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Arguments beyond populism

There can be no Constitutional referendum in October or November, in Romania

The PSD-ALDE government uses the controversial referendum to amend the Constitution as a permanent populist instrument for electoral campaigning that constantly stirs the spirits. The party leaders have successfully leveraged the subject and threatened on several occasions that they would hold the referendum. Law 3/2000, which regulates the organization of the referendum, has been a matter of dispute in Parliament and in the public opinion.

The biggest issue of these initiatives is that they have not taken into consideration a few key aspects: Law 3 was promulgated in 2000, it has not been updated at all (except for the articles that served well the parties in power) and its provisions still refer to laws adopted in 1991, when there was altogether another legislative philosophy in terms of elections. Most of the references are connected to laws from 2000s or 1990s, which have either been repealed or repeatedly amended and republished.

If we consider all these problematic aspects, it is clear that a referendum should not take place in such conditions of uncertainty. The rules of the game should be clear, in accordance to international standards, especially if the organization of such a consultation is not urgent and is strongly criticized in the public space.

Read more in policy brief 66

If a large proportion of the laws on elections and political parties were amended in 2015-2016, the referendum legislation lagged behind and was not updated. Currently, the laws on elections for the European Parliament and the President are also in Parliament. But Law 3/2000 does not refer to essential aspects that have been successfully implemented in recent years by the Permanent Electoral Authority (PEA) such as the Computerized Monitoring System for Presence and Prevention of Illegal Voting (SIMPV). Political parties should have amended all the laws in a coherent manner so as not to be in such a situation.

Besides legislative issues, there are serious organizational problems. If the referendum takes place on October 7th, as social democrat leaders recently announced, there is not enough time for identifying and preparing polling station presidents and vicepresidents (or doing this in a hastly manner) and for procuring the software for centralizing votes, which would raise serious suspicions about the proper organization of the referendum; for example, we should bear in mind that AEP has already begun consultations to purchase software for the 2019 presidential elections that will take place at the end of the year.

At this moment, it seems the Government has no intention to amend the legislation through a Government Emergency Ordinance (GEO) (although a GEO is not a recommended practice), to solve the problems mentioned in this policy brief. The Parliament also does not seem to want to initiate a serious reform on how to organize a referendum.

EFOR explains the most problematic issues related to Law 3/2000, which will certainly generate difficulties for the institutions with attributions in organizing the referendum:

  • The primary law governing the organizing of a referendum is Law 3/2000, which is supplemented by other normative acts such as Law 208/2015 on Parliamentary Elections. In other words, some provisions on the organization of elections are taken from Law 208 if there is no specific provision in Law 3. This leads to a kind of legislative mosaic, combining different articles with different philosophies, which often do not resonate.
  • The procedures to draw up electoral lists include references to outdated provisions, conflicting with the ones regarding the Electoral Registry and those on personal data.
  • The Permanent Electoral Authority (PEA) is not part of the Central Electoral Bureau, even if it provides technical assistance. PEA is the main depository of electoral expertise and should therefore be the institution whose experience weighs significantly in the decision-making process in the BEC. The Authority also manages many of the instruments mentioned here, so it is almost impossible to organize a process of this kind without the full involvement of the institution.
  • There are no provisions on SIMPV, so there will be no monitoring of the vote and no real-time voting data available. In any case, there would not be enough time to organize such operations in one month.
    It is not even possible to record the closing of the polling station and the counting of votes, a procedure that has substantially increased the transparency of one of the most vulnerable moments of the voting day during the last round of elections.
    Considering that at the 2012 referendum there were polling stations which recorded a presence of 3-400% on supplementary lists, such a system would be more than necessary; the only tool available in 2012 was regular SMS reporting, which does not provide a real dimension of the voting presence at the ballots.

  • There are no clear provisions to observe elections. The law provides that, apart from the members of the electoral bureau of the polling station and the delegates accredited by the Central Election Bureau, no other person can stay in public places in the polling zone or in the polling station beyond the time required to vote. Delegate means the representative of a political party. Moreover, the accreditation procedure has been changed and improved since the 2000s. Therefore, accreditation procedures will most likely have to be defined by the BEC’s decision, which may generate abuses and may even block the right to observe the referendum.
  • Provisions regarding campaigning are virtually non-existent; there is only art. 30, with three paragraphs, which does not refer, for example, to the electoral materials that can be used, to the means of campaigning or to the presence of sides in the media
  • Sanctions are far too weak and do not cover many of the possible violations of the law.