Appeared in: special issue on ‘Constitutional Amendment in Romania: Analyses and

Perspectives’, Romanian Journal of Comparative Law, vol. 3, issue 2, pp. 187-204.

Constitution-Making in Romania: From Reiterative Crises to

Constitutional Moment?
Paul Blokker1, CoPolis/University of Trento

Abstract
Romanian constitution-making since 1989 has been of an uneven and recently evermore
conflictive kind. In the 1990s, no significant changes to the 1991 Constitution were made, and the
role of the Romanian Constitution could be said to be less visible in politics. Since the mid-2000s,
in contrast, and after the 2003 amendment mostly triggered for reasons of EU accession, the
Constitution has become a clear object of political salience and contention. Constitutional conflict
is particularly outspoken since the presidential crisis of 2007, and has become outspoken again in
the summer of 2012. This has triggered the 2013 attempt to revise the Constitution. Key problems
in Romania remain a weakly diffused constitutional culture among both politicians and the wider
public, a Constitutional Court that seems unable to play the role of guardian and constitutional
educator, and the relative absence of a meaningful constitutional debate in the wider public sphere.
The constitutional frame seems to fail in inducing in both political and civil society a civic and
political orientation towards constitutional values and a robust public debate on the foundations of
Romanian democracy. The 2013 turn to constitutional revision, might however include a turn into
the right direction and constitute a 'constitutional moment'. The paper starts with a discussion of
constitution-making since 1989. Second, I will briefly analyze the role of the Romanian
Constitutional Court in the democratization process, and, third, discuss the recent crisis that
directly involved the Court. Fourth, I will look into the current revision process and 'constitutional
moment', and fifth, I will discuss the potentially reinvigorating effects of civic engagement in
constitutional change.

Keywords: Constitution-making – Constitutional moments – Forum Constitutional –

Legal resentment - Romanian Constitutional Court

Romanian constitution-making since 1989 has been of an uneven and recently

evermore conflictive kind. In the 1990s, no significant changes to the 1991
Constitution were made, and the role of the Romanian Constitution could be said
to be less visible in politics. Since the mid-2000s, in contrast, and after the 2003
amendment mostly triggered for reasons of EU accession, the Constitution has
become a clear object of political salience and contention. Constitutional conflict
is particularly outspoken since the presidential crisis of 2007, and has become
outspoken again in the summer of 2012. This has triggered the 2013 attempt to

1
The author acknowledges a Research Unit, 'Constitutional Politics in post-Westphalian
Europe' (CoPolis), financed by the Provincia Autonoma di Trento, and held at the Department of
Sociology, University of Trento, Italy.

1
revise the Constitution, not least in order to deal with the question of relations
between the president, the parliament, and the government.
Recent turmoil is in a way surprising, since in the early 2000s, Romanian
constitutional democracy seemed to get closer to the idea of a Rechtsstaat, the rule
of law, and what in general could be called a form of ‘legal constitutionalism’ or
‘new constitutionalism’. Such a legal-constitutionalist order is supposed to
enhance stability and legality. But in an apparently contradictory way,
constitutional conflict has recently become more prominent, and one aspect seems
to be – as has become particularly clear in the summer of 2012 – what I will call
here a form of 'legal resentment'. The latter refers to a skeptical view of political
forces regarding rigid, legalist constitutions and strong constitutional courts, as
well as, in a related way, external interference into domestic constitutional
politics.
Key problems in Romania remain a weakly diffused constitutional culture among
both politicians and the wider public, a Constitutional Court that seems unable to
play the role of guardian and constitutional educator, and the relative absence of a
meaningful constitutional debate in the wider public sphere. The constitutional
frame seems to fail in inducing in both political and civil society a civic and
political orientation towards constitutional values and a robust public debate on
the foundations of Romanian democracy. The 2013 turn to constitutional revision,
might however include a turn into the right direction and constitute a
'constitutional moment'. This is not least because of the setting up of the inclusive
Forum Constitutional, which involves civil society as well as legal experts in the
constitutional revision process.
The paper starts with a discussion of constitution-making since 1989. Second, I
will briefly analyze the role of the Romanian Constitutional Court in the
democratization process, and, third, discuss the recent crisis that directly involved
the Court. Fourth, I will look into the current revision process and 'constitutional
moment', and fifth, I will discuss the potentially reinvigorating effects of civic
engagement in constitutional change.

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
2
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.
Four 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, the third with the revision of the
Constitution in 2003, and the fourth with the 2013 revision.2 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’.3 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’, 4 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’,5 and built on traditions of Romanian particularism as well as the
national communism of the second half of the communist period.6
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
2
Cf. I. Huiu (2003), ‘Revizuirea Constitutiei. Radiografie Parlamentara’, in: Sfera
Politicii, 104, pp. 5-8.
3
Communication of 22 December 1989, in: C. Ionescu (1998), Dezvoltarea
Constituțională a României. Acte şi Documente 1741-1991, Bucharest: Lumina Lex.: 834.
4
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.
5
P. Blokker (2004), ‘Modernity and its varieties. A historical sociological analysis of the
Romanian modern experience’, unpublished PhD-thesis, Florence: European University Institute.
6
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.

3
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.7
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’.8 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).9 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.10 To this end, a
7
I. Lungu (2002) ‘Romanian Constitutional Nationalism’, Polish Sociological Review,
4(140): 397-412; 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.
8
Lungu 2002.
9
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.
10
Cf. Duculescu & Adam 2006; Huiu 2003.
4
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.11 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.
The fourth constitutional moment is the result of a continuous (latent) attention to
constitutional change since the 2003 amendment and, in a more direct sense,
attempts to constitute an answer to the recurrent constitutional crises of the second
half of the 2000s. The realistic possibility to change the Constitution – in a
constitutional system with a relatively difficult amendment rule - came into the
reach of an ample political majority since the December 2012 general elections.

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 existed in
the Central and Eastern European region before 1989. Said Arjomand has
described the role of constitutional courts in transitions to democracy as that of
crucial protagonists in democratization.12 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’.13 Throughout the 1990s, the
11
I. Muraru and E.S. Tănăşescu (2005), Drept constituțional şi institutuții politice, ediția
12, vol. I, Bucharest: Editura All Beck.: 109.
12
S.A. Arjomand (2003), ‘Law, Political Reconstruction and Constitutional Politics’,
International Sociology, Vol 18(1): pp. 7–32.
13
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.

5
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.14 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.15 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’.16
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,17 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”.

14
Which in reality, it however never successfully used.
15
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.
16
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.
17
Cf. Weber 2002.

6
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.18 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’.19

3. Reiterative 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

18
The changing role of the Court was not least due to external pressure from the EU. The
European Commission noted in its first ‘Opinion on Romania’s application for Membership of the
European Union in 1997 that ‘the Court’s ruling that an act is unconstitutional is without effect if
Parliament upholds its original decision by a two-thirds majority (Article 145 of the Constitution),
which limits considerably the scope of the supervision exercised’ (EC 1997a: 14). The
Commission in general stated: ‘The fact that the Constitutional Court’s rulings can be overturned
by a two-thirds majority of Parliament is a major obstacle to genuine constitutional control in
Romania’ (EC 1997a: 15).
19
Iancu 2010: 187.

7
final responsibility lied with the parliament (Advisory Decision 1, April 2007).
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 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.20 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 Băsescu’s actions.
The actions of Ponta and his socialist party went themselves into a clearly
unconstitutional direction21 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).22

20
See Kim Lane Scheppele, New York Times, 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.
21
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
22
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.

8
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 ultimately
accepted the Court’s decision.
A (complex) conflict over legal constitutionalism, and the role of the
Constitutional Court in particular, can be observed in recent years. Some
observers have even indicated important similarities between the Hungarian and
Romanian cases. Since the ‘upgrading’ of the Romanian Constitutional Court to a
full-blown ultimate arbiter in constitutional matters, it can be argued that the
Romanian system has become closer to a form of legal constitutionalism.23 As a
matter of fact, some scholars sustain that what could be seen as a Kelsenian model
of constitutional court was already chosen by the constituent assembly in 1991,24
to be only completed in 2003. The Court has however remained object of
continuous critique. A conflictive attitude of political actors regarding its standing
and (alleged) problems with a politicization of the Court has emerged on various
occasions.25 In this regard, the standing of the Romanian Constitutional Court has
remained problematic. For instance, Vlad Perju has argued that ‘[a]fter two
decades of the establishment of the Constitutional Court, it is not a successful
institution. The Court has not become an example of deliberation and reflection
regarding relations between citizens and the state… the Court does not have a
formative role in the public sphere of society’.26

23
See P. Blokker (2012), ‘Dilemmas of Democratization. From Legal Revolutions to
Democratic Constitutionalism? ‘, Special Issue in honour of the centennial anniversary of Raoul
Wallenberg, Nordic Journal of International Law, 81:4, 437-70; Iancu 2010.
24
See C. Gilia (2012a) ‘Comments on Decision no. 727 of 9th July 2012 of the
Constitutional Court of Romania’, Juridica. Acta Universitatis Danubius, 8(3): 71-82, 73.
25
V. Perju (2010), ‘A sosit timpul pentru reformarea Curtii Constitutionale? (Partea I)’,
available at: http://www.contributors.ro/idei-si-solutii/a-sosit-timpul-pentru-reformarea-curtii-
constitutionale-partea-i/; C. Gilia (2012b) ‘Curtea Constitutionala sub imperativul reformei’, Sfera
Politicii, 6/172: 21-34.
26
Perju 2010.

9
Concerns by political actors regarding the standing of the Court have, however,
mostly not been informed by a democratic-constitutionalist mindset, criticizing
the Court for undermining civic and parliamentary voice in a system dominated
by Court activism. Rather, critique has more often than not been informed by a
strategical desire to politically control the Court or to use the Court (and the
Constitution) for particular, political purposes. In this context, it is not surprising
that with the emergence of a stronger and more active Court in the 2000s,
constitutional conflicts have become more frequent.

The episodes of Romanian constitutional turmoil are related to resentment against

legal constitutionalism, but in a different, more complex way than in the case of
Hungary. While the Romanian Constitutional Court can be seen to have formally
acquired the status of ultimate constitutional arbiter in 2003, this status clearly
continues to be politically contested. Legal resentment has become most explicit
in the constitutional crisis of the summer of 2012 described above, but unlike the
Hungarian example, seems not part of a comprehensive constitutional project, but
rather a more modest revision of the existing Constitution. Also the manifestations
of Euroscepticism or denouncements of external interference are largely absent in
the Romanian case. The Ponta government (re-elected with a large majority –
61% - in December 2012) has repeatedly argued it will follow up on the
recommendations made by the European Commission.27

4. The fourth constitutional moment

The large majority won by the Social Liberal Union (USL) of Victor Ponta in
December 2012 – in both the Chamber of Deputies and the Senate - made the
prospective of significant constitutional revision possible. The amendment rule
stipulates that amendments need to be approved by two-third majorities in both
the Houses of Parliament (art. 151(1)). One of the main objectives of the project
of constitutional reform – which was effectively started in early 2013 – stems
from the insight that 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,28 is unlikely to subside. In its 2013-16 programme, the Ponta
Government has stated that:

27
In its last report of February 2013, the Commission however argues that ‘[t]his
assessment shows that Romania has implemented several, but not all, of the Commission's
recommendations aiming at restoring rule of law and the independence of the judiciary’, European
Commission (2013), Report from the Commission to the European Parliament and the Council on
Progress in Romania under the Cooperation and Verification Mechanism, Brussels: European
Commission, 12.
28
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.

10
 The aim of Constitution revision consists in (re)gaining the trust of citizens in state
institutions through guaranteeing a predictable and stable conduct of institutionalized
power. The stake of this step consists in strengthening the Romanian democracy. The
fundamental law should have to clarify the responsibilities and relations between the
main public authorities and very importantly, to achieve the integrative function.
Reporting to Constitution and its values should become the binding element uniting the
Romanian citizens within the state. The electoral legislation cannot miss from the
process of rethinking the institutional architecture. The harmonization of the legislative
acts in the field and their integration in the Electoral Code, expression of a consensual
approach at the level of political class and the consultation with the civil society is one of
the major objectives of the Government. 29

In a recent conference organized by the Constitutional Forum and in which the

Venice Commission participated, Ponta argued that the main objective is to build
'constitutional peace'. His articulation of the formal objectve is that '[i]t is the
obligation of enlightened minds and sensible people to build a long-lasting peace,
that is to find those mechanisms that make sure that in a period hopefully as long
as possible we will no longer have conflicts among the state powers, political,
constitutional conflicts likely to disrupt the smooth running of the society'.30
The main issues of constitutional reform are inter-institutional relations (in
particular regarding the role of the President), the reform of a range of institutions
(including the Parliament, the Superior Council of Magistracy (CSM) and the
Constitutional Court), the election and electoral laws, and the regionalization
process. According to Ponta, the revision will not touch on substantive parts of the
Constitution, but will consist in a 'delicate adjustment'. Regarding the role of the
Constitutional Court, Ponta declared that one of the reasons of the revision is to
avoid future frequent recourse to the Court in the case of inter-institutional
conflict. The new Constitution is to very clearly state the roles of the various
institutions. He further said, 'I believe very strongly in the independence of the
judicial authorities, but always an independence which goes hand in hand with
responsibility'. Such responsibility is important vis-à-vis those that elect the
institutions' members. He further argued that 'in the case of the Constitutional
Court, it is important to make clear that […] we are not dealing with an institution
of ordinary law […]. [Rather], it is an political-judicial institution which
intervenes only in some cases, which are wholly special and in which there is the
need for a mediation of or clarification by the Constitutional Court'.31 In an
interview, Ponta replied to the question of whether he thought the Constitutional
Court was an inconsequential institution (an 'elephant graveyard'):
It is totally wrong if you look at how many, many decisions of the Constitutional Court
decisively influenced Romanian politics in recent years and further influence. If you ask

29
See http://www.gov.ro/programme-for-government-2013-2016__l2a105576.html.
30
See http://www.agerpres.ro/english/index.php/english-news/item/194055-PM-Ponta-
Building-longterm-constitutional-peace-is-our-obligation.html.
31
See http://adevarul.ro/news/politica/ponta-spune-noua-constitutie-nu-include-modificari-
substanta-1_5178ecb1053c7dd83f45908f/index.html.

11
 me, the Constitutional Court was too often involved in recent years in political
decisions. [...] I think it is one of the Constitutional Court, in Europe at least, that had the
most intense activity and made decisions, again, that totally changed politics, perhaps
even the fate of Romania. So no, it is not at all an "elephant graveyard", it is an institution
with tremendous power and finally settles things that other institutions fail to settle. 32

In general, the main objectives of constitutional revision seem to be sensible

enough, as for instance in the case of a clarification of the cohabitation between
PM and President, or with regard to the regional level (which has remained a kind
of anomaly in the Romanian system). Regarding some objectives, including a
potential reform of the Constitutional Court, the intent is not sufficiently clear
though. The proposition of a strengthening of the Court might indicate a
willingness of formal politics to subject to an independent Court capable of
significant judicial review, and thus a step towards strengthening legal
constitutionalism. But from the perspective that emerges from the various
statements made by among others Victor Ponta, it seems more likely that the aim
of the political majority is to prevent a too political role of the Court, meaning a
Court that is capable of adopting significant and final decisions on constitutionally
relevant matters.

5. The 'constitutional deficit' and civic involvement

The current revision process clearly entails dangers in that it might consist in an
attempt by the political majority to rewrite the rules according to its own agenda
and interests33 (in a way similar to the Fidesz project in Hungary). The above
allusions to a reduced role and involvement of the Constitutional Court also point
into this direction,34 as the proposals to circumscribe the mandate of the President.
At the same time, though, on the procedural side, that is the way the revision
process has been set up, things look more promising in that an attempt is made
towards a more inclusive approach. The revision process includes an advisory role

32
Emphasis added. See http://www.gov.ro/interview-by-pm-victor-ponta-to-agerpres-
romanian-national-news-agency__l2a119766.html.
33
Some understood the Romanian developments in 2012 as a kind of constitutional 'coup
d'etat'. In a related sense, Tom Gallagher argues that the USL coalition might consist of a vehicle
for the PSD to become a 'mammut force', 'eclipsing the opposition', see
http://www.revista22.ro/ponta-nainteaza-pe-toate-fronturile-27017.html. The constitutional
revision project might be understood in a related way.
34
The PSD stated in the proposals for constitutional change as brought forward by different
political parties in March 2013 that it wants to 'strengthen the Constitutional Court'. But, as
became also clear above, this intent can go both ways. The intention to reduce the politicization of
the Court could either entail a curtailment of judiciary prerogatives (this seems to follow from
Ponta's statements in the press) so as to diminish the Court's capacity to interfere into politics or a
strengthening of its de facto independence, which could lead to the exact opposite. It seems to me
that the intention is to achieve the first rather than the second outcome.

12
for the CoE's Commission for Democracy through Law (the Venice Commission)
as well as a 2013 rerun of the Constitutional Forum (as in 2002). The Forum
consists of an open, deliberative forum in which local communities, civil society
(NGOs as well as individual citizens), and scholars and experts can propose
changes to the Constitution. The Forum was set up in March 2013 and handed its
final report over to the parliamentary commission for constitutional review on 27
May.35
The attempt to stimulate wider public debate and civic inclusion can only be
welcomed. During more than twenty years of democratic transformation,
Romanian politics seems to have been 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. A
sustained attempt to include wider society into a process of constitutional revision
could potentially push the Romanian political system into a more democratic and
sustainable direction.36 From this point of view, it is worth noting that on various
moments throughout the 2000s, civil society actors have tried to publicly endorse
different views of constitutional democracy and put forward their constitutional
claims.
One such moment might be identified with the initiative of the first Constitutional
Forum in 2002, which started up a constitutional dialogue between parliament and
representatives of civil society.37 Another – more recent and 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 2010.38 This initiative emerged in the context of the 2007 and
2012 crises. The Foundation organized a series of public debates in which
important Romanian political and constitutional experts, including Daniel Barbu,
Manuel Guţan, and Elena Simina Tănăsescu, were involved. The attempt was to
promote 'open participation to deliberation and critical argument' on pending

35
Raportul Forumului Constituţional 2013. PM Ponta has stated he hopes a final revision
package can be put to a popular referendum (as stipulated by the Constitution) by October 2013.
36
Civic involvement in constitutional change is a wider trend throughout Europe, as the
Icelandic, Irish and possibly British cases show.
37
See 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).
38
See B. Dima (2011), ‘The Commission for a New Constitution. A Civil Society
Perspective on the Process of Constitution Revision’, Romanian Journal of Comparative Law 2,
pp. 151-172.

13
constitutional revision. The thrust of the initiative was to counter the lack of
public debate that had characterized political and juridical debate on revision in
the past, not least by gathering opinions within civil society on wide-ranging
constitutional reform (subsequently published in October 2012 in the form of an
extensive report39). As stated in the report devised by Romanian scholars involved
in the latter project, the Romanian Constitution has a problematic relationship to
its integrative function, and both citizens and politicians have so far not been
attached to the Constitution. Bogdan Dima, one of the authors of the report, stated
elsewhere: '[t]he conclusion was reached within the Commission that, at present,
in Romania, there is no real feeling of constitutional patriotism and that the
Constitution does not perform its integrative function in full'.40
While the substance of the reform seems largely covering institutional calibration,
and thus fairly modest modifications of the constitutional order, the process of
revision could point to a promising and innovative – civic-constitutional - way of
enhancing a democratic-constitutional culture in Romania. In this, the claims
made by civil actors might not only be in substance useful contributions to the
constitutional debate, but more importantly help to mobilize society aournd
constitutional matters and stimulate public deliberation as a constitutive basis of a
democratically perceived constitutional order. One important pro-democracy
movement – Asociaţia Pro Democraţia (APD) – which is currently of the main
forces behind the Forum Constitutional, has consistently contributed to such an
idea of 'grass roots' constitutional politics, by on various occasions making claims
towards a more participatory understanding of constitutional democracy and
attempting to raise civic awareness of constitutional matters.41 In the wake of the
presidential and constitutional crisis in 2007, for instance, APD started a public
discussion on constitutional reform by the means of various public debates in
different Romanian cities. The APD self-professed aim was to increase awareness
of citizens around the issue of constitutional reform, not least with regard to the
choice citizens need to make in the constitutionally arranged for referendum in
case of amendment:

Since the future reform will influence the consolidation of Romanian democracy for a
prolonged period of time, it is necessary that the possible implications of the
modifications are understood by the largest possible number of citizens. In contrast to the
revision of 2003, which was made under pressure of an external imperative, the debate on
a future change of the Constitution needs to take into account both the relations between
institutions as well as relations between the state and society, and relations between
various groups in society. At the same time, given the fact that every change of the
Constitution is to be adopted by referendum, it is necessary to hold a public debate on the

39
See B. Dima and E.S. Tănăsescu (eds) (2012) Reforma Constituţională: Analiză şi
Proiecţii - Raportul comisiei pentru o nouă Constituţie, Bucharest: Universul Juridic.
40
Dima 2011: 157.
41
See G. Andreescu (2011) 'Înstrăinarea de valorile civice prin abuzul drepturilor
constituţionale de marjă', in G. Andreescu et al. (eds) Comentarii la Constituţia României,
Polirom: 31-88, 33.

14
 Constitutional revision to inform citizens on the issues they will vote on. What is more,
the future modification of the Constitution offers a chance to hold an open debate which
will help to enrich the political culture of the Romanian citizens, an essential aspect of the
consolidation of democracy (APD 2008b: 6).

APD has been one of the driving forces in the organization of both the 2002 and
the current Forum Constitutional, as an 'institutionalised structure of dialogue
with civil society regarding the revision of the constitution'.42 In 2002, as in 2013,
the intention is to provide a public deliberative forum in parallel to the official
Romanian Commission for the Revision of the Constitution.

But while the Constitutional Forum as a civic, inclusive precursor to the

parliamentary revision process is procedurally speaking promising, some have
argued that it might remain largely inconsequential. Even if the president of the
Constitutional Forum, Cristian Pîrvulescu, has argued that it is not advisable for
the bicameral Commission for the Revision of the Constitution to disregard the
recommendations of the Forum,43 the Commission has been criticized for doing
exactly that. Nine NGOs have accused the Commission for the Revision of the
Constitution of a lack of transparency and as being unclear about whether civic
propositions will be taking into account or not. The organizations asked the
Commission to offer clear arguments for the rejection or not of specific proposals
and to engage in debate for a reasonable amount of time.44 Also the parliamentary
revision process itself has been criticized. Bogdan Dima, involved in the above-
mentioned Commission for a New Constitution has expressed strong doubts about
what he calls the 'antirevision' of the Constitution, which he thinks consists in an
'exclusively political game, generated by personal political relations of some of
the key leaders of the last years'.45 Finally, a constitutional expert, Ioan Stanomir,
regards the current revision process as 'lacking in vision and characterized by
amateurism'.46

5. Conclusions
Romania is in a situation in which constitutional reform is difficult to avoid, given
the reiterative crises of the last years,47 but in which at the same time there is a
42
Forum Constituţional (2002) Forumul Constituţional. Raport final, p. 11, available at:
http:// www.forumconstitutional.ro/raport_final.pdf.
43
See http://www.rri.ro/art.shtml?lang=1&sec=5&art=389435.
44
See http://m.romanialibea.ro/stire-304031.html.
45
See http://bogdandima.ro/?p=1123.
46
See http://www.ziare.com/politica/constitutie/stanomir-amatorismul-defineste-revizuirea-
constitutiei-1239834.
47
This also emerges from Opinion no. 685/2012 of the Venice Commission.
15
great risk that reform will not be a durable and consensual one, also because
comprehensive, meaningful debate – despite the innovative platform of the Forum
Constitutional – remains relatively limited and without due consequence, and in
which important voices are ultimately not taken into account. One of the more
challenging problems of Romanian constitutional democracy remains then the
absence of a widely available orientation towards constitutionalism and the
common good, which would facilitate interaction between the judicial world and
political and civil society, and would help the emergence of reciprocal forms of
recognition. Key issues in Romania remain weakly embedded institutions and
delegimitated official politics, a Constitutional Court that is unable to play the role
of guardian and constitutional educator, and a relative absence of a meaningful
form of civic participation in constitutional politics.

16