* Originally Published in revista 22 collection ' a Constitution for liberty III '
To make a constitutional reform should have in mind more clearly the purpose for which it exists and how the Constitution works. In the way that we conceive a Constitution there is a deceptively element. Because the Constitution represents a set of rules under which does a company, a country, we tend to confuse the Constitution with rules of operation of a company, of a Ministry or a division of the army, for example. This apparent similarity results in applying the same kind of institutional strategy as that applied to state firms, ministries or military units. A leader who wants to maximize the efficiency of the functioning of such organizations has on hand two key tools: change people or change the rules, so that the organisation can achieve its objectives. How, in this case the State, the citizens shall not be subject to change, the only way to make the State more efficient is to change the rules, that is, the laws and the Constitution.
If the laws are aimed at carrying out the various activities of the efficiency of the State, defense, education, administration, etc., the Constitution has a fundamental role, the role of maintaining the balance of power that guarantees the rights and freedoms of citizens. As a result, the strategy of the reform of the Constitution has altogether different shape than that of laws. Laws follow the good functioning of the State, but the Constitution follows the very existence of the State.
There's a fundamental historical truth that stands at the basis of any Constitution. A Constitution is the expression of an agreement between the elites who hold power at any given time, which is intended to be permanentizat, so that the subsequent agreement, none of the sides not to lose what it has already won. A Constitution is, therefore, the legal form that you dress up a balance of power. If the balance of power has the effect of transforming rights and privileges in extending rights to the elite of the society towards your entire body, then we find ourselves in front of a democratic Constitution. The fundamental role of a democratic Constitution is therefore maintaining this balance of power between the forces present in our society, so that the rights and freedoms of members of the society may not be removed from any of the factions, in case you get in power. Considering the tendency of men to seize power and to track their own interest in maximizing the damage the interests of others, democratic institutional systems introduced into the constitutions which tries to avoid a part of the society to have total control, so that the set of rights and freedoms cannot be denied part of society which is not in power. In essence, these systems do not merely institutional share power in as many areas of society, so that no single faction can possess all the power at any given time. So we have separation of powers in the State, parliamentary control over the secret services, civilian control over the army, independence of Justice, parliamentary immunity, the right to strike, etc. The purpose of all of these institutional arrangements is not functioning efficiency of the State, but also ensuring that any faction or any segment of society cannot unilaterally change the balance of power which ensure rights and freedoms of all.
If we apply this type of system, some firms, ministries or bodies of the army, they've turned into extremely inefficient organizations in which power distributed among various groups, would no longer operate anything, due to the cost of coordination. While, if we apply the strategy change of the rules in order to eliminate the costs of coordination and concentration of power in the event of Constitution and State, I get to control a single source of power (Group, elite) over the entire State, exactly what it aims to avoid the Constitution.
To make an application of this principle in the case of the constitutional reform from Romania. While it raises the issue of constitutional change. The main reason cited for the change is a tension between the role of the President and the role of Government in the Executive branch of State power. This tension is considered responsible for the blockade to facilitate the appearance of reform and political instability, widely regarded as a negative element that prevents Romania to progress. To resolve this problem, you must remove the source of political instability that is not temporary, but structural, determined by the formula semiprezidentiala the Constitution of 1991.
Most proposals for solving the problem relating to the modification of the Constitution in order to eliminate bottlenecks at the level of Executive decision-making. The proposed solution is the Elimination of bipolarity in favor of Executive President, american model, or Prime Minister, according to the german model. Both versions but start from the premise that a homogeneous Executive would be more desirable than a heterogeneous Executive. The similarity with administrative and managerial thinking-military is obvious. Those who want this change believe that the purpose of a Constitution is efficiency and governance reform. Therefore, it would like the concentration of executive power in one hand, be it the Prime Minister appointed by the President of Parliament, be directly elected.
The premise from which leaves those who support this solution is that in Romania there are two forces oppose each other, one conservative and reform, and I should like this to be solved the bottleneck and its winner-take-all (and make you happy, if reform is reform party, or to hold everything in place, if we have the misfortune to be conservative).
We can ask ourselves in this situation the question of Karl Popper: which is the most desirable, the system that gives them total power to the best (reformists or not) or the system that eliminates the most incompetent people quickly and not allow them to make a river too wide?
Analysing rational this question, the answer is the second variant. Or, just this is the Variant that works now according to the Constitution. It is enough to have a President of one color and another color of a premier, so none of them can not grab all the power, which would lead, we know from experience, rather than at large to abuse reforms. The effects of this competition are always good from the perspective of citizens ' rights guarantee. Each of the opponents must persuade a large number of supporters. In this way, the rights of a large number of citizens are respected, being either devices, either President. Any abuse will be immediately charged. Any slippage from the strict legality will be promptly disclosed as weapon in battle of the palate. The Government is obliged to govern well. The President is obliged to ensure the observance of legality.
From the perspective of preserving the balance of power, a better solution would be the preservation of the current bipolaritati with balancing the prerogatives of the two competitors: facilitating the possibility of the President to dissolve Parliament and dismiss the Government, in parallel with the abolition of the prerogative of the President to appoint the Prime Minister. In this way, the President cannot influence the formation of a certain arbitrary majority by appointing Prime Minister but can dissolve Parliament if it fails to designate, and to choose a premier. Furthermore, the President should be elected from the midst of the mandate of the Parliament, to ensure that a party to obtain in a single round of elections both functions. Such a solution would involve coordination between the multiple negotiations and President, Parliament and Government that would make it impossible for the imposition of unilateral will of one party or one group of interests, but obviously would increase the risk of political instability.
But political instability, a natural phenomenon in a parliamentary democracy with proportional voting system, is the fundamental problem of Romania, but the absence of alternatives to current policy class, the effect of the introduction of a pervert the electoral threshold, which cripple any attempt of a newly formed party to enter Parliament and blocking policy scene. If you need to make any change, it would be the most crucial: you unlock scene politics through lower the electoral threshold. Romania suffers due to too multei Democrats but because of a dearth of democracy. But this can be changed without having to walk so far to the Constitution. It's enough to amend the electoral law.
However, there are a number of changes to the Constitution, the minimum of which would ensure a more stable balance of power between the dominant political forces, with clearly beneficial consequences both for the political forces in the dispute as well as concerning the establishment of a predictable framework of functioning State institutions and guarantee the rights and liberties of citizens.
Besides changing the powers of the President in the sense above, it would be necessary to change the procedure for appointing members of the Constitutional Court. They could no longer be appointed politically, but the draw to be held among all the judges Romans which meet the criteria of the present Constitution, plus other professional criteria and, why not, academic. This approach would ensure independence de facto, not de jure only to Court and will restore the role of impartial arbiter or constitutionality of which neither the President nor Parliament can not have. In the presence of an impartial arbiter of constitutional, the two competitors would be pressured to cooperate after guiding General principles are outlined by the Constitution.
Facilitating competition between the premier and President, Constitution, although it would impose higher costs on cooperation between political forces, it responds better to the purpose or fundamental to keep the balance of power in society which guarantees the rights and freedoms of all, without prejudice the chances of any political formations to have access to power.
