The past couple of days have seen a serious threat to the constitutional democracy and rule of law in Romania. The liberty and authority of the Constitutional Court, as well as of other institutions crucial for a check and balances democracy such as the Ombudsman is, if it had not already been, seriously endangered.

First, some background. Romania has been governed since 2008 till recently by a centre-right coalition headed by the Democrat Liberal Party (affiliated to the European People’s Party), the party of current President Traian Basescu (in office since 2004). The economic and financial crisis has hit Romania hard, and a bailout agreement with the IMF resulted in a draconian austerity program. Public sector salaries were cut 25%, pensions 15%, VAT increased to 24%, while at the same time measures aimed at spreading the impact of the crisis more equality among society (such as progressive taxation) were rejected by the government. All this was coupled with the lack of public compassion and even arrogance of Mr. Basescu when affirming the need for these measures, despite clear signs of the distress they were causing an already impoverished population, as well as with the image that he has undue influence over the government. Against this background, the biggest street protests since the early 90s began in Bucharest, protesting against the austerity measures as well as against a government that was perceived as not taking into account the social realities in the country (pro-big business agreements, dodgy public procurement deals, open support to large scale industrial projects).

Faced with public protest, the government resigned in February 2012 and was replaced by another centre-right government, led by former Secret Information Services Head Mihai-Razvan Ungureanu. The time in power of this government was short lived however, as an emergency resolution to sack it was passed in Parliament in April 2012. This was possible thanks to defections of MPs from the Democrat Liberals to USL – the Social Liberal Union (an electoral coalition of the parties affiliated at European level to the Social Democrat Party – S&D and the Liberal Party – ALDE), which gave the latter the needed parliamentary majority to take office. This alliance was sufficient for a new parliamentary majority, which meant a new Socialist – Liberal government was formed, led by Victor Ponta, a 39 year old, foreign educated politician.

This was the third Romanian government in less than three months, a sign of a deeply fragmented political scene. Many had hoped that this new government, having previously condemned the socially unjust austerity measures, would focus on easing social tensions, encouraging pro-employment measures, attempting to boost economic growth etc. However, in these two months of governing, one obsession seemed to be prevailing: that of impeaching President Basescu. Several measures were taken towards achieving this aim: the leaders and administration councils of institutions known or perceived as friendly to the previous government or Mr. Basescu (such as the national television, the Romanian Cultural Institute etc) were dismissed and replaced with USL leaning figures. This is worrying enough in itself, but perhaps not so surprising in a country were most press is controlled by party interests and where there is a practice of replacing the composition of governing bodies of public institutions to reflect the colour of the parties in power. However, this kept feeding the conflict between the government and the President and transformed the Romanian political scene into total chaos.

One Step Forward, Two Steps Back?

I refer to such a serious situation as “not surprising” as we are accustomed to a sort of “democracy light” in Romania. Party moguls and local barons running the shows, institutionalised corruption at all levels of society, a relatively silent and silenced civil society are all not so unusual. However, a few weeks ago a first severe blow was given to democracy as we knew it, when Prime Minister Ponta chose to ignore a decision of the Romanian Constitutional Court and push forward with his agenda. He is the first elected official in the democratic history of the country to have done so.

How did this happen? Among the main topics of dissent between the government and the President in the previous months was the issue of Romania’s representation in the European Council. As a presidential republic, Romania had so far been represented in meetings of EU heads of state by the President. Prime Minister Ponta, arguing that these meetings discuss economic matters which only the government has competences on, asked for and was successful in a vote in Parliament that mandated him to represent Romania in the Council. This decision was deemed invalid by the Constitutional Court, however Mr. Ponta ignored this ruling and went to Brussels.

To avoid complicating matters the Ombudsman, the only Romanian institution that can appeal to the Constitutional Court when the government is abusing power, was dismissed and replaced with a government friendly figure. The Constitutional Court judges were threatened by the minister of justice and were accused of favouring the President over their constitutional powers by members of the current governing coalition. A prominent member of the coalition said they will continue with their plan of impeaching President Basescu regardless of what the Constitutional Court rules. Control of the Official Gazette (where laws are published and only 3 days after their publishing do they come into force) was taken from Parliament and given to the government. The government thus has effectively the power to decide which laws will be approved and which will not. Last but not least, the government decided via emergency legislation to remove the powers of the Constitutional Court, which is now only consulted on the constitutionality of the laws passed, but lost its power of consent. All this is certainly an abuse in the separation of state powers, an abuse on the independence of the justice system and ultimately an abuse on the rule of law, by eliminating the checks and balances system in a democracy. This gives the government the power to pass any laws it deems fit, with virtually no power of the judicial system to declare the constitutionality of these laws.

All this has been done with the goal of impeaching President Basescu. The Social Liberal Union is well on its way to achieving this goal. After having replaced the heads of the Senate and Chamber of Deputies (which if had not been done in such a hurry, could perhaps have been justified by the fact that these figures no longer represented the parliamentary majorities in both chambers), they can now put the impeachment procedure on the agenda of the Parliament. It is likely that the new parliamentary majority will vote in favour and, with no Constitutional Court to oppose this, a national referendum will be held to validate the impeachment. Having survived such process in 2007, President Basescu might not be as confident at this moment, with his popularity have fallen considerably since then.

The referendum law has also been changed to favour the governing union – referenda can now pass with a majority of votes (50% +1 of all votes cast), and not as before with a majority of all registered voters. It is very likely under these conditions that such a referendum would pass. The result is not as worrying as the process. President Basescu is highly unpopular and chances are that in a correct legal procedure the result could be similar. The process is however devastating for a fragile democracy, where the Justice system had just began to affirm its independence with a series of high profile corruption convictions.

Europe to the Rescue?

The European Commission and the EU have long been monitoring the Romanian judicial system, progress in which was deemed essential. Such progress was slowly being made. The National Integrity Agency was vigil in monitoring the compatibility of elected office holders with their roles. It recently ruled two members of the Chambers of Deputies incompatible with their roles (due to ongoing investigations for corruption charges). This ruling was however not taken into account by the judicial committee of the Parliament. Corruption cases were judged and prosecuted – not without debate, nor beyond any possible questioning, but steps in the right direction were taken. Most famously, last week former social-democrat Prime Minister Adrian Nastase was convicted of having used public means to fundraise for his election campaign and sentenced to two year in prison. This is the highest former official ever convicted on corruption charges in Romania and perhaps in Eastern Europe as well. This gave hope that there can be high level convictions and sent a message that if Mr Nastase (a highly influential politician) can be charged, anyone else abusing power can. It was the glimmer of hope that civil society had been waiting for, as a long-waited sign that politicians cannot be beyond the law. This optimism has been shattered by the recent actions of Mr Ponta and his colleagues.

It is difficult not to think of Romania’s Western neighbour Hungary when discussing these fundamental threats to a constitutional democracy. Coincidentally, it is another Viktor who is at the heart of these threats to the Hungarian democracy. Viktor Orban’s absolute majority in Parliament allowed him to change the country’s constitution, change the electoral law to secure his party’s power for the foreseeable future, subjugate media freedom etc. Romania is luckily not there yet. No changes to the Constitution have so far been attempted and the press and civil society are highly critical of the current measures being taken by the Romanian government. However, breaking basic democratic principles such as the balance of powers between the judicial, executive and legislative system puts Romania well on its way to joining Hungary in the democracy foes club.

What can be done to prevent the situation escalating further? Prominent civil society organisations have appealed to European Commission President Barroso to take a stand on the clear breaking of democratic principles and the threats to the independence of the judicial system in Romania. It is important that European institutions take a firm stand on this, as it seems only outside pressure can have an impact now. The European People’s Party was quick to condemn the violations of democracy in Romania, which helps. However, it is the same group that was utterly silent on Hungary, since Mr Orban’s party is an EPP member. The Socialist and Democrats group, once vocal on Hungary, is now silent on Romania, since Mr Ponta’s party is among its members. It is a pity that on issues as crucial as preserving basic democratic principles, party politics seem to prevail over civic responsibilities and similar national level fights are reproduced at European level.

There are many issues that I left out of this article in the attempt to make its length somewhat readable. You can read interesting pieces on various aspects of Romania’s shabby democratic outlook in the Economist’s “My name is Paste. Copy Paste” and Paul Krugmann’s overview for the New York Times. As a Romanian living abroad and looking at all this from the distance, my main prevailing feeling is one of fear. I am deeply frightened that the freedom of the Romanian justice system is threatened beyond repair, that prevailing party and personal interests and personal vendettas can reverse overnight the slow and agonising progress made over the past 22 years. I am deeply worried of the lack of party political alternatives in view of the upcoming general elections in November. It is for the first time in as long as I can remember that I am more frightened for Romania’s democratic future than I am hopeful.