Blog post published by presidential-power.com
Among the many issues raised by recent events in Ukraine, whether or not the removal of President Yanukovych from office was constitutional is still being debated. Events there point to the inherent problems of interpreting constitutional laws.
In Romania a problem of constitutional interpretation has also arisen. This problem relates to the investiture of the new government. Last week the coalition government there collapsed. When the National Liberal Party (PNL) withdrew from the government, PM Ponta of the Social Democratic Party (PSD) sought a new coalition ally. He found it in the Hungarian minority UDMR party. Once the coalition had been agreed, it had to be approved by parliament, which is where the controversy begins.
Generally, investiture votes can be slippery constitutional things. For example, Article 49-1 of the 1958 French constitution might be taken to imply that an incoming government has to seek an investiture vote, but only some governments have chosen to do so and there have been no constitutional consequences. In Romania, the vote of the new PSD/UDMR government has caused a different type of controversy.
In Romania, there are two ways in which new governments can be formed. Normally, the president nominates the prime minister and appoints the government on the basis of a parliamentary vote of confidence (article 85-1). The parliament votes to approve the government’s programme and the list of cabinet ministers by a majority vote of deputies and senators (article 103). However, parliamentary approval is also needed when the cabinet is reshuffled to such an extent that its structure or political composition changes, but this time a vote on the programme is not required (article 85-3). The issue raised by President Băsescu after PSD and UDMR agreed to form a new coalition government last week was that the parliament should approve not only the new composition of the cabinet but also a new governing programme (i.e. 85-1, not 85-3).
President Băsescu argued that PNL’s withdrawal from government entailed the termination of the governing programme presented by the USL coalition at the investiture vote that took place in December 2012. Furthermore, the president argued, a new governmental programme was deemed necessary by UDMR’s agreement to join the coalition cabinet. On the other hand, PM Ponta argued that the government aimed to continue the implementation of the USL programme approved by the parliament in December 2012. From his point of view, the parliament only needed to approve the government’s new political composition, in accordance with article 85-3 of the constitution.
On March 4th the parliament approved PM Ponta’s new cabinet in a joint sitting of the two chambers by 346 votes to 191. Subsequently, the Liberal Democratic Party (PDL), president Băsescu’s former ally and the main opposition party, asked the Constitutional Court to rule on the legality of this decision. The PDL argued that the UDMR’s inclusion in the new cabinet had modified the governmental programme and that there are two ways in which this change should be formalized. The cabinet can resign, in which case a new government formation process must begin (in accordance with article 103). Alternatively, the incumbent government can assume responsibility for a new programme, which passes if no censure motion is tabled or passed within three days (according to article 114). Given that neither of these procedures was followed when the parliament approved the cabinet reshuffle on March 4th, PDL asked the Court to declare PM Ponta’s new cabinet unconstitutional.
After the parliament’s vote, President Băsescu declared that he would not appoint the new ministers until either the Court rules on PDL’s request, or the government assumes responsibility for a new programme in accordance with article 114 of the constitution. Following another round of negotiations on March 5th, the prime minister agreed to go back to the parliament for a second time and assume responsibility for a new programme. On the same day, President Băsescu signed the new minister appointments.
Despite the apparent resolution of this matter between the president and the prime minister, the Constitutional Court still needs to rule on PDL’s appeal regarding the legality of the vote cast by the parliament on March 4th. In this way, a precedent may be created for the formation of new governments outside general elections.
This would not be the first time President Băsescu created a precedent for cabinet appointments. In December 2007, when he was cohabiting with a PNL-UDMR government, President Băsescu refused to appoint Norica Nicolai as Minister of Justice. The liberal prime minister challenged his decision to the Constitutional Court. In the absence of clear constitutional provisions on this matter, the Court ruled that the head of state can refuse a ministerial appointment only once on grounded reasons. In this way, the president obtained an increase in the extent of his formal powers over the executive. This time around, and also during a period of cohabitation, a precedent may be created as far as cabinet reshuffles, investiture votes, and the requirement of adjusting governing programmes when the political composition of the government changes are concerned.
