Context
As Romania gears up for its 2024 presidential elections, a recent decision by the Constitutional Court of Romania (CCR) has sent shockwaves through the country’s political landscape. The decision in question concerns the candidacy of Diana Iovanovici-Șoșoacă, a controversial figure known for her far-right views, anti-EU stance, and alleged pro-Russian sympathies.
Șoșoacă, a former member of the nationalist AUR party, has been a divisive presence in Romanian politics. Her inflammatory rhetoric and controversial actions, including disrupting COVID-19 vaccination centers and engaging in physical altercations with journalists, have made her a polarizing figure. Despite this – or perhaps because of it – she has garnered a significant following among certain segments of the electorate.
This decision comes at a time when concerns about democratic backsliding in Central and Eastern Europe are already high, making its implications potentially far-reaching beyond Romania’s borders, especially with the Russian war of aggression against Ukraine and the disinformation campaigns running at full speed.
The CCR’s Decision: In a move that has raised eyebrows across the political spectrum, the CCR has decided to bar Șoșoacă from running in the presidential election. However, it’s not the decision itself, but the reasoning behind it that has set alarm bells ringing.
The Court has introduced two new criteria for presidential candidates: „respect for the Constitution” and „defense of democracy.” These criteria are not explicitly mentioned in the Constitution or electoral laws. Instead, the CCR has derived them from the presidential oath of office, arguing that the obligations assumed upon taking the oath should be fulfilled even before the election.
The CCR’s Decision: Key Arguments and Reasoning
- Constitutional Basis for the Decision: The CCR bases its decision on Article 146(f) of the Romanian Constitution, which grants it the power to oversee the procedure for electing the President. The Court interprets this role broadly, asserting that it encompasses not just checking legal compliance but also assessing the constitutionality of candidacies.
- New Eligibility Criteria: The CCR introduces two new criteria for presidential candidates: a) Respect for the Constitution b) Defense of democracy
These criteria are not explicitly stated in the Constitution or electoral laws but are derived from the presidential oath of office.
- Temporal Aspect of Constitutional Obligations: The Court makes an unprecedented extension of constitutional obligations, arguing that the obligation to respect the Constitution and defend democracy is not limited to the period after taking office. It extends this requirement to the candidacy period, stating:
„The obligation to respect the Constitution should not be judged solely based on the moment of taking the oath… but from a dual temporal and value perspective when it concerns the position of President of Romania, the supreme office in the Romanian state.”
- Interpretation of the Presidential Role: The CCR emphasizes the President’s constitutional role as a guardian of the Constitution (Article 80(2)). It argues that this role implicitly requires candidates to demonstrate respect for constitutional values even before taking office.
- European and Atlantic Integration: The Court places significant weight on Romania’s membership in the EU and NATO, describing these as:
„fundamental constitutional options for democracy and represent the culmination of a long and arduous political-historical process achieved through the effort of the entire Romanian society.”
It argues that eroding these values is equivalent to rejecting the fundamental democratic choices made by the Romanian people.
- Evaluation of Candidate’s Past Conduct: The CCR asserts its right to evaluate a candidate’s past statements and actions, stating:
„The Court directly and immediately verifies actions/inactions that violate the Fundamental Law, without the need for an intermediate action, previously materialized through court decisions.”
This marks a significant expansion of the Court’s role in the electoral process.
- Specific Allegations Against Șoșoacă: The Court cites Șoșoacă’s „constant anti-democratic and antisemitic discourse” and her „systematic, persistent, and prolonged conduct aimed at affecting the constitutional foundations of the Romanian state and its guarantees, namely Romania’s membership in Euro-Atlantic structures.”
- Balancing Rights and Restrictions: While acknowledging the importance of free expression in democratic societies, especially during election periods, the CCR argues that Șoșoacă’s statements go beyond legitimate political debate. It characterizes her actions as „a frontal attack on democratic ideas and principles and on the constitutional order.”
- Legal Basis for Intervention: The Court justifies its intervention by citing Article 1(3) and (5), Article 82(2), correlated with Articles 148 and 149 of the Constitution. These articles refer to the values of democracy, the rule of law, respect for the Constitution, and Romania’s EU and NATO membership.
- Scope and Limits of the Decision: The CCR explicitly states that it is not examining the constitutionality of Șoșoacă’s political party, limiting its decision to her individual candidacy.
Implications and Precedent:
- Expanded Court Powers: The decision significantly expands the CCR’s role in the electoral process, allowing it to evaluate candidates based on their past statements and actions.
- New Eligibility Standards: By deriving new eligibility criteria from the presidential oath, the Court has effectively created new constitutional requirements for candidates.
- Limitation on Political Speech: The decision potentially restricts the scope of acceptable political discourse, particularly regarding EU and NATO membership.
- Pre-emptive Disqualification: The Court’s approach allows for the disqualification of candidates based on subjective criteria, potentially silencing political voices before they can even reach the electorate.
- Interpretation of Constitutional Values: The decision ties respect for the Constitution closely to support for specific geopolitical alignments (EU and NATO membership), potentially limiting future policy debates.
- Lack of Due Process: The decision was made without giving Șoșoacă an opportunity to defend herself, raising concerns about procedural fairness.
- A Turning Point for Romania: This decision marks a critical juncture for Romanian democracy. It creates a precedent whereby an unelected institution can directly intervene in the electoral process, undermining fundamental principles of representative democracy.
- It undermines the principle of popular sovereignty, where power ultimately resides with the people.
- It introduces unpredictability into the electoral process, potentially discouraging political participation.
- It risks eroding public trust in state institutions and the democratic process itself.
This decision marks a significant shift in Romanian constitutional law, potentially altering the balance between judicial oversight and democratic processes in candidate selection. It sets a precedent for more active court intervention in determining who can run for the highest office in the state, based on an expanded interpretation of constitutional requirements and values.
This decision creates a dangerous precedent. It opens the door for the arbitrary exclusion of candidates based on subjective interpretations of their past actions and statements. Today it’s Șoșoacă, but tomorrow it could be any candidate who has criticized the government or proposed radical reforms.
Moreover, this ruling introduces a form of pre-electoral political censorship. It shifts the power to decide who can run for office from the voters to a small group of appointed judges. This is a slippery slope towards an authoritarian regime where a select few can shape the political landscape by controlling who gets to participate in elections.
The CCR has overstepped its constitutional role. Its job is to interpret the law, not to create new criteria for electoral eligibility. By doing so, it has upset the delicate balance of powers in a democratic system.
Unfortunately, there’s no immediate remedy. The CCR’s decisions are final and binding. Any change would require constitutional amendments, a process that is both complex and time-consuming.
In conclusion, while the subject of this decision might not garner much sympathy, the principle at stake should concern us all. As the saying goes, „Hard cases make bad law.” In trying to address one perceived threat to democracy, the CCR may have inadvertently opened the door to far greater dangers.
At Funky Citizens, we believe that democracy thrives on debate, disagreement, and yes, even on voices we might find distasteful. It’s up to voters, not courts, to decide which ideas and candidates deserve support. This decision moves Romania away from that ideal, and it’s a shift we must all be vigilant about.
The road to authoritarianism is often paved with seemingly well-intentioned decisions. It’s our job as citizens to recognize these moments and stand up for the principles of democracy, even – especially – when it’s uncomfortable to do so.