By Costica Dumbrava (EUDO CITIZENSHIP expert)
In a background analysis for EUDO CITIZENSHIP, Costica Dumbrava explains the dispute about the validity of the Romanian Referendum of 29 July 2012.
On 29 July 2012, Romanians were called to vote in a referendum on whether they agree with the parliament’s decision to impeach president Traian Basecu. The head of state was accused of outstepping his constitutional powers by meddling with the country’s institutions. The suspension of the president is a tipping point in a series of actions taken by the leaders of the governing Social-Liberal coalition (USL) in order to consolidate its power. Generally, the Romanian political system has evolved towards a semi-presidential system that tends to create political conflict whenever the president and the prime minister belong to adverse political groups (more here).
The open conflict between Victor Ponta, the Romanian prime minister, and Traian Basescu acquired a European dimension in June 2012 when the two leaders vociferously competed over the privilege to represent the country at the EU summit. Despite a decision of the Romanian Constitutional Court that favoured the president, the prime minister took the trip to Brussels. Using its majority in parliament, USL swiftly took over several key institutional positions. It replaced the heads of the two Chambers of Parliament, dismissed the Ombudsman, and aired threats against the judges of the Constitutional Court. By replacing the Ombudsman, the government wanted to make sure that its decrees would not be challenged before the Constitutional Court, since only the Ombudsman has this power. An emergency decree then allowed the government to deprive the Constitutional Court of its powers of review over government decisions. In the meantime, Victor Ponta rebuffed strong allegations of plagiarism concerning his PhD dissertation by simply dissolving the specialised committee that investigated the matter.
The decision to impeach the president came two years before the end of Basescu’s last presidential mandate and just several months before the date set for the legislative elections. The stakes are high because in Romania the president has the power to nominate the prime minister, as well as the chief prosecutor and the judges of the Constitutional Court. Despite the gravity of allegations, the parliament failed to substantiate them. Consequently, the Constitutional Court gave a non-binding opinion rejecting the impeachment. The parliament disregarded the Court’s opinion and pushed for a referendum. The Constitutional Court ruled that if the referendum takes place, it should meet the participation threshold of 50% + 1 of registered voters in order to be valid. After having initially dismissed the ruling, the parliament eventually accepted the Court’s threshold in order to tame a strong wave of international criticism.
The political campaign preceding the referendum was about everything but the president’s alleged constitutional infringements. The government appealed to peoples’ disappointment and anger with the recent austerity measure taken by previous pro-Basescu governments. Billboards in the country displayed people saying “He stole my pension,” “He destroyed my health,” etc. (more here). Basescu had initially called people to vote against what he called a coup d’etat. He then changed tactics and urged his supporters to boycott the referendum.
The result of the referendum was that an overwhelming majority of voters (87.52%) voted for impeachment (more here). However, according to the Permanent Electoral Authority, only 46.24% of the registered voters cast their vote. The suspended president enthusiastically announced that “the flame of democracy has remained alight.” (more here) Unsurprisingly, the leaders of USL challenged the validity of the referendum. They raised doubts about the accuracy of data concerning the number of registered voters.
The Constitutional Court was called to decide on the matter. The date of the decision was postponed until 12 September 2012. The Court asked the government to transmit the updated lists of registered voters. There was some confusion about this request. It was unclear whether the Court asked the government for the updated lists or whether it asked the government to update the lists and then to transmit it. The Court later clarified that it meant was the lists that was actually used in the implementation of the referendum (more here). It appears that the Court has received contradictory pieces of information. According to the National Institute of Statistics, the data collected in the 2011 census are not yet fully available, hence there is no possibility to establish the exact number of citizens with the right to vote (more here). According to the Ministry of Interior and Administration, the task of updating electoral lists belongs to local administrations. Apart from declining responsibility, the Ministry casts doubts about the accuracy of the available data (more here). The Permanent Electoral Authority confirmed that the responsibility for updating the list lies with the local authorities and also reiterated doubts about the accuracy of data (more here).
Victor Ponta argued that, in fact, there are only 15 million of voters in Romania and not 18 million, as shown in the electoral lists. He added that, “apart from them, another 3 million registered voters live abroad, provided they’re still alive or did not give up their Romanian citizenship […] of the 15 million, 1.6 million are ethnic Hungarians, the ones that did not vote on Sunday […] of the 13.4 million, 8 million came to vote. […] it’s an overwhelming majority” [emphasis added]. (more here) The Prime Minister seems to suggest that Romanian citizens of Hungarian ethnicity should not be taken into account when calculating the quorum. This suggestion is simply unacceptable.
The issue of the Hungarian minority became sensitive just before the referendum, when Viktor Orbán, Hungary’s prime minister, expressed his support for Basescu and advised ethnic Hungarians from Romania to boycott the vote (more here). In the referendum the turnout was particularly low in those counties where Hungarian ethnics form the predominant population. Victor Ponta reproached Hungary’s prime minister that he was interfering with the domestic affairs of another country (more here). While Viktor Orbán has not yet responded to this accusation, Hunor Kelemen, a leader of Hungarian minority from Romania, explained that ethnic Hungarians did not participate in the referendum because they had little stake in it (more here).
The case of Romanian voters who live abroad but are registered on electoral lists in the country is a controversial matter. In the referendum, 73,016 votes were cast from abroad – of which 78.47% supported the impeachment. The Republic of Moldova is the only place in which the majority of voters voted against impeachment (60.14% of a total of 2,361 votes). It is not the first time that Basescu receives support from Romanian citizens from the Republic of Moldova. In 2009, he won a second presidential mandate by a small margin of 71,000 votes, of which 10,000 were cast in the Republic of Moldova (more here). This may explain why, after he was suspended, Basescu paid a visit to Chisinau (more here). Victor Ponta also visited the Republic of Moldova and promised to improve the process of restoration of citizenship to former Romanian citizens. He stressed that “the provision of Romanian citizenship to Moldova residents is our historic duty” (more here). However, the issue at stake in the referendum debate is not the actual votes cast but the number of registered voters. According to the law, only resident citizens are included in the permanent electoral lists, which is the reference list for calculating the quorum for referendums. A recent study claims that between 1991 and 2011 a total number of 226,507 persons have regained Romanian citizenship through facilitated procedure (more here). The great majority of these persons come from Moldova or Ukraine. It is estimated that many of them have managed to register as residents in Romania in order to obtain a Romanian ID. For example, in June 2012, it was discovered that a flat in Bucharest had no less than 3,600 tenants, all of them from the Republic of Moldova (more here).
Victor Ponta opined that the Court should “take a decision in accordance with reality” (more here). There seems to be a great confusion between a more general question about the accuracy of data and a specific question about which data should be used as a reference point for assessing the validity of the referendum. The second question is urgent and it can be settled rather quickly. According to the official records published by the Permanent Electoral Authority, the total number of registered voters is 18,292,464. The question of whether this is figure is based on accurate data is not trivial, but it should not concern the Court. 
None of the possible endings of this political drama is likely to bring political stability to Romania. But we can expect more uncertainty if the referendum is declared invalid. In this case, there is the question of whether the president should be reinstated or whether the referendum should be repeated. It seems that legal provisions are ambiguous in this respect. It is notable that Victor Ponta has pledged to respect the decision of the Constitutional Court (more here). He has also made a point about the political meaning of the referendum. Even if the referendum is deemed invalid, there are still more than 7 million people who have rejected president Basescu. Instead of adopting a triumphalist stance, the (suspended) president might consider listening to his people.
 The Social Liberal Union (USL) is the coalition between the Social Democrat Party (PSD) and the National Liberal Party (PNL), which is based essentially on a common opposition to Traian Basescu and its Liberal Democrat Party (PDL).
 On 18 July, the European Commission released an updated report on Romania’s fight against corruption and the reform of justice expressing “extreme concern” about recent developments. See Toby Vogel and Andrew Gardner, “EU outcry over Romania forces Ponta to retreat,” European Voice, 19 July 2012. Romania also was threatened that it risks compromising its negotiations with FMI and its bid for accession to the EU Schengen zone. See Neil Buckley and James Fontanella-Khan, “Romania president gets impeachment lifeline,” Financial Times, 10 July 2012.
 The participation rate is not much lower from that of a similar referendum in 2007 when 44,45% of registered voters casted their vote, although, in that case, the majority rejected the impeachment. “Resultatul Referendumului national din 19 mai 2007, Participarea la vot, Contestatii,” Autoritatea Electorala Permanenta.
 The lowest participation rate was registered in the counties of Covasna (18.56%) and Harghita (13,59%). See “Repartiţia rezultatelor Referendumului Naţional din data de 29 iulie 2012, pentru demiterea Preşedintelui României, pe Judete,” Autoritatea Electorala Permanenta, 29 July 2012.
 In a similar referendum in 2007, there were 75027 votes cast from abroad— of which only 6,32 supported the impeachment. In the Republic of Moldova, of a total of 2450 votes cast 97,59% were against the impeachment. See “Repartitia rezultatelor referendumului national din data de 19 mai 2007, pe sectiile de votare din strainatate,” Biroul Electoral Central.
 Statistics are important for policy and politics. The number of people generally determines the size of the assemblies, the allocation of budgets, etc. At the EU level, these data are key in when it comes to the distribution of votes (EU Council) and seats (EU Parliament).