Romania returns to Party-List PR and to cohabitation

By Henry Schlechta and JD Mussel

Romania held elections to its bicameral legislature on December 11. The elections resulted in the Social Democratic Party winning almost half the seats in the Chamber of Deputies and Senate, while the largest opposition National Liberal Party appears to have received only about 20%.

The election saw a return to Party-list PR after having used a type of District-Ordered List system at the last two elections (2008 and 2012). The previous system worked as follows: candidates competed in single-seat districts; if a candidate received 50% of the votes, they were elected. The rest of the seats were first allocated to parties so that the overall result was proportional (with the possibility of overhang), and then was decided which candidate was elected in each district through a complex formula (truly!) which allocated seats roughly in order of candidates’ share of the vote, but ensuring each district had (at least) one of its candidates elected. As the number of seats per party was decided proportionally, this often resulted in the situation that a district was represented by its second, third, or even fourth-most voted candidate. Lastly, a few seats were allocated to minority parties, for whom the 5% threshold applied to other parties is waived under the constitution.

The new system effectively returns to that used before 2008, with party-list PR in multi-seat districts (the electoral system was, and is, identical for both chambers with the exception of district magnitude; Chamber average M=7 (‘M’ for district magnitude), Senate average M=3). The old system seemed to have become unpopular given its creation of a large number of overhang seats in 2012[1]. As a result of the landslide victory of the Social Liberal Union pre-electoral coalition, which required a great deal of extra compensatory seats to be given ensure proportionality. Parliament had tried to change the electoral system to single-seat plurality (First-Past-the-Post) in before the election in 2012, but this was overturned by the Constitutional Court on the grounds that this was incompatible with the constitutional 5% threshold provision and its waiving for ethnic minority parties in the Chamber.

This year’s election result is particularly interesting because of Romania’s semi-presidential constitution. The President, Klaus Iohannis, was elected in 2014 as the National Liberal candidate. He first served alongside a Social Democratic prime minister, Victor Ponta, whose cabinet  was a coalition which did not include the National Liberal Party, but after Ponta resigned in November 2015, and subsequently Iohannis appointed a technocratic non-partisan cabinet. The cabinet is required to step down following the election, so no no-confidence vote is required against the incumbent cabinet.

Romania’s system is premier-presidential, and president Iohannis will have the initiative in appointing the prime minister. However, since the Social Democrats form a majority with their preferred coalition partners, the result will almost certainly be a return to cohabitation for a country which has already had it for much of the past decade (2007-2008, 2012-2015), including immediately before the appointment of the current non-partisan cabinet.

Nonetheless, president Iohannis has shown he is willing to use his position, ruling out the nomination of anyone with a criminal record for the office, in keeping with a law a Social Democratic president might have been willing to flout in order to appoint the Social Democrats’ leader Liviu Dragnea, who got a suspended prison sentence this year for trying to rig a referendum in 2012, making him ineligible under a 2001 law.

In response, the Social Democrats have nominated an alternative candidate for prime minister, Sevil Shhaideh, a Muslim woman from the country’s Tatar minority; this means Romania will have both president (Iohannis is a Transylvanian German protestant) and prime minister from ethnic and religious minorities.

Interestingly, the authority to approve and dismiss Romania’s Prime Minister is vested in both houses sitting together as one. Romania has (somewhat unusually) bicameralism with two powerful and elected houses. Even more unusually, rather than the normal practice of requiring one or both houses to approve all legislation, each house has certain reserved competencies, on which it may pass legislation without the approval of the other (the latter having only a suspensory veto of no more than two months’ delay). Probably due to the two chambers concurrent terms and virtually identical electoral system (and therefore composition), this does not seem to have caused any major problems.

Similar procedures (including both houses in no-confidence votes) existed at some point in Peru (before Fujimori’s self-coup), where ministers were removable by either house of the legislature. Argentina has a ‘Chief of Cabinet’ responsible to both houses voting separately, though remaining ministers are not, and Colombia’s ministers are individually responsible to votes of either house, though there is no Prime Minister.

[1]176 senators and 412 deputies were elected, 22% and 19% of which was due to overhang, respectively.  According to the cube-root law 412 would be appropriate for a country of 70 million, whereas Romania’s population is about 20 million. The current numbers seem have returned to 136 Senators and 329 deputies or thereabouts.

22 thoughts on “Romania returns to Party-List PR and to cohabitation

  1. Aren’t there other countries besides Romania where the Prime Minister is approved by a joint sitting of both chambers? Isn’t Japan cited as an example as well? This system seems to work better than Italy’s system where confidence is a double majority.


    • I forget the specifics, but Japan’s House of Councillors do indeed get to vote on prime minister, though I recall the lower house gets to overrule them if they disagree.


      • ARTICLE 67
        The Prime Minister shall be designated from among the members of the Diet by a resolution of the Diet. This designation shall precede all other business.
        If the House of Representatives and the House of Councillors disagree and if no agreement can be reached even through a joint committee of both Houses, provided for by law, or the House of Councillors fails to make designation within ten (10) days, exclusive of the period of recess, after the House of Representatives has made designation, the decision of the House of Representatives shall be the decision of the Diet.


  2. The story’s not yet over… President Iohannis has just rejected the Social Democrats’s nominee for PM, Sevil Shhaidedh. The BBC reports:

    “No Romanian president has ever turned down a nomination before, and Mr Dragnea has lost little time fighting back. Speaking to reporters alongside his ally Calin Popescu Tariceanu – the Senate speaker and leader of the small ALDE coalition party – Mr Dragnea mentioned the possibility of impeaching the president. He and Mr Tariceanu have said they will not be rushed into a full confrontation with President Iohannis, saying they will assess whether he acted against the constitution by rejecting their candidate. The two parties, PSD and ALDE, hold a majority in parliament and could suspend the president from office and submit his removal to a referendum within one month. It would not be the first time. PSD and another party suspended former President Traian Basescu in 2007 and 2012, only for the impeachment to be rejected twice in referendums. The second attempt failed because of a low turnout.”


    • The typical format for a judicial council is 3 judges, 3 legal practitioners, and 3 lay members. If the US adopted the Missouri Plan for the supreme court, a federal judicial council could easily accommodate state representation, perhaps by including a rota of state chief justices or state attorneys-general. perhaps 3 of each could serve anneal mrs in alphabetical order.

      The equivalent body in South Africa, the judicial service commission, includes limited provincial representationas does the Canadian judicial council, although that comes with an asterisk.


      • I can think of none more concerned with the prerogatives reserved to the states than state legislators. In my mind, they – directly or through delegates – must play the main part in appointing the Supreme Court, even if state chief justices and attorney generals would have a role. At any rate the procedure must in some way bring the collective concern of state officials to bear on the choice. Individual representation in the process, such as a randomized or arbitrary order by which the role would rotate over time, seem to me unlikely to fulfil this need (similarly, though certainly not identically, see the European Court of Justice, whose judges are far less likely to be appointed with any collective ideal of subsidiarity and its preservation in mind, but instead are chosen to represent the interests of each member state separately, seeing as each member state’s government appoints one judge).


  3. Is it really parliamentarism or responsible government if the government needs the support of both chambers separately or combined? Is all parliamentarism simply that the parliament can force the government out (that is negative parliamentarism)?


    • Yes, the minimal requirements for parliamentarism is that the government be removable by an assembly, and that no part of the executive branch be directly-elected. I don’t see how the government being responsible to an ADDITIONAL assembly makes a system any less parliamentary. Meanwhile, if the chambers vote as one, this approximates unicameralism almost exactly as far as parliamentary confidence is concerned.


      • If either one of two assemblies can remove the cabinet and/or head of government (as in italy and, in Sir Garfield Barwick’s 1975 interpretation, Australia), the system is more “parliamentary” along that axis — although less so along the axis that a cabinet and/or head of government once elected or investiture-ed can count upon reasonably disciplined legislative support for their programme (unlike a US President).
        On the other hand, if concurrent no-confidence resolutions in both assemblies are needed to oust the cabinet and/or head of government (analogous to federal judges in Australia), then even if (unlike US impeachment) these need simple majorities only, or at most 50%+1 absolute majorities, then the system is less “parliamentary” than usual, since it creates a possibility that a cabinet and/or head of government might face a hostile, disciplined opposition majority in a crucial legislative chamber.
        I’ve seen proposals kicked around from time to time for the US to move to a president (or prime minister) elected by simple majority of a joint sitting and removable at will by concurrent absolute majorities. (The later Carter years saw a number of top pundits – including Gore Vidal and President Carter’s own White House counsel, Lloyd Cutler – agitating for the USA to change to a [more] parliamentary system.) With respect, I think it’s a bad idea. The advantage of having two chambers is that one is clearly a lower house of government and the other is clearly an upper house of review. If it could happen that Party A’s narrow majority in the larger lower house is cancelled out by Party B’s larger margin in the smaller upper house, voters won’t know how to protest-vote to “trim the sails”. “Vote Democrat for the House of Delegates so we get Hillary Clinton as Minister-President, but vote Republican for the Council of Senators so she won’t have untrammeled power” could end up delivering a President Trump by accident.
        (yes, yes, I do realise).


      • Tom, I don’t think that would be too bad. It would be assembly-independent with a parliamentary twist, and I think even assembly-independent would be a huge improvement on the current arrangement; allowing relatively simple removal of the chief executive would be even better than that. Instead what annoys me more about this and similar proposals is that they aim for the most difficult to reach when there are real alternatives which are important and much more likely to be fruitful. Instead of pointless talk about changing the federal presidential system, Americans need to start talking about reforming the even worse yet easier to change systems of government of the states, both as an end in itself and as a path towards potential eventual change on the federal level.


      • Broadly, it seems to me that the states tend to have better systems of government than the federation in the US. There are obvious exceptions. Example: the US courts, particularly the supreme court, once had an enviable reputation and were frequently cited and followed by supreme courts in other common law countries. A generation of highly politicised judging has made that a thing of the past. Example: California has argued the best redistricting system on the planet.

        I’d be interested to know your critique of state governance.


      • California has the best redistricting system in the world? I’m a little surprised by that statement, and I’m almost certain I don’t agree. Either way, I was talking about state constitutions evaluated in their entirety and all the states evaluated together. I would certainly agree that there are states whose system of government is superior to the Union, but I don’t think there are many. On the whole, my main concerns (relative to the federal govt) are about accountability and energy as it pertains to legislatures, executives and local govt, and partisanship and other improper influences on the judiciary and other state bodies/agencies which are supposed to be impartial. Sure, SCOTUS has not scored too well on the latter (though that is not my main problem with it) but the system itself remains much more sensible than the (often partisan) judicial elections existing in most states (in about half election is also used for the apex court). As to executives and legislatures, I would rather leave that discussion for another time (and I will create further opportunities); for now suffice to say that if the federal government makes for poor accountability, energy and collective responsibility, it’s even worse in most states, though admittedly not by much.


      • California perhaps requires a longer argument. I do have a problem with the requirements for the partisan make-up of the citizens commission and with the option for party leaders to exclude particular candidates from the commission. On the other hand California has gone from among the most to the last gerrymandered states in one easy proposition.

        Partisan judicial elections are limited to 7 states. Nonpartisan judicial elections apply in another 15. The most common method of appointing state judges is the Missouri Plan. Although it is counter-intuitive there is quite strong evidence that nonpartisanship has some moderating effect on judicial elections.

        All states but 2 (neither use judicial election) have some form of removal for cause in addition to impeachment, which is why although Roy Moore has been repeatedly elected chief justice of Alabama he has also repeatedly been suspended or removed from office by the court of the judiciary. Removal for cause mitigates the problems of judicial election. All state supreme courts, unlike the US court, have an enforceable code of conduct.


      • Alan, I think your count of states with elected judges only considers the apex court. I’m pretty sure there’s a significant number of states using a reasonable method to appoint their highest court but nonetheless use election to elect many lower courts. The term for elected judges, partisan or nonpartisan, is also frequently as short as 4 years. Besides, even a few states which do not elect their judges have other problematic factors. Vermont for instance has the legislature elect their highest court for renewable terms of 6 years. Others may disagree, but I think even life terms are preferable to that.


      • I focused on apex courts because they are clearly part of the polity in a way that inferior courts are not.

        I don’t advocate popular election for judges at any level, although I think a popular vote on retaining newly appointed members of the top court is not undesirable. Equally I don’t support very short terms and I agree that life tenure may actually be better than very short terms.

        The minimum seems to me to be 10 years. I am rather enthusiastic for South Africa’s constitutional court where the term is 12 years with no re-appointment. Unfortunately South Africa also imposes a retirement age of 70 which opens the gate to appointing a series of very short term duties by appointing candidates close to retirement age.

        Vermont’s judiciary, despite the weird retention process, has a fairly good reputation of the kind that the federal courts once enjoyed and it is very are for sitting justice to be seriously challenged at retention.I have been unable to find if any justice has ever been denied retention.

        There are outliers because there are 50 states. I would not cite North Carolina as the standard for electoral integrity or Louisiana as the standard for constitutional brevity. Actually I would not cite North Carolina as the standard for anything.


      • Mandatory retirement ages for judges seem completely mad to me. There’s nothing inherently better about younger judges, and indeed there have been many judges of advanced age with excellent reputations. If the intention is to have a long but nonetheless limited tenure, the answer is obviously long terms without possibility of reappointment.


      • The reasons are medical and compositional. Over the history of the US the average tenure of a Supreme Court justice is 15 years. Scalia served from 1986 to 2016. For opportunistic reasons justices are being appointed at a very young age in the expectation that they will serve for very, very long terms. Judging at an advanced age may lead to poor judicial performance for medical reasons. A smallish bench with a composition that never changes may prioritise defending their own decisions over upholding the law. Appointing authorities are more likely to act opportunistically if they are making a 30 year appointment than say a 12 year appointment.

        The performance of the High Court of Australia improved markedly when a retirement age was introduced. The Court became less divided. The quality of appointments arguably improved.

        Now I agree the best solution to that problem is not a retirement age but a reasonable fixed term. Absent a fixed term I’d advocate a retirement age in the interests of circulation and performance.

        Many reform plans are circulating in the US, particularly among legal academics and surprisingly among some Republicans. Most call for a fixed term and Supreme Court vacancies that occur at regular intervals, say every 2 yeas. Some call for the justices to spend a year on the circuit courts at regular intervals. Some also call for a larger Court that would hopefully be less fixed and divided in its views. I would add an enforceable code of ethics, a judicial discipline system, and a system of temporary justices while vacancy exists or a code of ethics disqualification applies.

        The Supreme Courts of California, Florida and New York are all examples of Missouri plan courts with fixed terms and regular vacancies. All have enviable judicial reputations. No other country, as far as I know, has life tenure for its top Court and only 4 of the US states do.


      • Ultimately I find the involvement – indeed, primacy – of the states in appointments as a mechanism to secure subsidiarity a far more important element of reform than any other (and I’m disappointed at how this idea does not seem to have occurred to anyone in the US – it has, I understand, in Australia) But I certainly also agree with a fixed, staggered term. I know less about ethics and discipline systems. You’ve said this exists in some American states, but does it exist in any other countries, at least with regards to apex courts? From what I’ve seen I’ve gathered it’s more the sort of thing that applies to lower courts, and is only sparingly and/or indirectly mentioned in constitutions.


  4. With president Iohannis having formally nominated the Social Democrats’ second choice, Sorin Grindeanu, for PM, parliament ratified the appointment on Wednesday, whereupon Grideanu formed his government, a coalition between PSD and ALDE.


  5. What do you mean by reforming the worse yet easier to change systems of government of the states? As for having two chambers is vote in a joint sitting for a Prime Minister, one has to assume that one chamber is going to use a different electoral system from the other. They may even be both elected at the same time, but using the same electoral system seems to make bicameralism redundant. I think it would be better for an upper house to use sortition, but only the elected house selects the leader and dismisses it.


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