Romania and the Law on Political parties 14/2003 ...

UNIVERSITY OF BUCHAREST FACULTY OF POLITICAL SCIENCE STIINȚE POLITICE ENGLEZĂ III

Setting up a political party in the civil law system. Case study: Romania and the Law on Political parties 14/2003, republished in June 2015

Ioana ABĂSEACĂ

Ioana ABĂSEACĂ, SPE III

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The Romanian Legal System

Table of Contents

I.Introduction………………………………………………………....…………2 II.1.Theoretical approaches: English and French peers as pioneers in the matter…………………………………………………………………....……....2 II.2. The Romanian case ante and post-Communism………………………...3 III.Political parties financing: Law 334/2006 in correlation with Law 14/2003…………………...…………………....……………………….…….....5 IV.1.Amendments

of

Law

14/2003

and

subsequent

developments…………………………………………………………..………..6 IV.2.Successful and unsuccessful cases…………………………….….……..7 V.A comparison between Law 14/2003 and ‘Loi association du 1er Juillet 1901’.....................................................................................................................8 VI.Conclusions………………………………………………………….……..10 Bibliography…………………………………………………………………...11

List of abbreviations BEC - Central Electoral Bureau (ro. Biroul Electoral Central) CFSN - Council of the National Salvation Front (ro. Consiliul Frontului Salvării Naționale) PNL - National Liberal Party (ro. Partidul Național Liberal) PSD - Social Democrat Parry (ro. Partidul Social Democrat) USR - Union Save Romania (ro. Uniunea Salvați România)

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I.Introduction

This paper aims to provide insight on the legal grounds related to political parties makeup in post-communist Romania. Following the regime overturn in 1989 and the subsequent democratic Constitution of 1991, replaced by the 2003 one, political parties regulations were established so as to provide with a positive environment for the exercise of political rights in a democratic spirit and under the provisions of the republican form of government.

Currently, the legal acquis related to political parties enables citizens to organize in a political entity with as little as three founders, but this has not always been the case. How were the changes made, what are the strong points and what is the weakness of the Law on Political Parties 14/2003 republished in June 2015? The following paper approaches the topic from a political and legal point of view so as to underline the motion mechanisms at the very core of the political anima in Romania.

II.Theoretical approaches: English and French peers as pioneers in the matter Attempts to grasp what a political party were to become were made as early as 17th century, in the United Kingdom with the Whigs and Tories1. Subsequently, in the 18th century, David Hume tackles the topic of association on his short treatise Of parties in general in what he distinguishes three types of factions: i.interest, ii.principle and iii.affection. He assumes the latter being the strongest form and inasmuch as possible shaping 1

According to Encyclopaedia Britannica, they were two opposing parties in England, starting 17th century, but particularly prominent during the 18th century

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real political parties. “These factions are often very violent; though, I must own, it may seem unaccountable, that men should attach themselves so strongly to persons, with whom they are no wise acquainted, whom perhaps they never saw, and from whom they have never received, nor can ever hope for any favour. Yet we often find this to be the case, and even with men who, on other occasions, discover no great generosity of spirit, nor are found to be easily transported by friendship beyond their own interest.”2 In France, Benjamin Constant writes in the 19th century related to political doctrine that a party is a “reunion of men who profess the same political doctrine.”3 He is suspicious some parties may hide masked intentions and that their ideology is but a mere facade for personal interests.”It is not less true that the defiance these people are inspiring to many is natural. Before the very revolution deflected the voice of morals and justice, they were for the most part, against all kinds of innovation. They have not, for twenty five years, made a single move, have not said a word, have not written a single line, without expressing their hate towards what they were calling revolutionary, towards the division of power, people’s participation in the legislative process, the abolition of privileges and equality of chances for all the citizens. Namely, all the principles which form the basis of our actual form of government.”4 The Romanian case ante and post-Communism In Romania, the right to establish a political party is embedded within the text of the Constitution of 2003 (and previously in the 1991 version) which established a multiparty system. “(1) Pluralism, in the Romanian society, is a condition and a warranty for constitutional democracy. (2) Political parties are set up and organize their activities in conformity with the law. They contribute to defining and expressing the political will of the citizens, by respecting national sovereignty, territorial integrity, the rule of law and the principles of democracy.”5 Subsequently, Law 14 of 9th of January 2003, republished in June

David HUME, Essay VIII. Of parties in general, 1742 in “Essays and Treatises on Several Subjects in Two Volumes Containing Essays, Moral,Political and Literary. A New Edition”( London: 1777) p.15 3 Benjamin CONSTANT, Cours de politique constitutionnelle, (Paris: Société belge de librairie, 1837) p. 202 4 Idem, pp. 195-196 5 Article 8. Pluralism and political parties, Romanian Constitution of 2003 2

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2015, i.e. the Law on Political Parties, expands upon the political parties regulatory framework and activity. Article 1 of the Law on Political Parties defines [political parties] as “associations with political character of Romanian citizens holding the right to vote, who participate freely at forming and exercising their political will, thus accomplishing a public mission guaranteed by the Constitution. They are juridical persons of public right.”6

By comparison, during communism, Romanian political life functioned as a one-party system, with legitimacy deriving from the Constitution, which so established. The former communist constitutional act of 1965 differs greatly from present day status quo: “Art. 25 Citizens holding the right to vote aged 23 years old may be elected as deputies for the Great National Assembly and for the popular councils. The right to register candidacies belongs to the Front of Democracy and Socialist Union, the largest, permanent, revolutionary, democratic, representative political organ, which provides for a united organizational framework, under the supervision of the Romanian Communist Party, of the social and political forces of our socialist nation, of all mass organizations, for the participation of the entire population to the making of internal and external policy of the party and the state, to the ruling of all activity areas.”7

The 2015 cornerstone amendment on the Law on Political Parties was related to Chapter IV. Registering a political party. The change made in 2015 was that the required number of founding members was greatly halted. The legal text of 2003 required for “Art. 18. (1) d) Constitutive act, together with the supportive signature list of the founding members.”8 The supportive signature list requirements were expanded upon in the following article: “Art. 19. (3) The list must contain at least 25,000 founding members, residing in at least 18 of the country’s counties and the municipality of Bucharest, but not least than 700 persons for each of these counties and the municipality of Bucharest.”9

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Law 14 of 9th of January 2003 republished June 2015. The Law on Political Parties Title II. Fundamental Rights and Duties of the Citizens, Constitution of the Socialist Republic of Romania, 1965 8 Chapter IV. Registering a political party, Law 14 of 9th of January 2003. The Law on Political Parties 9 Idem 7

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The newly amended Chapter IV reads that the process of forming a political party has become easier, with only three required founders to register their signatures at the Tribunal of Bucharest. The modifications also omit the geographical component, thus allowing any three citizens based in the same city or elsewhere to enable a new political party. The modifications set the trend for a wave of newly emerged parties, namely parties where the geographical component is visible in the names: Partidul Botoșănenilor, Partidul Gălățenilor, Partidul Societății Ieșene, Partidul Mișcarea pentru Medgidia etc.10 However, Constitutional provisions prevent parties for running for elections on a focused administrative territory, as their programme have to be nationwide.

Political parties financing in Romania: Law 334/2006 in correlation with Law 14/2003

Political parties’ funding in Romania is regulated by the law inasmuch as transparency and political correctness be not affected. The Law on Political Parties Financing, i.e. Law 334/2006 and the subsequent modifications stipulate that a party shall not have private financing from enterprises, but can receive financial aid by: “Art 3. (1) a) contributions of party members; b) donations, bounds and other freedoms; c) incomes coming from other activities in conformity with Article 16; d) state budget subventions; e) loans in cash from physical and juridical persons.”11

As a rule, the amount of money to be granted to finance political parties from state budget should not exceed 0.04 percent of the annual national budget and the donations 0.025 per cent of the budget the state is anticipating to have from incomes in a year. The delivery of the fundings goes through the Permanent Electoral Authority (Autoritatea Electorală Permanentă). Privileges exist for the parties which decide to promote women on their ballots as follows: “the allocated amount from the state budget will increase in proportion with the number of seats obtained in elections by women candidates.”12

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List of the parties registered at the Tribunal of Bucharest, as published by the Tribunal

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Law 334/2006 regarding the financing of political parties and electoral campaigns Bianca SELEJAN-GUȚAN, The Constitution of Romania. A Contextual Analysis (Oxford: Hart Publishing, 2015) p. 69 12

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A well-known case of related corruption is the one of former Prime Minister Adrian Năstase. “Using his influence as president of the governing party, Nastase received over €1.6 million for his 2004 presidential campaign. The money came from a symposium organised by the State Inspectorate for Constructions, for which ‘participation fees’ were paid by representatives of other state-owned companies or institutions. The collected sums were then directed to companies controlled by close acquaintances of the Năstase family, which redirected them to the presidential campaign.”13 The case was dealt with by the High Court of Cassation and Justice, which found the accused guilty and served a two years imprisonment sentence on the 30th of January 2012.14

Amendment of Law 14/2003 and subsequent developments Setting up a political party is an inalienable right of every citizen of Romania as derived from the Constitution. Yet, before the Law 3/2003 was amended in 2015, it might have been arduous for initiators to attract 25,000 persons to join their cause. In 2014, a group of politically driven Romanian citizens, wishing to establish a new party in Romania - the Pirate Party, had contested the Law 14/2003 in court at the Tribunal of Bucharest. The court found two aspects of the Law to be unconstitutional “By examining the exception of unconstitutionality, the Court notes that from the reasoning formulated by its authors there are two problems which need to be analyzed: first one, related to protecting data with personal character, which derives from the unconstitutional critique of Article 19 alin. (1), Law 14/2003 and the second one which concerns the establishment, through alin. (3) of the same Article 19, a minimum number of 25,000 founding members, and their territorial divide, as a precondition for setting up a political party.”15

According to the database provided by the Chamber of Deputies, there have been a total of eleven legislative proposals to modify the Law 14/2003.16 Eight of them were rejected and

Bianca SELEJAN-GUȚAN, op. cit., p. 72 Everything about the file “Trofeul Calității în Construcții”, Gândul, June 2012 15 Decision 75 of 26th of February 2015 regarding the unconstitutional exception of Article 19 alin. (1) and (3) of the Law on Political Parties 14/2003, Romanian Constitutional Court 16 The list available on the Chamber of Deputies’ website, consulted 3rd of January 2017 13 14

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there are currently three on various committees’ tables. One could mention that interestingly enough, two of the three were submitted by Deputies who were independent, namely Remus Cernea and Mihai-Bogdan Diaconu.17 The latter’s legislative proposal Pl-x 389/2015 is a “Public mission (...) to bettering the anti-corruption fight and to put an end to the corruption scourge within political parties.”18 The amendment, if passed would ban all political parties wherein a number of ten (or more) of the party members have been or are being investigated for corruption related matters and be publicly referred to as an “organized crime group.”19 Mister Cernea proposal is a defense to Article 29 of the Romanian Constitution and Law 489/2006.20 Accordingly, Mister Cernea would like to see Law 14/2003 amended so as to outlaw the usage of religious messages and religious figures in electoral campaigns.21 “If a certain church involves itself in a partisan manner in an electoral campaign, that [church] had betrayed its mission to guide the believers regardless of their political opinions and by not respecting their freedom of choice.”22

Successful and unsuccessful cases

After the Law 14/2003 was successfully amended, the Tribunal of Bucharest has dealt with a wide array of requests for new political parties. And although some of them were denied the right to establish, such as the Party for the Reconstruction of Romania, “Proud to be from Arad” Party, the Christian-Democrat Legionary Party, the Party for the New World Order of Master Alpha and Omega etc23, there is one instance where a newly born party performed very well in local and parliamentary elections in 2016, namely Union Save Bucharest, later to become Union Save Romania.

It is noteworthy to mention that the new amendments of Law 14/2003 aligned with mass anti-government protests in November 2015 and subsequent Cabinet Ponta demission. Parts of the success the Union Save Bucharest registered was people’s enthusiasms for a new

Mr. Diaconu ran on PSD lists, left the party in 2014 and subsequently created the Romania United Party Pl-x 389/2015 as consulted on the Chamber of Deputies website on 28th of December 2016 19 Idem 20 Law regarding religious freedom 21 According to the author, parties whose names include the word ‘Christian’ are not included in the category 22 Plx-387/2015 as consulted on the Chamber of Deputies website on 328th of December 2016 23 Monitoring the registering of new political parties, Public Innovation Center 17

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political class to reset the game and swipe corruption away. The USR members have understood the message and made corruption fight one of their core values. “USR was created by people whose got tiresome of the corruption and incompetency of the incumbent political system. We are average Romanians whom have never been involved in politics beforehand.”24 Initially named Union Save Bucharest, the party enjoyed tremendous popularity in local elections, June 2016, coming second after the Social Democrat Party and thus overtaking the historical National Liberal Party.

For the Parliamentary round of December 2016, USR came third in the overall ranking, with the Social Democrat Party (PSD) and National Liberal Party (PNL) on first and second place. According to the results from the Central Electoral Bureau (BEC), USR garnered 625,154 votes for the Chamber of Deputies i.e. 9.13 per cent and 629,375 votes for the Senate, recte 9.18 per cent of the total votes.25 As follows, according to the proportional distribution of seats, they have secured fourteen chairs in the Chamber of Deputies and three in the Senate.

As scholar Peter Ignazi argues, the new parties’ popularity builds upon i. the traditional parties’ failure to tackle certain topics the citizens may deem as relevant, inasmuch as ii. their incapability to reform the party a priori, so as to comply with the society’s needs. “[...] it is not the decline in party strength that paved the way for new parties, but the decline in the role of party members. The perceived lack of internal democracy, the frustration with the feeling of insignificance in the complex, rigid, ‘bureaucratic’ structure, the weakening of collective and symbolic incentives, linked to the declining of ideological competition and to the waning of clear-cut identities, the ritualist emphasis on member recruitment by the dominant coalition; all are factors shifting involvements from party to social movements and to different type of party.”26

A comparison between Law 14/2003 and ‘Loi association du 1er Juillet 1901’ 24

About USR, Who are we? official website consulted 5th of January 2017 All data is available on the official website of the Central Electoral Bureau (BEC) 26 Peter IGNAZI, “The Crisis of Parties and the Rise of New Political Parties”, SAGE Journals, Volume 2, Number 4, 1996, pp. 554-555 25

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In France, the law on political parties dates back to the beginning of the 20th century, as the country has a withstanding democratic and republican path, with the exception being the timespan of the Vichy regime.27 The Loi association 1901 establishes as legal for the citizens to organize in an association and further proceed to register as a legal person their association if they so desire to be recognized as a political party. Chapter 1, Article (3) establishes that any sort of association which is bound by “a cause or a pursue of an illicit objective, contrary to the law and to morality, or whose goal is to harm the integrity of the national territory and the republican form of government, is thereby declared illegal.”28 The Romanian text of the law follows closely the tone of the French one.29

The French Law of 1901 on associations has been modified throughout its existence on several occasions. The most noteworthy improvement to the law happened in October 1981, when an entire Chapter was abrogated, namely Chapter IV dealing with Associations Étrangères (Foreign Associations). Foreign associations in France were also previously regulated, in the immediate period before the beginning of the second world war. They were banned through a Law-Decree in 1939 as a mean to cooperate with political refugees from Central and Eastern Europe, “suspended from reconstructing their parties under the cover of associations and wishful to engage France in a war against Hitler.”30

In Romania, for that matter, pluralism was banned in 1938 under the rule of King Carol II, who established -as a follow up of the new Constitution of 1938- the mergence between all political parties under a single umbrella, that of the Front of National Rebirth (Frontul Renasterii Nationale). “Paradoxically, the positive cultural and economic evolution of the period 1938-40 consolidated the new institutional context and prepared the ground for the launch of the ‘cult of personality’ in twentieth-century Romania.”31 At the time being, 27

1940-1944 France was lead by General Philippe Pétain from the city of Vichy; France was under Nazi occupation at the time 28 Titre I, Article 3, Loi du 1er Juillet 1901 relative au contrat d’association 29 Chapter 1, Article (3), 1) Can function as political parties only the public associations, set up according to the law and which militate for national sovereignty, independence, national unity and territorial integrity, the rule of law and the principles of constitutional democracy 30 Janine PONTY, “Les étrangers et le droit d’association au XXe siècle”, Matériaux pour l’histoire de notre temps, Volume 69, Number 1, p. 24 31 Bianca SELEJAN-GUȚAN, op. Cit. p. 16

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Romanian-French diplomatic relations were in full expansion, with the Romanian consulate in Paris being ranked as Embassy of Romania in France; likewise happened in Bucharest.32 It was thus not unconceivable for representatives of the traditional parties -such as the National Liberal Party or the National Peasants’ Party33- to continue the opposition from exile. In a similar manner, the immediate period before the beginning of the second world war established authoritarian regimes in other neighbouring countries, such as Miklós Horthy in Hungary, Józef Piłsudski in Poland, King Carol II and later Marshal Ion Antonescu in Romania etc.

Other provisions of Law association 1901 include registering the newly established party with the Grand Instance Tribunal, how to dissolve the party, party membership and headquarters. It is to be mentioned that the oldest party registered in France in accordance with the 1901 law is the Parti Radical34, a left-wing socialist party. In Romania for that matter the first newly established party after the 1989 revolution was the Christian-Democrat National Peasants’ Party, led by Corneliu Coposu.35 Multipartism was reinstated by Decree-Law no. 8 issued by the Committee of the National Salvation Front (CFSN) on the 31st of December 1989.36

Conclusion

The Law 14/2003 on Political Parties in Romania is a organic law which aims to expand upon the right to association expressed in the Constitution. The Law has guarded since the moment of its adoption in 2003 the birth and dissolution of political parties, inasmuch as it has regulated pre-2003 created parties’ political behavior. The changes brought to it are meant to facilitate and ease political life in Romania by respecting citizens’ right to association. This paper was set to tackle some aspects of the Law, such as successfully

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Ministry of Foreign Affairs, Romanian Embassy in the Republic of France, Brief history of the bilateral relations 33 The National Liberal Party is the oldest one in Romania; created in 1875. The National Peasants Party was created in 1926 as a fusion between the National Romanian Party from Transylvania and the Peasants’ Party 34 It was founded in June 1901, it’s motto being “Liberté, Egalité, Fraternité” 35 Iulia HUIU, Dan PAVEL, “Nu putem reuși decât împreună”O Istorie Analitică a Convenției Democrate Române, 1989-2000 (Bucharest: Polirom, 2003), p. 7 36 Consulted on the Chamber of Deputies website on 8th of January 2017

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created parties and a comparison with the French legal system was made for contrasting purpose. Some of the most relevants aspects discovered can be summed up as follows i.subsequently to the amendment of the Law, a handsome of new political parties were registered, out of whom there is the case of Union Save Romania as a staggering-esque successful one; ii.independent politicians are more concerned with amending the Law on Political Parties than members of traditional parties; iii.there is an undoubted resemblance between the French and Romanian acquis for that matter. Further inquiry into the topic could apprehend the efficiency of multipartism in Romania correlated with the theories on efficient number of parties which was analysed by Arend Lijphart in “Patterns of democracy” and proposed by Cristian Preda in his writings, out of which we recall “Partide si alegeri in Romania post-Comunista: 1989-2004” (Parties and elections in post-Communist Romania: 1989-2004).

Bibliography

Romanian Constitution 2003 version Constitution of the Socialist Republic of Romania, 1965 Constitution de la République Française, 1958 Romanian Constitution, 1938 Decision 75 of 26th of February 2015, Constitutional Court of Romania Loi du 1er Juillet 1901 d’association Law 14/2003 republished in June 2015. The Law on Political Parties Law 334/2006 regarding the financing of political parties and electoral campaigns CONSTANT, Benjamin, Cours de politique constitutionnelle, Paris: Société belge de librairie, 1837 HUIU, Iulia, PAVEL, Dan, “Nu putem reuși decât împreună”O Istorie Analitică a Convenției Democrate Române, 1989-2000, Bucharest: Polirom, 2003

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HUME, David, “Essay VIII. Of parties in general” in Essays and Treatises on Several Subjects in Two Volumes Containing Essays, Moral,Political and Literary. A New Edition, Volume I, London: 1777 IGNAZI, Peter, “The Crisis of Parties and the Rise of New Political Parties”, SAGE Journals, Volume 2, Number 4, London: 1996 PONTY, Janine, “Les étrangers et le droit d’association au XXe siècle”, Lyon: Matériaux pour l’histoire de notre temps, Volume 69, Number 1, 1996 SELEJAN-GUȚAN, Bianca, The Constitution of Romania. A Contextual Analysis, Oxford: Hart Publishing, 2015

Online sources: Chamber of Deputies website www.cdep.ro Assemblée Nationale www.assemblee-nationale.fr Public Innovation Center www.inovarepublica.ro LegiFrance www.legifrance.gouv.fr Romanian Ministry of Foreign Affairs www.paris.mae.ro Central Electoral Bureau www.bec.ro Tribunal of Bucharest http://tmb.ro Union Save Romania website https://usr.ro Pirate Party website www.partidulpirat.ro Everything about the file “Trofeul Calității în Construcții”, Gandul 2012

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