Romanian Constitutionalism: Form without Content?

Romanian constitutional democracy is once again experiencing a period of great turmoil. In the early 2000s, Romanian democracy seemed to get closer to the idea of a Rechtsstaat and the rule of law, and what in general could be called a form of ‘legal constitutionalism’ or ‘new constitutionalism’, after a troublesome phase of a limited role of the constitution in Romanian democracy, if not in the form of ‘constitutional nationalism’[1]. However, by 2012 it has become clear that the Romanian constitution mostly takes the form of a façade constitution, largely (ab-)used by political forces for distinct power games. In this, the old Romanian theory on ‘forms without content’ (formele fără fond) that was used at the end of the 19th century to criticize superficial experiences with modernization in the form of Westernization seems to be once again a realistic description of Romanian – in this case constitutional – reality. The theory indicates a large gap between ‘legal Romania’ and ‘real Romania’, and thus a distance between imported or transplanted constitutional/legal institutions and wider society and its forms of interaction.[2] Not only has a weak culture of constitutionalism emerged, but what seems worse is that a constitutional language is distant from societal interaction, and mostly abused for narrow political purposes. Constitutional values seem to fail to inform wider society in terms of a civic and political orientation to constitutional values and public debate on the foundations of Romanian democracy.

1. Constitution-making in post-1989 Romania

Part of the Romanian constitutional predicament might be related to the constitution-making process since 1989. The Romanian regime change in 1989 had a character decisively different from the ‘negotiated revolutions’ in Hungary and Poland. Whereas in the latter countries constitutionalization and reforms had been introduced since at least the 1980s, and, even if with difficulty, some form of dialogue had emerged between the communist party and oppositional forces (the most conspicuous case is obviously the role of Solidarnosc), in Romania virtually all forms of political or economic reformism had been suppressed by the Ceauşescu-regime, while only few oppositional forces had managed to organize in the decade that preceded the collapse of the communist regime (the most famous case is that of Paul Goma). The ostensibly profound rupture – in terms of a violent revolutionary change – with the preceding communist regime (which culminated in the execution of the Ceauşescus on 25 December 1989), consisted in reality in significant continuity, not only in terms of the continuity of holders of political power (i.e., a political coalition dominated by the ex-communist nomenklatura), but also in terms of political outlook and practice, and the (ethno-nationalist) perception of the political community.

Three moments of constitutional politics can be identified in the post-communist history of Romania, the first moment in December 1989 and the beginning of 1990 with the effective regime change, the second moment with the debate on and adoption of the new constitution in 1991, and the third with the revision of the constitution in 2003.[3] The political transformation started in December 1989 with popular uprisings in, among others, the cities of Timişoara and Bucharest. When the Ceauşescu-regime fell, the moment of vacuum in political power was quickly seized by the self-declared transitional political council of the National Salvation Front (NSF ). The self-declared goal of the NSF was ‘to establish democracy, and the liberty and dignity of the Romanian people’.[4] The Front absorbed the political sovereignty of the preceding regime, and instituted the so-called Provisional Council of National Unity (PCNU), which some observers have understood as a Romanian version of Roundtable Talks. The first constitutional moment was dominated by the post-communist NSF and their particular vision of an ‘original democracy’,[5] in the elaboration of the political, procedural framework that was to inform the drafting and adoption of the new constitution. The post-communist NSF defended above all a vision of the national unitary state, which was informed by a ‘discourse of limited change’,[6] and built on traditions of Romanian particularism as well as the national communism of the second half of the communist period.[7]

The second moment of constitutional politics began with the election of the constituent assembly in May 1990. The constituent assembly took the form of a kind of proto-parliament, one of whose main tasks it was to draft a new constitution. The constituent assembly was dominated by members of the NSF, i.e., of the 515 members of the assembly, 355 were part of the NSF. The Constitutional Commission that was responsible for the writing up of the draft text consisted of 28 members, of which 13 belonged to the NSF, while Antonie Iorgovan, the head of the drafting team, was formally independent but had a communist past and was considered close to the NSF. In general the constitutional debate can be seen as having involved the affirmation of the majority’s constitutional view, rather than a genuine pluralist dialogue.[8]

In the constitutional debate held between February and December 1991, the post-communist majority showed a clear predilection towards what I have called an ‘ethic of identity’ or what Lungu has identified as a form of ‘constitutional nationalism’.[9] One of many instances of ‘constitutional nationalism’ in the constitutional debate is a long intervention by Gheorghe Dumitraşcu during a debate on the principles of the constitution, in particular those of article 1. He remarked amongst others:

‘[t]he tendency to unite all men of ([the same, pb] descent, language, and faith is, forgive me the formula, a divine motive, expressed by national instinct. Without running the risk of speaking about a national consciousness, a thing is clear, our entire history has been the history of the struggle for independence and for national unity’… ‘[t]he Romanian state is the national state because of the fact that the Romanians constitute the autochthonous, the fact that they have lived permanently here, the fact that they are of a dominant number, while the others have come [from elsewhere, pb]’.[10]

The symbolical dimension of the constitution received explicit and ample attention in the debate, in particular with regard to its role as vehicle of Romanian traditions and culture, and coincided with a gradualist if not conservative approach to democratic reforms of the dominant political party of the social-democrats. In this sense, the identitarian dimension took the overhand over the functional constitutional dimension of explicating rights and institutional prerogatives and limitations (which were an explicit part of the demands of the democratic opposition). While the constitution did embody the demands of the 1989 revolution, these demands were particularly interpreted as the right to national self-determination of the Romanian majority. The final constitutional text was adopted by the parliament on 21 November 1991, and popularly approved of by means of a national referendum on 8 December of the same year.

The third moment of constitutional politics emerged mostly because of a widely perceived dual necessity. On the one hand, the adoption of the acquis communautaire and imminent membership of the European Union called for modifications of the 1991 constitution (in particular in terms of the relation between national, European, and international law, as well as regarding the status of minorities).[11] On the other hand, the 1991 constitution was deemed to contain a number of ambiguities that needed to be resolved in order to clarify relations between political institutions, strengthen the rule of law, and accelerate the legislative and judicial process, as well as strengthen the institutional and constitutional guarantees of fundamental liberties and rights.[12] To this end, a constitutional commission with the task to draft amendments for a revised constitution was established in 2002 on the basis of a political agreement between the parties in parliament.

The constitutional revision entailed in a number of important respects a shift away from the relatively nationalist and centralistic outlook of the 1991 Constitution, towards a more pronounced emphasis on the ethic of rights, in particular visible in a clear reference to the separation of powers (art. 1), the enhanced status of the Constitutional Court as final arbiter, the emphasis on the equality of citizens, access of citizens to public institutions, the right to a fair legal process, as well as the right to the free access to culture and the right of minorities to participate in local government.[13] In the debate, there was a relatively clear-cut consensus among the participants for the need for amendment, and thus the importance of constitutional politics as a means of updating and revising the constitution. A now changed constitutionalist view among the predominant social-democratic party (PSD; successor of the NSF) was neatly expressed by Adrian Năstase,[14] the prime minister, who argued:

‘The Romanian Constitution, approved by national referendum on 8 December 1991, was the expression of the victory of the Romanian revolution of 1989… No constitution is eternal and therefore unchangeable… The revision of the constitution and of legislation in general has become a practice of nearly all democratic states today, corresponding to the exigencies of the Rechtsstaat. The supremacy of the constitutional norms in the frame of the legal system of a state imposes the necessity that this corresponds with historical-social evolution, in themselves consolidating the capacity to innovate and modernize a society’.

2. The Role of the Constitutional Court in the Romanian Transition

An important role in the constitutionalization of most new democracies is that of the constitutional court, even if hardly any tradition of judicial review exists in the Central and Eastern European region. Said Arjomand has described the role of constitutional courts in transitions to democracy as that of crucial protagonists in democratization.[15] Many other observers have similarly argued that in the absence of strong democratic players such as political parties and civil society actors the constitutional court provides the most effective basis for democracy in statu nascendi. For a good part of the post-1989 years, the Romanian Constitutional Court seemed not to fit such a description. Already early on in the transition, the idea of a Constitutional Court formed the most important conflict in the debate on the new constitution. As argued by Ion Muraru, president of the Romanian Constitutional Court in the 1990s, ‘[i]n our country, in the debates in the Constituent Assembly, it was hard to convince even the lawyers that we needed a distinct authority of this sort’.[16] Throughout the 1990s, the Romanian Constitutional Court proved to play a rather secondary role in the Romanian democratization process. Some observers have indeed argued that it held a marginal and largely irrelevant position during the 1990s, with only one decision of public impact, related to the legitimization of a third consecutive presidential mandate of Ion Iliescu.

What is more, until the amendment of 2003, the Romanian court was the only court in the region (with the Polish Constitutional Tribunal until 1997) that was not considered the final arbiter in constitutional matters, as art. 145 of the 1991 constitution allowed a 2/3 majority in parliament to override its rulings.  In addition, as argued by Sadurski, the Romanian court was less strong than some of its counterparts in the region, because prior to the 2003 revision it could not arbiter conflict between public institutions. Up until 2003, the Romanian case involved a form of legislative supremacy. The parliament formally held a final say in constitutional matters.[17] In general, throughout the 1990s there seems to have been little parliamentary acceptance of Constitutional Court rulings as mandatory, not least due to the Court’s apparent response to political demand. The Romanian scholar Renate Weber argues that ‘silence and ignorance’ characterized the first decade of the court’s operation.[18] As another observer puts it more staunchly: ‘[f]or a very long time after the adoption of the 1991 Constitution, neither public debates nor political disputes were framed in the language and logic of constitutionality or constitutionalism. The local “Guardian of the Constitution” was relegated to a marginal, almost irrelevant position’.[19]

Since the EU induced constitutional revision of 2003, the powers of the constitutional court as established in the 1991 Constitution (article 144) have been largely brought in line with a wider pattern in Central and Eastern Europe,[20] and include both abstract a priori and concrete a posteriori review (144a). The main novelties introduced by the 2003 revision include the position of Ombudsman, the extension of the court’s prerogatives regarding the constitutionality of international treaties and intermediation in inter-institutional conflicts, and rendering of the court’s decision as erga omnes. The revision has effectively abolished the parliamentary right to override decisions of unconstitutionality, bringing the Romanian system in line with “new constitutionalism”.

The 2003 revision has contributed to a peculiar and drastic change in status, visibility and activity of the court since the early 2000s. The court has made various decisions with significant political clout and conflictive potential, such as its decision in 2008 on a law on disclosure of personal files of the secret police. In particular in the second half of the 2000s, the court has attempted to mediate in cases of high-level political conflict (predominantly between the President and the government) and constitutional crisis. In this, the Romanian constitutional order seemed to move towards a form of new constitutionalism based on a form of judicial supremacy, in particular with the extension of the prerogatives of the Constitutional Court in 2003 and the constitutional amendment that promoted the Court’s status to that of final arbiter. The increased status of the Court also meant increased visibility. By the mid-2000s, the Court became increasingly the object of referrals,  while also ‘many public and political debates have suddenly started to be carried out within constitutional parameters’.[21]

3. Constitutional crises

The second decade of post-1989 constitutionalization saw an increase in importance of the rule of law and rights as well as of the roles of the judiciary and the constitutional court. These seem clear indications of a move towards a judicial, legal or new form of constitutionalism, which is grounded in the idea of the constitution as a higher law and the constitutional court as its guardian. Paradoxically though, in the same period, constitutional conflicts became more frequent, and at least two moments of evident and deep constitutional crisis can be indicated. The first moment of crisis emerged in 2007, when a direct confrontation between the president Traian Băsescu and the incumbent Liberal government led to the start of an impeachment procedure of the president, which in constitutional terms needs to be confirmed by a referendum. However, the popular referendum, held in the summer of 2007, reconfirmed popular support for Băsescu, who stayed on as president. One of the salient constitutional dimensions to this crisis (apart from the head-on confrontation between political institutions) relates to the fact that according to the Romanian Constitution, impeachment can only follow from the identification of ‘grave acts infringing upon Constitutional provisions’ by the president (Art. 95(1)). In an advisory opinion, the Constitutional Court ruled that relevant acts by the president could not be qualified as ‘grave’, and also that the final responsibility lied with the parliament (Advisory Decision 1, April 2007).[22] Much of the crisis in 2007 had to do with ‘presidential activism’ and inter-party struggles, in relation to attempts to expand political power by various political actors.

The constitutional crisis of 2007 was repeated recently, during the summer of 2012, when a renewed attempt to impeach president Băsescu was undertaken by the government of Victor Ponta, a social-democratic government.[23] The apparent trigger to the crisis was a conflict over whom should represent Romania at the meeting of EU leaders in Brussels on 27 June. But the Ponta government did not merely return to the impeachment procedure claiming the unconstitutionality of Basescu’s actions. The actions of Ponta and his socialist party went themselves into a clearly unconstitutional direction[24] by dismissing the speakers of both chambers of parliament (who were replaced by allies), as well as the Ombudsman, by restricting the powers of the Constitutional Court and threatening its judges with impeachment, and by issuing a decree (as well as a draft law) on the Law on Referendum in order to drastically increase the probability of a successful impeachment referendum. A further step taken was putting the control over the publication of the official gazette in the government’s hands, thereby having effective sway over the public promulgation of laws (and therefore their implementation).[25]

The dramatic nature of the constitutional assault by the Ponta government has become clear from the reaction of the constitutional court, which has sent two very unusual complaint letters – in July and August 2012 – to the Council of Europe’s Venice Commission as well as to European officials to ask for help against “virulent attacks” on its independence by the government. The Constitutional Court has clearly also showed some strength in resisting the attacks, by, first of all, issuing a negative decision on the amendment of the law on public referenda (against the government’s intent to implement a simple majority), and second, in its decision on the invalidity of the referendum held on the impeachment of Băsescu. This referendum, held on 29 July, failed to reach the quorum of 50% of the electorate, as upheld by the constitutional court in its earlier ruling. Therefore, the constitutional court ruled on 21 August that the referendum was void, which meant that Băsescu was re-installed. Ponta has declared to accept to the court’s decision.

4. Democratic deficit

The relative political ease that resulted from the negative outcome of the referendum and the re-installment of the Băsescu as president is very likely to be only of a short-term nature. The intrinsic power struggle in the Romanian democratic system, in particular related to the cohabitation between president and PM, and in distinct ways facilitated by the Constitution’s vagueness over presidential prerogatives,[26] is unlikely to go away. The long-standing predominance of the Social-Democratic party has definitely waned, and continuous intra- and inter-party struggles have shown to be the result.[27] But other, structural factors can be identified. Romanian democratization can hardly be identified as a judiciary-driven process, in which an (over-)active Constitutional Court plays an outspoken political role in identifying fundamental democratic values (a tendency that has been indicated – for good or for bad – in some of the other countries in the region in the last two decades).[28] Rather, in the case of Romania, democratic politics seems largely reduced to a narrowly understood political game, captured by clientelistic political factions that are prone to use constitutionalist language for other purposes, while neither the Constitutional Court as a third party, nor the wider public or civil society have any real possibility of intervening into politics in order to endorse “real” democratic politics, in the sense of pursuing issues related to justice, equality, and freedom.

This should not be taken to mean that other social and political actors are absent from the scene. It is worth noting that on various moments civil society actors have tried to publicly endorse different views of constitutional democracy and made their own constitutional claims. One such moment might be identified with the initiative of a Constitutional Forum in 2002, which entailed a constitutional dialogue between parliament and representatives of civil society.[29] Another – more expert-driven – attempt was the set up of the Commission for a New Constitution and the organization of public debate on the constitution at the initiative of the Horia Rusu Foundation in 2010.[30] In the current crisis, a group of Romanian civil society organizations – including the Group for Social Dialogue, the Expert Forum ,and the Romanian Helsinki Committee – has made various public statements on the perceived threat to the rule of law.[31] But the political impact of most of these initiatives has so far remained modest.

One of the more challenging problems of Romanian constitutional democracy seems then the absence of a widely diffused culture of constitutionalism. Reasons for this seem to include two factors: the absence of an authoritative and balanced Constitutional Court and the ineffectiveness of pro-democratic movements to get their constitutional claims heard and institutionalized. Politics is absorbed by a self-indulgent political class, and little space is left for a truly public, democratic politics.


[1] I. Lungu (2002), ‘Romanian Constitutional Nationalism’, in: Polish Sociological Review, 4(140), pp. 397-412.

[2] See M. Guțan (2012), ‘Historical Overview of the Romanian Constitutionalism’, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2089403.

[3] Cf. I. Huiu (2003), ‘Revizuirea Constitutiei. Radiografie Parlamentara’, in: Sfera Politicii, 104, pp. 5-8.

[4] Communication of 22 December 1989, in: C. Ionescu (1998), Dezvoltarea Constituțională a României. Acte şi Documente 1741-1991, Bucharest: Lumina Lex.: 834.

[5] Based on the idea of a national consensus, see V. Pasti (1997), The challenges to transition. Romania in transition, English translation by Fraga Cheva Cusin, Boulder: East European Monographs.

[6] P. Blokker (2004), ‘Modernity and its varieties. A historical sociological analysis of the Romanian modern experience’, unpublished PhD-thesis, Florence: European University Institute.

[7] The Romanian constitutional scholar Elena-Simina Tănăşescu has described Romanian constitutionalism as hovering between universal constitutionalism and national constitutionalism. The 1990s were a period in which the latter predominated, E.S. Tănăşescu (2011), ‘Post-communist constitutionalism in Romania’, available at:  http://www.fljs.org.

[8] Lungu 2002; C. Preda (2002), ‘La Nation dans la Constitution’, in: Nation and National Ideology. Past, Present, and Prospects, Bucharest: New Europe College, pp. 390-445: 399-400; for the full records of the debate, see Regia Autonomă (1998), Geneza Constituţiei României. Lucrările Adunării Constituante, Bucharest: Regia Autonomă Monitorul Oficial.

[9] Lungu 2002.

[10] Regia Autonomă 1998: 69.

[11] V. Duculescu and R. Adam (2006), ’Romania’, in: Alfred E. Kellermann et al. (eds.), The impact of EU accession on the legal orders of new EU member states and (pre-)candidate countries: hopes and fears, The Hague: TMC Asser, pp. 113-42.

[12] Cf. Duculescu & Adam 2006; Huiu 2003.

[13] I. Muraru and E.S. Tănăşescu (2005), Drept constituțional şi institutuții politice, ediția 12, vol. I, Bucharest: Editura All Beck.: 109.

[14] Năstase has recently been much in the limelight for a 2-year conviction regarding corruption, and his subsequent (apparent?) attempt at suicide.

[15] S.A. Arjomand (2003), ‘Law, Political Reconstruction and Constitutional Politics’, in: International Sociology, Vol 18(1): pp. 7–32.

[16] A. Mungiu-Pippidi (1997), ‘Interview with President of the Romanian Constitutional Court, Ion Muraru’ in: East European Constitutional Review, winter, pp. 78-83, p. 79.

[17] Which in reality, it however never successfully used.

[18] R. Weber (2002), ’The Romanian Constitutional Court: In Search of its Own Identity’, in: W. Sadurski (ed.) Constitutional Justice, East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in A Comparative Perspective (The Hague, Kluwer International), pp. 283-308.: 284.

[19] B. Iancu ’Constitutionalism in Perpetual Transition: The Case of Romania’, in: B. Iancu (ed.) The Law/Politics Distinction in Contemporary Public Law Adjudication (Eleven International Publishing, 2009), pp. 187-211, p. 187.

[20] Cf. Weber 2002.

[21] Iancu 2010: 187.

[22] “Luând în dezbatere propunerea de suspendare a domnului Traian Băsescu din funcţia de Preşedinte al României, la data de 5 aprilie 2007, Curtea Constituţională a dat Avizul consultativ nr.1, potrivit căruia propunerea „se referă la acte şi fapte de încălcare a Constituţiei, săvârşite în exerciţiul mandatului care, însă, prin conţinutul şi consecinţele lor, nu pot fi calificate drept grave, de natură să determine suspendarea din funcţie a Preşedintelui României în sensul prevederilor art.95 alin.(1) din Constituţie”. Rămâne ca Parlamentul să decidă, pe baza datelor şi a informaţiilor care îi vor fi prezentate cu ocazia dezbaterilor, asupra existenţei şi gravităţii faptelor pentru care s-a propus suspendarea din funcţie a Preşedintelui României, în concordanţă cu dispoziţiile art.95 din Constituţie” (emphasis added).

[23] See Kim Lane Scheppele, NYT, 5 July 2012. The credentials of Ponta himself are in dispute, as there are evident signs that he copied a fair part of his doctoral thesis and he apparently falsely claimed to have a Master’s degree from a Sicilian university.

[24] The Romanian constitutional scholar Ioan Stanomir has argued that the ‘Romanian constitution has become an insignificant and irrelevant element’ in Romanian politics, commenting on the Ponta governments’ actions, see http://www.evz.ro/detalii/stiri/ioan-stanomir-constitutia-romaniei-a-devenit-un-element-insignifiant-991426.html

[25] The actions of the Ponta government have been strongly criticized internationally, not least in a progress report on Romania of the European Commission (available at: http://ec.europa.eu/cvm/docs/com_2012_410_en.pdf). The latter called on the Romanian government to return to serious reform in the name of the rule of law, as recent events have “raised serious doubts about the commitment to the respect of the rule of law or the understanding of the meaning of the rule of law in a pluralist democratic system”. The Commission’s report triggered a response by a large number of Romanian intellectuals and representatives of civil society that replied with a Letter to the EU, in which they argue that the Commission ignores the fundamental legal principle of “audiatur et altera pars” and thereby underestimates the unconstitutional and undue political behavior of Băsescu. In addition, it fails to acknowledge the detrimental consequences of the crisis for Romanian parliament, which has turned into an “empty shell” (available at: http://www.stelian-tanase.ro/la-zi/scrisoare-catre-uniunea-europeana-bruxelles/). The response was restated in the European Parliament on 12 September by the MEP Renate Weber, who accused in particular the Commissioner Reding for an exaggerated reaction not based on the facts, and ignoring the illegitimacy of Băsescu, see http://actmedia.eu/daily/heated-debates-among-mep-groups-over-the-political-situation-in-romania/42025.

[26] E.S. Tănăşescu (2008), ‘The President of Romania, Or: The Slippery Slope of a Political System’, in: European Constitutional Law Review, 4: pp. 64–97.

[27] This becomes clear from the high level of new political alliances and parties that have been formed in recent years, as well as a very high degree of political migration, see Romanian Academic Society (SAR) (2012); ‘Romania: The Political Economy of a Constitutional Crisis’, Policy Brief #60 July 2012, available at: http://www.sar.org.ro.

[28] This has sometimes been hailed as ‘democracy by judiciary’. But a more balanced, critical view that acknowledges potentially problematic consequences of the substitution of democratic, parliamentary politics seems a more adequate reading of the role of constitutional courts in the region.

[29] http://www.forumconstitutional.ro. The official idea behind the forum was that it ‘represented the practical participative democracy concept, as well as a premiere in Romania, inspired by the European citizen’s consulting practice where fundamental political decisions are concerned’ (http://www.forumconstitutional.ro/fcnet6en.pdf).

[30] See B. Dima (2011), ‘The Commission for a New Constitution. A Civil Society Perspective on the Process of Constitution Revision’, in: Rom. J. Comp. L. 2, pp. 151-172.

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About blokkerpaul

I am a political sociologist. My work deals with processes of constitution-making (so far particularly focused on Central and Eastern Europe), constitutions and their symbolic dimensions, constitutional critique and different forms of constitutional justification, dissidence and democracy, civic participation in democracy, and the plurality of political cultures.
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