President Traian Basescu sent to Chairman of the Constitutional Court of Romania (CCR) Augustin Zegrean a constitutionality objection over a law that cleared Parliament recently amending and supplementing Law 3/2000 concerning the organisation and conduct of referenda, arguing that this would allow passing by referendum some measures devoid of popular legitimacy and would lead to the violation of the Romanian people’s right to exercise state sovereignty via the direct means of a referendum.
In his objection, Basescu argues that the turnout threshold of 30-per cent of the registered voters runs contrary to constitutional principles, because the democratic expression of the people’s sovereignty is secured only by the participation of a majority of citizens in the plebiscite, which means 50 per cent plus one.
He also argues that the new referendum law, as passed by Parliament and submitted to him for promulgation, violates the provisions of the Constitution of Romania that the citizens’ rights and freedoms are supreme values, while national sovereignty belongs to the people that may exercise it including by referendum, while no group and no individual may exercise the sovereignty in their own name.
The Romanian people owns the state power, as the Constitution says, and the referendum is the most efficient and clearest way of direct consultation of the popular will, which at the same time is an instrument of direct democracy. There is the national constitutional referendum to amend the Constitution; the national referendum for the dismissal of the country’s President as well as the national referendum initiated by the President in relation to matters of general interest.
Basescu adds that by the notion of majority it is understood the largest number of citizens from a community, namely 50 per cent plus one, underscoring that the legitimacy of decisions taken by popular consultation is given by a large turnout in the referendum.
He argues that for the constitutional revision referendum an approval quorum of 50 per cent plus one will be required to underscore the judiciary power of the Constitution, and that is why lowering the turnout threshold to 30 per cent will lead to the absence of legitimacy while generating constitutional instability.
The possibility of amending the Constitution or dismissing the President of Romania at a referendum with a 30-per cent turnover quorum would be tantamount to ‘seriously undercutting the will of the people by which majority vote the Constitution was approved and the President of Romania was elected.’
The President also points to the fact that the new referendum law distinguishes between the dismissal of Romania’s President elected in the first round of election, the President elected in a run-off and the acting President, warring that the Constitution requires the same majority of 50 per cent plus on in all three cases.
The new referendum law, Basescu argues, provides different majorities for the three instances: when the President of Romania wins the election outright, he of she will be dismissed by an absolute majority of the registered voters; when he or she is elected in a run-off, he or she will be dismissed by a relative majority of the voters who show up to for the referendum, whereas a caretaker President will not be dismissed by referendum because he or she was not voted in.
According to Basescu, the rational solution should derive from the Constitution. ‘Under Article 81(1) of the Constitution, the candidate who wins a majority of the votes of the registered voters shall be declared president-elect. Under the legal provisions in force, this absolute majority operates also in the case of dismissing the President, by the same token, irrespective of the number of votes garnered to win the office or how the office was won.