Romania under EU influence: note on the constitutive limits of external constitutional interventions.

• Author: Iancu, Bogdan
• Position: Report

Constitutionalism and Constitutional Law: Referential, Transnational, Supranational, Global

Since the appearance of the modern normative constitution, at the end of the 18th and the onset of the 19th century, the question as to the proper balance of universal "essence" and idiosyncratic particularities in constitutionalism has been a recurrently perplexing theme in legal and political philosophy. At the normative level, this local/universal tension reflects in fundamental legal key an overhanging Enlightenment dialectic concerning the preconditions and limits of reason. To wit, Montesquieu himself, the father of modern separation of powers theory, straddles in his Spirit of Laws a fine and rather hesitantly drawn line between sociological determinism and the extraction of ideal-typical, purportedly rational, immutable, and universal models of government. The simultaneous conceptual symbiosis and tension between constitutionalism and constitutional law (26), the notorious irresolution and confusion of methodology in comparative constitutional law (constitutionalism?) (27), and the recurrent divergences between 'functionalist' and 'expressivist' schools in comparative law have in the meanwhile constantly evinced, replayed, and reinforced, in various keys, the original problematic (28).

Until recent times, the primary import of such cross- and counter-cultural constitutional debates was relatively and relationally limited in both normative and contextual terms. Namely, the practical stakes of "constitutionalism beyond the nation state" concerned either the transplant of foreign models as a constitution-making tool or--more recently--the relevance of foreign interpretations of analogous provisions and concepts in domestic constitutional adjudication. In both cases, the scope of the transplant and the approximation of the local instantiations of borrowed rules and institutions to the logic of their original models have been the object of an, albeit referential, jurisdictionally confined assessment. This is not to deny the pre-existence of direct foreign interventions in domestic constitutional affairs. During the nineteenth century, for instance, such inroads commonly took place by way of capitulations or demands extracted from non-Western, 'uncivilized' states by the means of bi- or multilateral treaties (29). Yet, in such cases, interventions were punctual and emphatically pragmatic in nature. Namely, they concerned concessions extracted by the dominant Western powers from civilizational laggards in the name of bare state interest. Even though such instrumental considerations were sometimes thinly veiled in a universalistic-idealized garb, they were and were certainly perceived by the weaker party as the result of uneven power relations rather than as expressions of a disinterested desire to enforce universal constitutional values (30).

Constitutionalization, primarily undertaken by way of import or cross-fertilization or "migration of constitutional ideas" (31), is still a widespread phenomenon, for example in the wake of transitions from authoritarian regimes (32). However, these developments take place nowadays in an environment characterized by an important paradigm shift. Contemporary constitutionalism does no longer function in a limited normative and institutional universe, wherein processes of legal modernization in one jurisdiction tread purely referential and jurisdictionally delineated paths. First, as a result of both phenomenal evolutions towards the erosion of the state-centred lines of division that enabled and reinforced the practices of nineteenth- and early twentieth-century constitutional and public international law (33) and of related theoretical/ideological leanings towards cosmopolitanism (34), constitutionalism is nowadays a ubiquitously global legal phenomenon and doctrinal narrative. In contemporary legal and political science literature, overlapping references to "multi-level governance" and "transnational", "global", and "pluralist" constitutionalism abound, sometimes to the point of satiety (35). Secondly, and related as a matter of actual developments, numerous inter- or supra-national systems are now securely in place, whose legal acts have a direct and often binding impact on the juridical systems of nation-states and whose adjudicative and administrative bodies are sometimes charged with attributions that make interventions in domestic constitutional affairs and the assessment of domestic constitutional evolutions inevitable. Such interferences are not always couched in constitutional language but are often framed in ostensibly more abstract and neutral vocabularies such as "good governance", "the rule of law", "judicial independence", "democratization". Semantics notwithstanding, the impact of these developmental trends on the structures of justification and fundamental law institutions in the nation-state has become an undeniable feature of the contemporary legal world. The European Union, which imposes on its new member states, as part of the acquis, standards of "political conditionality" according to the Copenhagen criteria, is the best case in point to illustrate the general tendencies. After all, the EU has itself progressed from a form of transnational economic cooperation towards the current form of an inchoately constitutional supranational system. (36) But purely international administrative organs such as the IMF and World Bank have also started, since the late 1980s, to make loan programs conditional upon "good governance" reform packages that demand or imply the readjustment of governmental scope, including the realignment of constitutionally-relevant and structures. (37) The 'migration of constitutional ideas' and structures is therefore, in an increasingly broader array of settings, fused at the hip with direct intrusions in domestic constitutional affairs. (38)

Insofar as such intrusions are cast now in a completely different mould, it would appear that their effect on a transitional jurisdiction could only be beneficial. External recommendations made in the name of constitutionally germane principles and values and not in pursuit of punctual instrumental considerations would help in nudging newcomers towards a higher degree of constitutional civility and eventual full membership in the club of the finest gentlemen. This important hypothesis, compelling though it may be in theory, must nonetheless be subjected to the test of actual practices.

What follows is a limited and tentative inquiry into the preconditions and limits of this newer form of transnational constitutionalism, starting from recent interventions by the EU Commission, primarily through a Cooperation and Verification Mechanism report, in Romanian constitutional entanglements (39). The Commission's position was occasioned by a recent local constitutional crisis, which followed a protracted and escalated course over the summer of 2011, in the context of an attempt by the parliamentary majority to impeach the sitting Romanian president.

Constitutional Transitions in Romania: From the Logic of Transplant to the World of Transnational Dialogue

In Romania, as in many other peripheral Eastern areas of the European continent, legal modernization was undergone from the very onset by way of transplanting, oftentimes by means of wholesale importation, Western models. The building as such of the modern nation-state in the nineteenth century was achieved at the level of juridical practices by a massive process of adopting foreign legislative frameworks and institutions. For instance, the first truly modern Constitution, that of 1866, was a slightly adapted replica of the 1831 Belgian Constitution. To be sure, the way in which it functioned in the Romanian principalities and later the Kingdom diverged to a good extent from practices in the country of origin. For example, much unlike settled nineteenth-century parliamentary routines, Romanian "dualism" followed for the most part an original local paradigm, whereby the king, instead of designating prime ministers in the aftermath of the regular parliamentary poll, ensured governmental rotation by removing the incumbent and charging a nominee with the organization of new (and in practice usually rigged) elections (40). Fiery debates ensued, up until the beginning of the 20th century, regarding the fitness of the foreign form to the substance of the local environment and, consequently, the civilizational benefits of its adoption (41). In time, such debates forged a better understanding and assimilation of the internal logic, mechanics and preconditions of liberal constitutionalism and broke the path to a more genuine constitutional foundation. Parliamentary and judicial practices were gradually rationalized. Moreover, the fundamental law of 1923 adapted the initial 1866 template to the local needs and the intervening transformations in the Romanian kingdom (42). Whether or not, without the rise of authoritarianism, fascism, and--later on--military and Communist dictatorships, the process of liberal democratization would have progressed unabated, stands under open debate. What this brief exemplifying review of Romanian nineteenth century constitutionalization goes to point out is that the practice of juridical modernization by means of foreign transplants functioned in a different setting as long as the process of constitutional rapprochement could be confined jurisdictionally and internalized gradually and referentially by the neophyte.

The drafters of the post-communist Romanian Constitution of 1991 were also influenced by external references. For instance, the French semi-presidential model served as a prototype in the choice of a political regime, whereas the fundamental rights provisions were marginally adapted versions of counterparts in various constitutional and international law charters. Thus far, the benefit of these transplants is hard to...