Venice Commission publishes recommendations for reform in Romania following constitutional crisis in summer

The Venice Commission has published its findings on the questions raised by the political crisis and attempt to indict the president over summer. The report is highly critical and urges reform of the constitution and laws in Romania to prevent a repeat of recent events. Weaknesses and flaws in Romania's constitution and legislative procedures that contributed to, facilitated or even caused what the Venice Commission deems the undermining of democracy and the rule of law in the country. The findings and recommendations were officially adopted by the Venice Commission at its plenary session in Venice on December 14 - 15 and published on December 17. Four areas for reform are highlighted: the procedure for suspending a president, the use of the notorious emergency ordinances, the dismissal of the Advocate of the People and a clarification of the powers and responsibilities of president and parliament. Reforms should “clarify the respective competences of the President and the Prime Minister, especially where difficulties have arisen, notably in the fields of foreign policy and in relations with the European Union,” according to the Venice Commission. The report suggests that Romania's constitutional framework cannot effectively cope when president and parliament are politically opposed. The Venice Commission doesn't offer an opinion on where the balance of power should be, judging this as something for Romania to determine, rather a clear demarcation of powers and responsibilities – wherever the balance lies – is encouraged. On emergency ordinances, the Venice Commission is critical of both the present and previous administrations and gives a figure of 140 emergency ordinances passed in 2011. This, judges the Venice Commission is way too high. Describing their use as “excessive,” the report found constitutional incentives for administrations to use emergency ordinances. The Venice Commission suggests making the normal procedures for enacting legislation in parliament less “cumbersome.” The automatic passing into law of emergency ordinances if not explicitly challenged and rejected is also criticized. The procedures for suspending a president also need some sorting out; the Venice Commission describes the current system as confusing “in a rather peculiar way legal and political responsibility.” This odd mix of the legal and the political, along with a poorly defined role for Romania's Constitutional Court in the suspension of a president, is deemed a problem. “If maintained at all, the procedure of Article 95 of the Constitution on the suspension of the President as it stands should be transformed into a clearly legal responsibility, initiated by Parliament but settled by a court,” reads the Venice Commission report. Constitutional and legislative weaknesses also surround the Advocate of the People's position. The current system fails to define the responsibilities of the role or the grounds for dismissal from the position. In the Venice Commission's view, the role of Advocate should be politically independent and enabled to effectively carry out its constitutional responsibilities. In conclusion, the Venice Commission highlights a rapid sequence of events in summer 2012: the removal of the Advocate of the People and the presidents of both Houses of Parliament, a limitation of the Constitutional Court's powers, changes to the conditions for a referendum on the suspension of country's president and the subsequent suspension of the President itself. These events caused the Venice Commission concern – “these measures, both individually and taken as a whole are problematic from the viewpoint of constitutionality and the rule of law.” The Venice Commission, or the European Commission for Democracy through Law, is the Council of Europe’s advisory body on constitutional matters. Founded in 1990, the commission has played a lead role in the adoption of constitutions in Europe. The Commission meets four times a year at the Scuola Grande di San Giovanni Evangelista, in Venice. Originally the Commission included 18 Council of Europe states, since then it has expanded and now has 58 members, in Europe, Central Asia, North Africa and beyond. Romania has two representatives at the Venice Commission: Lucian Mihai, Professor, Faculty of Law, University of Bucharest, and former president of the Constitutional Court, and Bogdan Lucian Aurescu, Secretary of State for Strategic Affairs, Ministry of Foreign Affairs. Read the full report