Another contribution from my Princeton colleague Kim Lane Scheppele:

Kim Lane Scheppele

4 July 2012

Now it’s Romania’s turn to worry those of us who care about constitutionalism, democracy and the rule of law.

A political crisis has gripped Romania as its left-leaning prime minister, Victor Ponta, slashes and burns his way through constitutional institutions in an effort to eliminate his political competition. In the last few days, Ponta and his center-left Social Liberal Union (USL) party have sacked the speakers of both chambers of parliament, fired the ombudsman, threatened the constitutional court judges with impeachment and prohibited constitutional court from reviewing acts of parliament – all with the aim of making it easier for Ponta to remove President Traian Basescu from office. They hope to accomplish that by week’s end.

In just a few months in office, Ponta’s government has caused a great deal of political damage. Setting its sights on the next election, Ponta’s government passed an election law (later rejected by the constitutional court) that would make it much easier for the government to stay in power. The government has already neutralized the legal effects of decisions of their key opponents – the constitutional court and the president – by taking control over the publication of the official gazette that determines when laws and decisions come into force. If the government fails to publish the decisions of the constitutional court and the decrees of the president, they are simply not law. To top it all off, Ponta launched a culture war. .

Things are moving fast. Another EU democracy in the east is unraveling the rule of law by attacking all legal constraints on the power of the prime minister.

Behind the desperate actions of the last few days is a highly polarized political environment fueled by an economic crisis.

Romania was one of the countries hit hard by the global recession. In 2009, Romania got a $26 billion bailout from the IMF in exchange for a harsh austerity program. The center-right coalition of Prime Minister Emil Boc survived 10 confidence votes before resigning in early 2012 amid growing protests. Angry crowds in the streets in January rejected draconian public spending cuts which included, among other things a 25% cut in public sector wages and dramatic slashes in public benefits.

The next prime minister, Mihai-Razvan Ungureanu, took office in February 2012 as political chaos grew. He barely got a chance to govern before he was toppled by a no-confidence vote in April, which brought USL leader Victor Ponta to power. Ponta and his party next face the voters at the regularly scheduled election in November.

In the last two weeks, Ponta’s government has been rocked by two scandals and a fit of pique, which could well combine to bring him down even before the November poll. But Ponta doesn’t want to give up power. His frantic reactions of the last few days seem to be a desperate attempt to cling to office, even if it means smashing all other constitutional institutions to do so.

The first scandal involved corruption. Two weeks ago, another former prime minister, Adrian Nastase, was sentenced to two years in prison after being convicted on corruption charges. Ponta supporters, for their part, believe the case against Nastase was politically motivated. Nastase is generally thought to be Ponta’s mentor in politics, and so the conviction meant that the trail of Romania’s legendary corruption culture was leading ever more obviously to Ponta’s door. As police came to cart Nastase off to jail, however, Nastese shot himself in the neck and wounded himself seriously enough to go to hospital instead.

The second scandal involved plagiarism. The 39-year-old Ponta had received a PhD in law in 2003 from the University of Bucharest with a dissertation on the international criminal court. Last week, the ethics committee of the university found that 85 pages of his 307-page dissertation had been cut and pasted from the work of other scholars, leading some to start calling him Prime Minister Copy Paste. When the charges of plagiarism were not yet proven, Ponta said he would resign from office if they were found to be substantiated. Once they were, Ponta’s education minister angrily dismissed the committee that had found against him. Ponta has vowed to stay on as prime minister. Wednesday, it emerged that Ponta claimed a master’s degree on his c.v. from the University of Catalina in Sicily but the president of that university says that Ponta was never there. Ponta just altered his c.v. as a Romanian website comparing the two c.v.s has shown.

The fit of pique involved a trip to Brussels. The President Basescu asserted that he had the right to represent Romania at the European summit last week. Ponta, as prime minister, insisted that he travel to Brussels instead. Ponta got the parliament to pass a resolution mandating that the prime minister represent the country in Brussels. Basescu went to the constitutional court which ruled that the president had the legal right to represent the country in international meetings. Ponta angrily defied the ruling of the court by going to Brussels the day after the court decision. The official gazette, now published by the government instead of by an independent body, never published the decision, which means that the government effectively blocked the court decision from taking effect. Ponta’s presence in Brussels created the understandable impression that Romania’s leadership was in chaos.

This week, after returning from that trip, Ponta sprang into action to prevent the two scandals and the fit of pique from bringing down his government. He started replacing all those who could oppose him. He angrily attacked the constitutional court, calling for his justice minister to remove from office all of the judges who voted against him in the matter of the Brussels trip. This caused the constitutional court on 3 July to send a rather unusual letter – a desperate plea of help – to all of the European officials who might have jurisdiction. Backing down, Ponta’s party passed an emergency resolution through the parliament, removing the power of the constitutional court to review any of the parliament’s actions. The constitutional judges are all there – but have no power to do anything about the escalating crisis.

All of these machinations seem to be aimed at one target: President Basescu, who has been president since 2004 and who was once affiliated with the center–right Democrat Liberal Party (PDL), which currently opposes Ponta’s government in the parliament. Ponta has not missed an opportunity to accuse Basescu of everything – from ferreting out Ponta’s plagiarism to inciting the judges of the constitutional court against him.

Ponta’s government is now moving fast to remove Basescu from office. By neutralizing the constitutional court, firing the ombudsman, and sacking the presidents of both the Senate and the Chamber of Deputies, there is no institution of state that could stand in the way of a vote to impeach.

On 4 July, Ponta’s parliamentary majority brought in a 17-page indictment against the president. But presidents, under the Romanian constitution, can only be removed for “having committed grave acts infringing upon constitutional provisions” (Article 95), something the document never argues. An impeachment vote, however, is expected by week’s end.

The parliamentary vote to impeach Basescu would have to be approved in a popular referendum before it could take effect. A previous USL government had voted to impeach Basescu in 2007, but then his popularity enabled him to defeat the motion in a referendum. Now that Basescu has spent two years helping to enforce the IMF/EU austerity mandates, however, he is not so popular. It is not clear he could win a referendum at this point. Ponta, then, might just succeed in bringing down his long-time opponent without following the niceties of the constitution.

Even if the efforts to remove the president and the constitutional court judges fizzle, it is not a pretty sight when a democratic government goes rogue. Ponta’s rage against the constitution shows that he doesn’t respect legal limits, and that is dangerous.

Is Romania therefore becoming another Hungary? It all sounds familiar – the attempt to dismantle constitutional checks on power by an imperious prime minister who hates to lose. But there the similarity ends. Orbán is a man of the political right; Ponta hails from the left. Orbán has been head of a party for more than two decades; Ponta is a comparative newcomer to Romanian politics. Orbán has absolute control over his party; Ponta must govern with a coalition that consists of at least one party that has switched sides before.

Though misery is not a competition, the Hungarian situation is far more serious than the Romanian situation – at least right now. Viktor Orbán has rewritten the Hungarian constitution, implanted his own loyalists in virtually all important state institutions, compromised the independence of the courts, centralized local governments, rigged the electoral machinery and otherwise dug himself in, both legally and practically, for the long haul. It is hard to see how his party will ever be forced from power because there is virtually no independent political institution left standing that would give any opponents leverage from which to launch such an effort. And the political opposition is in complete disarray.

By contrast, Romania’s strong multiparty system forces Ponta to govern with a fickle coalition in a context where there is a seriously organized opposition that controls at least some of the key offices of state. Ponta has not yet captured the presidency and the constitutional court, which have shown their willingness to block him. And he has not been able to rewrite the constitution just to keep himself in power.

Ponta may well have the same ambitions as Orbán but, so far at least, he hasn’t had the success at changing the entire system of power. Ponta seems to be aiming at getting rid of particular individuals who oppose him, not at changing the whole constitutional system into a dictatorship. But these are still early days. Ponta has only been in power since April.

The fact that Romania isn’t as bad as Hungary – yet — doesn’t mean that all in Romania is fine. The speed with which this crisis has escalated as well as the tenacity with which Ponta is clinging to power are both reasons for serious concern. If Ponta succeeds in ousting the President Basescu and muzzling the constitutional court, a constitutional coup is still a possibility in Romania. That is why people who care about constitutional democracy must pay close attention.