Friday, July 13, 2012

NYT: Separating Law and Politics in Romania

The Conscience of a Liberal  by Paul Krugman 

July 12, 2012, 7:18 PM1 Comment
Guest Post: Separating Law and Politics in Romania

Another post from my Princeton colleague Kim Lane Scheppele, after the jump:

Separating Law and Politics in Romania

Kim Lane Scheppele (Princeton University) and Vlad Perju (Boston College Law School)
12 July 2012

As the Romanian political crisis spirals into dangerous territory, it helps to understand what is legal, what is political, and where the line between the two is blurred. Ordinary party politics is a contact sport that can generate much public passion, but it is perfectly legal. Constitution-smashing conduct crosses the line into revolutionary territory. The actions of the Ponta government combine polarized party politics with a constitution-smashing revolution.

Since the last post on this subject, the Romanian parliament voted Friday by 256 to 114 to remove President Basescu from office. On 29 July, the Romanian electorate will be able to confirm or reject the parliamentary vote. If the people vote to oust Basescu, which the polls predict they will, he must go. In the meantime, he is suspended from office.

Ponta and his allies have been so intent on removing Basescu that they have stopped at nothing to achieve this result. They changed the referendum law to make it easier to rid themselves of Basescu. They have fired the ombudsman, the only person who could challenge the government’s decrees before the Constitutional Court. They have ousted the presidents of both chambers of parliament in order to bring the line of succession for the presidency into their party alliance. They threatened to remove justices of the Constitutional Court who had sided with Basescu in the past and – when international criticism roared about the threats to the judges – instead cut the jurisdiction of the Constitutional Court. The prime minister’s allies also seized control of the official gazette in which all legal documents must be published before they can take effect, which theoretically gives them the power to delay the publication, and thus the entering into force, of decisions contrary to their political interests.

Which of these actions are merely aggressive party politics and which violate the Romanian constitutional framework? In this post, we will review the various actions that the government has taken in the last few weeks to distinguish political aggression from constitutional transgression, explaining in particular the many decisions of the Constitutional Court.

The Romanian constitution specifies the proper procedure for removing the president from office in Articles 95-96. In preparation for an impeachment vote, the parliament must prepare an indictment alleging that the president has committed “grave violations of the constitution,” which is the constitutional standard for impeachment. Ponta’s parliamentary majority submitted last Wednesday (4 July) a 17-page document asserting most importantly that the president had interfered with the jurisdiction of the prime minister which, in its view, was a grave constitutional violation.

The constitution requires the Constitutional Court to assess the sufficiency of the case against the president to ensure that the constitutional standard is met. As the Court held in decisions before the current crisis, the procedure for removing the president must be reserved for cases that involve grave violations of the constitution, and not used as part of the typical electoral cycle. In a hurried ruling on the new indictment last Thursday (5 July), the Constitutional Court issued an equivocal opinion that implied, but did not clearly state in its conclusions as the Court’s opinions typically do, that the allegations against Basescu failed to amount to grave constitutional violations. Ponta’s camp immediately “spun” the Constitutional Court’s decision to claim that the Court had sided with them even though a more balanced reading of the opinion would show that it went against them. Undaunted, and since the Court’s opinion is advisory only, the government continued its drive to remove the president and called for the parliamentary vote.

The Constitutional Court’s equivocation in this case is understandable. Just as the first referendum case was headed their way, the Constitutional Court justices issued an extraordinary plea for help to European bodies, claiming that they had been threatened with dismissal. Furthermore, in a case whose details have yet to surface, one constitutional judge claims to have beendirectly threated before the deliberations. ) Under almost unbearable pressure, the Court nonetheless issued an opinion that was not fully favorable to the government.

The parliamentary vote was held Friday (6 July) on the impeachment resolution and then the Constitutional Court was required to weigh in again to certify both the parliamentary vote and the assumption of the interim presidency by the new president of the Senate. The court provided the relevant certification on Monday (9 July), permitting the process to move to the public referendum. This was a routine decision, not hard by constitutional standards.

The Constitutional Court’s big and most surprising decision came on Tuesday (10 July), when it ruled on the constitutionality of a law that had passed the parliament on 26 June, amending the law on public referenda to make it easier for the government to oust the president. Before this amendment, the referendum law had required for passage of a referendum a majority vote of the electorate with a turnout of more than 50%, a double majority. The amendment provided that the president can be removed with a majority of the votes cast, only a single majority. The Constitutional Court held that the amended referendum law was constitutional but only when the turnout requirement was met. The Court insisted that it was “essential” that at least 50% of the registered voters participate before the referendum could be considered valid. The Court, then, required the double majority.

The Court’s decision took political courage and was a bit of a surprise. Given that the referendum will be held in the middle of summer, it will be very hard to generate a 50% turnout, so the decision on the turnout requirement may have in effect decided the substantive issue of whether the president is to stay or go.

The Constitutional Court had been over this terrain before. This is the second time that Ponta’s political allies have tried to dislodge Basescu. The first try was in 2007, but the attempt failed because 74% of the voters in the impeachment referendum voted for Basescu to stay. And then Basescu was reelected president again in 2009.

In the 2007 impeachment attempt, the Constitutional Court had to rule on a similar amendment to the referendum law. The 2007 referendum was held under a last-minute amendment that permitted the president to be ousted by a simple majority of votes cast, the single majority rule. In a decision that is not a model of clarity, the Constitutional Court left open the possibility that parliament may decide that a referendum can be valid with less than 50% turnout. The Court seemed to confirm this interpretation when certifying the results of the 2007 referendum even though the turnout was only 44% of registered voters.

The decision on Tuesday (10 July) changed course by requiring a 50% turnout for referenda to be valid, requiring a double majority. Unfortunately, the court’s reasons for the decision, which were published today (12 July), fail to square this new interpretation with relevant precedent. That effort is left to court observers, who can find a grounding for the court’s approach in the concurring – yet, at the time, largely ignored – opinion of Judge Kozsokar in the 2007 case.

In any event, Tuesday’s decision makes it clear that the constitution now requires a majority vote with a majority turnout to remove the president, a double majority.

But the government has another trick up its legal sleeve to avoid the Court decision. On 5 July, the Ponta government passed an emergency decree that amended the referendum law by again dropping the turnout requirement, making a simple majority of votes cast all is needed for a referendum to be valid. After Tuesday’s Court decision, the government initially pointed out that the Court’s decision held the challenged statute unconstitutional but it did not invalidate the emergency decree under which the 29 July referendum could still be organized.

The government’s statement left open the possibility that the government would override the Court’s decision by relying on emergency decree power instead of on the invalidated statute. While the Constitutional Court has the jurisdiction to review emergency decrees also, the justices can only do so if the decree is brought to them by the ombudsman. And early in this impeachment saga, Ponta’s allies in the parliament fired the ombudsman and substituted their own loyalist. He is not likely to bring the case to the Court.

The Ponta government appeared to change course in Brussels on Wednesday (11 July), under intense pressure from the European Union, by claiming that it would uphold the rule of law and follow both the constitution and Court decisions. But the government has declined to revoke its emergency decree. Instead, it has called for an extraordinary session of parliament to bring the legislation in line with the Court’s ruling. The timeline for the elections and the vagaries of parliamentary politics might give the government just enough cover to argue that, despite its best efforts, it was technically impossible to revise legislation in time for the July referendum. And then it might still rely on the decree.

Ponta’s apparently reassuring statements in Brussels don’t necessarily reassure those who have watched him closely in the three months he has been in power. He has been known to say one thing abroad and another at home before. In an interview with El Pais just before a commission of academic experts, which includes among its members the president of the Romanian Academy, ruled two weeks ago that his dissertation had been plagiarized, Ponta asserted that he would resign if the judgment went against him. Once at home, his representatives denied he had said that, which prompted El Pais tomake the recording of the interview public,. (Despite the adverse finding on the plagiarism matter, Ponta has stayed on.)

Nor would this be the first time the government ignores a ruling of the Constitutional Court. Last month, the Court was called to settle a conflict between the president and the prime minister over who should represent Romania at the European Council. The Court ruled that the power belonged to the president, because the constitution gives most of the explicit foreign policy responsibilities to him. (The Romanian constitution’s provisions on the responsibilities of the president and the prime minister with regard to foreign policy are similar to the provisions of the French constitution, and France sent the president instead of the prime minister to the same European summit.)

In response to the Constitutional Court’s decision, the government, acting through its Minister of Foreign Affairs, refused to approve the president’s travel plans and to forward his name as the head of the Romanian delegation, according to standard procedure. Romania was represented at the June meeting of the European Council by the prime minister, which caused a bit of a fuss at the meeting. The public prosecutor’s office is currently investigating this matter, although it is unclear that any laws were violated.

In this climate, all eyes are on the Constitutional Court. What else is the Court doing to stave off constitutional crisis in Romania? The Court has been sidelined by both a statute and an executive decree which have removed its jurisdiction, but it has nonetheless made decisions over the last week that have tried to sort law from politics. The referendum decisions are only part of the story. In other decisions, the court has punted when it comes to the government’s power to replace Basescu loyalists with their own.

The first decision concerns the parliament’s decision to fire the ombudsman. The ombudsman is the only state official who can directly challenge governmental decrees before the Constitutional Court. So – no ombudsman, no Constitutional Court challenges. The ombudsman was replaced by someone affiliated with the Ponta coalition on 3 July, at the beginning of this fast campaign to remove the president. Ponta’s opponents say the ombudsman was sidelined to permit the government to evade the Court. The current ombudsman has been unresponsive to repeated calls from NGOs and civil society to challenge the constitutionality of the government’s recent emergency decrees.

The law on the ombudsman (Law 35/1997) permits the parliament to fire the ombudsman, but only if the ombudsman has violated the constitution or other laws. The parliamentary majority argued that the ombudsman’s actions had been politically motivated and in support of the president’s agenda. On that ground, parliament was called back from vacation for an extraordinary session in which it voted to remove the ombudsman. The Constitutional Court declined to review this decision on the ground that it does not impact constitutional values and principles.

The Court acted similarly in a case involving a challenge to the procedure used to remove the president of the Senate and to replace him with a president from Ponta’s coalition. While the Court claimed to be the guardian of its jurisdiction in general, it nevertheless declined jurisdiction in that case on the ground that the choice of the Senate president does not impact constitutional values and principles either. This is surprising, to say the least, considering that the president of the Senate becomes the interim president after parliament voted to impeach the national president last Friday.

A close reading of the Court’s reasons published Thursday (12 July) shows that its strategy is to claim jurisdiction over the decisions of parliament after striking down as unconstitutional attempts to limit its own powers, while at the same time voluntarily limiting its review to only those decisions that, in its narrow interpretation, “impact on constitutional values and principles.” This survival strategy is likely a reaction to the enormous political pressure on the Court in recent days.

Now what? On the political side, Ponta has just stated in an interview to foreign journalists that he worries about the crisis of legitimacy that will follow if the president were soundly defeated in a referendum that failed to meet the 50% turnout requirement insisted upon by the Court. It is a real and disturbing possibility that a government might “solve” the crisis by relying on the still-valid executive decree that permits a referendum to pass on a single majority or by claiming legitimacy directly from the people, thus bypassing the double majority requirement of the Constitutional Court. Since the Court will have to certify the referendum result, such assertions of power could result in a major constitutional crisis.
The constitutional court

On the legal side, while the recent decisions both on the referendum and on attempts at limiting its jurisdiction show a certain amount of bravery on the part of the Constitutional Court, one also sees effects of the extraordinary pressures on the Court. In its other decisions, the Court is being less than clear, avoiding some questions while stalling for time. The Court, in short, is probably doing the best it can to preserve itself while still fulfilling its responsibilities to keep politics within constitutional boundaries. The Court has suddenly been thrust into the spotlight and it is actually attempting to maintain some constitutional order. But in this time of daily constitutional challenges, that is not easy. Nor is it clear that the Court will win

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