Motto: Criticism of the judge by others:

Members of the public, of the legislature, and of the executive, may comment publicly concerning what they may view to be the limitations, faults or errors of a judge and his or her judgments. (…)As has been observed, ‘justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men’. (Commentary on the Bangalore Principles of Judicial Conduct, The Judicial Integrity Group, March 2007, commentary 137, p. 90) (2)

As regular voters with no judicial expertise, we wish to respectfully express our opinion on the manner the referendum in Romania was managed from the judicial point of view. It is our hope that these observations will be taken into account and given the rightful consideration as the independency, impartiality, and integrity of justice cannot exist solely as reported to a government or political faction, but must be perceived as such by ordinary men.

 Certainly the political actors in Romania will abide by the decision of the Constitutional Court. However, the main actor in this referendum, the Romanian people, seems to remain completely ignored in all the demands raised by the European Commission towards the Romanian government,  in  the communicates mass media received from the European Commission,  and in the European and American press reports as well. The most democratic countries appear to forget the very essence of democracy, the demos.  This referendum was misinterpreted as a trivial electoral fight between two parties, while a referendum is the direct expression of democracy and of a nation’s sovereignty, as stated in the Romanian Constitution (1) as well:

  ARTICLE 2 (1) The national sovereignty shall reside within the Romanian people, that shall exercise it by means of their representative bodies, resulting from free, periodical and fair elections, as well as by referendum. (2) No group or person may exercise sovereignty in one’s own name

 Moreover, in the name of judicial independency the most important factor pertaining to judicial independency was neglected: its perception by an entire nation “Justice must not merely be done but must also be seen to be done”. To our statement we may quote the Bangalore principles of judicial conduct (2):

 “1.3 A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

 3.2 The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done”

 According to recent statistics, public perception of judicial independency in Romania is low, only 20-28% of the population believes justice is independent. (3)  The way this referendum was handled by the Constitutional Court may render even these low numbers excessively optimistic. Contradictory Constitutional Court decisions and facts prompt us, as ordinary voters, to bring to your attention following observations on the manner this referendum was managed from the judicial perspective.

  I.            THE TURN OUT QUORUM IS RECOMMENDED AGAINST

 According to the Venice Commission a participation quorum is recommended against for the following reasons: “A turn-out quorum (minimum percentage) means that it is in the interests of a proposal’s opponents to abstain rather than to vote against it. For example, if 48% of electors are in favour of a proposal, 5% are against it and 47% intend to abstain, the 5% of opponents need only desert the ballot box in order to impose their viewpoint, even though they are very much in the minority. In addition, their absence from the campaign is liable to increase the number of abstentions and thus the likelihood that the quorum will not be reached. Encouraging either abstention or the imposition of a minority viewpoint is not healthy for democracy (point III.7.a). Moreover, there is a great temptation to falsify the turn-out rate in the face of weak opposition.” (Code of Good Practice on referendums , art 51) (4) 

 Unfortunately this is exactly what happened in Romania: an important level of abstention was promoted by the ones interested in the failure of this referendum and a manipulation of the turn-out rate as reported to flawed electoral lists was used to manipulate the final result. Moreover, as you will see underneath, in our opinion, the law itself was modified not in favor of a fair referendum but in favor of an interested part.

 1.      THE LEGAL PROVISIONS REGARDING THE REFERENDUM PROCEDURES WERE MODIFIED LESS THAN A YEAR PRIOR TO THE REFERENDUM. THE QUORUM REQUIREMENT WAS INTRODUCED AFTER THE DATE OF THE REFERENDUM HAD BEEN ESTABLISHED

 The Venice Commission provides the following  recommendations regarding the stability of the referendum law at article 20 of the Code of Good Practice on Referendums : “Furthermore, given that it is unusual for the date of a referendum to be known a year or more in advance (whereas elections normally take place at set intervals), it is a matter not so much of prohibiting legislative amendments during the year preceding the vote as of prohibiting the application of such amendments during the year following their enactment, in case there are suspicions of manipulation (point II.2.b).” (4). 

 Amendments brought to the referendum law  just months prior to its date, and even more so amendments made after the referendum procedure had been started should  not have been applied to this particular referendum. Instead, the referendum law 3/2000 with its more than a year old amendments should have been upheld.

 The referendum law, as updated in 2009, has two articles stating as follows:

 Art 5: A referendum is valid if at least 50%+1 of the electors included in the permanent lists turn out to vote 

 Art10: By exemption from art 5, the impeachment of the president will be considered approved if it meets the majority of the votes expressed by the citizens within the country borders actively participating in the referendum procedure.

 

The timeline:

 -       The  article 10 of the referendum law 3/2000 was modified in 2007 to the final form mentioned above   -  law 129/2007 (5)

 -       The article 5 was modified in 2009 by OUG 103/2009 as stated above. The article 10 pertaining to the impeachment of the president remained untouched. (6) 

 -       Article 10  was modified again by the Liberal- Democratic Party sustaining Mr Basescu  April 2012, according to law 62/2012 (7), as follows: the impeachment of the president is approved if it is approved by the majority of the voters present on the electoral lists.

 Two comments on the amendment introduced by the Democratic Liberal Party April 2012:

 o   This amendment had not yet been promulgated by the President prior to the initiation of the referendum procedure and not even examined yet for its constitutionality by the Court. 

 o   The electoral lists, as a generic category, include the permanent lists of the citizens residing in Romania and the supplementary lists for the Romanian citizens residing abroad. To this moment the number of Romanians residing abroad remains unknown due to various reasons pertaining to administrative issues. The general term “electoral lists” transforms a participation or approval quorum into an asymptote to an unknown and very flexible total number of Romanians, very much susceptible to fraud.

 The Venice Commission makes following comments on such an approval quorum at article 52 of the Code of Good Practice on Referendums: “An approval quorum (acceptance by a minimum percentage of registered voters) may also be inconclusive. It may be so high as to make change excessively difficult. “ (4)

 -        Ponta’s government explicitly introduced a decision to reverse this extremely disputable provision of the law 62/2012 which had made the impeachment procedure not improbable but impossible, and RESTORED THE LAW TO ITS ORIGINAL FORM as stated in 2009. It did not create any new provisions favorable to an impeachment as erroneously stated. The law 131/2012 (8) specifies in the very spirit of the referendum law approved and considered constitutional by the Court in 2009: by exemption from art5,  the impeachment of the President of Romania will be declared valid if it meets the majority of the votes expressed by the citizens participating in the referendum.  

 -       A TURNOUT QUORUM PROVISION WILL BE INTRODUCED DE NOVO in the impeachment referendum law less than a month prior to the referendum itself, and while the referendum procedure had already been initiated: The article 10  of the referendum law was amended by the Constitutional Court Decision Nr.731 on 10/07/ 2012 (9) to state a participation quorum  requirement.  Under constraints imposed by the European Commission, the Romanian Parliament and the interim President approved this amendment issued, and we emphasize that, by the Constitutional Court, in complete disregard towards the, at that time valid, referendum law 3/2000 as updated in 2009. (10) -         

o   We reiterate these de novo provision of a turn out quorum applying to the impeachment referendum was imposed against the recommendations of the Venice Commission regarding the stability of the referendum la, and while the referendum procedure had already been initiated. Applying a new legal provision to an ongoing referendum procedure represents the very exercise of  pipeline retroactivity.

 o   We emphasize The Constitutional Court did not restore the form of the referendum law from 2009, instead it created a new legal provision, substituting itself to the legislative power of the state, the Parliament. Several legal provisions preclude this action of the Constitutional Court:

 §  The Romanian Constitution (1) Art 61(1) Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country.

 §  The recognition of this constitutional provision by the Constitutional Court itself in its decision 838/2009.   (11)

 §  The law 47/1992 art 2 (3) : The Constitutional Court is enabled to express its decisions with respect to legal provisions brought to its attention; it does not have the ability to modify or expand the legal provisions submitted to its consideration.  (12)

 

o   And last but not least, the European Commission itself, by imposing a de novo legal provision on the referendum law, unwillingly affects the very sovereignty of a country, instead of enforcing the rule of law as previously believed, as it contradicts the advice regarding the stability of the referendum law provided by its own legal counsel the Venice Commission as well.

 

II.                A QUORUM WITH THE PRECISON OF 50% +1 WAS IMPOSED ON AN UNPRECISE TOTAL NUMBER OF VOTERS

 

It is well known that the Romanian population dramatically decreased over the past years as a consequence of a negative demographic evolution, the way it is stated by the National Institute of Statistics (INSSE), as well as related to the emigration towards other states, mainly members of the European Union. (13) 

 The Romanian population decreased from a number of 22,810,035 in 1992 to 19.042.936 in 2012 (17). Yet the electoral lists used at the 2012 referendum show a number of 18.292.464 electors, number which raises unsettling questions regarding discrepancies between demographic and electoral data: for example,  it would make us infer that Romania counts less than 1 million children 0-18 years of age and thus unable to vote.

 

1.      SUMMARY OF CONTRADICTORY DATA REGARDING THE TOTAL NUMBER OF ELECTORS

 Partial data regarding Romanian citizens living abroad show as much as 1, 8 million people residing in just two of the countries belonging to the EU:  968.576 Romanian citizens in Italy (14) and 895.970 in Spain (15), numbers that have to be subtracted from the 1992 and 2002 census data. The total number of Romanian citizens residing abroad is estimated to be more than 4  million A precise number is however unknown (16) and therefore a perfect estimate on the number of voters to be present on the permanent lists is impossible without taking into consideration the recent census performed by the National Institute of Statistics.

 According to preliminary data of the census performed November 2011, there are 19.042.936 Romanian citizens residing in Romania (17) out of which 3.726.895 are children 0-18 years of age. This simple subtraction leaves a number of potential voters of about 15, 3 million, a number much smaller than the one presented by the electoral lists provided for this referendum.

 A short and surprising history of the electoral lists over the past 20 years may be relevant to the discrepancies between demographic and electoral data that make us believe the electoral lists have to be carefully updated and the results taken into consideration when calculating the turn out rate at this particular referendum: Despite a negative demographic evolution the electoral lists expanded recently from a number of 16,380,663 electors residing in Romania (reported to a total population of 22,810,035) in 1992 to a number of 18,292,464 electors residing in Romania (reported to a much smaller total population of 19.042.936) in 2012, leaving thus room for less than one million children residing in Romania in 2012, while demographic data show 3,7 million children 0-18 years of age.

 Is there a reason for these discrepancies? A chain of administrative blunders is the root of such miscalculations. Updating electoral lists by local authorities is not accurately done so many deceased people for example still show on the electoral lists. Due to a chain of inaccuracies related also to an underdeveloped electoral information communication system, the number of voters on the central electoral lists shows major discrepancies with population data in other administrative sectors which have a state-of-the art electronic data system like the National Health Insurance Agency, or the National Institute of Statistics.

 Consequently, with 8.5 million voters, the turn out rate, calculated on an inflated number of voters of 18,3 million, was reduced to 46,7 %, while on data based on the demographic reality of the country the percentage may have been well above the 50% limit.

 At this point we find it appropriate to mention that the Constitutional Court did have knowledge of this tremendous demographic deterioration and potential discrepancies between demographic and electoral data. Its decision 687 on  27/06/2012 reiterates a statement made by the Liberal – Democratic Party as follows: “the total number of chamber representatives is established by report to the country population, which according to the last census (November 2011) decreased considerably”. Yet the same Constitutional Court decided one month later the Romanian population remained constant and gave its judgment on obviously flawed electoral lists, concluding the turn-out rate was 46% calculated on 18, 2 million electors (18)

 Despite knowledge of flawed electoral lists which alter the real number of voters with a margin of error of millions, the amendment introduced by the Constitutional Court to electoral law 3/2000  on 12/07/2012 demands with outmost clarity the provision of a turn-out quorum that is precisely stated as being 50% +1. The referendum law 3/2000, as updated in 2009, did avoid this confusion by mentioning a very countable and reliable approval quorum.

 The evaluation process outlined by the Constitutional Court lacked predictability

 Initially, the Constitutional Court took the above mentioned considerations regarding the number of voters into account by requesting additional data. However, the object of their demands addressed to the Government was repeatedly changed and the terms were shortened thus making the entire process less and less predictable.  The only correction finally admitted was eliminating 34.654 persons from the electoral lists.

 This unpredictability shows also in the legal demands raised by the Court:  although a first decision on 02/08/2012, regarding the reasons for the Constitutional Court postponing the evaluation of the referendum pending data review, specified the permanent lists should entail only the population residing in Romania, an add-on was subsequently published on 4/08/2012, eluding approval by all the members of the Constitutional Court, and stating the Romanian citizens residing abroad should be included in the permanent lists as well.

  

2.      SUMARY OF LEGAL IRREGULARITIES IN THE CONSTITUTIONAL COURT DECISION

 The Constitutional Court justifies its decision of an unmet participation quorum:

 - against provisions present in all the electoral laws that clearly state the limits of the permanent lists (voters residing within country borders) versus supplementary lists (voters residing abroad) (Law 3/2000 on referendums, art. 25, law 370/2004  on presidential elections art. 2 and 7, law 35/2008 on parliamentary elections art 26, 27)

 -  against the official provisions published by the Central Electoral Office ( decision 34H from 28/07/2012) that state similar differences between the two type of electoral lists.

  - against Constitutional Court’s own decisions: Decision 3 on 02/08/2012 – referring to the impeachment referendum on 29/07/2012 states the citizens residing abroad will be part of the supplementary lists and not counted in the participation quorum, and Decision 4 on  23/05/ 2007 regarding the impeachment referendum conducted in 2007 which states a similar distinction.

 - against the recommendations of the Venice Commission published as Guidelines on Elections “I 1.b: i. Electoral registers must be permanent. ii. There must be regular up-dates, at least once a year. Where voters are not registered automatically, registration must be possible over a relatively long period. b vi. A supplementary register may be a means of giving the vote to persons who have moved or reached statutory voting age since final publication of the register”. (19)

 The separate opinion published by three of the Constitutional Court Judges refers to the above mentioned issues concluding:

 “Taking all of the above into account, the number of 18.292.464 voters on the permanent electoral lists, the number considered by the Constitutional Court on adopting the current decision (to invalidate the referendum) does not reflect the structure and size of the actual voting population.

 Based on the continuous decline of the Romanian population, on the statistic data officially provided, on the necessity to eliminate from the permanent lists of persons who are deceased, of the ones who lost the Romanian citizenship or the electoral rights, taking into account that the permanent electoral lists cannot include Romanian citizens residing abroad or persons without a valid identification card, we consider that the final data are conducive to a validation of the referendum” (20)

 

3.      OUR PERSPECTIVE

 

1.  Calculating a turn out quorum as demanded, by an error of one vote, while the total number of voters is disputable by an important margin of error, is completely inadequate.

 2. The Constitutional Court demands an accuracy of one vote, it finds an error of 34.654 electors acceptable, it disregards, however, numerous other corrective data, and does so in an unpredictable manner.  It is our opinion that, thus constructed, the decisional process defies adjudicative facts in favor of bureaucratic fictions while being rooted in a convenient approximation with unacceptably large margin of error instead of being rooted in undisputable reality.

 3. The principle of legal certainty, at least from the text clarity perspective, was upheld. It is not, however, followed by observing the principle of legitimate expectations as well. In view of a demanded precision that could not be fulfilled due to reasons outside the competency and effort of the regular voter, in view of a Court decision based on flawed bureaucratic data that defy the country’s realities, the legitimate expectation of 8.5 millions of voters on a fair judgment was completely disregarded.  

 4. Given the fact that data from the 2011 census will be soon better known and legally confirmed, the same 8.5 millions of regular voters will realize once more that their democratic effort was misused, misinterpreted and discarded without good reason.

 5. We rally ourselves to the opinion expressed by three of the Constitutional Court Judges stating that both legal background and reality were disregarded in the final decision of the Constitutional Court. We consider this decision an abuse of discretion as it is an arbitrary one, made without regard for the facts and circumstances presented, and in disregard of the rule of law as well.

 6. Therefore, we consider this decision should undergo appropriate legal procedures for its revision. As the Venice Commission recommends: “Judgments should be straightforward to understand and should not need further explanation. Nonetheless, it may indeed happen that the Constitutional Court, in its judgment, was not able to solve the constitutional problem or it may even have created a new problem. In such cases, a new judgment in a new procedure should be delivered, but not as an explanation of the former ruling.” (21) And as stated in the procedures of the European Court of Human Rights,  the European Charter on Human Rights art 46 (3). “If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation.” (22)

 We respectfully thank you for your attention to the lay opinion of regular voters as well as for your assistance in channeling this petition towards the appropriate institutions and officials willing to express their position regarding the referendum in Romania, a position that hopefully will take into account both facts and law, as well as our wish that both rule of law and democratic principles are upheld in a country member of the European Union.

 

References:

 

 1.      Constitution of Romania http://www.cdep.ro/pls/dic/site.page?den=act2_2&par1=1#t1c0s0a2

 2.      Commentary on the Bangalore Principles of Judicial Conduct, http://www.coe.int/t/dghl/cooperation/ccje/textes/BangalorePrinciplesComment.PDF

 3.      Corruption and anticorruption in the Judicial System  http://www.inm-lex.ro/fisiere/pag_34/det_1319/7399.pdf  p 14  

 4.      Venice Commission: Code on Good Practice on Referendums http://www.venice.coe.int/docs/2007/CDL-AD(2007)008rev-e.pdf  

 5.      Law 129/2007  http://www.cdep.ro/proiecte/2006/300/90/2/leg_pl392_06.pdf  

 6.      Government decision OUG 103/2009 http://www.dreptonline.ro/legislatie/oug_modificarea_legii_referendumului_103_2009.php  

 7.      Law 62/2012 http://www.cdep.ro/pls/proiecte/docs/2009/pr499_09.pdf  

 8.      Law 131/2012 http://www.dreptonline.ro/legislatie/legea_131_2012_modificare_art_10_legea_organizare_referendumului.php

 9.      Constitutional Court Decision 731 on 12/07.2012 http://www.ccr.ro/decisions/pdf/ro/2012/D0731_12.pdf

 10.  Constitutional Court Decision 838/2009   http://www.ccr.ro/decisions/pdf/ro/2009/D0838_09.pdf.

 11.  Reflection in media of the European Commission comments on the Romanian Government http://www.reuters.com/article/2012/07/16/us-romania-government-imf-idUSBRE86F07Z20120716

 12.  Law 47/1992 regulating the structure and function of the Constitutional Court: http://www.ccr.ro/default.aspx?page=laws/law47  

 13.  Demographic data by The National Institute of Statics  http://www.insse.ro/cms/files/Anuar%20statistic/02/02%20Populatie_ro.pdf  table 2G4   

 14.  Statistics on Romanians residing in Italy http://www.stranieriinitalia.it/images/istat22set2011.pdf  

 15.  Statistics on Romanians residing in Spain  http://www.ine.es/en/prensa/np710_en.pdf

 16.  Statics on Romanian diaspora http://en.wikipedia.org/wiki/Romanian_diaspora#cite_note-3  

 17.  Preliminary data of the 2011 Census http://www.recensamantromania.ro/wp-content/uploads/2012/02/Comunicat_DATE_PROVIZORII_RPL_2011_.pdf  

 18.  Constitutional Decision acknowledges the demographic decline: . http://www.ccr.ro/decisions/pdf/ro/2012/D0682_12.pdf  p.15   

 19.  Venice Commission, Guidelines on Elections: http://www.venice.coe.int/docs/2002/CDL-AD(2002)013-e.pdf

 20.  Separate Opinion of Constitutional Court Judges on the referendum invalidation http://www.ccr.ro/deciziitotal/pdf/ro/2012/H0006_12.pdf   p 17

 21.  Venice Commission on unclear Constitutional Court Judgments: http://www.venice.coe.int/docs/2007/CDL-AD(2007)036-e.asp  art25

 22.     European Convention on Human Rights on judgment  interpretation problems http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf

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