State of Nation September 2005

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STATE OF THE NATION
To resign, or not to resign?

by Mark Percival
September 2005

The Romanian summer was characterised both by unseasonal weather, and by the novelty of fast moving political events at this normally quiet time. Early July was looking good from the point of view of a government commitment to building a state based on the rule of law. After the PSD-dominated Constitutional Court rejected judicial reforms drafted by Justice Minister Monica Macovei, the Tariceanu government seemed on the point of resignation, with the objective of provoking early elections in the autumn. Such a contest would have led to significant gains by the Alliance parties, and corrected the fraud of the 28 November 2004 elections, leading to a Parliament with greater credibility, as well as more stability for the ruling coalition.

Such a contest would also have seen the Alliance escape the clutches of the Conservative Party (formerly the Humanists) which forms part of the ruling coalition. The presence of the Humanists in the government damages its credibility and coherence, both because of the party’s electoral alliance with the opposition PSD in last autumn’s campaign and also as a result of the various corruption allegations against some of the party’s leading members. If the Alliance had really made the rule of law and support for the Macovei reforms the centrepiece of its campaign, it might even have managed to govern without the support of the Hungarian Democratic Union of Romania. The Hungarians are likewise tarnished with the brush of political opportunism having held the balance of power for the last nine years, and who, like the Humanists, sided with the PSD last autumn, switching their allegiance only when Traian Basescu’s success in the presidential contest guaranteed an Alliance led government. (The relevance of ethnic parties is in any case questionable in a developed democracy, since minority rights should be guaranteed by the Constitution and the law, leaving members of these groups free to vote on policy issues, rather than en masse with an ethnic party of no obvious political ideology.)

Even the apparently insurmountable problem of the Constitutional Court’s bar on the Macovei reforms could have been solved. Members of the court would naturally have remained unchanged after an election, and are only replaced every three years when three of its nine members change, meaning that some members of the current court could retain their functions for up to nine years. Nevertheless, a constitutional solution could have existed through Article 151, which could allow a revision to permit replacement of the Constitutional Court in its entirety as a one-off measure. Such a step would have run into criticism of political interference, and would have been challenged by some on the grounds that Article 152 prevents any constitutional change which interferes with the independence of the judiciary. However, the political interference argument could have been offset if the projected replacement members of the court had been selected on the basis of a broad debate, involving a wide cross section of NGOs and representatives of civil society.
In practice the replacement of members of the Constitutional Court would have been difficult to resist if promoted by a government which had won a popular mandate precisely on a platform of implementing the Macovei reforms. The election result by itself might have been enough to make the position of Court members untenable, and forced their resignation. Yet even if they had stubbornly hung on to office, the constitutional change required to dismiss them would have gained added credibility since it would have required endorsement through a referendum.

Regrettably, this golden opportunity for the government to win a strong mandate and promote reform was lost, falling victim to political interests and squabbling. After a visit to Brussels, Tariceanu announced that he would withdraw his resignation (which he had previously described as “irrevocable”) citing the serious flooding which had affected large areas of Romania. Certainly the opposition PSD used the floods issue for all it was worth to try to prevent the poll, which would have caused them heavy losses. Opposition leader Mircea Geoana criticised the government’s apparent lack of responsibility in calling an election during a natural disaster, while Iliescu too was wheeled out to spout some of his tired old phrases emphasising the need for national solidarity. PSD leaders attacked the government for its failure to impose a state of emergency, a move which in reality was entirely political, since under the Constitution, an early election cannot take place under such circumstances.

Yet a strong government with a serious commitment to reform would have resisted these political pressures, and easily seen off the opposition. It could have accepted the need for a postponement of its resignation due to the floods, but the elections could still have taken place one month or at most two months later than originally planned. There was no need for the poll to be cancelled altogether. Equally, it now seems that the European Commission was relaxed about the idea of an early poll in Romania. Tariceanu linked his decision to revoke his “irrevocable” resignation to his visit to Brussels, with the implication that he might have been discouraged from calling an election by EU officials concerned about the accession timetable. Yet it now seems that there is little evidence that this was anything other than a ploy by the prime minister to find another excuse to cling on to power.

The real explanation for Tariceanu’s behaviour lies in the politics of the Alliance and the weakness of the Liberals compared to the Democrats in the polls, to a large extent thanks to the continued popularity of President Basescu, the former Democrat leader, even though officially the head of state is not supposed to be linked to a political party. An early election would have undoubtedly provoked a change in the balance of power within the Coalition, with the Liberals becoming the junior partner, particularly since some Liberal ministers, such as Mona Musca - who recently resigned the culture portfolio citing Tariceanu’s dithering - have in reality been far closer to the president than to the prime minister for some time. With disputes now developing between Basescu and the government over control of the intelligence services, relations between the head of state and head of government are likely to become increasingly acrimonious. Basescu has strengthened his position in recent weeks and certainly looks more credible as a promoter of real reform than his hapless prime minister. Yet the most disappointing aspect is that the abandonment of the early elections due to political infighting has damaged the chances of reform in the critical area of the judiciary, so fundamental to a democratic society.