Book Review: Bogdan Iancu on Bianca Selejan-Guțan’s “The Constitution of Romania: A Contextual Analysis”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Bogdan Iancu reviews Bianca Selejan-Guțan’s book on The Constitution of Romania: A Contextual Analysis.]

Contextualizing Romania’s Fragmented Constitutionalism

—Bogdan Iancu, Associate Professor (Comparative Constitutional Law and Constitutional Theory), University of Bucharest, Faculty of Political Science

For a long time after the collapse of state socialism, the countries that had just emerged from under the Iron Curtain were collectively referred to by the conceptual proxy of ‘post-communism’. After twenty-years, with the benefit of hindsight, the multiplicity of discrete contextual factors (economic, historical, religious, etc.) bearing on each particular jurisdiction and distinguishing for instance the Czech Republic from Romania, Bulgaria from Croatia or Hungary from Poland are apparent. More nuanced and fine-tuned analytical approaches and methodological tools can now be considered.

In Romania, the dominant cultural discourse of modernization is still tributary to the framework theory, first advanced by local nineteenth-century modernizers, of “forms without substance”.[1]  Depending of where one stood in this resilient debate, the argument could either be that borrowing Western forms, including a constitution, would lead in time to genuine modernization (i.e., Westernization)  by drawing substance into the form or that the exercise was fated to be a sham and that such posturing could not conceal the lack of contextual substance behind the façade (the empty forms of those adopted foreign rules and institutions). Emblematic for the latter standpoint, Nicolae Iorga, the country’s eminent 20^th century historian, described the 1866 Constitution (an adapted Romanian form of the Belgian Constitution of 1831) as “[a coat] made in fact by an excellent tailor,  but one accustomed to tailoring suits for different kinds of bodies…with almost no effect on our political life other than having brought in yet another hypocrisy”.[2]  An iconic figure of the 19^th century, I. C. Brătianu, prime minister between 1876 and 1888, referred in the same vein to  the newly adopted court dress:

It was not enough that they translated French laws word for word into Romanian, now they had to dress after the French fashion too. This is how we see our judges and barristers, clad in borrowed cloaks that in  France might signify something, according to their traditions, but here, with us, only look ridiculous.[3]

Romania has adapted a Western-style constitution in 1866 and replaced it with another fundamental law in 1923 (in essence, a significantly amended version of its predecessor). This democratic tradition, imperfect and inchoate though it might have been, was abruptly terminated: the 1923 Constitution was suspended in 1938 and replaced with the royal dictatorship of Carol II, followed by a brief fascist regime (September 1940-February 1941), a pro-Axis military dictatorial rule by Marshall Ion Antonescu (during WWII), the Soviet-backed instauration of  the Republic (1947) and the perpetuation of a particularly brutal form of state socialism until 1989. A Constitution was adopted in 1991 and amended fragmentarily and rather haphazardly in 2003 (in view of NATO and EU accessions). The current constitution is in many respects the result of transitional contingencies and open-ended “bricolage”. Some institutions have been taken over fragmentarily from pre-WWII traditions (bicameralism is the best example), some were copied verbatim from various Western blueprints (the Ombudsman), some choices followed cultural path dependencies (semi-presidentialism, copied in truncated form from the French Fifth Republic), some have been adopted or overhauled at the behest of the EU Commission (the entrenched, extreme autonomy of the judicial system).

Due to these features, the country is an ideal case study for inquiries into the functioning of constitutional institutions and especially into the value of transplants to an unsettled contextual soil. Few authors are better equipped for such an undertaking than Bianca Selejan-Guțan, a professor of human rights and public law at the University of Sibiu and one of the foremost Romanian constitutional scholars of her generation.

The author’s masterful introduction to Romanian constitutional law to an English language academic audience is centered on institutional analysis. The bulk of the volume deals with the political branches, the court system and the Constitutional Court, whereas four relatively shorter sections analyze historical evolutions, the character of the state, fundamental rights, and amendment initiatives as predictors of future developments, respectively. Guțan strives to offer a cold radiography of the disparity, along each of these dimensions, between the purported objective of particular rules or institutional designs and their actual functioning. The book excels at this task and brims with intuitive and dissective analyses of particular constitutional arrangements, repeatedly stressing on the cultural limitations of normative institutions. For instance, the provision of Art. 20, which provides for the direct effect of ratified international human rights treaties, has been in practice inoperative, due -–according to the author– to contextual reasons, namely, the fact that ordinary courts are both legal-culturally reluctant to assert such powers and methodologically ill-equipped to engage in such extremely sophisticated comparative exercises.[4]

The book shies away from trying to encapsulate Romanian constitutionalism in a simplified formula or label, perhaps as a result of the belief that practices are currently too unsettled and incoherent to warrant such an attempt. Overall, the picture one gleans from the volume is one of normative and institutional fragmentation and incomplete and segmented cultural rapprochement to Western systems. In Romania, the knee jerk reaction to all problems or crises is to suggest new laws, institutions, and constitutional amendments as panacea. In this respect, the author’s insistence that some issues could be changed for the better at the level of good state practice rather than formal constitutional amendments stands refreshingly apart from the common, simplistically positivistic, belief in the efficiency and effectiveness of black letter law and institution-making: ”[T]rue constitutional change in Romania, one that will matter in the future, at all levels of the system and at all levels of society, should be an informal one.”[5]

The author focuses primarily and critically on the way in which internal contextual factors (failed past modernization, failed post-communist reception of tradition, failed confrontations with the communist past, systemic graft as a structural feature of local politics, etc.) impacted constitutional developments, whereas external causations are not engaged at the same depth of scrutiny. Needless to say, this is a reasonable space limitation. At the close of most sections the positions of the Venice Commission and the EU Commission as to various Romanian constitutional evolutions are mentioned (how the EU Commission perceives the reluctance of Parliament to lift the immunity from arrest of MPs summarily, how the Venice Commission views the matter of separation of powers as “loyal cooperation”, etc.).

The EU Commission makes such appraisals within the framework of the Cooperation and Verification Mechanism, a structure set up by the Act of Accession for evaluating by means of by-annual reports the progress undertaken by the country according to four benchmarks (essentially policies of judicial reform and combating corruption).

The Mechanism was initially scheduled to lapse after three years, in 2010, but has been maintained, apparently sine die. It had nothing to do initially with internal constitutional matters but the EU Commission has suddenly reckoned in 2012 that legal reform would after all include the rule of law and the rule of law has to do with the Constitution, whereas the Constitution is interpreted by the Constitutional Court. This elongated reasoning (or sleight of hand) has brought the local constitutional system under the Commission’s scrutiny, counsel, and admonition. The overreach was occasioned and justified by an internal crisis related to an attempt to impeach the President but the dormant question is worth pondering whether the EU Commission has a blanket gubernatorial mandate to solve internal crises or a more limited one, in tune with legal basis and its institutional capabilities.

The Venice Commission is a consultative body of the Council of Europe, whose usefulness for providing an additional forum for debate and expertise in comparative constitutional matters is undeniable but whose methodology, membership, and positions in particular cases are by no means unassailable.[6] Moreover, these two bodies belong to different international organizations and have a different standing vis-a-vis domestic procedures and processes even though, more recently, cross-hybridization between the two commissions can be witnessed. These are selective cross-references also between local institutions and international bodies, for instance selective citation of international documents to rationalize and legitimize local preferences.

The author refers to the selective use (in essence, instrumental cherry picking) of the Venice Commission’s Code of Good Practice on Referendums in Romanian Constitutional jurisprudence regarding the constitutionality of amendments to the local Referendum Law.  Such external contextual factors (and their respective benefits and limitations) have become increasingly important and open avenues for future explorations of the volume themes in an international and supranational context.

The book offers its reader a superb, highly insightful and informative, introduction to the Romanian Constitution and the avatars of contemporary Romanian constitutionalism. Indeed, this is the first self-standing volume on the topic published in English, with an international press, for an international academic audience. It will serve as a standard reference for public law comparativists and political scientists interested in transitional systems, modernization, and constitutionalism in Romania and the region, for many years to come.

Suggested Citation: Bogdan Iancu, Contextualizing Romania’s Fragmented Constitutionalism: Review of Bianca Selejan-Guțan’s “The Constitution of Romania: A Contextual Analysis”, Int’l J. Const. L. Blog., Apr. 27, 2016, at http://www.iconnectblog.com/2016/04/book-review-bogdan-iancu-on-bianca-selejan-gutans-the-constitution-of-romania-a-contextual-analysis

[1] T. Maiorescu, În contra direcției de astăzi în cultura română [Against the Contemporary Tendency of Romanian Culture] (1868).

[2] In Constituția din 1923 în dezbaterea contemporanilor [The Constitution of 1923 in Contemporary Debates] (București, Humanitas, 1990), pp. 25-53, at pp. 25-26.  All translations are mine.

[3] T. Drăganu, Începuturile și dezvoltarea regimului parlamentar în România până în 1916 [The Beginnings and Development of Parliamentarism in Romania: 1866-1916] (Cluj Napoca, Editura Dacia, 1991), p. 354.

[4] At p. 232.

[5] Id. At p. 258 [citation omitted]. See also p. 256.

[6] Maartje de Visser, A Critical Assessment of the Role of the Venice Commission in Processes of Domestic Constitutional Reform, 63 Am. J. Comp. L. 963 (2015).