena made it so that impeachment, referenda and

Government reshufflings became the other face of normality in today Romania, all against a

1 The forced resignation on May 1, 1864 of the domnitor made it possible for the Romanians to entrust their

throne to a foreign prince who pushed for the adoption of a Constitutional Pact in 1866. However, the head of

State continued to be called domn until 1881, when Romania was proclaimed a kingdom. It was only in 1884 that

this state of affairs was enshrined in an amended Constitution.

2 Law n°363/ December 30, 1947 abolished monarchy in Romania and established the Republic, managed by a

Presidium, playing the part of a collegiate head of State. After 1974, the head of State became a one-person

institution, appointed by a single-house Parliament (The Grand National Assembly).

3 F. B. Vasilescu, in ***, “Geneza Constituţiei României 1991” (The works of the Constitutional Assembly),

Monitorul Oficial, 1998, p. 511 and following. The debates that took place in the Constitutional Assembly are

extremely informative in this respect, as they accurately express the fear that members of the Convention

resented towards a president with a too strong a legitimacy.

3

more general background of constant strengthening of the executive at the expenses of the

legislative power.

Beyond the regulatory capacity of the basic law of the State, the “living Constitution” ensures

that the President is the authority personifying the State. This has an enormous leverage in

terms of elections and status of the President, but it is not sufficient to make of the head of

State the central authority of the institutional system. The main cause for the ambiguity of the

Romanian regime may very well lie in the ambivalent constitutional relationships that the

President must develop with other State authorities, particularly with Parliament and

Government. In fact, after the adoption of the Constitution on December 8, 1991, it seems

difficult to clearly qualify the political regime in Romania: is it a semi-Presidential, or even a

semi-parliamentarian one, as it had been the design of its founding fathers4, or is it a semi-

Presidential regime with Presidential tendencies, since this is the path it seems to have

followed recently?

II. Election and status of the President

There is a direct causal link between the manner of election and the status of the President of

Romania. However, if one puts it in other terms, this causal link becomes less evident: the

relation between the direct legitimacy and the political neutrality required by the Constitution

seems to be less obvious, despite the relevant provisions of the fundamental law. If the head of

the State is a direct representative authority, then he should represent the entirety of the

Romanian people and not only portions of his constituencies; however, his mode of election

presupposes a quite clear and definite political commitment on his side. Despite heated

debates on this issue, back in 1991 in the Constitutional Assembly, the constitutional

framework has remained untouched and without any other clarifications.

A. Direct legitimacy

According to Article 81 of the Constitution, the President of Romania must be elected by

individual direct ballot. If one of the candidates succeeds in obtaining the majority of the

ballots cast by the constituencies registered in the election lists, then one single round of

elections is sufficient. If this condition is not met, then a second round of election must be

organized for the top two candidates, based on the number of ballots cast in the first round of

elections. The candidate who obtains the relative majority of the cast ballots becomes the

President of Romania.

1. Impossibility to cumulate more than two terms of office

In the hope of avoiding a too powerful President, from a political point of view, and trying to

hinder the establishment of a potential “republican monarchy”, as it had happened in other

settings according to comparative law, the Constitution of 1991 introduced for the first time in

the Romanian law a limitation on the number of Presidential mandates to be cumulated by one

single person, that is, no one could hold more than two terms of office. Such terms of office

could even be consecutive.

4 F. B. Vasilescu, ibid.

4

This limitation was the object of a stormy implementation during the elections of 1996, when

the President at the time (Mr. Iliescu) stood once again to be elected. According to certain

calculations, depicted in the referral to the Constitutional Court5, already at that time Mr.

Iliescu was in excess of the two Presidential terms of office6, whereas others argued that he

was already on his fourth7. The Constitutional Court made a different calculation, according to

which the Constitution could not be enforced in cases occurring before its entry into force,

otherwise it would ignore the principle of non-retroactive laws. When it found that Mr. Iliescu

had fulfilled a first term of office as President under the Constitution adopted in December 8,

1991 only after the elections organized in 1992, the Constitutional Court allowed Mr. Iliescu

to take part in the elections of 1996.8 Even if Mr. Iliescu failed to win, the precedent was

going to serve him in the elections of 2000.9

2. Impact of the Presidential term of office on Parliamentary elections

Before the constitutional revision of 2003, the term of office of the head of State had been

identical to Parliament’s. This explains why, in practice, a “cohabitation” between a President

of one political orientation and a parliamentary assembly of a completely different one had

become unthinkable. Since members of Parliament are elected based on their party lists and

proportional representation, the link established between them and their constituencies is not

as obvious as the one between the President and the people, since the President is elected

5 According to Article 146 of the Constitution, the Constitutional Court must “safeguard the observance of the

procedure to elect the President of Romania and to confirm the outcome of the elections”.

6 The first mandate would have been the one he obtained in the elections organized in May, 1990, before the

entry into force of the Constitution, whereas the second would have been the one exercised during 1992 and

1996.

7 According to this calculation, all the important political stages that followed the events of December 1989 have

been taken into consideration as terms of office, whereas the last mandate would have been the one after the entry

into force of the Constitution (1992-1996).

8 In its Ruling n°1 of 1996, published in the Official Journal n°216/September 11, 1996, the Constitutional Court

argued that: „There is no legal document prior to the Constitution providing the establishment of the term of

office/mandate of the President of Romania. This legal notion is regulated for the first time in the Constitution of

1991. The term of office/mandate of the President of Romania must have specific and novel constitutional

features in comparison with the previous regulations, which refer in particular to the functions deriving of the

mandate, the appointment conditions, the validation and the beginning of the mandate, as well as its term, the

incompatibilities and the immunities thereof, the tasks deriving from the mandate and, consequently, the

relationships that the appointee must have with the public authorities, as well as his responsibilities. There is no

other function according to the regulations prior to the Constitution that would have been based on such a

mandate, therefore one must agree that the provisions of the Constitution constitute a benchmark solution or an

establishment that is completely different with respect to the institution of the head of State. Consequently, the

mandate of the President of Romania as regulated by the fundamental law cannot be considered a prolongation of

other presidential terms of offices, fulfilled prior to the entry into force of the Constitution of 1991. On the other

hand, the Presidential office cannot be interpreted in isolation, without taking into account the concept of

mandate/term of office. For all these reasons, if one is to compare the institution of the head of State according to

the current regulation and the previous situations, one must note that the Romanian Presidential institution is

defined, among other things, as a constitutional mandate. In the absence of such a mandate before the entry into

force of the Constitution, there are no grounds whatsoever to make comparisons between the legal circumstances

prior to the Constitution.”

9 Which he managed to win, with a wide margin, in a second round of elections, when he competed against Mr.

Vadim Tudor, leader of “Greater Romania”, an extreme right-wing party on the Romanian political arena.

5

directly by the entire qualified population. That is why the tendency of the constituencies is to

place a lot more emphasis on Presidential elections than on Parliamentary ones. And if one

factors in that the dates of the two elections have always been very close, it becomes

understandable why emblematic or charismatic Presidents had always been in a position to

play the role of a “trailblazer” for their own party or coalition of origin. Such was the situation

around elections of 1992 and 2000, when President Iliescu had “supported” the social-

democrats10 (or the various electoral coalitions they had concluded) to get relative but

comfortable majorities in Parliament. And probably one is right to state that the political

change of 1996 was so desired by the population, that it is difficult to say whether it was

President Constantinescu who took the part of “trailblazer” or the Democratic Convention of

Romania11

that succeeded in pushing its candidate forward.

However, the most empirical proof of the “trailblazer” role that can be played by a charismatic

candidate to the Presidency was to be seen in the elections of 2004. In the second round of

elections, the former Prime Minister of the Social-Democrat Party (PSD), Adrian Năstase,

opposed the former Mayor of Bucharest, Traian Băsescu, a candidate of the Democrat Party

(PD), representing a “center coalition” ( the “Alliance for Justice and Truth”) together with the

National Liberal Party (PNL). The outcome of the Parliamentary elections that had taken place

two weeks before the Presidential elections had been quite ambiguous: the relative majority

(132 deputies and 57 senators) was in favor of another electoral coalition, made up of the

Social-Democrat Party (PSD) and the Humanistic Party12

, but only a coalition made up of the

PNL and the PD (65 deputies and 29 senators for the PNL and 47 deputies and 20 senators for

10

This political party changed name several times and experienced several internal factions or regroupings with

other political parties. During the elections of 1992 its name was the Democratic Front for National Salvation

(FDSN), then it became the Party of Social Democracy in Romania (PDSR) during the elections of 1996 and

2000, and since 2004 it has been the Social Democrat Party (PSD).

11 This is the name of a coalition of political parties and civic groups, established in November 1991 and

dissolved in 2000, following the disastrous results it obtained in the general and presidential elections. It was

founded by the so-called “historical ” parties of Romania – the National Liberal Party (PNL) and the Christian

Democratic National Peasant Party (PNTCD) – with the support of a whole plethora of smaller political parties,

such as the Romanian Social Democratic Party (PSDR), the Romanian Green Party (PER), the Civic Alliance

Party and other political and civic groups, such as the representative group of the Hungarian minority (UDMR),

the Christian Democratic Union, the Civic Alliance, the Association of the Former Political Prisoners of

Romania, the “University Solidarity” Association, the “21st of December ” Association, the Future Romania

movement, the political trade union “Frăţia,” the World Union of the Free Romanians. Little before the elections

of 1992, the Democratic Convention received a boost from the National Liberal Party–Democratic Convention,

the National Liberal Party–youth section and the Green Federation of Romania. The move to unite the political

parties of liberal extraction, which gave birth to the current National Liberal Party (PNL), began during the

Parliament term of 1996 – 2000 and ended only after the disintegration of the Democratic Convention.

12 The Humanistic Party of Romania (PUR) would change its name in this parliamentary term to become the

Conservative Party (PC). While before the 2004 elections it had signed a coalition with the PSD, it subsequently

joined the ranks of the “Alliance for Justice and Truth” coalition (made up of PNL and PD) in order to be part of

the Government. Following harsh verbal confrontations between the head of this party and the head of State, the

PC went to in opposition and played quite an important role in the impeachment procedure launched against the

President of Romania in March-April 2007.

6

the PD) was able to form a government13

as it joined ranks with the Democratic Union of the

Hungarians of Romania (UDMR) (with its 22 deputies and 10 senators) and with a small

number of the deputies of the national minorities (18 seats which are earmarked for those

ethnicities that support a candidate each in Parliamentary elections). It has to be mentioned

that Mr. Băsescu’s success was considerable, as he had not been the candidate in the

Presidential elections from the beginning of the election campaign14.

In order to separate Presidential from Parliamentarian elections, and, eventually, put an end to

a practice which was not un-constitutional but was no longer entirely wanted by the political

realm either, the Constitutional revision of 2003 established a 5-year term of office for the

President and preserved the 4-year term of office for parliamentarians. This change was

justified by certain members15

of the technical committee for the drafting of the Constitution

as based on the principle of State continuity. In order to avoid a potential hiatus of the

institutionalized power every 4 years, they preferred to take their source of inspiration from

examples “which exist in abundance in the comparative law”16

, according to which the term of

the Presidential mandate can be different from the Parliamentarian one.

The real impact of this change should be seen in practice in Parliamentarian elections of 2008,

when President Băsescu will be unable to directly “trail blaze” for his party of origin anymore.

The most he can do is begin preparing for the Presidential campaign of 2009, should he decide

to run once again as candidate to his own succession17

. However, the absence of the President

of Romania from the political arena in such an important moment as Parliamentarian elections

is unthinkable. Given the relatively strong tensions, easy to perceive as they surface in the

current Romanian political environment, it would be reasonable to expect that the “Player

President” or that the “Actor President”18

be present and active in 2008 and in 2009 as well,

even if his role can not have an identical weight in the two cases. This seems to be the

approach of the Constitutional Court as well, as it stated that “the constitutional prerogatives,

as well as the democratic legitimacy of his direct election by the constituencies, make it

mandatory for the President of Romania to play an active role, since his presence in political

13

Because the leader of the PD, one of the two main parties in the “Alliance for Justice and Truth,” was elected

President of Romania, in accordance with the political agreement signed before the elections, the head of the

other political party (PNL) had to be appointed Prime Minister.

14 After having held various governmental offices, Mr. Traian Băsescu was elected mayor of Bucharest in 2000

and confirmed in this position in the summer of 2004. After he had promised the inhabitants of Bucharest that he

“would not relinquish them for a better job”, the sudden withdrawal of Mr. Theodor Stolojan from the

presidential race caused Mr. Traian Băsescu to become a Presidential candidate. He won the second round of

elections with a majority of 5,126,794 ballots over 10,112,262 turnover at the polls.

15 M. Constantinescu, I. Muraru, A. Iorgovan, “Revizuirea Constituţiei – explicaţii şi comentarii”, Rosetti

publishing house, 2003, Bucharest, p. 72.

16 Ibid., indirect reference to France.

17 This is very likely to happen, if one takes into account his extremely notorious statements made after taking up

residence at the Cotroceni Palace: “I have come here to stay for ten years.”

18 As Mr. Băsescu projected himself as head of State during the election campaign and defined himself as

President in the countless politically difficult situations he had to deal with, either directly or indirectly, since the

beginning of his term of office.

7

life can not be reduced to a simple, symbolic and artificial exercise”19

. In this respect, it may

be interesting to note that even though, since the beginning of his term of office as President,

he has relinquished his membership of the Democrat Party (PD) and despite the obligation of

political neutrality imposed on him by the Constitution, President Băsescu’s charisma has

been abundantly used in the electoral campaign for the European Parliament by the

Democratic Party, albeit in a subliminal manner.20

B. Political neutrality

However, if the current President were to get too involved in Parliamentary elections, then he

would likely be in violation of the political neutrality obligation put forward by the

Constitution. Indeed, Article 84 provides quite clearly that “during his term of office, the head

of State shall not be a member of any political party.” But the Constitution formally forbids

only the political party membership and it does not ban sympathizing. All sympathies or

personal options of the current President, even if publicly expressed, are not covered by the

scope of this interdiction. According to the opinion expressed by the Constitutional Court, “the

Constitution does not forbid the President to maintain his relationships with the political party

that provided him support throughout the elections or with any other political parties. Such a

ban would not be in the spirit of the Constitution if the President is elected based on a direct,

individual vote, owing to his political agenda and if he is accountable to his constituencies for

the fulfillment of this program. It is obvious that in order to put in practice his program, the

President may carry out a dialogue with the political party whose member he used to be or

with a completely different political party that could provide support in terms of the

implementation of this program”21

.

The political neutrality of the head of State had already been challenged at the time of the

adoption of the Constitution in 1991. During conventional debates on the ban imposed on the

President to hold any political party membership, voices raised which cast doubts on the

efficiency of such a regulatory provision.22 Others noted that this interdiction would not be

consistent with the constitutional provision that allowed the current President to take part in

the elections for his own succession.23

19

Advisory Opinion n°1/2007, published in the Official Journal n°258/April 18, 2007.

20 The PD posters carried pictures of all the candidates proposed by the party for the European Parliament,

framing a large open space, placed in the middle, on which a caption read: „busy elsewhere”.

21 Advisory Opinion n°1/2007, published in the Official Journal n°258/April 18, 2007.

22 “Would a President lose his political beliefs, which are the very reason for his being elected? I certainly do not

think so. On the other hand, any elected President will be President, in general, until a replacement is found in the

following elections. In such a situation, how could he take part in the subsequent elections on the list of a political

party, how could he engage in an election campaign? His options would be either to disregard or not to

participate in the elections. Finally, in my opinion, this provision is purely artificial, since the elected President

will maintain quite close relationships with the party that proposed and supported him in the elections, whether

the Constitution allows it or not. ” (P. Morar, in ***, “Geneza Constituţiei României 1991” (The Works of the

Constitutional Assembly), op. cit., p.504.)

23 “A political party membership means having a political option, the acceptance of an ideology, of a political

agenda. If, after being elected, the President declares that he is not a member of the respective political party

anymore, will his ideas or his ideological conception change? I really do not think so. But I will even go further.

8

Institutional practice has already proven that this constitutional provision stipulates rather a

desideratum, difficult to implement. On the one hand, the overwhelming majority of the

people who ran24

for President of Romania - after the enactment of the Constitution of 1991 -

had been members or even Presidents of political parties. But what is even more significant is

that all the people who became President of Romania had been the Presidents of the political

parties on whose lists they had been candidates.25 Not only is it more efficient and less costly

to have an election campaign conducted with the support of an entire political party

infrastructure, but it may also have a much more powerful impact on the constituencies and

meet several goals26

. These advantages come along with services to be returned, among others

the fact that the President takes over the election program of the respective political party and,

once elected, will but try to put it in practice. Even if the President strictly observes the

mandatory neutrality with respect to political parties, his actions will undoubtedly serve the

same political program of the party whose member he was until the elections. In other words,

even if the President is subjectively neutral, he will be objectively confined to a certain form

of political bias.

On the other hand, this mandatory neutrality would make one believe that any successful

candidate to Presidency must ipso facto undergo a type of “political death” at the end of his

term of office. One has to be reminded that according to the election provisions27

, there is a

possibility to have independent candidatures, which have constantly been submitted all along

the election processes that took place in Romania after 1989. However, one must also note that

such independent candidatures have never been successful. In this context, the provision

included in the election law of 200428

, according to which, at the end of his current mandate,

the President could submit his candidature in Parliamentarian elections as an independent

candidate on the lists of a political party created a lot of commotion, not only in the political

arena, but also in the constituencies. It was not clear weather such an “independent” candidate

would be just as independent as the ones supported by at least 200.000 qualified voters.

Furthermore, such an “independent” candidate could not be member of any political party, as

still acting as the incumbent President of Romania, but would certainly depend on the

willingness of the respective political party in order to be included on the list. Answering to

Let’s assume for the sake of argument that the same person could take part in elections for a second time to

become President again. Quite obviously, this intention will be submitted before the expiry of his term of office.

After that, there is an election campaign. Will he join the ranks of a political party to have an election campaign

taken care of for him? And whose program and ideology will he exhibit throughout his following mandate? I

think we are not making any sense whatsoever.” (G. Kozsokar, in ***, “Geneza Constituţiei României 1991”

(The Works of the Constitutional Assembly), op. cit., p.504-505.)

24 Law n°370 of 2004 on the presidential elections, published in Official Journal n°887 of September 29, 2004,

provides the possibility of the independent candidatures, namely those candidatures not supported by political

parties but by a minimum of 200,000 qualified voters only.

25 These were the cases of Mr. Iliescu in 1992 and 2000, Mr. Constantinescu in 1996, and Mr. Băsescu in 2004.

26 See supra, on the part of “trailblazer” played by candidates in presidential elections for the benefit of their

political groups.

27 Cf. Article 5 of Law n°373 of 2004 regarding the presidential elections, published in Official Journal n°887 of

September 29, 2004; Article 3 of Law n°370 of 2004 regarding the presidential elections, mentioned above.

28 Paragraph 7 of Article 5 of Law n°370 of 2004 regarding the presidential elections, mentioned above.

9

the referral regarding this particular legal provision, the Constitutional Court decided that “the

possibility given to the President of Romania to submit his candidature as an independent

candidate on the list of a political party for a term of office of deputy or senator does not

provide grounds for the unconstitutionality of the legal provision under analysis. <…> The

matter of the means whereby the President fulfills his role in the State depends on the extent to

which the President meets his obligations and on his ethics during the exercise of the mandate,

which, if completely disregarded, may make the mandate holder constitutionally accountable.

Otherwise, mutatis mutandis, the situation will be similar if the President runs for a second

successive term of office, according to the provision of Article 81, paragraph 4. One could not

know how to ban a current President from running on the lists of a political party for a second

successive term of office, since it would make the constitutional provisions referred to

impossible to apply and void.” 29

A well-informed and well-reputed analyst of the Romanian political arena, as well as a refined

connoisseur of the comparative law realities, Professor Tudor Drăganu had already stated in

1998 that the provision of Article 84 of the Constitution concerning the ban on the President

being a member of a political party “was bound to be just on paper. Even if, after the elections,

the President will not be the formal leader of the political party on whose support he won, he

will continue to be the invisible guide of this party, at least in terms of the most important

political matters. Additionally, if he wants to have the support of his own party in the

Presidential or Parliament elections to follow after the expiry of his term of office, the

President of Romania will inevitably be placed in a position where he will have to specifically

make proof of membership to this party and to behave as a true army commander30

.”

The confirmation of this analysis did not have to wait for long. All people which held

Presidential mandates have kept quite significant informal connections with their party of

origin and followed a policy which would be perfectly aligned to the political program of that

party.

One must note in this context that this mandatory political neutrality is applicable only to the

elected President. During the month when the President of Romania was suspended owing to

the impeachment procedure initiated by Parliament in spring 2007, the acting President, who

was the President of the Senate and also a member of the main party of opposition, never

resigned from his party.

29

And the Constitutional Court continued: “The President of Romania is not included in those limited categories

of citizens who are denied the fundamental right to be elected, even if during his mandate he cannot be a member

of a political party. According to the principle of the strict interpretation of exceptions, the Court cannot opine

that the situation provided in Article 84 paragraph 1 of the Constitution, establishing a temporary political

incompatibility for the President of Romania, could have as a consequence the prohibition of the right to be

elected President of Romania if one does not become a member of a political party, since the appropriate

constitutional provision is missing in this respect. The Court finds that only an extreme interpretation of the

situation provided in the challenged text could convert this situation into the incompatibility provided in Article

84 paragraph 1 and in the denial of the right to be elected, as stated in the referral. Such an interpretation, which

would be the creation of a constitutional provision in disguise, is contrary to the principle of constitutional

precedence, to the constitutional and judicial status of this Court, forbidding it to play the part of a positive

legislator.” (Decision n°339 of 2004, published in Official Journal n°887/September 29, 2004.)

30 T. Drăganu, “Drept constituţional şi instituţii politice. Tratat elementar,” second volume II, Lumina LEX

publishing house, 1998, Bucharest, p. 234.

10

III. Presidential role and tasks

A simple reading of the text of the Constitution of Romania of 1991 is enough to conclude that

its drafters took the model of the French Constitution of 1958. In the words of a member of the

technical committee for the drafting of this text: “The President personifies the Romanian

State and is the symbol of the entire nation, which is why he must be directly elected by the

people. In exercising his tasks, he shall ensure the equilibrium and a smooth operation of the

public authorities, in line with the principle of the separation of powers”31

. The same logic and

goals had inspired the drafters of the French Constitution of 1958, as amended in 1962. In a

press conference on January 31, 1964, General de Gaulle described his own perspective

regarding the mission of the French head of State: “obviously, one must understand that the

President receives the entire, indivisible, state authority from the people that elected him, and

that there is not any other ministerial, civil, military or judicial authority that is not conferred

or maintained by the President”32

. Such a vision of the role and mission of the head of State is

not completely alien to the Romanian institutional heritage, according to which one single

individual must be capable to impose his will over all the other public institutions and

authorities. However, there is nothing to forbid such a head of State to fashion his way in a

democratic environment.

Article 8033

of the Romanian Constitution clearly found its source of inspiration directly in

Article 534

of the French Constitution of 1958 as revised in 1962. Just like in France, the

institution of the head of State is configured with an intended sense of indetermination, as one

may feel certain difficulties when trying to make connection between the notions of mediator

and guarantor and a unique State authority entrusted with a unique mission. Just like in the

French case, the meaning of the constitutional text cannot be deducted entirely in a simple

exegesis, but is more a consequence of the use each President makes of the power with which

he had been entrusted. But whereas the French institution of the head of State was conferred

with important means of action in the Constitution and has always been quite powerful in

practise, succeeding in penetrating with its authority the entire constitutional architecture, the

Romanian head of State is considerably much weaker, especially in what concerns the

instruments made available to him. The revision of 2003 did not significantly change this

reality and was not successful in finding equilibrium between the role entrusted to the head of

31

F. Vasilescu, ***, “Geneza Constituţiei României 1991” (The Works of the Constitutional Assembly), op.cit.,

p. 489.

32 Cf. Th. S. Renoux, M. de Villiers, “Code constitutionnel”, Litec, 1994, Paris, p. 242.

33 According to which: “The President of Romania shall represent the Romanian State and shall safeguard the

national independence, the unity and the territorial integrity of the country.

The President of Romania shall oversee the observance of the Constitution and the good operation of the public

authorities. To this purpose, the President shall exercise the function of mediation among the State powers and

between the State and the society.”

34 “The President of the Republic shall oversee the observance of the Constitution. He shall ensure, with his

arbitrage, the regular operation of the public powers, as well as the continuity of the State.

He shall safeguard the national independence, the integrity of the territory and the observance of the treaties.”

11

State according to Article 80 of the Constitution and his tasks according to the same

fundamental law.

Thus, according to the Constitution, the President represents the State. He shall safeguard the

national independence, the unity and the territorial integrity. He shall oversee the observance

of the Constitution and the smooth operation of the public authorities. To this purpose he shall

exercise a mediation function among State powers and between State and society. Such a role

would presuppose a type of authority “placed on a top position within the architecture of the

entire State”35

, a type of authority that could completely assume the management of a society,

as well as of all the other state authorities. But the constitutional articles providing the specific

tasks of the Romanian head of State are in contrast with this expectation. In reality, his frailty

is a consequence not only of the lack of balance between his role and tasks, but also of the

ambiguity in the political regime instated by the Constitution. If it is true that the Constitution

puts in practice all necessary conditions for the operation of a semi-Presidential regime, the

tasks conferred upon the Romanian President deprive him of any efficient tools to deal with

other State authorities, particularly with Parliament and Government.

A. Role of representation of the State

Article 80 of the Constitution gives the image of a powerful President, with a role that is

important and clearly defined in the State. In order to fulfill his duty of representation, the

President has certain tasks at national36

and international37

level. However, the personification

of the power was not paralleled by a sufficient institutionalization, which makes it so that the

President is “a clay-feet colossus.” Without being entirely decorative, the representation role

of the President of Romania has a quite strict and tight institutional framework: the

Constitution makes it so that the means that could allow the President to provide momentum

to the political life would be either shared38 with other institutions or devoid of legal effects.

1. Means shared with other public authorities

a. Guarantor of national independence, unity and territorial integrity

In his capacity of guarantor of independence, the President of Romania possesses quite

important means of action, but he is constantly under parliamentarian oversight. Thus,

according to Article 92 of the Constitution, he is the commander in chief of the army. In this

capacity, he may order the partial or total mobilization, but only based on the preliminary

35

G. Vrabie, “Le régime politique de la Roumanie” (The political regime of Romania), in G. Vrabie (coord.),

“Les régimes politiques des pays de l’Union Européenne et de la Roumanie” (The political regimes of the

countries of the European Union and of Romania), the Regia Autonomă Monitorul Oficial publishing house,

2002, Bucharest, p.397.

36 Cf. Article 94 of the Constitution, the President confers the titles of honor and the decorations, the military

ranks, and has the right to appoint high State officials and to pardon.

37 Cf. Article 91 of the Constitution, the President signs the international treaties negotiated by the Government,

gives the diplomatic credential letters, may call back the ambassadors of Romania, receives the credential letters

of the foreign ambassadors in Romania, and represents the State in its international relations.

38 For an analysis of the own and shared powers of the head of State in a semi-presidential regime, see M.

Duverger, “Les régimes semi-présidentiels”, P.U.F., Paris, 1986, passim.

12

approval by Parliament. Even in cases of military conflicts the President must keep Parliament

informed at all times on the operational steps taken and, if Parliament is in recess, must call a

Parliament session immediately. According to Article 93 of the Constitution, the President

may instate the state of emergency or the state of siege, but must keep Parliament informed in

the 5 following days about this situation and must obtain the approval by Parliament in this

respect. In addition, this function of safeguarding the national independence and the territorial

integrity is actually fulfilled rather by the military than by a head of State who is its

commander only symbolically.39

In reality, the President has a limited decisional power which

is shared with Parliament.

b. Guardian of Constitution

The President must oversee the observance of the Constitution by all state authorities and by

its citizens. In fact, this role is kept to a quite abstract level, since the Constitution does not

specify which are the instruments available to the President to complete his task. If before the

constitutional revision of 2003 the observance of the supremacy of the Constitution, as well as

of all the other laws, was a fundamental duty of the Romanian citizens, the revision reworded

the same legal content so as to become the fundamental principle of the State.40 In terms of the

public authorities, the fundamental principle of the rule of law, equally included in the first

article of the Constitution, compels them to observe the Constitution.41

One could easily infer

that the role of the Romanian President of “guardian of the Constitution” would be a simple

reminiscence of the Schmittian theory and that its content is actually entirely fulfilled by

means other than the Presidential ones.

However, the syntagm used in the text of the fundamental law (“observance of the

Constitution”) refers to a field particular to the executive power, namely, the enforcement of

the Constitution. While upholding the Constitution is a task of the President, guaranteeing its

supremacy, including by settling disputes on the basis of the Constitution, belongs to a

different State authority, namely the Constitutional Court42. The Constitution is quite formal in

this respect: the powers of the head of State and of the constitutional judge shall complement

one another without being conflictual for that matter. Quite on the contrary, there are certain

activities where their actions must be concerted. Thus, the head of State has the possibility to

refer to the Constitutional Court a law before its entry into force43

, even if he has already

39

T. Drăganu, op.cit., p.226.

40 The fifth paragraph added to Article 1 of the Constitution provides moreover that: “The observance of the

Constitution, its supremacy and of the laws shall be mandatory in Romania.”

41 The third paragraph of Article 1 of the Constitution which, after the constitutional revision of 2003, was added

only the second part of the phrase, provides that: “Romania is a democratic and social rule of law where the

dignity of human being, the rights and liberties of the citizens, the free development of the human personality, the

justice and the political pluralism shall represent supreme values, in the spirit of the democratic traditions of the

Romanian people, as well as of the ideals of the Revolution of December 1989, and shall be safeguarded.”

42 In its first paragraph, Article 144 of the Constitution provides that: “The Constitutional Court shall safeguard

the supremacy of the Constitution”.

43 According to Article 146 of the Constitution, the constitutionality check of the laws may be exercised before

their promulgation “upon referral by the President of Romania, by the speaker of one of the two Houses of

Parliament, by the Government, by the High Court of Justice and Review, by the Romanian Ombudsman, by 25

senators or by 50 deputies”.

13

asked the Parliament to review it44

. It must be noted that the request for a law review made by

the President is but one of his rare completely discretionary powers. The President may ask

Parliament to review a legislative document for grounds of opportunity and lawfulness. But

this is far from signifying that the decisional (legislative) power is shared between the head of

State and Parliament. The legislator has the final say and may keep its initial solution. If the

issue emphasized by the President were constitutional in nature, then the latter may still refer

the matter to the Constitutional Court.

In practice, the head of State began to systematically oppose laws issued by the legislator

especially after 200445

, as it represented a means to pressure a Parliament that, at times, would

be too far away from its electoral basis46

or ignoring matters of extrinsic constitutionality47

.

An interesting point to highlight would be that whenever the President had been discontent

with the outcome of the legal review made by MPs, he won his case in the Constitutional

Court.48

Moreover, this allowed the incumbent President to emphasize his role of guardian of

the Constitution with regard to all public authorities, including Parliament. Equally, this

technique manages, at times, to meddle with the guardian role in terms of Constitution

supremacy, entrusted not to the President, but to the Constitutional Court.49 All this merely

44

According to Article 77 paragraph 2 of the Constitution, “before the promulgation, the President may ask the

Parliament only once to review the law.”

45 The President returned 25 draft laws to Parliament for review, in the current legislature, namely 12 to the

House of Deputies, and 13 to the Senate. (Cf. http://www.cdep.ro/pls/proiecte/upl_pck.lista?cam=2&std=R and

http://www.cdep.ro/pls/proiecte/upl_pck.lista?cam=1&std=R, last checked on November 5, 2007).

46 In a law concerning the legal status of deputies and senators, the MPs granted themselves pecuniary privileges

out of proportion in the field of social welfare and retirement benefits, while all expenditures had to be sustained

from the public budget, that is by the entire Romanian taxpayer population. Because of the powerful response

given by society at large and the intensive media campaign following step by step the legislative process of this

particular law, the head of State required that it would be reviewed by Parliament. However, the review did not

change the provisions considered as most discretionary and inequitable. As he received the law a second time for

promulgation, the President referred it to the Constitutional Court. In its ruling, the Constitutional Court

concluded that the law was constitutional in part, and thus the majority of the pecuniary privileges of MPs were

validated. (Decision n°279 of 2006, published in Official Journal n°323/ April 11, 2006.)

47 The legislative procedure in Romania makes a distinction between ordinary laws, adopted with the simple

majority of deputies and, respectively, senators, and organic laws, adopted with an absolute majority of members

of each House of the Parliament. Moreover, the legislative process must begin in the House declared by Article

75 of the Constitution to be “the first notified” and must end in front of the “decisional House”. In practice

however, there are numerous cases of organic laws adopted with the majority required for ordinary laws, while

the House to be “first notified” is often mistaken with the “decisional” one.

48 See also the ruling (of complete unconstitutionality) n°418 of 2005 on the Law concerning the reproductive

health and the clinically assisted human reproduction, published in Official Journal n°664/ July 26, 2005.

49 In the open confrontation between the parliamentarian majority and its opposition on a legislative package

concerning the judiciary reform and the restitution of assets nationalized by the communist regime, the

Constitutional Court found itself in the middle of a political debate, where the President of Romania would be

calling the rules. After a first ruling of partial unconstitutionality, when it invalidated only a modest chunk of the

legislative package concerning the judiciary reform, the Court saw its legitimacy contested and the doubt was

cast over the binding nature of its decisions. In those difficult moments, when the Constitutional Court had to

cope with the worst type of challenges ever, the President convened an ad hoc consultation with the speakers of

the two Parliament Houses and the president of the Constitutional Court to find a solution to this deadlock. And it

was only after this “mediation” that the legislative package could be sent back again to the Parliament for review.

14

confirms the assumption of shared power, whose exercise in concreto depends a lot on the

institutional relationships established between the players concerned.

2. Means devoid of legal effects

a. Mediator among State powers and mediator between State and society

It would be difficult, in theory, to conceive harmony between the role of mediator and that of

guarantor in the same State institution, but according to the Romanian Constitution, each one

has a different throng. In addition, the mediation function does not have its own content, since

there are several Presidential tasks that must give it a more concrete shape, such as the calling

of a people’s referendum, with advisory function (according to Article 90), the optional

consultation of the Government (according to Article 86), the participation in the

governmental meetings (according to Article 87), the delivery of messages in Parliament

(according to Article 88), the referral of laws to the Constitutional Court before their

promulgation (according to Article 146), etc. The doctrine raised some questions with regard

to the legal nature of an institution that must ensure the balance among other State authorities

and between the State and society at large50, even if one really minds the mandatory neutrality

required by this function. Authors generally considered that the mediation function could not

be interpreted in its legal connotation51

, but rather under the angle of its political

significance52

.

The Constitutional Court considered that “the mediation function of the head of State,

according to Article 80 paragraph 2 of the Constitution, imposes the President to be impartial,

but it does not preclude him from expressing his opinion on the optimal manner to solve

matters in divergence. The President has the same right as the Members of Parliament to

express his political opinion, which is safeguarded to the extent in which the legal regime of

the immunity of the head of State is set to be similar with Parliamentarians’, according to

Article 84 paragraph 2 of the Constitution.”53 The Court went further and stated that:

“opinions, observations, preferences or requirements of the President have no decisional

nature and cannot therefore produce any legal effects, since public authorities are the only

According to Article 147 of the Constitution, the Parliament is under the obligation to initiate new debates on a

law that the Court has found unconstitutional; in this particular case, Parliament changed provisions found

contrary to the fundamental law. The revised version of the legislative package has been referred again to the

Constitutional Court by the President, with the specific requirement that the Court decides on its compatibility

not with the fundamental law, but with the first ruling that the Court gave. To which the Court contented to

analyze the conformity of the newer version of the law with the Constitution and issued a ruling in favor of the

constitutionality, to which it appended its interpretation. (Decision n°375 of 2005, published in Official Journal

n°591/ July 8, 2005, and Decision n°419 of 2005, published in Official Journal n°653/July 22, 2005)

50 F. Vasilescu, “Constituţia României - comentată şi adnotată”, the Regia Autonomă Monitorul Oficial

publishing house, Bucharest, 1992, p.182.

51 D. Apostol-Tofan, “Drept administrativ”, volume I, Bucharest, ALL Beck publishing house, 2003, p.103

52 A. Iorgovan, “Tratat de drept administrativ”, volume I, Bucharest, ALL Beck publishing house, 2005, p.292.

53 Decision n°53 of 2005, published in Official Journal n°144/ February 17, 2005.

15

bodies responsible to implement or to disregard them”54

. In other words, the Constitutional

role of the President of Romania is that of a mediator, but devoid of any constraining effect.

b. Advisory referendum

The Article 9055

of the Constitution makes it possible for the President to call a referendum

which has “all the features of a plebiscite”56

. In spite of appearances, there are several marked

differences with respect to the similar prerogative of the President of the French Republic.

Firstly, quite differently from his French counterpart, to consult the people the Romanian

President must first consult with Parliament. True, the opinion of Parliament does not bind the

President in any way. Indeed, since the will of the people has advisory value for the state

authorities, including for the President who called it, the opinion of Parliament regarding the

timeliness of a referendum or the manner in which the question must be worded only bears an

indicative value for the President. It is also the case that the President does not have any

discretionary power with respect to the consultation of people because he must coordinate

with the legislator in this respect, which, in its turn, cannot impose any behavior whatsoever

on the President. The Romanian President can be active, but he lacks the efficient means of

action.

Secondly, one must emphasize a very significant detail: the consultation of the people by the

Romanian President cannot end-up with the adoption of a legal document. Such a referendum

rather aims at conducting a popularity check on the President. Even without the clear

constitutional qualification on the advisory nature of this referendum, the Constitutional Court

was not hesitant in stating that: “the constitutional right of the President to call for a

referendum cannot confer him the power to legislate, since, according to the will of the

Romanian constitutional assembly, the President cannot initiate a legislative, but only a

consultative referendum.”57

There is nothing to preclude Parliament, or any other public

authorities for that matter, to mind the outcome of a referendum initiated by the head of State,

but there is nothing, on the other hand, to compel them to. The Romanian referendum is

plebiscitary by nature and it would be good if it were used with parsimony. In practice, the

only President who made recourse to it58

is the current one, and it happened only subsequent

to him being subject to an accountability procedure in front of Parliament, procedure which

ended with a referendum.

54

Advisory Opinion n°1 of 2007, published in Official Journal n°258/ April 18, 2007.

55 The wording of the Article 90 is as follows: “The President of Romania, after consulting with the Parliament,

may require people to express their will in a referendum regarding matters of national concern.”

56 I. Muraru, E. S. Tănăsescu, “Drept constituţional şi instituţii politice”, volume II, All Beck publishing house,

Bucharest, 2006, p. 140.

57 Decision n°70 of 1999, published in the Official Journal n°221/May 19, 1999.

58 A referendum based on a presidential call, regarding the change of the Romanian electoral system from

proportional representation to the simple majority, has been held the same day as the elections for the European

Parliament (November 25th

, 2007). This was in spite of the fact that Government had already engaged its

responsibility in terms of a draft-law concerning the same topic and, basically, containing the same solution. The

essentially plebiscitary nature of this presidential referendum is emphasized by the fact that the differences

between the electoral system suggested by the head of State and the one already accepted by the Parliament are

minimal.

16

The only features that are discretionary for the President are the setting of the date of the

referendum and the definition of the “matter of national concern.”

The current President has waged a furious war to preserve the feeble discretion provided for

him in the constitutional text. In a series of decisions59

, the Constitutional Court has been

successful in preventing various attempts by the MPs to reduce the discretionary margin of the

Romanian head of State in terms of advisory referendum. Thus, the Court was able to rule that

“the referendum may be called for at any moment during the year, on condition that

Parliament had been previously consulted on the matter or that it had endorsed the

impeachment of the President of Romania. According to the Constitution, there is no other

condition that would ban the organization and development of a referendum simultaneously

with the Presidential, parliamentarian, local or euro-parliamentarian elections, or during a

certain period before or after the elections mentioned above. Consequently, ubi lex non

distinguit, nec nos distinguere debemus.”60

The Court also said that “the definition of matters

of national concern is the attribute of the President of Romania, whereas Parliament must be

consulted with respect to the call for a referendum on these matters of national concern.”61

B. Ambivalent relationships with Parliament and Government

The tasks of the Romanian head of State are, in general, specific to the executive branch, but

presuppose a sharing of powers with Government, under Parliament’s oversight. The division

made by the Constitution in terms of decisional powers and blocking powers62 entrusted to the

President clearly favors the latter. Moreover, the very few co-decisional powers of the

Romanian President, which do not require the endorsement of the Prime Minister63, concern

either his relationship with Parliament64

or his appointment of public officials, which is

anyway conditioned by the initiative of other public authorities65

. This confined legal

framework could explain the reality of the recent years, when, subsequent to the entry into

59

Decision n°567 of 2006, published in the Official Journal n°554/ June 27, 2006, Decision n°147 of 2007,

published in the Official Journal n°162/ March 7, 2007, Decision n°355/2007, published in the Official Journal

n°318/ May 11, 2007, and Decision n°392 of 2007, published in the Official Journal n°325/ May 15, 2007.

60 Decision n°355 of 2007, mentioned above.

61 Decisions n°567 of 2006 and n°355 of 2007, mentioned above.

62 The decisional powers take the concrete shape of decisions of the head of State for which he bears sole

responsibility, even if this exercise may be subject to certain conditions, such as the necessary cooperation with

other state authorities. The powers to block or to co-decide are necessarily shared and become even more

important especially when the acts of the head of State must not be counter-signed. (Cf. M.Duverger, “Les

régimes semi-présidentiels”, P.U.F., Paris, 1986, passim.)

63 According to Article 100 paragraph 2 of the Constitution, the Prime Minister must endorse the presidential

decrees referring to the ratification of international treaties, the accreditation of foreign diplomats in Romania, the

army mobilization ordered in the absence of a preliminary authorization by the Parliament, the instituting of

exceptional measures, as well as the pardon decrees, and the civil and military decoration decrees.

64 E.g. the request to review a law, the Presidential messages or the dissolution of Parliament.

65 Thus, according to Article 125 of the Constitution, the appointment of judges by the President is conditioned

by the proposal from the Higher Council of Magistrates. In practice, this task has always been considered a

circumscribed power of the head of State.

17

force of the Constitution of 1991, out of eight governments, six maintained tense contacts with

the President. According to one of the most informed researcher of the Romanian

constitutional life, “The Constitution established two strong, clearly defined State authorities,

Parliament and President, but with very little room for each of them to efficiently influence the

other. At the same time, the executive branch is bicephalous, which compels the President to

cooperate with the Prime Minister in conditions and according to procedures that are not

always very clear.”66

1. Difficult relationships with Parliament

The Constitution provides for difficult or unproductive institutional relationships between

President and Parliament. The latter is supposed to cooperate with the head of State in a

number of fields, but it may not influence the tasks of the former. On the other hand,

Parliament may impeach the President. In exchange, the President is deprived of any means to

determine Parliament to adhere to his political conception, even if, in theory, he could decide

the dissolution of Parliament67

.

a. Limited collaboration in legal matters

The head of State must not have any legal initiative, excluding the review of the Constitution;

even in this case, he only has a shared power. According to Article 150 of the Constitution, the

initiative to amend the Constitution may belong to the President based on the proposal by the

Government.

The promulgation of laws does not signify that the President takes part in the legislative

process, but allows him to certify the regularity of this process and compels state authorities to

begin the enforcement of the law.68

In addition, the possibility to ask just once Parliament to

review the law does not constitute a true veto, since Parliament may take the same decision

twice, ignoring the contrary opinion of the President.69

b. Presidential messages As he may have consultations with the people, or with Government, the President may also

deliver messages in Parliament. These messages are political acts70, fulfilling a double

function: to make two directly legitimated State authorities communicate, and to allow the

President to take initiatives with respect to issues which he considers main political matters of

the nation, that require action on behalf of other public authorities, especially Parliament.

66

T.Drăganu, “Drept constituţional şi instituţii politice. Tratat elementar”, volume II, Lumina LEX publishing

house, 1998, Bucharest, p.229-230.

67 The Romanian President may also convene the Parliament, but only for the first plenary following the

elections; this is a circumscribed power of the head of State, to the extent in which Article 63 of the Constitution

forces him to do so in maximum 20 days since the date of the elections.

68 I. Muraru, E. S. Tănăsescu, „Drept constituţional şi instituţii politice”, volume II, All Beck publishing house,

Bucharest, 2006, p. 242.

69 See supra, including the power of the head of State to make a referral to the Constitutional Court if there is a

matter of a potential unconstitutionality.

70 The Court had already decided in 1994 that the presidential message was a subjective right of the head of State,

corresponding to the obligation of Parliament to receive it, but this right has to be exercised by means of a purely

political and unilateral act of the President, which does not presuppose the counter-signing by a Minister.

(Decision n°87/1994, published in Official Journal n°292/ October 14, 1994.)

18

However, these messages are not binding in any way for the legislative power. Parliament

must only organize a joint session for the delivery of the Presidential message, but it is not

bound to react, not even to set up a debate on the content of the message.71

And in no way

should a potential parliamentarian debate on a Presidential message involve the head of State,

otherwise the principle of the separation of powers would not be observed.72 Obviously, there

is nothing to preclude Parliament from attempting to solve the issues highlighted by the

President, but this has never happened in practice yet.

c. Unlikely dissolution of Parliament

Article 89 of the Constitution gives to the President a purely nominal task that must be

fulfilled in such restrictive conditions, that it is almost impossible to ever be met in practice.

The dissolution of Parliament may take place only subsequent to the consultation of the

President of Romania with the speakers of the two Houses and the leaders of Parliamentarian

groups, only if the legislator has never submitted its approval to the establishment of the

Government in no later than 60 days from the first vote and only if there have already been

two other failures in the appointment of a new Government. In addition, Parliament may only

be dissolved once during the year and this must not coincide with the last six months of the

Presidential term of office, with the state of siege or emergency, with the army mobilization or

with the state of war.

The provision makes the dissolution of Parliament devoid of any legal nature as a real

penalization for Parliament since it merely attempts to avoid the prolongation of a little

desirable condition of political and governmental instability beyond what the legislative power

estimated reasonable. The prevailing fear of the members of the Constitutional Assembly

against too powerful a President resulted in Parliament stability, strengthened by means of a

strict interpretation of the theory of the separation of powers. Since both have been equally

legitimated, the legislator and the head of State have relatively autonomous positions, which

are only balanced by illusory or utopian mechanisms.

True, when President Băsescu wanted to enforce Article 89 in the summer of 2005, he had to

cope with an unexpected problem: the Prime Minister, his former ally in the election

campaign, refused to lose the position of head of Government. Since the best opportunity to

71

According to the Constitutional Court, “there is no constitutional provision that would state the obligation to

submit such a message to parliamentarian debates. Given his role and direct legitimacy, equal to that of the

Parliament, the President cannot take part in the parliamentarian debates, as he would thus engage his political

responsibility. The message received by the Houses of Parliament in their plenary session is but one of the faces

of the cooperation between two authorities directly elected, which should raise the awareness of the MPs on the

opinions of the President regarding the main political issues of the nation. That is precisely why, after receiving

the message, certain aspects making up this message could be subject to parliamentarian debates, but only as

separate topics on the agenda. Nothing can bind the Parliament to debate an issue included in the message that it

received and to take a measure based on this debate. But this is an aspect subsequent and following the receipt of

the message, which must be put in practice without the President having to be present. The subject and aim of

such a debate cannot be the rejection of the message, since receive cannot be mistaken for reject. The debate

could only focus on the parliamentarian reactions with regard to the topic raised, and, as the case may be, on the

adoption of the corresponding measures.” (Decision n°87 of 1994, published in Official Journal n°292/ October

14, 1994.)

72 “The organization of parliamentarian debates regarding the message of the President in his presence goes

against the Constitution.” (Decision n°87 of 1994, published in Official Journal n°292/ October 14, 1994.)

19

call for early elections had been lost once the Cabinet had been voted in Parliament and since

the President had fully taken aboard his “trailblazer” part and succeeded in imposing his own

candidate, he had to put on the politician hat and realize that the only means to get again in

that privileged situation would be to provoke the fall of the Government.73

At that time, the

Prime Minister had engaged his responsibility because of a legislative package concerning the

reform of the judiciary and properties nationalized during the communist regime74, but he

managed to get it adopted, even if with some changes imposed by Parliamentarian

negotiations75

. Consequently, the Government was enabled to continue its activity and the

Prime Minister declared that the controversies raised on that legislative package between

Government and Parliament, on one hand, and the Constitutional Court on the other, were not

likely to make him hand in his resignation. Thus, all attempts to dissolve Parliament had to be

cast aside since the constitutional means were lacking.

d. Political liability to Parliament

The drafters of the Romanian Constitution provided for two distinct types of liability for the

head of State: a political one (impeachment), with a procedure that entails, among others, a last

stage when the President must re-appear in front of his constituencies, subsequent to the

decision of Parliament to impeach him76, and a legal (criminal) type of liability, based on a

judiciary procedure where the role of Parliament is only to indict the head of State77

.

73

Since after the amendment of the Constitution in 2003, Article 107 paragraph 2 of the Constitution specifically

bans the President to dismiss the Prime Minister.

74 See supra, note 49.

75 According to Article 114 of the Constitution concerning the engagement of the Governmental responsibility, if

the executive is not put out of office following this procedure, then the draft law is considered adopted with the

changes negotiated with the Parliament.

76 Article 95 of the Constitution provides that: “If he takes serious actions which violate the provisions of the

Constitution, the President of Romania may be impeached by both Houses of Parliament, in their joint session,

with a majority of the votes of the deputies and senators, subsequent to the consultation of the Constitutional

Court. The President may give explanations to the Parliament regarding the actions for which he is considered

responsible;

The proposition to impeach the President may be submitted at least by a third of the deputies and senators and

shall be immediately notified to the President.

If the impeachment proposition is endorsed, then in no later than 30 days, a referendum shall be called to

impeach the President.”

77 Article 96 of the Constitution regarding the charges that may be brought against the President provides that:

“The House of Deputies and the Senate, in their joint session, may decide to charge the President of Romania

with high treason, based on the vote cast by at least two thirds of the deputies and senators.

The proposition regarding the charges may be initiated by the majority of the deputies and senators and must be

immediately notified to the President of Romania, so that he may respond to the charges brought against him;

Since the date of the submission of charges until the date of his resignation, the President shall be lawfully

suspended.

The jurisdiction shall belong to the High Court of Justice and Review in this case. The President shall be lawfully

impeached on the date when the ruling to convict him shall become final.”

20

This dual and unclear legal regime regarding the political responsibility of the President had

already been under scrutiny since 1991.78

Debates in the Constitutional Assembly mentioned

the possibility of the President to dissolve Parliament after having been impeached and

reconfirmed in a referendum, but the text was not altered and continued to maintain all its

institutional ambiguity.

Add to this the regulatory ambiguity, since the Constitution does not define the “severe acts

that disregard the Constitution.” Twice consulted on the possibility to suspend the President,

the Constitutional Court gave a vicious circle definition: an act that disregards the

Constitution, irrespective if it is an action or a lack of action, is severe in relationship with the

legal document that it disregards. However, not all acts committed by the current President in

disregard of the Constitution can justify his impeachment. The severe acts, “as defined by the

science of the law”, are appraised in relationship with the value that they go against, the

consequences they entail, the means used, the person that commits them and in relationship

with the subjective position of the author, or even better, with the goal sought by the latter.

When it used these criteria to enforce Article 95 of the Constitution, the Constitutional Court

retained that the severe acts may be the decisions by the President of Romania not to fulfill his

tasks, or, moreover, to preclude the other authorities to fulfill their tasks, as well as the

decisions that confine the rights and the liberties of the citizens, disturb the constitutional

order or bear equivalent effects.79

Anyway, “the active role that the President decides to take

on in the political and social life of the country cannot be characterized as a behavior contrary

to the Constitution”80

.

The fact that this constitutional provision has been enforced twice in 16 years attests to the

ambiguity of the relationships put forward by the fundamental law between Parliament and

President. And if in 1994 Parliament observed the negative advisory opinion given by the

Constitutional Court on the commission by the incumbent President (at that time Mr. Iliescu)

of “severe acts in disregard of the Constitution”, in 2007 the situation has been completely

different.

Often accused of populism, as he is so popular, during the first half of his term of office

President Băsescu succeeded not only in isolating himself from the majority of the political

class, but also from his former allies. The formal break-up of the “Alliance for Justice and

Truth” only took place in the early 200781

, whereas its roots go back to mid-2005, when Prime

78

“If Parliament gives the President a vote of want of confidence and, automatically, in line with the text of the

Constitution, we have a referendum, and if in the referendum the President gets 60% of the votes, how can the

President continue to stay with a Parliament that reprimanded him?” (D. Lăzărescu, ***, “Geneza Constituţiei

României 1991” (The Works of the Constitutional Assembly), op. cit., p.496.)

79 Considered identical in the Advisory Opinion n°1 of 1994 and in the Advisory Opinion n°1 of 2007, mentioned

above.

80 Advisory Opinion n°1 of 2007, mentioned above.

81 In early April 2007, the Prime Minister decided to reshuffle his Government, by removing the ministers

belonging to the party of the President (PD). A minority government, made up of the PNL and UDMR was

vested by Parliament with the support of the PSD and of the parliamentarian group of the national minorities.

This was the dénouement of another political crisis, namely, the denial of President Băsescu to sign the decree

accepting the “resignation” of the Foreign Office Minister (a member of the PNL) and the vacation of the

position, which precluded the formal appointment of a successor, that had however been designated by the Prime

21

Minister Călin Popescu Tăriceanu refused to supply a pretext to call for early elections, which

allegedly could have yielded a higher parliamentarian support to the President82

.

In this context, on February 12, 2007, 182 MPs of the opposition (149 from the PSD and 33 of

the PRM) signed a motion to ask for the impeachment of President Băsescu, which they

submitted to the Permanent Committees of the Houses of Parliament. The Conservative Party

(PC) was also in support of this motion. The twenty-five grievances stated as grounds to

initiate this procedure may fall under four categories:

(i) A series of “severe actions” that violate the Constitution, because the President

wanted to become the main player of the political life, in spite of constitutional

provisions that forced him to cooperate with all public authorities (such as the

attempt to undermine the real political throng of the legislative elections of 2004,

the systemic deadlock imposed on Parliament – in his attempt to replace the

speakers of the House of Deputies and Senate – and the attempt to force the

resignation of the Prime Minister in 2005).

(ii) A series of another type of severe actions which demonstrate that the President had

attempted to use the State institutions to his own gain (such as interferences in the

activity of the Ministry of Justice or creation of a new national intelligence agency

directly subordinated to him).

(iii) Allegations regarding attempts of the current President to protect certain mafia

interests in the profitable sectors of the economy (based on media campaigns with

a huge impact on the population).

(iv) And, finally, the general accusation to have converted the political crisis in the

main means and tool of governance, as it is the only way whereby President

Băsescu could assume the role of a “savior” of the country.

In parallel with the review of these grievances by the Constitutional Court, Parliament decided

to set up an investigation committee83

, made up of 15 members (according to the same ratio as

Parliamentarian groups, but without any representative from the PD, the “Presidential” party).

In its report, the committee estimated that President Băsescu had violated the Constitution.

Informed by this decision, the President initially denied all charges84

, and then declared in

public that if Parliament voted for his impeachment, he would hand in his resignation “5

Minister. Thus the Prime Minister had been compelled two months to cumulate the function of Foreign Office

Minister. (Also see infra, the reshuffle of Government)

82 Quite rapidly after the general elections of 2004, President Băsescu understood he enjoyed a much higher

popular support than parliamentarian and he began seeking means to change this situation. Thus, in July 2005 he

publicly suggested the Prime Minister to hand in his resignation in order to cause early elections, which the latter

refused. (See supra, the unlikely dissolution of Parliament)

83 The setting up of this Parliamentarian Committee according to a procedure that was not provided for in the

Constitution was challenged in front of the Constitutional Court, which found it compatible with the fundamental

law. (Decision n°266 of 2007, published in Official Journal n°322/ May 14, 2007.)

84 The President answered the Parliament in writing; he emphasized that all actions and statements he had taken

or made since his election “were in agreement with the constitutional order”, and that his presence in Parliament

during the debates concerning impeachment “was not necessary”.

22

minutes after” to cause the occurrence of an early Presidential election where he would like to

take part again as a candidate. When he remembered the constitutional provision banning the

cumulating of more than two mandates, since he was sure of his popularity, he came back the

following day after his first declaration and promised only to accept the outcome of the

referendum organized in the framework of the impeachment procedure. The media speculated

that this contradiction in terms of his public statements must have cost him some odd hundred

thousand votes.

In its legal opinion, the Constitutional Court considered that, if the impeachment was

grounded in acts violating the Constitution which would have been committed by the

President during his mandate, then, given their content and consequences, they could not be

qualified as “severe”, but the final decision had to be taken by Parliament, since the procedure

entailed political responsibility.

Without taking into account the advisory opinion given by the Constitutional Court, and

following the report of the investigation committee literally, Parliament impeached President

Băsescu on April 19, 2007 with 322 votes in favor, 108 votes against and 10 abstentions (20

MPs were absent).85

In the referendum86

organized on May 19, 2007, the population validated President Traian

Băsescu with a majority of 6,059,315 out of the 8,135,272 people that turned out to vote,

namely 74,48% of the total qualified participants. The turnover was 44.45%. On May 24,

2007, the reconfirmed President would take up again his official functions.

2. Little or no clarity in relationships with Government

Quite differently from the relationship he has with Parliament, the President of Romania has at

disposal certain institutional means with respect to Government, which make him influence, to

a small extent, not the Cabinet’s activity, but rather its way of operating.

85

In its Ruling n°1 of 2007 (published in Official Journal n°258/ April 18, 2007), the Constitutional Court

validated the impeachment of the President and rejected the challenge of the latter, since its previous opinion,

considered to favor the President, was not binding for the Parliament, which is the only body to take such a

decision. The Court also found that all conditions for the ad interim presidential function were met, therefore the

Speaker of the Senate of Romania, Mr. Nicolae Văcăroiu had been acting President for 30 days.

86 In March 2007, the Parliament tried to amend the law on the referendum by adopting a change in the procedure

according to which it should be impossible to hold any referendum six months before the ordinary consultation of

constituencies. The measure aimed to counter the initiative of the President who had announced his intention to

call for a referendum on the change of the electoral system from proportional representation to a majority vote.

The Constitutional Court declared this law unconstitutional (Decision n°147 of 2007, published in Official

Journal n°162/ March 7, 2007) in the framework of an a priori check, which made it non-operational. However,

while the referendum on the potential destitution of the President was being organized, the Parliament succeeded

in passing another amendment to the law on the referendum, which essentially allowed for the calculation of the

impeachment referendum outcome not based on the number of registered constituencies, but based on the cast

ballots. The Constitutional Court confirmed the constitutionality of this law (Decision n°420 of 2007, published

in Official Journal n°295/ May 4, 2007), which made possible the confirmation of the incumbent President, even

if the turnover at the polls was 44.45%.

23

a. Influence of President on Government composition

The Prime Minister. The President of Romania cannot appoint the Prime Minister, he must

only designate a candidate for this function. The President can appoint the entire Cabinet only

subsequent to the vote of confidence expressed by Parliament, which is nothing more but a

formal confirmation of the vesting granted by the legislator. In this respect, the nomination of

the Cabinet by the head of State, as well as the oath that all members of the Cabinet must take

in front of him represent circumscribed powers of the President.

However, the President has a certain margin of discretion in choosing the person that he might

suggest to be considered as candidate. He may freely choose among the powerful or the weak

political personalities, among the leaders of the political parties represented in Parliament, or

among the politicians, who, after playing in the electoral game, have not been included in the

legislative power during the respective term of office, but he may also purely and simply

choose a technocrat. The Constitution compels the President only to hold consultations with

the leaders of Parliamentarian parties, but not to observe the outcome of these consultations.

When he proposes a candidate for the office of Prime Minister, the President compels the MPs

to give an opinion on an already made choice, but the President cannot abuse his modest

discretionary power in this matter, as he must be aware that the person he suggests must

collect a vote of confidence. In this respect, the choice made by the President is partially

limited by a concern of institutional efficiency.

Cabinet members. The President has no competence to choose other members of the Cabinet,

as the decision lies completely with the designated Prime Minister. The candidates proposed

by the designated Prime Minister are, in their turn, subject to the examination of the

permanent committees of Parliament. Based on this test, the permanent committees will give

favorable or negative opinions. There have been several cases of negative opinions, which

have been followed up with new propositions. However, in practice, pre-elections agreements

or coalitions succeeded in pushing forward political “algorithms” for the distribution of

governmental positions. All Governments after 1989 had to be made up of at least three or

several political parties or groups. The political group representing persons belonging to the

Hungarian minority (UDMR) has constantly designated members in the Government,

according to the result of negotiations held after elections with the political party (parties)

having the majority of seats in Parliament.

The vote of confidence granted by Parliament is the veritable test and filter for the

governmental team, and the President does not have any role in this process. The permanent

committees of Parliament tests each candidate; then debates follow in the plenary of each

House of Parliament; the majority of the MPs taking part in the joint session must give the

vesting vote. Consequently, the appointment of the Government by the President is not done

based on the referral by the Prime Minister, but based on the referral by the speakers of both

Houses and the enforcement of Parliament’s decision to endorse the Government program and

the complete list of the Cabinet members. “The constitutional obligation of the head of State is

based on Parliamentarian decision and must put it in practice.”87

To enforce it the President

must issue nomination decrees for each member of the Government.

87

Decision n°356 of 2007, published in the Official Journal n°322/ May 14, 2007.

24

Cabinet appointment. As already mentioned, the nomination of the Government by the

President is basically a power rigorously overseen by Parliament, which leaves little room for

the head of State. The best proof in this respect is that a vote of want of confidence by

Parliament engages the immediate resignation of the Government, and the President is not

called upon to intervene.

Cabinet reshuffle. The Cabinet reshuffle and the appointment of acting Cabinet members is

not a free power of the President of Romania either. Since the responsibility for the

governmental activity belongs to the Cabinet in solidum, the right of the President to revoke

and appoint acting Cabinet members other than the Prime Minister cannot be interpreted as a

right to veto. The President only takes action based on the proposal by the Prime Minister,

who is the only one to bear the responsibility.

In fact, Article 85 distinguishes two different situations with respect to the Cabinet reshuffle: a

simple reshuffle or a change in the political structure or making-up of the Government. In the

first case, the President shall revoke certain members of the Executive and appoint acting

figures, based on the proposal by the Prime Minister. In the second case, he may conduct the

same activities but only following the endorsement by Parliament of the proposition made by

the Prime Minister. One must highlight in this context that, by virtue of Article 107 paragraph

2, as amended in the Constitutional review of 2003, the President may not dismiss the Prime

Minister.

When a Minister hands in his resignation or is dismissed the Prime Minister must suggest an

acting figure whom the President must appoint. These two legal operations must take place no

later than 45 days since the date when the Minister position became vacant; during this span of

time the Prime Minister may appoint an ad interim Minister. The solution of having an ad

interim minister has been added with the constitutional review of 2003 as a possible outcome

to a political deadlock involving President and Prime Minister. In practice, this solution

proved useful: in the spring of 2007, when the Foreign Office Minister position became vacant

following the resignation of its holder, President Băsescu opposed the proposition made by the

head of the Executive. The Prime Minister had to be an acting Foreign Office Minister himself

until he succeeded in imposing his choice as a final solution.88

As the matter was referred to it by the Prime Minister, the Constitutional Court found that the

rejection by the President to appoint a Cabinet member based on the proposition made by the

Prime Minister had launched a legal conflict of constitutional nature between the two heads of

the Executive branch, but the Presidential decrees regarding the resignation of the Foreign

Office Minister and the appointment in this position of the person proposed by the Prime

Minister and accepted by Parliament, respectively, solved this conflict. And the Court also

stated that the President had the right to politically appraise the competences of a person

supposed to become member of the Cabinet, but had no decisional capacity in this matter89

.

Just as Parliament does not have the right to veto propositions made by the Prime Minister, but

only to see whether the necessary conditions are met for a person to occupy a certain

governmental position, the President also does not have a right to veto propositions of the

88

See supra, note 81.

89 Decision n°356 of 2007, published in Official Journal n°322/ May 14, 2007.

25

Prime Minister, but only to check whether the nominated person corresponds to legal

requirements. On this basis, the President may require the Prime Minister to make another

proposition. In any case, the denial of a candidate must be duly reasoned.

b. Influence of President on Government activity

Optional consultation. Article 86 of the Constitution provides the head of State with the

possibility to have consultations with Government on “urgent matters of particular

importance”, but any other clarification lacking, the President has the discretion to identify

and define such matters. Given the broad scope of this constitutional provision, the President

may, in fact, consult the Government at any time and on any matter he considers urgent, since

importance is a feature that is extremely subjective.

The Constitutional Court went further and decided that not only the President is the only

responsible with the content of the matters to be raised in optional consultations with

Government, but he also bears the responsibility of the format according to which such

consultations should take place90

, such as participation of the head of State in the weekly

meetings of the Cabinet (even if they focus on topics other than the ones the President

declared important), letters sent to the Prime Minister or even phone consultations. In practice,

there have been consultations with the entire Cabinet and only with some of its members.

However, all consultations with Cabinet must have the Prime Minister as intermediary.

The doctrine has speculated on the optional nature of these consultations, inferring that if the

President has the right to have consultations, the Government is not bound to react to the

Presidential demand.91 However, Government must organize a meeting if the President

requires consultation in the same manner in which Parliament must meet in plenary for the

delivery of the Presidential message.

Optional participation. According to Article 87 of the Constitution, the President may take

part in the meetings of the Government based on the specific demand made by the Prime

Minister if the focus of such sessions is of national concern on issues relating to foreign

policy, defense of the country or public order. The President chairs the governmental meetings

he takes part in.

Two different situations are imagined: one presupposes the initiative of the Prime Minister,

whereas the other, the Presidential initiative. In the first case, regular rules regarding

consultations between the head of State and Government apply, namely, the President is not

bound to react on the demand made by the Prime Minister, but if he decides to take part in

such meetings, he must chair them, irrespective of their agendas. In the second case, it would

be an illusion to imagine that the Government could refuse the President. As to the definition

of what could be “matters of national concern on issues relating to foreign policy, defense of

the country and public order”, in a globalized world and in an Europe that is becoming more

and more integrated, this is a question of discretion for the head of State.

In theory, the President could participate in all governmental meetings without bringing any

change in the institutional relationships within the Executive, because, if he must preside the

90

Advisory Opinion n°1 of 2007, published in Official Journal n°258/ April 18, 2007.

91 S. Deaconu, “A comment on Article 86 of the Constitution”, to be published (manuscript consulted with

permission of the author).

26

meetings he takes part in, the head of State cannot change the agenda or participate in the

governmental decisional process. The President does not become member of the Government

by simply exercising a possibility provided for him in the Constitution; that further means that

he cannot bear any responsibility for the acts adopted in a meeting that he took part in. This is

an instrument made available for the President only to allow him to express himself as head of

the Executive branch, in front of the collegial body that provides flesh to the executive power.

According to the case law of the Constitutional Court “the participation of the President in the

meetings of the Government is, among other things, a way to consult with Government and to

see to the good operation of this public authority, which are two of the prerogatives of the

head of State, provided for in Article 80 paragraph 2 and Article 86 of the Constitution. In

exercising these prerogatives, the President has the freedom to participate in any

Governmental meeting. The analysis of Article 87 of the Constitution does not reveal any

possible ban on the President of Romania to participate in governmental meetings, but only his

option to take part in those sessions focusing on matters of national concern on issues relating

to foreign policy, defense of the country or public order, or on other matters, if he is requested

to do so by the Prime Minister.

The peculiar feature of this Presidential function is that if exercised, it does not change the

constitutional relationships established between the President of Romania and Government.

The President does not become a Governmental substitute; he cannot prevent the Cabinet to

adopt the legal acts that it wants to adopt and cannot bind him to adopt the measures it does

not wish to take.”92

Caught in the web of possibilities that the Constitution seems to supply and in the additional

requirements that condition the exercise of the majority of his functions, the President of

Romania runs the risk of a lack of awareness regarding the fulfillment of his role of head of

State without bringing prejudice to the powers granted to other public authorities. All

occupants of this high State position have demonstrated their activism, each in his own

individual way; nobody sat aside. Presidents intervened more or less directly in the political or

institutional life and they have all used, with more or less creativity, the means made available

to them by the Constitution. The Presidential institution has never remained inert, in spite of

limitations put forward by the constitutional text. But is that sufficient to provide grounds to

qualify the Romanian political regime as a semi-Presidential one?

VI. A political regime hard to qualify

It is difficult to firmly qualify the Romanian political regime, since the mere fact that there is a

directly elected head of State and that the Prime Minister is accountable together with his

Government to Parliament are not sufficient grounds to state it is a semi-Presidential regime.

To reach a conclusion one should also take into account the real powers of the President, how

he uses them in his relationship with Parliament and Government, his political affiliation and,

more generally, his capacity to influence the political scene of the State.

The Constitution, in its initial version as well as in the one revised in 2003, establishes quite

complex relationships between the President of Romania and all other public authorities; the

92

Advisory Opinion n°1 of 2007, mentioned above.

27

practice is not uniform and sometimes difficult to sieve. The outcome is a relatively unstable

political situation, depending not only on the objective evolution of events, but also on persons

and personalities holding various State offices.

Based on a first glance at the constitutional text, in the early 90’s the doctrine characterized

the Romanian political regime as semi-Presidential with parliamentarian tendencies93

or

mitigated semi-Presidential.94

Authors highlighted that, with the exception of the direct

election of the head of State, the features of the French political system – considered as the

prototype of all semi-Presidential political regimes – were adjusted in the Romanian case to

cater for a decrease in the Presidential influence and to be exercised either directly by the

Government, or under the direct oversight of Parliament. If in France the political role of the

President of the Republic is very important, in Romania his role is much diminished95

, since

all his major political tasks are subject to checks and balances, and that is a particular feature

of Parliamentarian regimes96

.

But even these authors rush to clarify that: “it is certainly about the text of the Constitution,

and not about the current situation, which is contrary to the Constitution” 97

. True, institutional

practice of the function of President of Romania shows a different situation: incumbents of

this high State office have clearly and constantly interpreted legal texts as to make them

evolve towards presidentialism, whereas a number of political forces claim a clear change in

the regime in favor of parliamentarianism98

. The gap between the constitutional and the real

powers of the Romanian head of State may provide an idea on how impossible it is to certainly

qualify the Romanian political regime. Over time, Presidents of Romania have more and more

interfered with constitutional attributions of Parliament in manners often on the edge of

discretionary powers of the legislative assembly or they have mingled with the decision-

making power of Government or of the Prime Minister in areas where no clear repartition of

competencies was ensured by the fundamental law. Not only a slightly bewildered political

class, but even the entire Romanian society slowly, gradually, but surely became accustomed

with an open stretching of presidential attributions, at times beyond its constitutional limits,

despite discrete reprimands imparted by the Constitutional Court.

93

F. Vasilescu in „Constituţia României - comentată şi adnotată”, Regia Autonomă Monitorul Oficial publishing

house, Bucharest, 1992, p.182.

94 A. Iorgovan, “Tratat de drept administrativ”, volume I, Bucharest, ALL Beck, 2005, p.294.

95 “All features that make up the peculiarity of the French political regime are absent or considerably weakened in

the Romanian text. Thus, the Romanian President lacks the essential prerogatives of the French regime, such as

the adoption of laws by means of referenda and exceptional powers in crisis situations. Other functions are

differently catered for, a fact that makes the Romanian President much weaker than his French counterpart:

appointing and dismissing the Prime Minister are not free powers, but they rather depend on a parliamentarian

vote; the dissolution of the parliamentary assembly is a problem without any solution; the participation in the

governmental meetings is completely different; the signature of legal documents is constantly subject to

endorsement etc.” (T. Drăganu, “Drept constituţional şi instituţii politice. Tratat elementar”, volume II, Lumina

LEX publishing house, 1998, Bucharest, p.230.)

96 A. Iorgovan, “Tratat de drept administrativ”, volume I, Bucharest, ALL Beck, 2005, p.295.

97 Ibidem.

98 G.Vrabie, “O posibilă revizuire a Constituţiei. Regim politic parlamentar în România postdecembristă?”,

Revista de Drept Public n°2/2007, p.95 et seq.

28

The doctrine stated that, from the point of view of the institutional relationships established

among main State authorities, the peculiarity of the Romanian Constitution consists in that it

does not create procedurally well organized means for Government and President to take joint

actions, as parts of the same branch; in exchange, Government is sometimes “a result of

Parliament, a working committee of the latter, which the President may chair but cannot

direct; at times it may also be a sort of a scapegoat meant to be the only probable victim of a

potential two-giant confrontation: between Parliament and President”99. It is worthwhile to

mention in this context that the forms and means to exercise State power also depend on the

way in which their holders understand legal provisions, and particularly constitutional rules.100

Taking into account recent political evolutions in Romania, it is difficult to continue to talk

about two chiefs of the Executive branch; the role of State representation, fulfilled by the

President both at internal and international level, as well as recent institutional and political

practice, seem to point towards a slightly different trend.101

The Constitutional Court

formulated this idea in a non-equivocal manner: “the constitutional prerogatives, as well as the

democratic legitimacy granted to the President of Romania by the very way in which he is

elected, impose him an active role. The functions of oversight and guarantor granted to the

President by Article 80 of the Constitution mean that, by definition, he should attentively

observe the existence and operation of the State, vigilantly monitor the modus operandi of

public life actors – public authorities, bodies legitimated by the Constitution, civil society –

and constantly respect principles and regulations set by the Constitution, as well as defend

values established by the fundamental law. The functions of oversight and guarantor cannot be

fulfilled in a passive manner, in a state of contemplation, but only by an active and live

engagement.”102

Most certainly, even if he does not possess particularly efficient tools to determine the policy

of the country or to be able to decisively influence the operation of Parliament or of the

Government, the President of Romania is perfectly able to give a concrete shape to the State,

de jure as well as de facto. The representation function seems to be the most important in

comparison with all other functions of the executive branch, and that is why it gives to its

holder a top position in the institutional architecture of the State. Be it during political

cohabitation or periods of political identity between Parliament and President, the figure of the

head of State maintains itself emblematic in terms of exercise of power at State level. The

current political structure of the main Romanian public authorities, where three distinct

political currents dominate Parliament, Government and Presidency respectively, is not likely

to support the coherence of the State action103

, but is made entirely possible by the institutional

99

T.Drăganu, op.cit., p.229-230.

100 G.Vrabie, op.cit., p.398.

101 What the majority of the political class holds against President Traian Băsescu is precisely the fact that he has

kept promises made during the election campaign, namely to be a “player President”, and consequently, to

assume an active role in the political arena and to engage in all State activities. President Băsescu succeeded in

stretching to the limits the image of a politically (hyper)active President, which could be considered as a proof of

the constant strengthening of the position of President in the institutional architecture of the Stat.

102 Advisory Opinion n°1 of 2007, mentioned above.

103 The relations between the President on the one side, and the Parliament, the Government and even the Higher

Council of Magistrates, on the other side, deteriorated quickly after the elections of 2004, as stands proof the

29

web imagined by the Constitution. The ambiguity of the Romanian political regime increases

constantly in a politically unstable and, at times, even surprising environment; however,

paradoxically, the position of the President of Romania only gains more importance and

preponderance in the political and institutional arena. Is it enough to enable one to speak about

a true slippery slope in the nature of the Romanian political regime? In the future, can one

raise the question of a purely Presidential regime in Romania? The institutional practice of the

second half of the current Presidential term of office will surely provide an answer to all these

questions.

caselaw of the Constitutional Court, called upon more often lately to solve constitutional legal conflicts among

State authorities. (1 time in 2005 between the President of Romania and the speakers of the Houses of Parliament,

1 time in 2006 between the President and the Higher Council of the Magistrates, and 2 times in 2007 between the

President and the Parliament and the Government, respectively). The peak of this political crisis, which seems to

become permanent, occurred with the impeachment procedure initiated in the spring of 2007.