seejps

Coordinated by Sabin DRĂGULIN

Romania’s Constitutions

and their Dependence on Political Factors

 

Sabin DRĂGULIN

“Dimitrie Cantemir” Christian University

 

 

Abstract: In this study the author makes a short presentation and analysis of the relationship between political factors and Romania’s various constitutions. Starting from the historical reality according to which the Romanian state is a creation of recent history, the author has presented the succession of constitutional changes. The author’s working hypothesis is that along a century and a half of state history, the influence of politics was directly reflected in constitutional provisions. These frequent changes or adjustments of different articles from the constitutional text were caused by the fact that the political elites of the Romanian state did not succeed in shaping a common vision of the Romanian state.

 

Keywords: Constitution, reform, revision, politics.

 

1. INTRODUCTION

The Romanian state and nation are realities of recent history. The specificity of the space inhabited by the Romanized population, subsequently entitled “Romanians”, was given by the following elements: the migration phenomena (6th-11th centuries), Orthodoxy, the Byzantine influence over these territories until the conquest of Constantinople by the Turks (1453), their constant invasions into the heart of Europe (the siege of Vienna 1529, 1683), the important strategic interests manifested by the Great Powers at the mouths of the Danube (18-19th centuries). These realities of our medieval history did not enable the making of a centralized state according to the French or the English classical models. The occurrence and maintenance of an administrative-territorial unit until the unification of Moldova with Wallachia (1859), delayed the creation of a nation within a unique centralized state. Consequently, the medieval forms of institutional organization were maintained until the half of the 19th century.

All these elements have been mentioned without being analyzed, since they are known to specialists, but their effect was the creation of a “delay” phenomenon. This refers to the concept of modernity that was identified at the European level as: ”variants of a historical model of identity, structured according to a vertical hierarchy and not horizontally, in a ‘network’, endowed with a unique center and various peripheries, chronologically structured, having as mandatory criteria the arguments of progress and delay”[1] .

Compared with this historical model, the Romanian space has been in a state of “delay” or, according to the critics of the Braudelian concept, a “lag” from the ideal and original model created by the Western civilization. This reality has been expressed not only at the level of the historical delay involved in the creation of the Romanian state and nation, but also at the level of the emergence of the fundamental law, commonly known as Constitution.

Interestingly, at the level of the geographic and civilization space identified by the terminological triad as “Carpathian-Danube-Pontic”, the birth of the Constitution had an unnatural direction. The state occurred first, the Constitution was introduced after that, and the nation was the last to emerge. The state was formed in the aftermath of the Little Unification, as the Romanian historiography named the consequence of the election of Alexandru Ioan Cuza as ruler on the throne of Moldavia and Wallachia (5-24 January 1859). The second stage was the introduction of “The Statute expanding the Paris Convention (1864) and constitutive elements of the Romanian nation were subsequently identified[2]. From this perspective, the normal process characterized by the emergence of a national consciousness, of belonging to an ethno-linguistic group, continued by the process of centralization of the territories inhabited by it, finalized through the emergence of the state and subsequently, as a consequence of socio-economic transformations, was replaced in the Romanian state by “form without substance”[3], to quote Titu Maiorescu.

However, the Romanian modernizing elites’ desire to integrate us in the West-European type of civilization space entailed a process of “missing out stages”. One of the main mechanisms used in the making of this political project was the introduction of those principles that shaped society and individual mentality according to the Western model of civilization, in the paragraphs of the various constitutions adopted along approximately a century and a half of existence (without the Communist parenthesis).

 

2. ROMANIA’S CONSTITUTIONS. A BRIEF HISTORY

One may consider that the Romanian state has known three different historical periods when constitutions were introduced. These reflected the political, economic and social realities of the periods in which they produced effects:

A.The period of the modernization of the Romanian state in accordance with the Braudelian paradigm of the concept of modernization (1848-1948):

1.The first linguistic construction that comes close to the model of a modern constitution was, as stated above, the “Statute expanding the Paris Convention”. Its most important principles were:

a)The imposition of a bicameral model of the Romanian Parliament, by founding the Moderating Assembly, which made up the legislative power together with the Elective Assembly.

b)The introduction of a highly up-to-date principle, i.e. the incompatibility principle, according to which persons who occupied high ranks or administrative functions, could not obtain the deputy mandate.

2.The second Constitution of the Romanian state was adopted on 1 July 1866 and it had the Belgium Constitution from 1831 as its reference model. This established a series of important principles that derived from the principles listed in the “Declaration of the Human and Citizens Rights” (26 August 1789). These were: the principle of sovereignty, hereditary monarchy, ministerial responsibility, the principle of representative government, the separation of powers within a state, respect for the human and citizens’ rights, etc. Starting with the becoming effective of this Constitution, our state had the official name of Romania.

3.The Third Constitution was adopted on 29 March 1923. Article 1 stipulated for the first time that “The kingdom of Romania is a national, unitary and indivisible state”. One of the most important institutional reforms found in the new Constitution was the extension of the right to vote by the introduction of the universal vote system, but only for the masculine gender. Women could benefit from this right only after 1945. Article 5 stipulated that “Romanians irrespective of ethnic origin, language or religion enjoy the freedom of consciousness, freedom of education, freedom of the press, freedom of association and all the freedoms and rights established by laws”.[4] This article has its own relevance as it promotes the acknowledgement of the natural rights for all the citizens of the country, removing the elements of ambiguity from the Constitution of 1866 and maintaining the paradigm of reducing the delay in the process of modernization.

4.The fourth constitution of this period in the history of the Romanian state was adopted on 20 February 1938. Its characteristic was that it introduced corporatist principles, being executed via King Charles II’s initiative. The Constitution from 1938 tried to limit individualism and promote the social dimension, aiming to transform the individualist state into a communitarian, corporatist state. In the new Constitution, the power was concentrated into the king’s hands.[5]

B.The totalitarian communist period (1948-1989). In this historical period, given the alignment with the communist ideology, the Romanian state left the Braudelian paradigm of Western modernization as it tried to accomplish a different type of modernization, founded on anti-bourgeois and anti-capitalist principles. In this period, three constitutions were edited in Romania (1948, 1952 and 1965).

1.The first constitution of Romania in the communist period was adopted on 13 April 1948. One may consider that this is a law that operates the transition from a model of society (bourgeois, capitalist, democratic) to a different type (communist, statist, totalitarian). The most important articles were: art.1 stipulating that “The People’s Republic of Romania is a unitary, independent and sovereign Popular State”; art. 2, “The People’s Republic of Romania is the creation of the people’s fight lead by the working class, against fascism, reaction and imperialism”; art. 3, “In The People’s Republic of Romania the entire state power emanates from the people and belongs to the people. The people exerts its power via representative organisms, chosen by universal, direct and secret vote”; art. 11, that stipulated the confiscation of all private means of production by the state when the general interest requires it; art. 14 established the state control over the foreign and international trade and of course art. 15 that stipulated the introduction of the concept of planned national economy[6] .

It is interesting to notice that in 1948, the new power instituted by fraud and imposture tried to invent a sort of legitimization that no longer originated from the “Declaration of the Human and Citizens Rights”, the constitutive act of the model of bourgeois society, but claimed its origin from a hypothetical “fight led by the people and the working class against…” (art. 1). The moral fraud was obvious and article 2 that instituted the “representative organisms” chosen by “universal, direct and secret vote” forgot to maintain the fourth fundamental feature of the exertion of the political right to vote, i.e. “freely expressed“. At the level of relations between state powers, the principle of their separation was abandoned.

2.The second Constitution of this period was adopted on 24 September 1952. This new fundamental law established the new political realities, i.e. the Romanian space’s dependence on the Soviet communist ideology. The preamble and art. 3 stipulated that: “The People’s Republic of Romania was born and consolidated as a result of its being freed by armies of the Union of Soviet Socialist Republics from the joke of fascism and imperial domination, as a result of the downthrow of the landlords’ and capitalists’ power by the masses from cities and villages lead by the working class, under the supervision of The Romanian Communist Party. Another interesting principle was introduced by art. 86, alin.4 that establishes the “Party’s leading role”.

3.The third and the last Constitution from the communist period, however amended in 1974, when the function of the president of the republic was introduced, was published in the Official Monitor on 21 August 1965. This Constitution continued the principle established in 1948 that no longer acknowledged the principle of the separation of powers within a state, which proved the totalitarian character of the communist regime. Art. 3 established that “in The Socialist Republic of Romania the leading political force of the whole society is the Romanian Communist Party”. Interestingly, the title of The People’s Republic of Romania disappears and The Socialist Republic of Romania is established. Another particularity of this Constitution is that besides the listed “rights” and “liberties”, two categories of citizens are founded for the first time in the Romanian constitutional history: those who are members of The Romanian Communist Party and those who are not. Art. 26 stipulated that “the most advanced and most aware citizens among workers, peasants, intellectuals and other categories of the working class are united in The Romanian Communist Party, the highest form of working class organization, its avant-garde squad”[7] . This article clearly illustrates that the communist power divided the Romanian society into two categories of citizens, depending on their membership in The Romanian Communist Party. This did not consider the qualitative criterion, but especially the one expressing obedience to the regime.

C. The post communist period (1990-present):

Romania’s Constitution became effective after its publication in The Official Monitor on 21 November 1991. It was subsequently revised, and the new version became effective once it was published in The Official Monitor Ulterior on 29 October 2003.

The first constitution of Romania adopted after the fall of the communist regime and of the Soviet Eastern Bloc was a turning point for the post-December democratic regime. This happened because during the discussions in the Constituent Assembly, the Expertise Commission and civil society raised several issues solved more or less satisfactorily by the final form.  

The first theme referred to the form of government. The monarchists stated that the King’s abdication act from 30 December 1947 was null and therefore they argued for the reenthronement of the monarchy. Interestingly, the arguments regarding this theme were pro and cons but what is extremely important is that the adoption of the republican form of government for the Romanian state was not the result of a referendum. This type of popular consultation meant to illustrate the Romanian citizens’ opinion regarding the form of government has not been organized so far, which is why the problem itself persists.

The second theme referred to the separation of powers within a state. During the communist period this principle was not respected. The totalitarian vision of governing a society was clearly imposed in this field. Moreover, the principle of the separation of powers within a state is not enough and one must also consider the one regarding the mutual control between them as well as the balance in political practice. As a result of the discussions between the founding fathers of the Constitution one opted for a light separation of the functions of power and for the supremacy of the legislative.

The third theme referred to the guarantee of the private property. This principle is a part of the natural rights and was not guaranteed by the constitutional text that employed the expression “protected”. This notion enabled the critics of the Constitution to state that the mentality of a part of the post-December political elites preserved totalitarian conceptions that were included in all the constitutions of the communist period.

The fourth and last theme referred to the nature of the state. Art. 1 from the Constitution states that “Romania is a national, sovereign and independent, unitary and indivisible state”. Political representatives of the Magyar community of Romania (UDMR) contested: the concept of national state claiming that there are more nationalities in the territory of the state, the concept of unity, demanding the federalization of the state and the organization of administrative units considering ethnic criteria and the criterion of a single national language (Romanian), demanding the institutionalization of the Magyar language as the second official language[8] . In all these respects the law-maker was inflexible, maintaining the initial formula.

Romania’s Constitution underwent the process of revision becoming effective on 29 October 2009. The most important changes were: free education is no longer guaranteed unconditionally, but in compliance with the legal provisions, national minorities have the right to use their mother tongue in administration and justice, the presidential mandate was extended from 4 to 5 years, property was guaranteed and protected, the level of parliamentary immunity was limited. As a result of the Romania’s joining the EU one guarantees the right of all EU member citizens to elect and be elected in local elections if they are residents of a particular locality. Romania’s joining the EU and NATO will no longer be decided by referendum, but by the Parliament [9] .

 

3. CONSTITUTION AND EPOCH, EPOCH AND CONSTITUTION

In the 154 years of its existence, the Romanian state had 8 constitutions (1864, 1866, 1923, 1938, 1948, 1952, 1965 and 1991). The last of them underwent an important revision in 2003. The fundamental characteristic of all these constitutions is that each has represented or represents the political model of the period in which it produces its effects. One may argue that in the Romanian case we cannot state that we have had a Constitution maintained along a century and a half of the existence of the Romanian state. Instead, we can speak of Constitutions that were modified in accordance with the political realities of a certain moment. This is a fundamental difference as it demonstrates that major changes have occurred in the political life of this period and they have been reflected in the creation of the Romanian nation. Nine constitutional texts, without considering the revisions, is a lot. The average is approximately 15 years for each Constitution. One notices that they had short durations. Normally, a Constitution represents the written form of political agreements reached by political elites. These frequent changes demonstrate that there weren’t cooperating, but rather cannibal elites in the Romanian political space. Therefore, the elites attacked and destroyed one other. An illustrative example is provided by the moment of 1948 that marked a violent change of political, economic and social regimes, which generated a huge change of the Romanian mentalities.

Another element that must be discussed is that each of the three epochs that produced constitutions reflects the way in which the state or rather the empowered political elites related to the citizens.

The first period (1859-1938) had a progressive politics of liberalization of the power relations from the elites to the people, which had the most important moment in the Constitution from 1923. In this period, the process of delegating civil responsibilities was tortuous, but it illustrates the process of nation-creation once the citizens appeared and subsequently multiplied. I do not use the notion of citizen because in 1859 one cannot talk about an important category of citizens, i.e. individuals who are aware of their rights and obligations and who live on the basis of a social contract symbolically signed with the state. One can talk about subjects, who had very few rights and a lot of obligations according to the social model of the feudal age. This situation is explicable given that the emergent Romanian state of 1859 represented the political-territorial union of two medieval states. The process of modernization in the Braudelian sense had not penetrated the extra-Carpathian space. One may say that it had just reached its borders. The constitutional changes reflect the degree of evolution of the Romanian society where elites started to grant the citizens more and more political decisions. Unfortunately, this process was interrupted abruptly.

The second historical period (1948-1989) reflected the realities of a totalitarian political regime that deviated from the citizens’ will. One may argue that the process of modernization supervised by the communist political elites brought “citizens” to the level of “subjects”. The three constitutions (1948, 1952 and 1965) revealed a type of regime within which political legitimacy did not spring from “the people’s will” as defined by the values of the French Revolution (1789), but from the individuals’ “obedience”. This social reality was changed by the burst of the Revolution of December 1989.

The third historical period (1990-present) is characterized by a continuous search for answers. These refer to the form of government, the relation between state institutions and citizens, the nature of the state, the type of administrative- territorial organization, etc.

 

4. CONSTITUTION AND CONSTITUTIONAL REFORM

This year (2013) the issue of Constitution revision has been reopened. This was the second revision, while the first took place in 2003, as previously stated. In this case, too, the local political elites had to meet contemporary demands and they initiated the modification of the Constitution. .

In the number dedicated to this event, South-East European Journal of Political Science publishes articles and studies by scholars and academics from Romania and abroad. The topics analyzed are diverse, which suggests that the theme of the reform of the “state’s fundamental law” can be approached from specialists in constitutional law but also in political science, sociology, history, political communication, etc.

An interesting article is presented by Cristian Andrei. The author focuses on the perception shaped by individuals and citizens who have the right to vote, as a consequence of their interaction with providers of ideas, public opinions and services. In a democratic society, the political right to vote that belongs to citizens, turns them into political decision makers, in every election, referendum, etc. Hence, observing the citizens’ reactions to the politicians’ decisions is highly important as it explains the complex relations between citizens and their elected representatives.

The article published by researcher Cristian Ion Popa is a short critical analysis of the objectives proposed by the Government within the administrative reform that refers to regionalization, relying on a part of the relevant specialized literature dedicated to decentralized government.

Another article presented by Dragoș Cosmescu argues that the constitutional model is fundamental for the consolidation of a democratic regime. The article presents and analyzes presidential, parliamentary and mixed systems in order to identify the impact of different election rules on the configuration in the political arena.

Florin Grecu presents an interesting study about the Romanian Constitution from 1938. Starting from a critical analysis of the historical period discussed, the author identifies the theoretical and ideological bases of the authoritarian regime lead by King Charles II. The author identifies the interwar process by which the crisis of liberal democratic regimes enabled the emergence of political concepts that promoted principles that envisaged the increase of the state role at the expense of individual rights.

The section dedicated to foreign authors contains three extremely interesting presentations that deal with constitutional themes from the Balkans, Italy, Bosnia and Herzegovina.

Ilia Roubanis analyzes the concept of “transitology” in the constitutional texts from the Balkans. The author’s approach is worthy of praise at is analyzes the process of transition undergone by many states from the level of non-democratic to democratic regimes. The process of institutional transformation renders the institutional differences between different state realities in the Balkans. Hence, the author suggests that the term Balkans should exit the narrow geographical sphere and extend its significance as a space of convergence.

Fulco Lanchester makes an overview of the last four decades of the Italian constitutional history, considering that since the parliamentary elections of 2013, there have occurred the first elements that will trigger the third institutional earthquake after the ones in 1975/1976 and 1994.

Saša Gavrić presents a case study about Bosnia and Herzegovina. Starting from “The Decision of the European Court of Human Rights from Strasbourg” from December 2009, (Sejdic and Finci vs. Bosnia and Herzegovina) the author suggests practical solutions such that the local political elites make an institutional reform that clearly brings under regulation the relation between state institution and their powers.

 

5. CONCLUSION

In the first place, the Constitution represents the vision of the type of society imagined by the “founding fathers”. Its maintenance for a long period of time can be done if two conditions are met: it must represent a vision that is shared by a large part of the present political elites and it must demonstrate its present relevance in relation to the social changes of specific times. In the Romanian case, the frequent procedures of changing the Constitution demonstrate that neither of these conditions has been met.

 
Bibliography

BOCANCEA, Cristian, “Experiențele constituționale ale României și posibilele modele. Povestea Constituției la români”, in Sorin BOCANCEA (coord.), Constituția României. Opinii esențiale pentru legea fundamentală, Editura Institutul European, Iași, 2012.

DRĂGULIN, Sabin, Istoria gândirii politice românești 1848-1948, Editura Pro Universitaria, București, 2010.

MIGLIORINI, Mascilli Luigi, “Mediterana unei Europe plurale”, in Sabin DRĂGULIN, Florin MITREA (ediție îngrijită de), Modelul mediteranean și regiunea extinsă a Mării Negre. Confluențe politice, economice și culturale, Editura Ars Docendi, București, 2013.

MAIORESCU, Titu, “În contra direcției de astăzi în cultura română”, Critice, 1874.

 

Online resources

http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=1517

http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=9206

http://legislatie.resurse-pentru-democratie.org/const_1948.php

http://www.rogoveanu.ro/constitutia/const1952.htm

http://legislatie.resurse-pentru-democratie.org/const_1965.php

http://legislatie.resurse-pentru-democratie.org/const_2003.php




[1] Luigi Mascilli MIGLIORINI, Mediterana unei Europe plurale”, in Sabin DRĂGULIN, Florin MITREA (eds.), Modelul mediteranean și regiunea extinsă a Mării Negre. Confluențe politice, economice și culturale, Editura Ars Docendi, București, 2013, p. 11.

[2] Sabin DRĂGULIN, Istoria gândirii politice românești 1848-1948, Editura Pro Universitaria, București, 2010, pp. 30-32.

[3] Titu MAIORESCU, În contra direcției de astăzi în cultura română”, Critice, 1874, p. 328.

[8] Cristian BOCANCEA, “Experiențele constituționale ale României și posibilele modele. Povestea Constituției la români”, in Sorin BOCANCEA (coord.), Constituția României. Opinii esențiale pentru legea fundamentală, Editura Institutul European, Iași, 2012, pp. 23-25.