Comment: Clarification amongst the many different colors of Romanian democracy

In recent days the European Commission has chosen to act to safeguard the necessary checks and balances in the democratic system of Romania. Essentially the new Government was seen to be taking actions to ‘seize control’. The press has used emotive words like coup d’état and, to evoke thoughts of the communist era, a putsch. For the casual observer, total chaos has come to reign in Romania, the dark old days are well and truly back.

I, however, chose to step back and to take a measured look of what is really going on. This is my attempt at clarity.

This is about a war between factions and the control of Romania. Ultimately this has now come down to one event, a referendum to impeach and, possibly, remove the President. The politics of this I will set aside, this is actually just about one thing, a battle over the rules under which the referendum is to be held. No more, no less.

In June 2012, one side knew that the other would seek to suspend the President and thus trigger an impeachment referendum. They knew what had happened when this had previously occurred in 2007 and they knew they had to block a repeat of the events of 2007. Namely in between the suspension of the President and the referendum itself, the opposition amended the referendum law so as to make it easier to impeach the President. The amendment was considered constitutional by the Constitutional Court of Romania.

The rule changes mattered little in 2007, because the President easily escaped impeachment. If, however, similar actions to those of 2007 are allowed to take place in 2012, when the opinion polls show a likely Presidential impeachment, the consequential result will be different.

A brief piece of history. With the promulgation of Law 3/2000, referendums in Romania were to be based upon the rule that 50 percent +1 of the total electorate had to vote yes for the result to be validated. Somewhat perversely, given this 50 percent +1 of all the electorate requirement, to validate the referendum, the turnout also had to be at least 50 percent +1. This methodology was valid at the point in time when the President was suspended in 2007.

Using this methodology with a ‘normal’ voter turnout of say 60 percent, it requires a yes vote of over 83 percent for impeachment to occur. I will leave it for the reader to think about whether this is this a normal, democratic voting procedure.

In 2007, after suspension and before the referendum, Law 3/2000 was amended so that an impeachment required just 50 percent +1 of those who actually voted. The amendment also removed the minimum turnout required to validate the vote. In the end the rule change did not matter as the result was 3 to 1 against the impeachment of the President.

In 2009 the then Government passed an emergency ordinance (103/2009) to reintroduce the minimum turnout threshold of 50 percent +1 for the validation of the impeachment referendum. If this quorum was reached, 50 percent +1 of those who actually voted was sufficient for an impeachment of the President to occur.

This ordinance was then later approved and amended in April 2012 (promulgated in Law 62/2012 and published in the Monitorul Oficial, Partea I, nr.247 on the 12th April 2012) to again revert to the need for 50 percent +1 of the total electorate for impeachment to occur. It was this Law that was to trigger the later questionable actions by the new Government.

In April the impeachment bar had again been raised to near impossible heights. Under the reintroduced rule, the President was near secure from impeachment as obtaining 9.15 million ‘yes’ votes would be very difficult.

Hence, both parties knew that this was not about who won the referendum, it was about the battle to see who could be last to modify the rules. Three options could be used and all were likely to be considered Constitutional.

1. To require that 50 percent +1 of the entire electorate of 18.3 million to vote yes for the impeachment to happen. There is a similar (50 percent +1) turnout threshold to validate the referendum. Option 1 was reintroduced in April 2012.

2. To require that 50 percent +1 of those who actually vote to vote yes for the impeachment. To validate the referendum a minimum turnout of 50 percent +1 of the electorate of 18.3 million is required (Option 2 is probable for 2012).

3. To require that 50 percent +1 of those who actually vote to vote yes for the impeachment. There is no minimum turnout required to validate the referendum (Option 3 was used in the 2007 Impeachment Referendum).

The reader can choose which option has the most democratic merit.

In terms of 2012, Option 1 would almost certainly mean a failed impeachment because the ‘yes’ vote would be below the 9.15 million required. With Option 3, opinion polls suggest a possible successful impeachment.

With Option 1 having been promulgated into Law in April 2012, the new Government was faced with having to repeat the amendment process of 2007. If not, impeachment was near impossible.

In what came to be portrayed as ungodly and undemocratic haste, the new Government first took action to remove perceived impediments to Parliament suspending the President. It then set about changing the referendum rules from Option 1 to Option 3. The result would then be judged solely upon the majority of those who voted.

Given that the Constitutional Court of Romania (CCR) had allowed the Option 1 to Option 3 switch in 2007, how was the pro-Presidential party going to block this change being repeated in 2012? This was the crux of the matter.

The answer is now well known, they went to a higher court than the CCR, they went to the Court of International Opinion and the European Commission. They took a series of complaints against the new government of Romania to Brussels, Berlin and the international press. Their ultimate aim, to try to block the change to Option 3.

Without doubt they have been successful in portraying the new Government as a threat to democracy in Romania and especially to the independence of the judiciary and the CCR. They grabbed the attention of the European Commission and the Commission, in return, demanded that the Government of Romania gets back into line. In the interim, the CCR had ruled that many of the actions within Romania were actually constitutional. The Commission had, however, decided that the two naughty boys warranted a good ticking off.

Crucially, and also within this time period, the CCR ruled that the referendum should go ahead under Option 2. The Commission chose to demand likewise, that the referendum should be decided by the majority of actual voters and validated by a 50 percent +1 turnout. It seems a fair compromise.

The following is now a supposition of what may happen using Option 2.

For simplicity, I am going to assume a 2 to 1 vote in favor of impeachment (as per some opinion polls) and a voter turnout of 10.5 million. This equates to 7.0 million ‘yes’ votes and 3.5 million ‘no’ votes. A clear majority and a quorum turnout of 57.4 percent of a [2002] electorate of 18.3 million. In this scenario the impeachment is successful as both the majority and quorum are achieved.

If the opinion polls suggest that achieving a ‘no’ majority is going to be difficult, is a widespread ‘no’-voter abstention a possibility? What could the result look like if the ‘no’ camp chooses not to vote and to abstain?

If 40 percent of the projected ‘no’ vote stays at home the result becomes 7.0 million ‘yes’ votes and 2.1 million ‘no’ votes. The recorded result is then 77 percent for and 23 percent against impeachment. But the turnout is only 9.10 million and short of the required quorum of 9.15 million. With a clear majority of ‘yes’ votes but only a 49.7% turnout of the total electorate, the referendum is ruled invalid. With Option 2 a result like this is a very real possibility.

Romania is now about to embark on a referendum where it will be imperative for the ‘yes’ camp to get as many of voters to vote ‘yes’ as possible. Even though the referendum rules do not stipulate that 50 percent +1 of the entire electorate has to vote ‘yes’, they have to assume that they have to get as close to 9.15 million ‘yes’ votes as possible.

Meanwhile, success for the ‘no’ camp can be achieved by abstaining. The closer that they get to zero registered ‘no’ votes the greater their chance of victory through invalidating the referendum. This is a perverse situation, but it is one that comes about when using the minimum 50 percent +1 voter turnout threshold. If the polls suggest that one camp has a clear lead this creates the situation where for the other camp it is not about winning through having more votes, it is about winning by invalidating the referendum through a failure to reach the quorum.

There is, however, an even worse scenario. The impeachment can fail because the 50 percent +1 minimum turnout is based upon the 2002 electoral numbers, whereas the actual 2012 electorate may now be smaller. If the turnout is, say, between 45 percent and 50 percent, the use of the ‘over-sized’ 2002 electorate may actually invalidate the 2012 referendum.

Without doubt the use of Option 2 means that the 2012 referendum is now ‘going-down-to-the-wire’. For the casual observer this could be seen as good entertainment. For the Romanian population it is definitely not. Quite possibly, the use of Option 2 as required by the CCR and insisted upon by the European Commission, is now in itself going to create a very serious and destabilizing, post-referendum crisis in Romania.

By Stuart Meikle

 Stuart Meikle is an agricultural management consultant. He was a University of London academic and is an economist, a writer and a farmer. He has been involved within Romanian agriculture as an adviser, as an executive manager and as an observer for 15 years.  The views expressed are his own and do not necessarily reflect those of Romania Insider.

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