Kim L. Scheppele: Aspiring to control all of the branches of government is not a constitutional ambition Răspunde

Octavian Manea a realizat pe 8 iulie un interviu cu Kim Lane Scheppele director al Program in Law and Public Affairs al Universității Princeton, SUA. Kim L. Scheppele  a publicat un articol pe blogul economistului keynesian și laureat al Premiului Nobel, Paul Krugman, în care atrăgea atenția asupra compromiterii statului de drept în România. Între timp profesorul american de sociologie a revenit cu un nou articol despre evoluțiile politice din România.

What made you conclude that the Romanian government went rogue?

Normal constitutional procedure slows down political fights so that politicians have to think about what they are doing before acting.  But last week, the prime minister acted quickly and changed the leaders of both chambers of parliament, fired an ombudsman, threatened to impeach constitutional judges and then enacted emergency decrees that both disabled normal constitutional review of his actions and changed the ground rules for impeaching the president – all with the aim of getting rid of his primary political nemesis.  The changes put Ponta and his parliamentary allies above the law and plunged the country into a legal state of emergency.

Regardless of whether you side with Ponta or with Băsescu in the fight over the future of Romanian politics, it is dangerous for any leader to throw out legal constraints and to act as Ponta did.

These actions are especially worrisome because Ponta was not elected. His government currently rules only because prior governments failed. While the opinion polls support him for now, he is acting without a democratic mandate and taking actions not authorized by law.  That is dangerous territory.

Having in mind everything that happened in Romania over the last few weeks, is the rule of law in danger?

It appears that the constitution no longer exists, practically speaking.  The president, ombudsman and constitutional judges have fixed terms of office that are provided for in the constitution and procedures for their removal that are also regulated by law.  As those procedures specify, officers of state may only be removed for committing serious violations of the constitution itself.  But the government has operated so quickly and imperiously that it has not explained what those violations of the constitution are.

Instead, the Ponta government said that the ombudsman and judges must go simply because they are linked to the president and were installed by the president in order to expand his power.  After international criticism, Ponta backed down on the constitutional judges because it would have created a scandal, so he simply suspended their powers rather than suspending them.    But the firing of the ombudsman, the sudden replacement of the parliamentary leaders and drive to remove the president look like party politics rather than a move to save the constitution, especially when the constitutional court is sidelined in the process.

The Romanian constitution sets up an admirable procedure for impeaching the president of the country. It involves both a parliamentary vote and a popular referendum. But by instrumentally changing the number of votes needed to impeach a president in the referendum stage – and calling the poll for mid-summer when many people are on vacation – Ponta has rewritten the rules to get the outcome that he wants. The constitutional court, which would almost surely find these new rules unconstitutional, won’t get to rule on the issue before the referendum occurs.

When this purge of Băsescu and his allies is finished, what constraints on its powers will the Ponta government recognize? This is the question Romanians should ask themselves as they prepare for the impeachment referendum and for the fall election.   We have an expression in English – “jumping from the frying pan into the fire” – and this may be the choice that Romanians have.    Even in a choice of bad alternatives, some may be worse than others.

We have been hearing a lot in the last weeks the argument that “we have the legitimacy provided by the Parliament” so we don’t care what the Constitutional Court says. It is the example of the right to represent Romania at the European summit last week. Isn’t this a dangerous precedent for the rule of law when the Parliament doesn’t care of the institution designed to check the constitutionality of its decisions? They invoke the law and the legal argument all the time but meanwhile disregarding the verdict of the Constitutional Court.

Democracy doesn’t mean simply controlling the requisite number of seats in a parliament and doing what the public temporarily wants.   A thriving democracy must preserve the ability of democratic institutions to continue to provide what the public wants over the long haul.    Attacking the opposition in the parliament, threatening the constitutional judges, firing the ombudsman and leading a campaign against the president may meet with applause from the Romanian public now, but ultimately the people loses even more when they no longer have a government that operates under a constitution.

Any democratic government worth the name needs a strong democratic opposition.  But Ponta has gone after his party opponents with the sort of vengeance unbecoming a democratic leader.  Ponta aims rid the government of all traces of Băsescu’s rule.    A democratic leader should not want to govern without an opposition.

Many European countries have decided that the best way to preserve democratic institutions is to entrust the maintenance of the system to a constitutional court, whose job it is to ensure that all political actors and all constitutional institutions stay within their proper boundaries. I know that many people in Romania feel that Băsescu went first in exceeding his powers (among other things packing the constitutional court with his own people) and that Ponta is only fighting back in kind.  But two constitutional wrongs do not cancel each other out – they destroy the system. If Băsescu exceeded his powers earlier, the constitutional court should have said so. But if the court said nothing then, it does not mean that the judges are wrong now in attempting to rein Ponta in.

Which are the dangers of what is called in political science the “tyranny of majority”? What is the constitutional meaning of this concept? It seems to me that this concept explains perfectly the current behavior of the majority in Romanian Parliament, disregarding the institution created to safeguard the Constitutional framework of the state. Isn’t this in a way the “assembly government” unconstrained by the principle of separation of powers feared by Madison and Jefferson?

Democracy is best preserved by limiting the power of the majority in the short term in order to preserve it in the long term.   Constitutional democracy sets limits on the power of majorities, requiring them to respect the rights of minorities and to maintain competition among political actors through separation of powers. History has shown that this is the only way that democracies can survive as democracies.

Popular majorities are often passionate and heedless of the effects of their passions on the long-run ability of a government to survive as a democracy.   The constitutional court’s primary job is to maintain the institutions against temporary majorities to ensure that all political actors stay within their constitutionally defined limits.   By disabling the constitutional court, Ponta has removed the primary guarantee that the constitutional system will be preserved and he has allied himself with the temporary angry majority that wants no limits on what can be done to those it opposes.

If all branches of government are under the control of a single power, separation of powers becomes a sham.  Aspiring to control all of the branches of government is not a constitutional ambition.

How legitimate is the process of changing the rules of the game during the game in order to eliminate all the barriers in your way to win all the power?

As everyone from golfers to footballers know, it is much easier to win if one controls both the rules and the referees who enforce them. But when that happens, the victories are not legitimate.

If Ponta believed that the constitution made it too difficult for a president to be impeached in general, then he could have proposed changes to the constitution. But the Romanian constitution is very thoughtful about constitutional amendments, making them quite difficult to achieve.

Romanians might want to keep their eye on an important feature of the constitution – which is that the president of the republic must approve all constitutional amendments.  Might Ponta want to replace Băsescu to give his own forces the power to amend the constitution?

In a normal constitutional democratic country, constitutional amendments should be possible. But when amendments are made, they typically apply only prospectively to future conflicts. Changing the rules instrumentally just to achieve a particular political end in a particular contested moment in time makes a mockery of the very idea of constitutionalism. A constitution-amending procedure is beyond Ponta right now, but it may become quite possible if Băsescu is removed from office.

What kind of message does the nomination of the former SACEUR Wesley Clark as the advisor of the Romanian Prime Minister send?  

After leaving American public life, Wesley Clark started a consulting firm that takes on clients when paid to do so. Clark came to Ponta’s side of this conflict as a business proposition.   I doubt very much that Clark joined Ponta out of a deep belief in Ponta’s political program.  If Clark is working for Ponta at a time when Romania is suffering from a severe economic crisis, citizens might ask how much money is going to consultants designed to make Ponta look good and whether that money might be better spent.

Romania is not Hungary, yet. But to what extent can we talk about an Orbanization tendency? I mean there is a quest to redesign all the pivotal checks and balances just to force the President out of power. And we must have in mind that the trigger point of everything was the electoral law proposed by Crin Antonescu and Victor Ponta that would have provided their parties almost 80% of the seats. To their surprise the Constitutional Court ruled out this law as unconstitutional.

Viktor Orbán is a charismatic politician who has been able to redesign the whole Hungarian constitutional system to support his party for the foreseeable future.    I can imagine that other politicians who admire Orbán’s success would like to imitate his strategies.

There are some similarities between what has happened in Hungary and what is happening in Romania.  The Orbán government, like the Ponta government, exploded in fury when the constitutional court ruled against a key law that it wanted. In the Hungarian case, that law enabled the government to retroactively tax the departing bonuses of those who held public office in the previous government.   When the Hungarian constitutional court said that retroactive laws were not permitted by the constitution, the Orbán disabled the constitutional court by changing the system for naming new judges, packing the court with his own judges, cutting the court’s ability to hear cases involving taxes and budgets and then limiting popular access to the court – all of which required constitutional amendments or amendments to the organic laws.   Then the Orbán government passed a series of laws that the constitutional court will not be able to review.

It looks like Ponta is following the Orbán playbook in his attacks on the constitutional court.    Both the electoral law decision and the decision giving Băsescu the right to represent Romania at the European summit meeting triggered a comparable fury from the Ponta government.   But the Ponta government did not have the same legal power as Orbán.   Orbán had the parliamentary super-majority that allowed his party to single-handedly amend the constitution.  Orbán changed the constitution to fit himself rather than having to bring himself under a constitution that would have limited what he could do.  Ponta seems to have lashed out at the actors who would thwart him without first laying the legal basis for doing so because the Romanian constitution is simply much harder to amend.

Of course, the fact that Orbán changed the constitution rather than allowing the constitution to constrain him is not obviously an improvement over Ponta’s strategy of just violating the constitution outright.   In some ways, Orbán is acting more dangerously by remaking the system and entrenching it so that it cannot be easily changed by a future government.    A future government in Romania might still decide to follow the official constitution and bring Romania back under the rule of law.

Ponta and Orbán aren’t ideological allies. But Ponta might be still looking to Orbán as a model on specific proposals.  For example, the Romanian electoral proposal is substantively very similar to the new Hungarian electoral law.  By replacing multi-stage parliamentary elections with a “first past the post” system, the largest party on the political scene can almost surely win almost every parliamentary seat over a divided opposition.   That’s what Fidesz has done in Hungary and one reason why most observers expect Fidesz to win in 2014 and beyond.    Ponta appears to be doing the same.

So yes, there are similarities between Ponta and Orbán.  But Orbán, with his legitimate electoral supermajority, has rewritten a lightly entrenched constitution to suit his needs.  Ponta, at least right now, is simply violating the constitution that would constrain him on the basis of a democratic mandate that he has not yet received. Both are dangerous – but in different ways.

The Romanian people still have an option that the Hungarian people don’t have, however.   Both the removal of the president and the amendment of the constitution require referenda under the Romanian constitution.   This puts the future of the Romanian democracy and the Romanian constitution into the hands of its citizens, who are the last line of defense of constitutional democracy.

A consemnat:

Octavian Manea

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