PONTA AND THE RULE OF LAW

On 29 July 2012, a referendum on the impeachment of the President took place in Romania. It was the climax of a story that started in May when a new parliamentary majority took power headed by the socialist politician Victor Ponta as Prime Minister and comprising the Social Liberal Union (USL), an alliance of the Social Democratic Party, and the Centre-Right Alliance itself made up of the National Liberal Party and the Conservative Pary.

The months between the election and the referendum were marked by a series of scandals involving ministers of the Ponta government, a well as what appeared tobe an assault by the government on the state institutions, a narrative which is detailed below:

1. Controversial figures were proposed as ministers by Victor Ponta who had either been already found incompatible by the courts, or were under pending judicial procedures for conflict of interests, or were under suspicion of plagiarism. In less than one month after the inauguration of the new government, public outrage forced the Prime Minister to withdraw the nomination or accept the resignation of four of the proposed ministers.

2. The Minister of Justice, Titus Corlătean stated, without providing any evidence, that the Attorney General and the Chief Anti-Corruption Prosecutor were “under suspicion of subordination and political influence”. The statement contradicted the findings of the European Commission’s experts who for years have written in the Cooperation and Verification Mechanism reports – the EC reports monitoring the reform of the judiciary and the fight against corruption in Romania – about the impartial investigations of high level corruption cases by the prosecutors. The declaration came after two similar incidents, prior to Ponta’s nomination as Prime Minister: in March he proposed that the anti-corruption prosecutors investigating a former socialist Prime Minister be arrested, while a year before he took part in a rally in support of a socialist party member who was arrested for corruption offenses.

3. In the Parliament, the new USL majority dismissed the Council of Administration of the Public Television, the first step in a political takeover of the institution. Two weeks later, the government, in violation of the law, excluded a parliamentary opposition party (PDL) from appointing its representatives to the Administration Council and designated a liberal party member for the office of president-director general in a clear instance of politicisation of the public television service.

4. The government took the Romanian Cultural Institute (ICR) from under the authority of the Presidency (where it had been since its establishment in 2003) to the Senate. The decision to subordinate the ICR to the Senate was also perceived as a politicisation of the institution and a step toward removing its leadership. Since 2005, the directorship of ICR has been filled by persons with no political affiliation and with internationally recognised professional backgrounds. In addition, this decision to change the status of the ICR was deemed by the government an emergency meriting an Emergency Ordinance or decree. The move triggered street protests from the general public, as well as leading figures in the cultural sphere and non-governmental organisations.

5. The Minister of the Interior, Ioan Rus, dismissed without any public explanation the director of the National Archives. The directorate of the Archives allowed access to the archives of the Romanian Communist Party and of its Central Committee. Ponta also changed the Director (again a non-politically aligned figure) of the Institute for the Investigation of the Crimes of Communism and Remembrance of the Romanian Exile.

6. After a bitter political dispute around who was entitled to represent Romania at the European Council, the Constitutional Court decided that it should be the President. Ponta defied the ruling of the Constitutional Court (CCR), however, and went to Brussels himself where he publicly attacked five judges of the Court, while threatening the President with suspension from his office. The same day, the Minister of Justice accused two of the judges of the Court of being “undoubtedly” unfit for the job, although the Justice Minister has no remit to check or establish such suitability. The National Integrity Agency publicly stated soon after that neither of the two judges were “incompatible” with their roles.

And so the story continued with many other threats and moves aimed at subordinating independent state institutions or interfering with the judiciary in high level corruption cases. Then the narrative of the July coup d’état, as it was dubbed by the media and opposition politicians, began in earnest at the end of June when Adrian Nastase, a former socialist Prime Minister, was sentenced to two years imprisonment for corruption-related offenses. Ponta meanwhile was accused of having plagiarised his PhD thesis after articles emerged in Nature magazine and the Frankfurter Allgemeine Zeitung. An interesting angle to the story was Adrian Nastase’s past role as Ponta’s political mentor and his PhD thesis coordinator.

The two events triggered the decision of the USL to launch a brutal and coordinated assault against the state institutions. The USL’s ultimate goal appears to be to take over the judiciary and, thus to rescue other party members facing criminal charges. In the Parliament, there are 19 MPs on trial for corruption- related offenses, two are already in prison while a further three have been given suspended sentences. In the last 6–7 years, over 100 prominent local or national politicians from all political parties have been investigated or put on trial for corruption offenses by the National Anti-Corruption Directorate.

The top four figures capable of blocking the way to the total control of the state were the President, the speakers of the two chambers of the Parliament and the Ombudsman. In just four days, however, all four were dismissed.

The speakers of the two chambers were voted out on 3 July in violation of a previous decision by the Constitutional Court that a speaker’s removal can be initiated only by the party that nominated the person. More important still was the replacement on the same day of the Ombudsman, the only man who could have challenged the Emergency Ordinances (EO) that the government adopted over the following days. On 4 July, the government adopted an EO stripping the Constitutional Court of its right to check decisions of the Parliament (including those regarding the suspension of the President or the removing from office of the two speakers of the Parliament). The next day, the USL majority claimed in Parliament that the President, the conservative Traian Băsescu, had violated the Constitution. That evening, the Ponta Government adopted another EO modifying the referendum law in order to facilitate the impeachment of the President. On 6 July, the Constitutional Court issued its “opinion”: it did not find the President responsible for any “serious” breach of the Constitution. The Court’s opinion was not read out in the Parliament, however, when hours later MPs met to vote. They suspended the President and submitted him to the impeachment referendum.

In the midst of this political crisis, the European Commission (EC) reacted with speed and firmness. On 18 July, the Commission released its Report on the Cooperation and Verification Mechanism that explicitly requested the government to take immediate action in order to restore the rule of law. At the same time, the Ponta Government and the USL majority were asked to implement all the decisions of the Constitutional Court, respect the independence of the judiciary, appoint an Ombudsman enjoying cross-party support, ensure ministers with “integrity” issues stepped down and to repeal the two Emergency Ordinances adopted during the suspension procedure.

Prime Minister Ponta did none of these. In fact, just one day after being summoned to a meeting by José Manuel Barroso, the President of the European Commission, during which he expressed his commitments to respect the rule of law and the independence of the judiciary, Ponta signed an agreement with several ghost trade unions and NGOs to dismantle the National Anti-Corruption Directorate, the National Integrity Agency and the Constitutional Court.

Moreover, the amendments to the Law on the Referendum, brought by the Emergency Ordinance 41 in its Annex 1, were not repealed: on the contrary, they came into force and brought about changes which raised serious concerns that the USL was preparing for large-scale fraud at the 29 July referendum. Firstly, the offices legally responsible for supervising voting at local level were dismantled, thus eliminating the possibility of challenging in due time potential irregularities or illegalities during the voting. Secondly, multiple voting on supplementary lists and voting with the mobile ballot boxes were almost impossible to identify as the written minutes of the polling stations no longer indicated voters who voted on the lists or used the mobile boxes. In addition, the cameras, which were supposed to record the voting process, were removed from the polling stations.

These and other moves resulted in cases of multiple voting or poor independent supervision and verification of the fairness of the referendum process, and thus in widespread fraud. The Permanent Electoral Authority also announced that, following the proposals of the Social Liberal Union, voting stations were established in twenty-one private hotels and seven private restaurants at Black Sea resorts. Media outlets made public internal documents of the Social Democrat Party (PSD) signed by its General Secretary, Liviu Dragnea, which revealed how the PSD prepared the organisation of raffles in each locality. According to these documents participation in the raffles was conditional upon presenting proof of voting in the referendum.

In order not to legitimise what he regarded as a coup d’état, the suspended President urged his supporters not to participate in the referendum. Consequently, there was a high percentage of voters who voted in favour of the President’s impeachment, almost 90 per cent. However, as the Constitutional Court had decided in advance that the referendum would not be valid if a participation threshold of 50 per cent + 1 of the citizens registered on the electoral lists was not met, the results of the referendum could not be validated (around 46 per cent of voters participated in the referendum, a figure which includes the possiblility of fraudulent voters). Theoretically, this should have meant that the President remained in office. Yet, days before it convened for a decision, the Constitutional Court was bombarded by the Ministry of the Interior with contradictory data regarding the total number of voters on the electoral lists, thus suggesting that it did not know the real number of voters and that the Government was not willing to recognise the outcome of the referendum and its subsequent invalidation on grounds of low turnout.

As a consequence, the Constitutional Court postponed the final decision until the end of August. The President remained suspended, the brutal political fighting resumed, the pressure upon the Constitutional Court increased (prompting the public intervention of the Venice Commission of the Council of Europe and of the Justice Commissioner of the European Commission), while in the meantime the Ponta Government tried to organise a so-called “mini-census” in an attempt to illegally sideline the electoral lists of the Romanian citizens living abroad. As there are over two million Romanian citizens abroad, this would sufficiently decrease the quorum of the referendum to prove to the Constitutional Court that turnout was higher than 50 per cent. Thus, the outcome of the referendum will not be clear at least until the end of August.

In the meantime:

– The international credibility of Romania has plunged to its lowest point since the 1990s when the country was on the brink of civil war and miners came to Bucharest at the behest of the former socialist President Ion Iliescu (a high ranking official during the communist regime) to engage in street fighting with supporters of the democratic opposition parties established in the wake of the 1989 Revolution;

– The Romanian currency, the leu, sank to historical lows against the euro and the dollar, producing unparalleled nervousness in the Central Bank and the private banks, as most of the household and business debt was denominated in foreign currencies during the economic boom prior to 2008;

– The International Monetary Fund and the World Bank negatively revised their prognoses on Romania’s growth prospects, while around 2 billion euros of foreign capital fled the country in just one month leading to shockwaves on the markets;

– It became certain that Schengen area membership will not be granted to Romania this year and almost certainly not in 2013 either. Germany expressed its disapproval after Chancellor Merkel herself accused the Romanian Government of breaching the fundamentals of the rule of law during the political crisis;

– Close to financial incapacity in 2010 and dependent on the IMF and the EU since the economic crisis began in 2008, Romania’s loans will be more expensive as the higher level of political uncertainty raises the country risk and related interest rates.

Behind the political turmoil lies a huge stake: the freedom of several prominent politicians and businessmen indicted for corruption offenses. These figures see the President as the last obstacle in the process of removing the Chief Prosecutors from office and taking over the judiciary, an institution which in recent years was able to gain and consolidate an unprecedented independence. In 2007 there was also a failed attempt to impeach the President after the first independent criminal investigations of the anti-corruption prosecutors started. Five years later these criminal files are approaching a conclusion in the courts. The conviction and subsequent imprisonment of the former socialist Prime Minister Adrian Nastase triggered panic and rage within the political class. In short, not just political power is at stake. This is not a game between the right and the left, but a struggle between the rule of law and an emerging mafia state.

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