How the Threshold was created
The 50% + 1 threshold necessary for the validation of the referendum has only recently appeared in our political environment. It did not exist for the previous referendum in 2007 and it does not exist in the majority of European States. Moreover, it is not recommended to be used by the European Commission for Democracy through Law (the Venice Committee, advisory body of the Council of Europe), in order not to distort the interpretation of the result.
Or, this is exactly what happens now, when the suspended president Traian Basescu and PDL (the party which supports him) boycott the referendum, in order to prevent reaching the threshold needed for validating the referendum result. Traian Basescu is using this threshold in order to remain in his office as president, although the popular vote will be against him (as most polls show).
Due to the fact that the estimated presence is a bit higher than this threshold, Traian Basescu is forcing the invalidation, using the existence of this legal condition. Why is he doing this? Probably because it is the only way the president can keep his position.
This analysis has the role of showing how this threshold appeared and how it was used by the suspended president. After seeing all the evidence, it seems clear that we are witnessing a complex plan, from the moment the impeachment procedure was initiated. The plan was obviously designed by Traian Basescu and his partners. In this setting, those who have most to lose are the Romanian electors, who realize that their vote does not matter, as long as this condition of the threshold is not accomplished.
The 50% + 1 threshold from the 2007 referendum
At the referendum in 2007, there was no quorum of 50% +1 for the validation of popular consultation for president Traian Basescu’s impeachment. Although such a threshold was requested, even if notifications exist at the Constitutional Court on this subject, the Court stated in a decision the following: “In the new regulations regarding the dismissal of the Romanian president, the validation of the referendum is no longer limited by the participation of the electoral majority on the voting lists.”
After the popular vote, the Constitutional Court, in the decision nr.5/23.05.2007, “confirms the national referendum results from May 19th 2007 and realizes that the majority of valid votes expressed by the citizens participated in the referendum for the dismissal of the Romanian president, Mr. Traian Basescu, was not reached”. The referendum was declared valid, although only 44.45% of the registered voters actually voted.
It is important to take note of what president Basescu declared in the same year about the 50% +1 threshold, in the context of another referendum (regarding the uninominal vote): “I believe that such a threshold – of fifty per cent plus one of registered voters – could be considered as a condition for validating a referendum only if in Romania voting was compulsory. (…) in Romania voting is not compulsory, abstention is not penalized. Thus, those who participate are those who wish to be active and politically involved. Under these conditions, the limitation and setting of such harsh regulations for the validation of a referendum, which expresses according to article 90 of the Constitution the popular will, seems to me as an action aimed at diminishing the importance of the true holder of power and state sovereignty, which is the Romanian people”.
What happened in 2009 – new forms of legal protection for Traian Basescu through governmental ordinances (OUG)
In 2009, the Boc government began to build a legislative wall around President Basescu.
Through the OUG 103/2009, the Boc government modified the referendum law as follows: “The referendum is valid only if at least half plus one out of all individuals registered on the electoral voting lists participate.” Thus, as an insurance a new measure was introduced for the president, the condition of absolute majority, reported at the total number of Romanian citizens.
After the introduction of this threshold regarding the referendum validation, PDL introduced another threshold regarding the impeachment of the president. In 2012, through law nr. 62 regarding the approval of the government’s urgent ordinance nr. 103/2009 for the modification and the supplementation of law nr. 3/2000 regarding the organization and conduct of the referendum, PDL intervenes upon art. 10, giving it the following form: “the impeachment of the Romanian president is approved if a majority of citizens registered on the electoral lists support it.”
2012 – Attempt to return to the 2007 legislation without the two thresholds
Through law nr. 131, the Parliament modified the referendum law regarding the majority needed for the dismissal of the president: the dismissal of the Romanian president is approved if, through the referendum, the proposal was supported by the majority of valid votes expressed. Objected at the Constitutional Court, the law received, through decision 731/ 10.07.2012, notice of constitutionality.
After PDL notified the Court regarding the Law nr. 131, the government released OUG nr. 41/ 05.07.2012 which modified the referendum law to the state of 2007: “Through derogation from art. 5 paragraph 2, the dismissal of the Romanian president is approved if it is supported by the majority of the valid votes expressed by the citizens who participated in the referendum.”
In the motivation of decision 731/ 10.07.2012, the Court states: “The Court acknowledges that the referendum result depends on the cumulative fulfilment of two conditions: one referring to the minimum number of citizens which must participate at the referendum in order for it to be validated and one referring to the number of valid votes expressed, which determined the referendum result. These conditions are detailed in art. 5 paragraph 2 and respectively art. 10 from the Law nr. 3/2000.” It must be mentioned that OUG nr. 41/05.07.2012 does not modify art. 5 referring to the quorum for the validation of the referendum, but art. 10 targeting the majority of votes with which the president can be dismissed.
External pressure reinserts one of the thresholds – the one concerning participation
The 50% +1 participation threshold for the referendum validation was strongly promoted by PDL, Traian Basescu’s party, but there also existed a powerful external pressure in favour of such an uncommon condition in the European Union.
- Traian Basescu: “Now it is legal to dismiss the president with a quorum of 50% +1”.
- Vasile Blaga, president of PDL: “I would like to state that we, PDL will not recognize the referendum at which there would be a participation rate of under 50% +1 of the electors registered on the voting lists.
At the moment of the impeachment vote in Parliament, this threshold of 50% +1 necessary for validating the referendum was considered by PDL and by other European Union officials as being a necessary condition for the popular consultation on July 29th. Several leaders of the European People’s Party asked, through public declarations, that the decision of the Constitutional Court be respected, regarding the necessity of insuring a presence of 50% +1 of all registered voters, in order to have a valid referendum.
50% + 1 – once again
The European Commission imposed on Romania to respect this threshold, through the introduction in its report relating to the Mechanism of Cooperation and Verification, a political chapter containing 11 notifications. One of these referred to the regulation of the referendum in compliance with the decision of the Constitutional Court. This was the case, although the recommendations of the Venice Committee specify: “A quorum of participation is not recommended to be set, due to the fact that it assimilates those who refrain from voting with the partisans of the negative vote.”
Taking act of the request from the European Commission, the Romanian government and Parliament introduced in the referendum law the condition of validation of the popular consultation through the participation of the absolute majority of eligible citizens.
Current situation: Traian Basescu and PDL boycott the referendum in order to invalidate it
Using this legal regulation, which he criticized in 2007 and which involves a threshold hard to reach, the suspended president Traian Basescu announced recently the boycott of the referendum, urging the electors not to participate in the voting process.
- “The validation of the referendum would be a political disaster for Romania.” (July 18th)
- “The possibility of not participating at the vote is valid, and I understand the sensitivity of those who do not want to participate at the referendum in order to not legitimate the coup d’état” ( July 23rd)
- “Since we decided that the boycott is the solution, the percentage does not matter anymore ( July 23rd )
- “If PDL decides to boycott the referendum, I don’t know if I will go there alone (July 23rd)
- “If the referendum would be validated, the popular vote would cover the coup d’état and everything should be done so that it is not validated” (July 23rd)
- “The problem of bringing the necessary number of voters to dismiss the president is USL’s, not mine. If the people want the dismissal, why would I have to call them? (July 23rd)
On July 24th 2012, the PDL leadership decided to urge the electors not to participate at the referendum on July 29th for the dismissal of president Traian Basescu.
Traian Basescu thus stated that he will boycott the referendum. This fact has a simple consequence – the risk of invalidation grows significantly, if those who support him assume this message. Even the decision through which the Constitutional Court imposed this threshold (decision 731/2012) includes an argument which states that: “the participation at the referendum of the majority of the citizens represents an act of civic responsibility, through which the electoral body will decide”. To boycott this gesture of civic responsibility means to assume behaviour contrary to what the Constitutional Court stated, but also contrary to participative democracy, which political leaders should promote.
Without commenting on the motives invoked for the referendum boycott, we find that this premeditated action represents an explicit barrier against the finalizing of an impeachment procedure, already declared constitutional by the Constitutional Court.
The threshold of 50%+1 was created in these weeks, using European pressure, not to ensure a solid participation and an exit from the current crisis through a massive response of the citizens, but in order to be used as a legal excuse for the president staying in office, even despite a detrimental vote at the referendum.
The sole justification for such a threshold, wanted by the PDL and Traian Basescu, is obtaining an increased level of legitimacy for the option which the citizens will validate through their vote. Through the referendum boycott, the suspended president de facto cancels the only reason for the validation quorum. Thus, the 50% +1 threshold becomes a simple tool, used in the most opportunist way, in order to keep the Presidential seat.
The existence or the non-existence of the referendum’s validation condition was not constant in the legislation specific to the domain. The different governments and/or the Parliamentary majorities juggled with this provision depending on their own political options. Nevertheless, the validation quorum never had such high stakes as in Traian Basescu’s mandate. The referendum law became a controversial, extremely disputed normative act when the “player-president” entered the political stage. The next review of the Constitutional text should include a better regulation of the referendum.