Raison d’État to Plebiscite: a conceptual analysis

of Romanian postcommunist referenda^[i]

Cătălin-Valentin RAIU

Romanian Academy, Institute of National Economy

Abstract: The issues discussed in this study point out that Romanian postcommunist referenda are, in political terms, plebiscites. By creating a genealogy of the main political patterns and terms used in the constitutional framework, as well as in the political public discourse, the study makes use of the concept of 'raison d’État' in order to reveal that representative democracy in postcommnunist Romania tends to be its own enemy. Public consultations are not the instruments of social and political consensus aimed at politicizing society. They serve as tools of electoral barganing, as in the case of pre-democractic regimes. From this particular perspective, the Romanian political system lacks some of the patterns of mature democracies, as for instance the separation and distinction between sovereignity and government or between office and status. The conclusion of the paper is that the president of Romania, as coined by the Constitution and embodied by its successive incumbents, is nothing else than 'a secularized king' drained out of governmental powers, but accountable to and subject to raison d’État. Thus, his dismissal cannot be a matter of popular will expressed through a plebiscite, but a matter of the State itself, as an entity separated from society through raison d’État. 

Keywords: raison d’État, referendum, plebiscite, political representation, rule of law.

1.       INTRODUCTION

No less than five national popular consultations called in the local constitutional language referenda were held during the period 2003-2012 in Romania. Prescriptive notions of constitutional law rarely coincide with political science concepts designed to explain the empirical reality generated by the legal forms. This study analyzes how political power in contemporary Romania increasingly relies on national popular consultations by carrying out an examination that deconstructs the terms used and sometimes even misused in the public space.  Thus,  Pierre Rosanvallon’s remark is also confirmed in the Romanian case. From his point of view, in recent decades democracy has taken a negative form, characterized rather by an abundance of negative messages against opponents, than by the construction of its own identity. Democracy of rejection becomes the alternative to democracy of the project and logic of change transforms the body politic into a court that exercises its negative sovereignty by rejecting, denouncing and revoking^[ii]. The same mutation appears to be experienced more clearly also by democratic political regimes in which the executive dominates the legislative^[iii], in the sense that the Parliament has accepted its major role of government censorship: from a space of deliberation, it became a challenging space exercising powers of control, censorship and limitation, meaning that democracy of imputation replaced the democracy of representation and confrontation.

Our approach has a genealogical nature in the sense that we will try to deconstruct the political concepts used in order to reconstruct them under the Constitution of Romania’s requirement text in force^[iv]. What are the models and political principles those who have assumed the constitutional text as founding fathers had in mind? In this regard, we will not look directly into the constitutional practice, although very important to define a political regime, but rather to the evolution of constitutional norms in the Western liberal democratic tradition, located at the junction of popular consultation, political representation and raison d’État[v].

The methodological challenge of the study is to separate two types of scientific approaches for understanding a set of texts having constitutional power, namely the political science and legal science. In this regard, we ground our approach on jurist Hans Kelsen’s remark, for whom a legal rule is nothing but codifying human behavior^[vi].  More specifically, a legal rule is preceded by a political reflection reduced in the law to the status of a code. Political will imperfectly and incompletely summarized in the law must be revisited in order to understand the complexities contained in the constitutional texts and to extract the conceptual tools we need to perform a policy analysis. Moreover, a constitutional text is followed by a political practice often unpredictable, inexhaustible in its forms and even different from the requirements announced by the text. For political scientists, the Constitution is therefore a set of three layers: the initial reflection and political will - the actual text – the text-generated political practice. On its research site, the polical scientist can not ignore any of the three elements, interdependent for that matter, and must be aware of the fact that political reality is not confined to what is written in the law.

For example, we can not understand the Maastrict Treaty without analyizing the political intentions, principles and debates that led to its writing, and especially its effects. The mere substantive law analysis of the text, usually operated by Romanian legal practitioners under the narrative  does not contribute to a knowledge worthy to make political reality intelligible. In other words, we can not understand the U.S. Constitution without considering The Federalist Papers. For this study, the constitutional texts are only the pretext and ground to look at the root of political concepts necessary for knowing the requirements and political dynamics of post-communist Romania. The constitutional text is used as the dependent variable and not the independent one. Our main hypothesis relates to the fact that the President of Romania, although elected by the citizens, cannot be dismissed by them. To test the announced hypothesis, we have to open several secondary hypotheses, as follows: the President of Romania does not represent Romanian citizens; raison d’État is the President of Romania’s exclusive duty; all referendums in post-communist Romania were de facto plebiscites.

A first aspect of the analysis is the meaning given to political representation in the context of the year 2012, when the Romanian Parliament decided to suspend the President in office and organize a popular consultation on his dismissal. The very content and meaning of political representation of Romanian citizens was subject to debate: who represents the body politic? The President elected by over five million people? Or the Parliament, consisting of venal politicians, many of whom did not even win the constituencies they ran for? Although the above questions find a firm answer in the very wording of the Constitution, the public debate got complicated when adjacent arguments were raised: Who represents Romania at the European Council? To what extent can the President of Romania ignore the will of the political parties on the issue relating to the appointment of the candidate for prime minister? and so on.

2. THE PRESIDENT OF ROMANIA AND THE RAISON D’ÉTAT

Beyond the legal and constitutional debate which is not the primary topic of this paper, an analysis of political theory is meant to expose the anti-democratic character of the political events of July 2012, but also the other national popular consultations from the past six years. The president of Romania, as described by the existing Constitution, plays roles similar to those of the King of Spain and the President of Austria since he does not have any executive or legislative, or judicial powers, but just the role of neutral moderator between, on the one hand, the state powers and, on the other hand, between the state and society. In his office, the President summarizes republicanism, the balance of powers, and (s)he represents the Romanian state, not the Romanian citizens, but (s)he is not able to negotiate on behalf of the State. For these reasons, the President is required to promulgate laws, to occasionally chair government cabinet meetings and appoint the heads of institutions dealing with justice and of secret services. These extremely important powers which apparently endow him with political power are designed for him as a politically neutral magistrate, in other words, in order not to leave the non-political institutions’ decision and activity at the hands of the governing political parties, tempted to abuse their power. Powers of the President of Romania are more of a notary public who does not request the parties to justify their choices as long as they are constitutional.

In this respect, Romania's constitutional architecture leaves no window of opportunity in terms of cohabitation between the President and Prime Minister. However, taking a glance at the resumés of most of the influential Romanian journalists, senior-editors and opinion makers in Romania, we see that they have not been socialized during democracy, therefore the dominant patterns in the Romanian media area are not far from those used by politicians – most of them being communist-based figures. In addition to the massively abusive use of the term cohabitation - a nonexistent Romanian reality in the constitutional architecture, another expression improperly and wrongly used is that “the President of Romania represents Romanian citizens”, as a direct consequence of the large number of votes received at the presidential elections.

The president of Romania, despite the fact that (s)he is elected by half plus one of the people present at the ballot boxes, and thus being the most voted person in the country, does not represent the citizens of Romania. The Romanian Constitution gives him only prerogatives to represent the Romanian state (art. 80, para. 1) and certainly not the people. At the same time, the said article and the subsequent ones provide the President with prerogatives in what it is called raison d’État: “guarantor of national independence, unity and territorial integrity of the country” (art. 80, para. 1), “he shall guard the observance of the Constitution and the proper functioning of public authorities”. For this purpose, he shall act as a mediator between the state powers and between the state and society” (art. 80, para. 2), “he can take part in meetings of the Government debating upon matters of national interest on foreign policy, country defense, ensuring public order” (art. 87, para. 1), “concludes international treaties on behalf of Romania, negotiated by the Government, and submits them to Parliament for ratification” (Article 91, paragraph 2), “accredits and recalls Romania's diplomatic representatives” (art. 91, para. 2),  “is the commander of the Armed Forces and chairman of the Supreme Council of National Defense” (art. 92, para. 1), etc. Law no. 415 of 27 June 2002 - Law on Organization and Functioning of the Supreme Council of National Defence (CSAT)^[vii] gives Romanian President initiative for establishing the state of siege. The CSAT, whose meetings chaired by the President are secret (art. 7), appoints the secret services directors^[viii].  Therefore, the President of Romania is not part of the executive branch, like the Prince and later on the King Charles I^[ix], but intervenes in relation to all three powers only in those areas and at those times raison d’État imposes (foreign policy, public order, alert state, national security, etc.) in such a way that it is not always transparent to society. In this respect, Harold Laski makes ​​the following remark on the secret nature of raison d’État in the American political system, intended to distinguish between raison d’État and the exercise of political power: “a proposal for marriage must be made in private, even if the engagement is later discussed in public”^[x].

Machiavellian invention, but explicitly stated by Giovanni Botero in 1589^[xi], the raison d’État (Ragione di Stato) refers to public affairs reserved for the Prince, and are distinct from the common affairs by providing preservation and survival of the state itself as an entity separate and distinct from the body politic. The sixteenth century brought to the forefront of political life a new distinction compared to the medieval times firmly anchored in Christian governance models, namely the distinction between sovereignty and government, formulated by Jean Bodin and J.J. Rousseau^[xii]. The Prince is required more than the mere exercise of domestic sovereignty, namely the use of art to govern as a continuing creative act of the respublicae. The subjects’ obedience to the law as norm of sovereignty is backed by government tactics to produce riches through the emergence of statistics and police. In other words, for the sovereign to ensure sustainability of the state, he needs to know the things that make the state possible through the science of the state (statistics) and by making use of an administrative body capable of penetrating population (police) in areas not monopolized hitherto, as knowing the number of people, their territorial density, the ratio between population and resources, agriculture, health, etc. Thus, since the sixteenth century in France and the eighteenth century in the German states, police is born as a set of means by which power of the state increases, corresponding to a vision on the human individual as a political subject, and also as the sovereign exercise of the royal power over individuals who are its subjects^[xiii].

The art of government is thus the task and eventually the exigence of sovereignty. But what makes this whole paradigm shift possible is precisely the emergence and conceptualization of raison d’État, as the essence of the State, ontologically concerned with the state preservation. In the context of the sixteenth and seventeenth centuries, Michel Foucault notes that the coup d'état has no pejorative sense, but it is embedded in the rationale of the state being one of raison d’État manifestations which suspend the laws and legality, yet the state survives itself:

“Raison d’État, which by its nature does not have to abide by the laws, and which in its basic functioning is always exceptional in relation to public, particular, and fundamental laws, usually does respect the laws. It does not respect them in the sense of yielding to positive, moral, natural, and divine laws because they are stronger, but it yields to them and respects them insofar as, if you like, it posits them as an element of its own game. In any case, raison d’État is fundamental with regard to these laws, but it makes use of them in its usual functioning precisely because it deems them necessary or useful. However, there will be times when raison d’État can no longer make use of these laws and due to a pressing and urgent event must of necessity free itself from them. In the name of what? In the name of the state’s salvation. It is this necessity of the state with regard to itself that, at a certain moment, will push raison d’État to brush aside the civil, moral, and natural laws that it had previously wanted to recognize and had incorporated into its game. Necessity, urgency, the need to save the state itself will exclude the game of these natural laws and produce something that in a way will only be the establishment of a direct relationship of the state with itself when the keynote is necessity and safety. The coup d’État is the state acting of itself on itself, swiftly, immediately, without rule, with urgency and necessity, and dramatically. The coup d’État is not therefore a takeover of the state by some at the expense of others. It is the self-manifestation of the state itself. It is the assertion of raison d’État, of [raison d’État] that asserts that the state must be saved, whatever forms may be employed to enable one to save it”^[xiv].  

Raison d’État is an area of urgency (necessitas); it uses secrets and double language to preserve the state even to the detriment of citizens. Raison d’État is thereby that part of politics that no longer takes into account moral values​​, seeks neither ideal purposes nor the public good, but only the survival of the state itself when in danger^[xv]. Accordingly, the office at the top of the republican hierarchy has these exclusive care duties to the state itself; when the latter finds out it is at risk, can endanger its own well-being, as well as the physical integrity of citizens, so that it finds itself in the state of exception, it can decide and may have an irresponsible behavior towards the nation when raison d’État demands it. Although in modern semi-presidential republicanism, as is the case of Romania, the President was stripped of executive power, he retains the machiavelian Prince’s duties being responsible for raison d’État as sole command center in case of Schmittian exceptionality. However, exceptionality in modern democratic regimes established on the rule of law is no longer defined as in the case of medieval political regimes, but it tends to be expressed in rules, regulations and laws precisely to allow the sovereign – namely the body politic – to keep the ability to govern and not let him be expropriated by those who temporarily exercise the power. Thus, etates d'droit are those which manage to cover, by means of legislation, as many areas of social and political life to the detriment of the arbitrariness of good-will of the rulers.

For monarchies, the fundamental distinction between sovereignty and government, between the political space of raison d’État and the exercise of political power through policies are not necessarily operated. The King is the sovereign which makes the government of the realm, as well as ensuring durability of the state, solely monarchical duties. However, over time, republicanism as a form of government has secularized the monarchical establishment, stripping the King of power, of functions and initially quasi-religious symbols, such as the ability to appoint successors, the nation’s embodiment and representation, discretionary powers, etc.  In the republican logic emerged from the confrontation with the absolute monarchy, the president is a monarch elected for a short period of time, is equal with others in terms of citizenship, unable to represent and embody the nation, deprived of any kind of privileges. In this regard, the President of the Republic is the antonym of the King of the Monarchy, but the positions of the two contain that common item essential for the state to survive as an entity distinct from the society.

A brief insight into the American political system is intended to provide us with guidance in this regard. The American case is extremely striking for two reasons. On the one hand, we are dealing with the first establishment of the presidential office in history, and on the other hand, the U.S. President is the Chief Executive, allowing us to describe the contemporary U.S. as a Presidential Republic. Thus, the American choice for president at the expense of the monarchy was the result of substantial debate, although the main concern was to place, at the head of the political system, a person who should not have a lifelong office. With eyes towards Britain, where King Charles III was considered a sacred and inviolable person, the Founding Fathers drew a political regime based on mixed government, where the democratic element, i.e. the people are represented by the House of Representatives, the aristocratic element is represented by the Senate and the monarchal element is represented by the presidential office^[xvi]. Therefore, the difference between the U.S. President and the King of Great Britain is important by the duration of their rule (four years versus lifelong), while their powers are relatively similar. The U.S. President is a secularized monarch who must return before the citizens at regular intervals to ask for their confidence and who, moreover, before the law is equal to every other citizen:

“President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable: there is no constitutional tribunal to which he is amendable”^[xvii].

Alexander Hamilton continues the parallel between the U.S. President and the British King citing the second’s ability to decide arbitrarily:

“President is to nominate, and, with the advice and consent of the Senate, to appoint ambassadors and other public ministers, judges of the Supreme Court, and in general all officers of the United States established by law, and whose appointments are not otherwise provided for by the Constitution. The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure, and has the disposal of an immense number of church preferments. There is evidently a great inferiority in the power of the President, in this particular, to that of the British king”^[xviii].

The U.S. President, as Chief Magistrate of the Union, is the one acting in cases where the deliberations involving a large number of stakeholders or collective decision-making bodies could jeopardize the efficiency of the act to be urgently settled. Therefore, the endangered state itself must be protected by means of an immediate decision concentrated in the hands of one man:

„Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and dispatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened to obtain their sanction in the progressive stages of a treaty would be a source of so great inconvenience and expense as alone ought to condemn the project”^[xix].

Thus, just as the president of Romania, that of the United States is the “commander-in-chief of the army and navy of the United States, and of the Militia of the Several States, when called into the actual service of the United States”^[xx], which means he has the same capacity to intervene through raison d’État in areas where the perenniality of the state is in danger. 

Moreover, in democratic regimes, the president tends to be isolated from exercising power, which can not be monopolized by one person as in the case of monarchies. More than this, modern constitutionalism, fearful in respect to the accumulation of power, isolates the president in an area designed exclusively for the reason of the state. At the end of the eighteenth century, the Congress dominated the actions of the U.S. President, the balance of power changing only after the New Deal^[xxi].

Through the administration available to him, the president of Romania ensures that the state itself operates not necessarily for the general good, but in the sense that prevents it from bogging due to temporary political dissension. For example, in the case of appointing candidates for the office of Prime Minister, the role of the Romanian president is not to reflect on what society (that is the will of the people) wants, on the national interest defined in the light of his presidential reflection capacity, but after consultation he designates the person who meets the support of the majority of MPs. Among his tasks, the President has no powers to negotiate with political parties, but merely to act as a neutral arbiter in proceedings the raison d’État deems essential for the survival of the state and, consequently, can not be left to rely on the negotiations between political parties, a process that could be endless. Thus, the president intervenes like an invisible hand of the political system to preventively unlock ab initio a political market which does not accept him in the stance of a competitor, but only as an observer. In the the same logic, if two successive candidates running for prime minister do not receive the Parliament’s vote of confidence, the president may, without being obliged to, dissolve the two chambers unable to generate a majority. The meaning is once again the same, namely that the president must ensure that the political system is not self-locking due to the competition of political actors, especially that the state itself can not be endangered.

Thus, without explicitly naming it, the Romanian Constitution sets apart a single area of competence for the President of the Republic, namely the reason of the state. However, the major confusion operated by numerous scholars of the Romanian political space is that the executive is bicephalic, situation which would result in a possible cohabitation. In reality, the executive is fairly monocefal (art. 102, para.1 of Constituion of Romania), having the sole command center within the Prime Minister. Prime Minister is the sole holder of the executive power, and therefore the only responsible before the representatives of the body politic; however, the president, serving as a secularized monarch^[xxii], has prerogatives to mediate between transient turbulences and protect the political corporation^[xxiii], which shows that President's ability to mediate between state and society, explicitly present in the Romanian Constitution, derives from raison d’État. In this regard, the president and prime minister often meet in their activities, but they never intersect.

Consequently, unlike France^[xxiv], in Romania one can not speak about cohabitation as the president of the Romanian state is not a member of a political party who virtually ended up  cohabiting with a parliamentary majority and with an executive from a different political group. Romanian Constitution’s requirements send the president in an area of obvious political neutrality and its political will is extremely limited by law. While the Parliament can impose its will by changing the law, the president has no leverage in this regard.

The president, however, is the one symbolically occupying the sovereign’s position as secularized monarch stripped of ordinary executive powers, yet the first responsible for what raison d’État shows to be the state’s care of itself. Thus, the areas reserved for the president’s interference but not direct decision, are those where the safety and preservation of the state are most vulnerable: foreign policy, public peace and homeland security, namely those areas where, on the one hand, the state itself may be endangered (by internal revolts, armed aggression, etc.) and, on the other hand, the decision is one that can and sometimes should not be transparent towards society:

“Raison d’État must ensure that the state really conforms to what it is, that is to say remains at rest, close to its essence, its reality exactly true to what it should be at the level of its ideal necessity. Raison d’État will thus align the state’s reality with its eternal, or at any rate immutable essence.  In a word:  Raison d’État is what allows the state to be maintained in good order (en état)”^[xxv].

The consequences of the fact that only the areas of interest for raison d’État are reserved for the Romanian president are the irresponsibility towards society and his immunity, which are not privileges directly proportional to the importance of the office he holds, but instruments allowing him to manage raison d’État.

On the edge, the president of Romania can tell the untruth in his public and official statements provided that his position is meant to save the national security and raison d’État itself; that is why he is endowed with immunity not just the entire duration of the exercise of the mandate, but also after leaving office. Presidential immunity is hence the outlet whereby raison d’État preserves the state itself. Following the examination of these attributes, it appears that it is also inappropriate  for the president of Romania to call himself Head of State. Although he is in the pole position of the State’s bureaucracy architecture being the first diplomatic representative of the Romanian state, etc., in reality he is not the head of any of the powers of the state, i.e. executive, legislative or judicial. However, neither the fact that he has duties in all three areas of power, he does not govern, nor legislates, nor usually distributes justice, but he only seeks to ensure the smooth operation of these powers, and he is in charge with neutral duties, which are not to be left at the hands of partisanship or political views and, above all, he interferes in all three areas by means of his concern for raison d’État he is compelled to watch over continuously.

Therefore, the president of Romania can be suspended only “when grave acts that violate the Constitution are committed” (art. 95, para. 1) or for high treason (art. 96, para. 1), respectively when he prejudices raison d’État or when his actions are likely to create prerequisites for endangering the State; in this latter case, the sovereign people represented in Parliament withdraws his mandate. The same Article 95 stipulates that suspension of the President by the Parliament shall be made “after consulting with the Constitutional Court”, i.e. only after the formal guarantor of the rule of law confirms that serious offenses have been committed. But in the Romanian case, over time, the Constitutional Court interpreted the verb (to) consult with in the sense that the President takes note of the political parties but decides as he pleases, although he, as we noted above, is not endowed with political power, hence he cannot express will in one direction or another. The trap in which the Constitutional Court fell by itself due to misinterpretation of the verb (to) consult with was to decide whether the Court's opinion on initiating the Romanian President’s suspension procedure is only advisory and not binding. Both the spirit and letter of the Basic Law, especially the rule of law, stipulate however that the consultation processes set by the Constitution describe the action of taking note of the opinion of the institution asked and taking measures accordingly.

Otherwise, if the President of Romania finds himself in the situation described in Article 103, i.e., he “appoints a candidate for Prime Minister after consulting with the party having absolute majority in Parliament or, if no such majority, with the parties represented in the Parliament”, he can block the functioning of the political system and dissolve the Parliament after the plenary session of the two chambers’ successive rejection of two proposals for a new cabinet of ministers. In other words, the Romanian president, in his capacity as mediator, although apparently he is just consulting with the parties, has no other task than to take note of their political will and certainly not to force their will and to ensure that, consequently, the political system will not block. Likewise, when the Parliament consults with the Constitutional Court, the Court’s opinion should be mandatory and not advisory, as it happened in the case of Traian Băsescu’s two suspensions.

In short, the President of Romania is a rare type of politician-magistrare who has raison d’État as raw material to care about. He is a depository of all state secrets, of State’s diplomatic relations and he cannot be object of political reflection not even for a parliamentary majority in the absence of "serious violations of the Constitution" to be defined not by the accuser (in this case the Parliament), as in Stalinist regimes, but by an independent resort, authorized to interpret the Basic Law. Within the letter and spirit of the Constitution of Romania, the President cannot engage the Romanian State in any kind of economic policy, nor at European nor international level. At most, he may interfere by endorsing an address before the Parliament or a Government meeting to influence the decision of these institutions from the perspective that President is the guarantor of raison d’État.

The entire capacity as author of all policies is owned by the Government, the sole empowered to negotiate on behalf of citizens and the Romanian state under the eyes of Parliament. Under the Constitution, the President represents the Romanian state in the sense that, in terms of diplomacy, he tops the hierarchy of Romanian officials. To represent doesn’t in any way mean to negotiate on behalf of someone. In this sense, a theological-political argument is meant to provide more light: in traditional Christian denominations, the bishop is the one representing the Supreme High Priest, which is Jesus Christ. As a representative, the bishop cannot negotiate the law in his diocese, namely, he can not negotiate the doctrine of faith, the dogma, the divine grace, etc. contained in the Holy Tradition, the Holy Scriptures, and the Church, but he can only ensure that the Author of the Law, Jesus Christ, is actually present in the life and activity of believers. Modern politics, according to Carl Schmitt, is nothing but a body of secularized Christian theological^[xxvi] forms, and the distinction between representing, on one hand, and exercising the will, on the other hand, is therefore crucial.

            Representation is not a regulatory event within the meaning of a procedure, but rather something existential. To represent means to turn an invisible entity into a visible one[xxvii], therefore the nation, as invisible person becomes visible and publicly present through the Parliament. Moreover, Carl Schmitt notes, only public interests can be represented^[xxviii], meaning that the President cannot represent the interests of the Romanian nation already represented in Parliament. In turn, the President represents the interests of the Romanian state as private entity among other countries, as a delegate, certainly not as a representative in the Schmittian approach. Narrowing things down, MPs are representatives of the political nation (public entity) and the President of the Republic is the State Delegate (private entity in the international context).

On the ground of political theory, lawmakers represent the nation only when talking politically, in which case they cannot be wrong. The representative mandate does not limit lawmakers’ will in any way, since find themselves within the Constitutional framework. Even lawmakers’ infringement of some common laws does not entail criminal prosecution until the parliamentary chamber to which they belong decides that MP’s formulation was a non-political one, by lifting immunity from prosecution. Therefore, political representation is a process carried out on a field bordered by procedures and institutions:

“As opposed to the civil contracts, more than a simple exchange of wills takes place between voters and electees, namely an artificial process of forming collective will. Therefore, in a democracy, between individuals' plural society and its political representation there is a striking resemblance and a substantial difference at the same time. The Parliament cannot really know what does the society they represent want, but it operates as it would be in possession of such knowledge”.^[xxix]

At the same time, representation of the state as attribute of the President is but a diplomatic one. The President is a mere servant and messenger of the State, lacking his own political will, but also the first patron of the State. However, although powerless, the President of Romania Traian Băsescu engaged the Romanian state and even the Romanian citizens in introducing, in the Romania’s Constitution, the provisions of the European Union Eurozone Tax Treaty (Treaty on Stability, Coordination and Governance in the Economic and Monetary Union)^[xxx], while such a commitment is reserved exclusively to the Prime Minister following the parliamentary negotiations and possibly by strengthening parliamentary options through popular consultation.   

Although he is the most voted of all politicians, the President of Romania does not represent the nation, as the MPs do, but he represents the State. In this respect, his political will is extremely limited because he can not initiate legislation, reforms or changes in the State’s political architecture. The President represents the State the citizens put it into practice through their representatives. The Constitution, however, strengthens his legitimacy that comes from the large number of votes received due to his right to establish presidential committees on various topics of public interest and to convene consultative referenda which do not turn into laws, but are intended to enlighten the political class in terms of the will and sensitivities of citizens on a particular policy. Likewise, the President does not appoint the candidate for the Prime Minister as he pleases, but taking note of the existing parliamentary majority, this being subsequently checked when the newly formed government passes through the Parliament. Therefore, the President is the highest state official who doesn’t govern in the political sense as does the executive, but reigns in the monarchical sense, trying to create consensus loopholes between the nation and the government, thus within the political system via raison d’État. An attempt to systemize this is made in the table below: 

Tabel 1. Comparison between politicians, bureaucrats and the president.

From his office the President of Romania is not part of the political game as a player, but he has the role of a referee who makes sure that the game is fairly played. It seems he has the role of the highest magistrate dealing with the political regime, that is laking the possibility of exercising political power. He intervines when the very functioning of the political regime is in danger to delute the tension between state and society. For this reason, his office finds itself at the basis of the political establisment, thus very far from the citizens.

In conclusion, the President of Romania does not run the country, the people or the nation, does not represent the citizens, does do politics nor policies, does not govern and does not manage, does not increase or decrease the VAT, does not cut salaries or pensions etc., but has exclusive tasks in the sole area the Constitution provides him with, i.e. the reason of the state:

“From his constitutional position, the President can do noting but ”to tell". He represents the State, mediates the public authorities, mediates the public authorities and the society, addresses messages before the Parliament and consults with institutional and policy makers. The President of Romania has no decisions to take and he is not obliged to carry them out. He repeats in the form of the decree some decisions taken by the Government and its head, as well as the laws passed by the Parliament”^[xxxi].

President’s object of reflection by means of the Presidential Administration’s apparatus is the state and the political system itself, not the society. In this respect, society is governed by the Government through the Prime Minister, who can rightly be called the first man in the State because he holds the completeness of executive power, except for the areas where raison d’État may decide otherwise.    

As stipulated by the constitutional text, the President of Romania, namely the most voted person in the country, but one who doesn't govern, must be a person who doesn't lack the sense of the State, who has gone through many elections, who held important positions at the national level and, eventually has the ability to free himself from the political partisanship pathos and to dedicate entirely to the reason of the state. It seems rather an office reserved for politics’ veterans: those who no longer have personal stakes to exercise the power, who throughout their political career have achieved important things in the public service and do not have the temptation to usurp the prerogatives of other fundamental institutions. In other words, in the light of the political analysis of the constitutional text, the President of Romania must be someone who possess the sense of the state, or has rather the sense of reason of the state. But for the parties to propose such candidates, the entire society must have some kind of Republican political culture, which, following the Western example, apparently takes generations to be built.

A brief insight in the eve of formation of the modern Romanian State helps us to understand the place raison d’État occupies in a political system, especially the portrait of the politician entrusted with raison d’État in mid nineteenth century. The very appointment of a foreign prince in the 1866 Romania was by itself aimed precisely at the acquisition of state sovereignty. Before being able to rely on a modern bureaucracy, legal codes, constitution, national education system and so on, the State had to be equipped with its own reason of the state. How can the Romanian State itself last and become a nonperishable corporation^[xxxii]? How can the state itself operate given the recent experience of Alexandru Ioan Cuza as coup d'État author? Also shared by other nation-states, the Romanian solution resulting from the weakening and subsequent dislocation of Empires was to isolate both raison d’État and sovereignty from governance. Thus, the Romanian political elites chose to locate raison d’État in a foreign prince, hence into a status quo to last, being as far away and independent of society and its sufferings as possible.

Moreover, how do we take a unit from an administrative-territorial domination and a population from an empire and form a State that has no political core. Again, the Romanian solution was to tie the State’s national political construction on something external to the body politic, but equally exterior to the Empire. Thus, the German Prince Charles met simultaneously the two essential attributes of the State’s positioning in relation to the society. On the one hand, he was sufficiently exogenous to the society due to the fact that he was in no way connected to Romania or the Romanian people, and the institutions formed under his responsibility found their power to be stable, and also endogenous to the society not only to govern well a society where the state would interwine, but especially to legitimize himself through accelerated Romanization^[xxxiii]. In the words of Michel Foucault, the appointement of Prince Charles in Romania in 1866 was exactly the coup d'état that allowed the state itself to survive.

3.       CONCLUSION: RAISON D’ÉTAT UNDER PLEBISCITE

Once described the status of the Romanian presidential office, the popular consultation of 29 July 2012 should be reinterpreted in the field of political science in addition to the constitutional reasoning. For starters, let us conceptually establish the two types of popular consultation having as reading line the democratic-authoritarian dimension, namely the referendum and plebiscite^[xxxiv]. Referendum reappeared in modern times, no sooner than 1880, through the English language;^[xxxv] it is a democratic tool par excellence and it is often practiced in one of the homelands of modern democracy, i.e. Switzerland. In this sense, popular consultation aims to reinforce a certain reform or action taken by a usually fragile parliamentary majority. The demos is called to distiguish between applying a major change or keeping the status quo, especially when representatives do not firmly assume a certain policy. Consequently, referenda are preceded by a substantial public debate and are able to sift the decision to be implemented by clearing the potential cleavages in society.

From a procedural standpoint, referendum implies a choice between two relatively equal alternatives. Non-participation of citizens to the polls means that they make use of the freedom derived from and associated with the right to vote and agree with the decisions made by the other citizens casting their votes. In this respect, no quorum is required to validate the results of the referendum^[xxxvi]. Referendum is thus meant to fade away debate of ideas of the legislative through direct involvement of citizens, who endorse a hard decision to make in Parliament by a process of semi-direct democracy. Referendum becomes a tool for strengthening democracy and calling for this type of consultation strengthens the links between democracy, political parties and citizens. However, the political elites in democratic regimes have been very careful not to abuse the popular consultation and are not at all tempted to resort to consultations that concern a person, because of the danger of turning the referendum into plebiscite^[xxxvii].

The plebiscite is at the other extreme^[xxxviii]. It is par excellence an instrument specific to authoritarian and totalitarian regimes and involves addressing an induced response question to the electorate. Without being preceded by a public debate, the decision is usually already taken in a nontransparently way towards society. Citizens are invited to comment post factum or, in other words to take for granted the will of a group of politicians who exercise power, the subject of plebiscite. The first plebiscite held in Romania was convened on 2 May 1864 by the Prince Alexandru Ioan Cuza, who wanted the dissolution of the Elective Assembly, reproaching it with the party spirit, thus being exactly what was to become the essence of representative democracy: “By its censure, the Assembly vetoed the Head of State’s way of thinking in the person of the Ministers”^[xxxix].

Thus, on 10 -14 May 1864 between 8:00 and 18:00 hours, Romanian citizens were invited to decide YES or NO on the Al. I. Cuza’s proclamation by writing their names in two different registers, each for one of the two possible answers. The result of the plebiscite attended by 90.68% of the citizens holding the right to vote, given that the vote was quite public, was definitely in favor of the one who exercised political power: “of 754,148 taxpayers and citizens entitled to vote regardles of the welfare qualification, 683,928 people took part [in the plebiscite]. Of these, 682,621 chosen YES and 1,307 chosen NO”^[xl].

Therefore, the first national popular consultation in Romanian modern history was intended to strengthen the Head of State’s personal anti-parliamentary and anti-democratic attitude, to legitimize Alexandru Ioan Cuza before the acclaming nation and to place him above a political elite lacking firmness. To the same type of instrument have also resorted King Charles II, Ion Antonescu and Nicolae Ceauşescu. In France, Charles de Gaulle used the popular consultation to legitimize his anti-parliamentary options reviving Napoleonic plebiscite as a way to reach the French people over their elected representatives^[xli].

For this reason, questions that are asked to people in democratic regimes that do not provide a choice between two relatively balanced alternatives, that do not involve a situation extensively debated within the representative body, are subjected to the requirement of achieving a quorum of usually 50% + 1 of the total citizens who are electoral rights holders. The reason is that, before ruling on the answer, the nation, as an indivisible legal entity decides whether the question itself is legitimate. The Parliament shall not be disbanded for one case, but it shall be dissolved into the body politic turned into a mega-Parliament. All citizens become MPs, which requires to extend the rules governing the representative assemblies to the entire body politic. Thus, should the attendance quorum fails to be reached, it means that the very question asked was illegitimate and that the Parliament was not able to explain the importance of citizens' voting option for democratic order and public policies, and that pre-existing order should be restored.

For public consultations, the essential concept is power. More specifically, the way power is distributed among the various political stakeholders and how the one exercising power understands to extract his legitimacy from society. The fundamental questions are who? and why public consultations?, and not on what are citizens asked to decide? when going to the polls. Thus, in case of plebiscite, citizens' option of not going to the polls is extremely democratic, derived from the freedom of the right to vote. Absentees do not legitimize the political will of the parliamentary majority and reaffirm the terms of the political representation. For the plebiscite of July 29, 2012, failing to reach the attendance quorum at the popular consultation on impeaching President Traian Basescu, means a vote of censure against the Parliament and in countries like Slovakia is sanctioned with the dissolution ex officio of the Parliament, in which case the incumbent president starts a new five-year mandate.

In Romanian democracy, MPs have no binding mandate from the voters, but have a representative mandate, so that, between the time of election and the end of term, the MPs are not to be held responsible before those who elected them, or before the nation as an indivisible legal person, but only before their own conscience and the law. Therefore, the relationship between the citizen and the Parliament is a contract having its term at the time of the next election, while the MP is called to put in legislative form his personal will. Overturning the situation and reading it from the point of view of citizens, when the latter do not legitimate by a 50% +1 voter turnout the question the Parliament has asked, practically the Parliament’s option is de-legitimized and the nature of the political representation contract is recalled.

Typically, plebiscites are convened by political power when the latter needs popular acclamation, i.e. a necessity that is not part of the democratic order faithful to the virtual representation philosophy. Since a government exercises power and has the support of a parliamentary majority, nobody and nothing can hinder him to reform or promote laws that correspond to his political vision for which winning the general election. Therefore, in a democracy such as the Romanian regime, plebiscite does not make sense, except for that of sliding democracy towards authoritarianism or returning it to pre-democracy. Of the popular consultations held in Romania in the past six^[xlii] years none may act as referendum since all were related to a person. Thus, in 2007 and 2009, the political will - an extremely anti-democratic one in fact - of the President in office, Traian Băsescu was subject to plebiscite, namely to reduce the number of MPs to the random figure of 300 and to suppress the upper house of Parliament to legitimize himself before the citizens as an effective politician in relation to the neoliberal-inspired de-bureaucratization virtues. Questions had directed answers and popular consultation was not preceded by a broad public debate, and not even by a parliamentary one, so that it did not meet the criterion that popular consultation can provide the necessary help to make, through the demos, important decisions at the political level.

Plebiscites in 2007 and 2012 have a more personal character, given that political power urged citizens to rule as jury on whether Traian Băsescu, the President of Romania, should carry on his term. As stated above, the object of Plebiscite is not a politician par excellence to guide his work in accordance with the political will assumed electorally under the law, but a high state official, who cannot have executive political will, but can only intervene recommending and providing the Parliament and Government with the necessary solutions he foresees due to his role of mediator between State and society and that of raison d’État and political regime guardian. Thus, the methodological difficulty of analyzing the popular consultation of 29 July 2012 is given by the ambigous procedures of the election and removal from office: given the nature of his office, the Romanian President is accountable to the State and not to citizens; therefore, to what extent may he be dismissed by citizens following a plebiscite?

The first analysis impulse goes to identifying the President's fault in relation to the laws by which he operates, and especially in relation to the text of the Constitution. From a strictly political point of view, a first record is that the President Traian Băsescu has violated the Constitution when declining the nomination of Klaus Johannis, mayor of Sibiu City, as candidate for Prime Minister of the Government of Romania, as evidenced by the fact that President’s choice, the economist Lucian Croitoru, did not obtain the vote of confidence from Parliament. Procedurally however, as the Romanian constitutional architecture shows, any president can be suspended by the Parliament if he fails to be in line with the parliamentary majority, which is a constitutional nonsense since the President's reference point is not the political will, but the law and raison d’État. Elected by the nation through direct suffrage or by the Parliament, the President declines his responsibility according to raison d’État, never according to the political project of a rulling parliamentary majority and with which he is in an antagonist or similar relationship.

Let's imagine the following scenario: what happens when citizens decide to consider it is good to give the parliamentary majority to a party or alliance of parties, and to give the presidential office to the opposition? It's a very democratic option and the message sent by the nation as an indivisible legal entity would be that it is not desirable for the power to be concentrated in the hands of a single party/alliance of political parties. As it happened in the past six years, the forecast can only be so that, even in the absence of violations of the Constitution, the Parliament shall call and urge people to rule in a plebiscite its will to dismiss the President until it is successful. Inverting the situation, a President who refuses two times successively to appoint as candidate for Prime Minister of the Romanian Government the person meeting the support of parliamentary majority can dissolve the Parliament, which would mean a new deadlock situation.

The phenomenon described by analyzing the events related to the popular consultation of 29 July 2012 is the judicialization of politics. In the present case, we have an accused (the President), a prosecutor (the Parliament), a judge who controls and houses the trial, as in anglo-saxon law systems (the Constitutional Court) and a court of jury (the nation). Therefore, to define Romanian citizens’ proceedings of July 29, 2012, we must combine two verbs, namely, to vote and to judge. Citizens have judged the President by voting, thus transforming the political nation into a court of jury, but not in the sense of the British impeachment[xliii] or of the American recall, but by subjecting the will of political power to a plebiscite for dismissal of the President.

In conclusion, the Romanian political system designed according to the representative democracy requirements, but created by minds educated and socialized in communism, and implemented by political actors, both institutions and individuals without democratic vocation, seems to generate new limits that were unannounced by the constitutional text. Of these, plebiscite-type popular consultations were misused as tools for electoral bargaining and dismissal of the political opponent, and never used to extract extra consensus from the society, or that dose of consent which is crucial for policy implementation. Moreover, the Romanian President whose activity is, by the very nature of his office, located within the scope of raison d’État, in his capacity as a State diplomat, both outside and as a host, not as an actor, of the inner power game, is subject to the judgment of the body politic located, by definition, outside raison d’État. In short terms, the Romanian President holds the office of a secularized monarch who does not govern, but only deals with the raison d’État and the representation of he state under the mandate of the state itself.

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