CHAPTER V

 

GOVERNMENTAL RESPONSIBILITY AND

PARLIAMENTARY IRRESPONSIBILITY

IN THE ROMANIAN

CONSTITUTIONAL TRADITION

 

RADU CARP

 

Parliamentary government, or cabinet government, can be defined as "the form of constitutional democracy in which executive authority emerges from, and is responsible to legislative authority." In a parliamentary system, the chief executive and his cabinet are responsible in the sense that they can be dismissed from office by a legislative vote of no confidence or censure, but the government could also be dismissed by its own initiative. The resignation of the government is the consequence of a constitutional obligation only in the first case.

The votes of no confidence or censure are the most important ways of expressing the parliament’s disapproval of the government. It is, of course, possible for the legislature to use more categorical methods to achieve the same purpose. This is the case when the parliament has to decide on a law considered very important by the government, a law on which the government has staked its reputation. It is possible that the government would feel obliged to resign when faced with a continually hostile parliament. Usually, the rejection of the budget proposal is considered a sufficient argument for the resignation of the government.

The vote of censure, as a way of expressing disapproval of the government, and the engagement of the responsibility of the government are mentioned in the Romanian Constitution of 1991 [art. 112 – 113]. This is not the result of a long constitutional evolution; in this case, we cannot speak about a continuity. Institutions such as those described in the above-mentioned articles of the Constitution cannot be found in the constitutional practice developed before the Communist period. In the Romanian Constitution of 1866 the institution of the political responsibility of the government doesn’t appear and, for that reason, it is doubtful that the formal political system of that period could be considered a parliamentary democracy. However, in practice, the government began to be obliged to resign not only when one or the two chambers of the parliament adopted an express vote of no confidence, but even when, directly or implicitly, the parliament showed its intention to withdraw its support. As noted above this practice was not established by the written Constitution of 1866. The Paris Convention, signed on 7/19 August 1858, had established the framework of the political structure of the Romanian principalities, being the first attempt at balancing the old methods of autocratic government with new politically representative institutions. I use the term ‘balancing’ rather than ‘replacing’, because this Convention was the result of a compromise between the great powers who were signatories to the 1856 Treaty of Paris which have ended the Crimean War. Due to the need for political compromise, much of the patterns of the parliamentary system didn’t appear in the text of the Convention, but it is obvious that the intention of the authors was to introduce such a system in the Romanian principalities. The creation of the legal framework of modern Romania was the result of this political compromise; for that reason, a very important institution of the parliamentary system, the responsibility of the government to the parliament, was created through custom. Moreover, even if the Convention had not been the result of a compromise, the rule of governmental responsibility could not have been introduced by legal means for the very simple reason that we cannot find this rule in the constitutions of the states which desired the institution of a parliamentary system in the Romanian principalities. In England, governmental responsibility was considered then, as it is in our time, a customary rule. In France, as René Capitant notes:

 

The parliamentary system was not born as an imperative of the Constitutional Charter of 1814, but it was the result of a complex of political circumstances which made possible the imposition, by the way of the application of some legal customs, of the idea that the ministers have to resign when they have lost the confidence of the parliament.

 

The principle of governmental responsibility was put into the Constitution of Prussia, but it didn’t prescribe the consequences of this responsibility. It was believed that the parliamentary system would be imposed by the application of the rules described by the Constitution, until Bismarck came into power in 1862 and essentially imposed arbitrary rule.

Nevertheless, in the Convention of Paris the responsibility of the government was stipulated, but the Convention refers only to the criminal responsibility of the members of the government, similar to the French Constitutional Charter of 1814. In the latter, the cabinet ministries could be judged only by the judicial branch [by the Inalta Curte Judecatoreasca si de Casatie], by a 2/3 vote of the Elective Assembly, or by the hospodar.

Being the result of a political compromise, the Convention actually stipulated some rules opposed to a parliamentary system, for example, it provided for the prince to govern together with his ministers, which was a recognition of the right of the chief of state to take part in the executive functions of the state.

How was the custom of governmental responsibility established? First of all, there was the belief of the participants in the political process that this rule already existed and must therefore be applied. Boerescu, a member of Parliament, commented on the Convention in the newspaper Nationalul in 1858, stating that "usually, in representative governments, the members of the cabinet are responsible to the Chamber and to the chief of state" and that the Chambers of the Parliament can express their disapproval of the government by a vote. In the eyes of the people who were entrusted to carry out the terms of the Convention, there was a certainty that it imposed a parliamentary system. A proof for this is that one is at a loss to find a contrary point of view coming out of this time period. Moreover, there was agreement concerning this issue by the two political factions, which were later transformed into the Liberal Party [1875] and the Conservative Party [1880]. Due to the existence of this consensus, any attempts to sustain the idea of a personal rule by the prince were rapidly disappearing.

Unlike in France, where the custom of governmental responsibility appears after the adoption of the Constitutional Charter of 1814, in the Romanian principalities this rule was imposed more easily because of the consensus established among the political elites. An evolutionary process of this custom is missing from the modern Romanian political tradition.

How can this consensus be explained? It is a consensus in some way unique in the context of a tumultuous political life, in which there were frequent and intense debates between the two factions. As constitutional practices appeared, the conservatives, representatives of the great boyars, were forced to accept the rights claimed by the new emerging middle class, represented in the parliament by the liberals. The responsibility of the government to the parliament was considered the most adequate rule to preserve the peaceful coexistence of the two factions. First of all, it created a mechanism for the alternation in power between them. Secondly, it helped to slow down any profound social or economic reforms, since a government which made radical proposals could be threatened with a vote of no confidence.

Paradoxically, the most convinced supporters of the parliamentary system were the conservatives, who were over represented in the legislature due to the structure of the electoral system. Due to this over representation, they were always able to throw out a too reformist liberal government. This idea seems to be found in the comments of I.C. Bratianu, the historical leader of the liberals, who noted in 1862: "I think that in our country someone who shares the conservatives beliefs would have to support the parliamentary regime, because this political combination is the most appropriate manner to keep a nation from despotism and anarchy." Furthermore, during this period a common belief was that ‘Western’ political methods needed to be utilized in order for a new state to gain respect from the ‘civilized nations’ of Europe. Anastase Panu, a member of the Parliament, declared in 1863 that the constitutional regime functions "alike in England, alike in every state where it works."10  Another deputy, Nicolae Ionescu, declared in 1866 that we "always owe respect to the ancient and venerable English institutions."11 

A condition required for the existence of a custom is the generally accepted belief that it is imposed on the community. This condition is not sufficient, since it is also necessary that this opinio necesitatis is repeatedly applied in social life, and that it is a constant practice. If we investigate the parliamentary activity before the adoption of the 1866 Constitution, we will see that this condition is fulfilled concerning the issue of governmental responsibility. In Moldavia, the Sturza government in 1859 and the Kogalniceanu government in 1861, in Wallachia, the Filipescu and the Ghica governments in 1859, the Epureanu and the Golescu governments in 1861, all resigned due to votes of no confidence by the Elective Assembly. After the creation of the Legislative Assembly, composed of representatives of the two Romanian provinces, further governments were forced to resign: the Cretulescu government in 1863 and the Kogalniceanu government in 1864. The rule of governmental responsibility, imposed by custom, became very quickly an obstacle to the development of a normal political life in the principalities and sometimes it led to governmental instability.

While the Constitution of 1866 doesn’t enshrine in its articles the rule of governmental responsibility, it also does not explicitly exclude it. As a result, it was possible to utilize constitutional custom to establish the rule. This custom, according to C.G. Rarincescu, "was formed . . . under the influence of the foreign constitutions which previously established this system of government, such as the English or the French constitutions."12 

The 1884 revision of the Constitution of 1866 was a step in the direction of the recognition of this custom. Article 130 § 4 provided that ministers could "participate in the debates of the legislative bodies." This leaves at least the hint of the rule of governmental responsibility. We should also note that since 1879 the Law for the Ministerial Responsibility was in force; this law had established the rules applicable to the criminal responsibility of the ministries, developing the provisions of the article 101 of the 1866 Constitution. Since the text of the article 130 § 4 mentions the ‘debates’ of the parliament, it could be said to imply political responsibility, the only form of responsibility which could be deduced from parliamentary discussions [the vote on the budget, the vote of no confidence, etc.]. Another argument is that the responsibility implied by the article 130 § 4 was a joint and several responsibility13  while criminal responsibility would have to be individual.

As noted above, in order to be considered a custom, it is necessary for a rule to be constantly applied. Between 1866 and 1871 nine votes of no confidence were adopted. However, for the longer period from 1871 until 1916 there were again only nine such votes. Certainly, one of the factors which contributed to the lessor use of no confidence votes, was the development of political parties. By manipulating the elections, the party in power could insure itself of significant representation in the parliament. The other party could only come to power after being nominated by the King to form a government. Nevertheless, the conflicts between the parliament and the government didn’t disappear, because very often the governing party was confronted with internal dissent, which eventually forced a modification of the government.

The well known theory of ‘forms without content’ influenced the intellectual debates in Romania toward the end of the 19th century. According to this theory, the introduction of western institutions was not appropriate to Romanian reality. If we examine the institution governmental responsibility, we realize that this theory didn’t describe a de facto situation. The ‘rules’ applicable to this fundamental institution of the parliamentary system were not ‘imported’, they were rather imposed by the development of the custom. In this way, one could say that the form actually created its own content [a constitutional practice was taken over, constantly applied, and, finally, accepted as a part of the constitutional rules]. It is noteworthy that we can not find governmental responsibility written into the Constitution of 1923 or the Constitution of 1938. Yet this is the only customary rule in Romanian constitutional law which has no firm written foundation. Clearly one can not speak of constitutional law during the Communist period, since this epoch is characterized by the absence of the rule of law.

The authors of the first post-Communist Romanian Constitution [1991], took the step of writing governmental responsibility into the state’s fundamental document. Yet, this act which might have been simply the crowning of the development of the customary rule, acted as a catalyst for an entirely new chapter of constitutional law. Rather than building on the pre-Communist constitutional tradition, as established by custom, the newly enshrined constitutional clause was actually interpreted as a license to overturn governments at will by the post-Communist political elite. Any restraints imposed during the earlier period by the fact that the rule was entirely based on an unwritten custom, appears to have been lost by the introduction of the written clause.

 

NOTES

 

 1Radu Carp, Lecturer, Faculty of Political Science, University of Bucharest.

 2Leon Epstein, Parliamentary Government, in David Sills, ed., International Encyclopedia of the Social Sciences, New York, Macmillan and Free Press, 1968, p. 419.

 3Arend Lijphart, Democracies – Patterns of Majoritarian and Consensus Government in Twenty – One Countries, New Haven, Yale University Press, 1984, p. 68.

 4The dates herein are often given showing the date in both the old style and new style calendar. Therefore, under the old style calendar it occurred on August 19th, while on the new style calendar it occurred on August 7th.

 5See Frederick P. Ridley, "Les sources du droit constitutionnel britannique," in Francis Delperérée, Marc Verdussen, Karine Biver, Recueil des constitutions européennes, Bruylant, Brussels, 1994, p. 296.

 6René Capitant, "Le droit constitutionnel non-écrit," in Recueil d’études sur les sources de droit en l’honneur de François Gény, Paris, Sirey, 1934, p. 56.

 7About the criminal responsibility of the cabinet ministers in France in that particular time, see the comments of Benjamin Constant included in Principes de politique, chapter IX ["Despre libertate la antici si moderni"], Iasi, Institutul European, 1996, pp. 87-102.

 8Tudor Draganu, Inceputurile si dezvoltarea regimului parlamentar in Romania pana in 1916, Cluj, Dacia, 1991, p. 125.

 9I.C. Bratianu, Monitorul Oficial, 1862, no. 24.

 10Anastase Panu, Monitorul Oficial, 1863, no. 43.

 11Nicolae Ionescu, A.D. Xenopol, Istoria partidelor politice in Romania, Bucharest, 1920, p. 257.

 12C.G. Rarincescu, Curs de drept constitutional, Bucharest, Marvan S.A.R., 1940, p. 34.

 13Constantin Dissescu, Drept constitutional, Socec, Bucharest, 1915, p. 831.