R EVISTA DE Ş TIINȚE P OLITICE .

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1

U N I V E R S I T Y O F C R A I O V A

F A C U L T Y O F L A W A N D S O C I A L S C I E N C E S

P O L I T I C A L S C I E N C E S S P E C I A L I Z A T I O N &

C E N T E R O F P O S T - C O M M U N I S T P O L I T I C A L S T U D I E S ( C E S P O - C E P O S )

R ^{EVISTA DE} Ş ^TIINȚE P ^OLITICE .

R ^{EVUE DES} S ^CIENCES P ^OLITIQUES

N ^O . 44 • 2014

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U N I V E R S I T Y O F C R A I O V A

F A C U L T Y O F L A W A N D S O C I A L S C I E N C E S

P O L I T I C A L S C I E N C E S S P E C I A L I Z A T I O N

&

C E N T E R O F P O S T

-

C O M M U N I S T P O L I T I C A L S T U D I E S

( C E S P O - C E P O S )

Revista de Ştiinţe Politice.

Revue des Sciences Politiques

No. 44 • 2014

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- E D I T O R I A L B O A R D - Editor in chief: ANCA PARMENA OLIMID

Deputy editor in chief: CĂTĂLINA MARIA GEORGESCU Managing editor: COSMIN LUCIAN GHERGHE

Regular members: GEORGE GÎRLEȘTEANU, MIHAELA BĂRBIERU, MIHAELA CAMELIA ILIE, MIHAI COSTESCU, DANIEL GHIȚĂ, AUREL PIŢURCĂ, CEZAR AVRAM, VLADIMIR OSIAC,

MIRON ROMAN, DAN VALERIU VOINEA, MIHAI GHIȚULESCU, IONUȚ ȘERBAN

- I N T E R N A T I O N A L A D V I S O R Y B O A R D - D A N C L A U D I U D Ă N I Ş O R

Professor, University of Craiova, Faculty of Law and Social Sciences, Romania

(Chairman of the International Advisory Board) M I H A I C I M P O I

P r e s i d e n t o f t h e A c a d e m y o f t h e R e p u b l i c o f M o l d a v i a , M o l d o v a

Y O H A N A N M A N O R

P r o f e s s o r, U n i v e r s i t y o f J e r u s a l e m, I s r a e l , P r e s i d e n t, C e n t e r f o r M o n i t o r i n g t h e I mp a c t o f P e a c e ( C M I P )

J O Z E P I R J E V E C

P r o f e s s o r, U n i v e r s i t y o f T r i e s t e , I t a l y P A T R I C I A G O N Z A L E Z - A L D E A P r o f e s s o r, Universidad Carlos III de Madrid, M a d r i d , S p a i n

O L I V E R F R I G G I E R I

P r o f e s s o r, U n i v e r s i t y o f M a l t a , M a l t a C R I S T I N A B E J A N ,

W a d h a m C o l l e g e , O x f o r d , G r e a t B r i t a i n SLA VC O A LM ĂJ AN

Professor, University of Novi Sad, Serbia N I C U C I O B A N U

P r e s i d e n t, “ Lib e rta te a” P ub lish in g Ho u s e, N o v i S a d , S e r b i a

S A N D O R R I C H T E R

S e n i o r E c o n o m i s t, Vienna Institute for International Economic Studies (WIIW), Austria J U N E T E U F E L D R E Y E R

P r o f e s s o r, D e p a r t m e n t o f P o l i t i c a l S c i e n c e , U n i v e r s i t y o f M i a mi , U S A K L A U S M Ü L L E R

P r o f e s s o r, A G H U n i v e r s i t y o f S c i e n c e &

T e c h n o l o g y , K r a k ó w , P o l a n d

H A S A N J A S H A R I

P r o f e s s o r, S o u t h E a s t E u r o p e a n U n i v e r s i t y , T e t o v o , M a c e d o n i a J O N U Z A B D U L L A I

P r o f e s s o r, S o u t h E a s t E u r o p e a n U n i v e r s i t y , T e t o v o , M a c e d o n i a S O N J A B U N Č I Č

P r o f e s s o r, U n i v e r s i t y U n i o n , F a c u l t y o f L a w , B e l g r a d e , S e r b i a

H A R U N A R I K A N

P r o f e s s o r, C u k u r o v a U n i v e r s i t y , Ad a n a , T u r k e y

A L I P A J A Z I T I

P r o f e s s o r, S o u t h E a s t E u r o p e a n U n i v e r s i t y , T e t o v o , M a c e d o n i a S T E V E N D . R O P E R

P r o f e s s o r, U n i v e r s i t y o f I l l i n o i s , U S A L I L L I A N B A R R I A

P r o f e s s o r, U n i v e r s i t y o f I l l i n o i s , U S A F R A N C E S C O G U I D A

P r o f e s s o r, Uni ver si t á d egl i Stu di Ro ma Tr e, Ro me, I t al y

NIK OL AOS I NT ZE S I L OGL OU P rof esso r, Ar i sto tl e U ni vers i t y o f Th essalon i ki , Gr eece

K ONS T ANT I N OS GOGOS P rof esso r, Ar i sto tl e U ni vers i t y o f Th essalon i ki , Gr eece

J A N B U R E Š

P r o f e s s o r, M e t r o p o l i t a n U n i v e r s i t y o f P r a g u e , C z e c h R e p u b l i c

P E T R J U S T

P r o f e s s o r, M e t r o p o l i t a n U n i v e r s i t y o f P r a g u e , C z e c h R e p u b l i c

CONTACT: REVISTA DE ŞTIINŢE POLITICE. REVUE DES SCIENCES POLITIQUES University of Craiova, 13^th A. I. Cuza Street, Craiova, 200585, Dolj, Romania.

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RSP • No. 44 • 2014

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Revista de Ştiinţe Politice. Revue des Sciences Politiques RSP • No. 44 • 2014

Special Issue:

Local Governance & Local Political Participation Engagement:

A Dialectics of Transition CONTENTS

EDITORS’ NOTE

Anca Parmena OLIMID, Cătălina Maria GEORGESCU, Cosmin Lucian GHERGHE,

Note of the Editors of the Revista de Ştiinţe Politice. Revue des Sciences Politiques 9 ORIGINAL PAPERS

Dan Claudiu DĂNIȘOR,

Debating Revolution and After: Notes on Institutions Establishment and Cleavage Transition

12 Ahmet Tolga TURKER,

Explaining Authoritarian Regime Variations in Post-Communist Central Asia 28 Cătălina Maria GEORGESCU,

Governance and Intra-Governmental Relations during Transition: A Historical Institutionalist Approach of Romanian Public Administration Reform Dynamics

39

Gabriela TĂNĂSESCU,

Constitution of Romania and the Functional Balance of Semi-Presidentialism 51 George GÎRLEȘTEANU,

The Amparo Procedure - Institutional Mean of Realizing the Constitutional Justice 62 Anca Parmena OLIMID,

Civic Engagement and Citizen Participation in Local Governance: Innovations in Civil Society Research

73 Adrian BOGDAN,

From the Homeland Security to the Global Security Makeover: A Repraisal of the Practices and Institutions of International Public Law

85 Eugenia UDANGIU,

Policy and the Narrative of the “Third Way” 94

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RSP • No. 44 • 2014

Bianca MITU, Diego Oswaldo Camacho VEGA,

Digital Activism: A Contemporary Overview 103

Gabriela RUSU-PĂSĂRIN,

Approaches to Local Broadcasting: Insights from the Romanian Public Radio Experience and Policymaking

113 Cosmin Lucian GHERGHE,

Shifting Scales of Electoral Law and Parliamentary Democracy in Romania at the End of the 19^th Century

123 Mihaela BĂRBIERU,

A Critical Assessment of Political Party Performance in the Elections for European Parliament in Dolj County Romania on May 25, 2014

134 Daniel GHIŢĂ,

Reforming the Trials’ Procedure in the New Civil Procedure Code 148 Lavinia Elena SMARANDACHE,

The Banking Activity – a Criterion for Differentiating Credit Institutions from Other Entities in the Financial Sector

161 Andreea-Mihaela NIŢĂ,

Education Organizations and Conflict Management: A Sociological Analysis of the Pre-University System

170 Roxana Gabriela ALBĂSTROIU, Oana GHIŢĂ,

A Legal Diagnosis of Medically-Assisted Human Reproduction: In-between National and International Legislation and Jurisprudence

184 Elena Tereza DANCIU,

Re-Flaming the Political Union and Unionists: Local Historical Reading Frontlines

194 Mihaela Camelia ILIE,

Re-Scaling Territories and Borders: Regional Claims and Local Powers in Romania in the Mid-20^th Century Period

203 Alexandrina PĂDUREŢU,

Mapping Local Urban Religious Architectural History in Post-Communist Romania

213 Victor OLARU,

Ruskin’s Aesthetic Theories at the Transition between Centuries (XIX-XX) 225 BOOK REVIEWS

Cătălina Maria GEORGESCU, Analysing the Politics-Administration Divide:

Patterns, History, Law and Public Policy (Anca Parmena OLIMID) 238

RSP MANUSCRIPT SUBMISSION 240

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Editors’ Note

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EDITORS’ NOTE

Note of the Editors of the Revista de Ştiinţe Politice. Revue des Sciences Politiques

Anca Parmena Olimid

^*

, Cătălina Maria Georgescu,**

Cosmin Lucian Gherghe***

Welcome to the fourth issue of 2014 of the Revista de Ştiinte Politice. Revue des Sciences Politiqu/es (hereinafter RSP). The new covers and the concept of the journal provided since issue 41/2014 are dedicated to further the research and critical observance of the social sciences investigation.

Due to recent polictical inconsistencies and contradictions in the region, RSP Editorial Board launched a new four issues series entitled as follows: East & West Post-Communist Encounters: Ideologies, Policies, Institutions Under Scrutiny (issue 41/

2014); Citizenship, Elections and Security: An Analytical Puzzle (issue 42/2014);

Compass of Politics: Systems and Regimes Synopsis (issue 43/2014) and Local Governance - Local Political Participation Engagement: A Dialectics of Transition (issue 44/2014 launched in December 2014).

The special issue 44/2014 is concerned with the relationship between local governance and local local political participation, or more specifically with how the engagement between the two is variously examined in the context of transition. The authors of this issue focus on a complex interdisciplinary, political, legal, social and economic research to consider how the events before and after 1989 imposed a new model polarizing the public agenda of transition. A focus on how the dialects of transition is constructed and negotiated makes visible the reasons why the new ideological arena cannot be a single response to transition challenges.

* Associate Professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014, Phone:

0040251418515, E-mail: [email protected]

** Lecturer, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014, Phone:

0040251418515, E-mail: [email protected].

*** Lecturer, PhD, University of Craiova, Faculty of Law and Social Sciences, Political Sciences specialization, CEPOS Staff, Member of the Board of Directors of the CEPOS Conference 2014, Phone:

0040251418515, E-mail: [email protected].

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Editors’ Note

The content of issue 44/2014 is a response to recent studies in the field that reconsider how a sense of governance and political participation is always appreciated within the local, national and international features. These articles highlight the dispute fed by the divergent uses of the concepts of regime, reform, constitutional justice, civil society, public law, social media, party performance, legal diagnosis revealing political, social, economic and legal reform considering the interface between “local” level, regional, national and international levels. To focus on the “local” means to encounter and re-design the practices of democratic mechanisms as a source and alternative viable form of the liberal state such as: local history, local institutions, local actors, local performance, local participation, local reform, local elections, local regulations etc.

Dănişor refers to this as a “relation between just and well-being, launching the discussion on the arbitrage procedure between the new ideological landscape of the well- being and the liberal ideas of the “just ver well-being”.

In his analysis, Turker shares the common characteristics of the authoritarian regime in post-communist Central Asia demonstrating that the examples suggested show

“how different patterns of patronage politics, political leadership, economic resources and Islamist revival may generate very different types of state power and autocratic stability”.

Georgescu directs the exploration of issue of historical institutionalist approach of the public administration dynamics and seeks to understand the governance and intra- governmental relations during the transition period.

The functionality and performance of semi-presidentialism is revealed by Tănăsescu’s study of the Romanian Constitution. Therefore, Tănăsescu claims that “the aetiology of the malfunctions of Romania’s semi-presidentialismis not of constitutional, but of extra-constitutional origin”. Gîrleşteanu focuses on exploring the institution of amparo as an instrument for protecting the fundamental rights and freedoms, by emphasizing the role of the actors of amparo proceedings: the claimant and the defendant.

From a functionalist and participatory point of view, Olimid’s ambivalence regarding the civic engagement and citizen participation in local governance is associated with the impact of the models of associational involvement of cultural governance, participatory governance and civil society. Bogdan locates the consensualism legal foundation of public international law. Udangiu explores the relationship between the ideology, narrative and soft power through the vision of the “third way” towards a “Good Society”. By observing the plural responses to digital activism, Mitu and Vega conceptualize the foundations of an “extended participation through digital media means”.

In the same repertoire, Rusu-Păsărin suggests that the implementation of a strategy fordeveloping alocal radio stations requires respecting and promoting its corporate mission and vision. While Gherghe focuses on the shifting scales of the electoral law reform in the XIXth century, Bărbieru makes visible the limitation of electoral performance in the Parliamentary elections (2014) at local level. The article of Ghiţă is built around the reform of the new Romanian Civil Code connected to “the delivery of justice and the need to ensure a unitary and foreseeable jurisprudence”. Smarandache’s article addresses the linkages surrounding the banking activity, the credit institutions and the financial environment of transition.

The article of Niţă drafts the connection between the discussions of completed and ongoing research in the field of education organization and conflict management.

Seeking the right solution between national and international legislation and jurisprudence, Albăstroiu and Ghiţă explore a legal diagnosis of medically-assisted human reproduction at the edge of national and international legal interpretation.

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Editors’ Note

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Building a historical bridge between political figures and local assumptions of political authority, Danciu addresses the lesson of political union as a experiential phenomenon. Ilie helps us to reconsider the historical shapes of the XXth century, often considered outside the purview of the post-communist landscape. Pădureţu locally maps the urban religious architectural history in between the process of restoration and the challenges of transition. In the end, Olaru brings the reader to the aesthetic register at the transition between the XIXth and XXth centuries.

The authors of the articles in RSP issue 44/2014 turn on the exploration and explanation of the catch-all concept of “local” as they engage with analyses, questions, interpretations, solutions on the sense of mobilising, involving and participating including a narrow definition of “transition” at the edge of constitutionality.

Following the initiative launched in issue 41, the cover and format hopefully individualize the research initiatives and studies of the present studies as follows: After 25 years: Pinpointing East and West Encounter Arena (cover of issue 41/2014); Identity and Belonging in Post-Communism(cover of issue 42/2014); In-between change: system and regime algorithm (cover of issue 43/2014); Catch-All Transition: A Political Dialects of Acting and Performing (cover of issue 44/2014).

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RSP • No. 44 • 2014

O

RIGINAL

P

APER

Debating Revolution and After: Notes on Institutions Establishment and Cleavage Transition

Dan Claudiu Dănişor

^

Abstract

The events ocurred at the end of 1989 and the beginning of the ’90s were interpreted for a long time by a great number of Romanian politicians and local intelligentsia as not being a revolution. The dispute seemed to be fed by the divergent use of the concept of

“revolution” itself. The events were, thus, qualified as “coup d’état”, “insurrection” etc.

Nowadays, after almost a quarter of a century, the stake seems to fade away. The revolution appears to be an acquired asset. However, the consequences of the fundamental issue which initiated it continue to be important, because this represents an ideological, political and legal fracture of the totalitarian regime or of a certain continuity between the two regimes. The essential question is if Romania chose the contrary of the totalitarian regime, that is a liberal state or an alternative viable form, or it continued the totalitarianism in a different shape, “with human face”, imitating, better or worse, the mechanisms of democracy. In the following pages I will try to demonstrate that the Romanian society is characterized of a certain modality of ideological monism, which only imitates pluralism, that is continues to be a mass society, without being capable to generate and to maintain a civil society autonomous in relation to the state, that the liberal principle of priority of just over well-being is not typical to the current Romanian state, as the priority of liberty in relation to the general interest or perfectionist values does not represent a reality in post-Communist Romania. In other words, the current Romanian state, despite the make-up, is not essentially different to the totalitarian one, the difference being only of degree, not of nature.

Keywords: liberalism, totalitarianism, pluralism, post-Communism, mass society, general interest, liberty.

Professor, PhD, University of Craiova, Faculty of Law and Social Sciences, Phone: 0040351177100, E-mail: [email protected].

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Debating Revolution and After: Notes on Institutions Establishment…

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In 1989, Romanians took part to the overturn, popular as well as televised one, of the Nicolae Ceauşescu’s regime. If then they wanted or not to also give up to the socialist state, this is debatable. Ion Iliescu, elected Romania’s President with a pretty comfortable majority in 1991, although largely accepted by the population, clearly stated in the respective period the continuity between regimes. Thus, from an ideological point of view, he stated the necessity to overturn Ceauşescu’s regime, but to continue the construction of socialism, in a reformed version, following Gorbachev’s model, his collaborators at that time speaking of the Chinese model, as well as the Swedish model (!?)... From a political point of view, the use of National Salvation Front in the same time as power structure and political party also showed a tendency of continuity. The admission of pluralism, inevitable in the context of the fall of the entire block of socialist states, was accompanied by a clear tendency of building a dominant party and of de-ideologisation of the rest of the parties, thus ensuring the subtle, but firm assertion of a political doctrine by the state. The breakdown of the dominant party, apparently impossible to be understood or easily explained by the conjuncture discrepancies of opinion between its leaders, was, in fact, a movement of replacement of ideological pluralism with a structural pluralism inside a dominant party which embodies the general interest, thus situated beyond ideologies (you remember Traian Băsescu asking himself during a TV debate in the presidential campaign if the Romanian people is cursed for having to choose between two ex-Communists: Adrian Năstase and himself).

From a legal point of view, these tendencies of continuity were manifested in the affirmation of a continuity between the socialist Constitution of 1965 and the post- revolutionary one from 1991. Thus, the new constitution abolishes the old one, as if it had not been abolished following the revolution. The temporary power structure from Bucharest abolishes, by the Decree no. 1/1989, the power structures of Ceauşescu’s and not the ones of the socialist state and “forgets” to publish in the Official Journal the Decree by which the Romanian Communist Party is dissolved. On the other hand, the new normative system does not prohibit the Communist parties in general, the decree-law regarding the establishment of the political parties prohibiting in principle only the Fascist parties.

In this context, I wonder whether Romania succeeded to get beyond totalitarianism or if it remakes it in a different shape. In order to answer, we have to see if in Romania, the evolution of political institutions caused ideological pluralism, if it generated a system with multiple and diverse centers of influence and if the legal system is centered on the guarantee of individual liberty against the structures of power, irrespective of their nature, by ensuring the priority of just, that is the arbitrage procedure, over weel-being, that is of each specific doctrine, with all the suite of consequences which the political liberalism built starting from here. On the other hand, it remains to be seen if democracy has any consistency a quarter of a century from the fall of Ceauşescu’s dictatorship or if its mechanisms are imitated, as well as the restructuring of the legal system is imitated, as well.

Ideological and partisan pluralism or monism?

Did the Romanian society succeed to produce ideological pluralism on which the liberal democracies after 1989 are based? Or did all the subsequent evolutions of this society were directed towards maintaining an ideological monism specific to totalitarian regimes?

The current partisan system is one which might be easily apprehended as a single party system within which there are several factions, because all the parties do is to fight over conjucture issues and almost never over fundamental ones. The presidential election

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Dan Claudiu Dănișor

campaign which has just finished is relevant from this point of view: it was all centered on the criminal issues in which the members of the power structures supporting the candidates are involved; the elimination of adversaries and not the analysis of political programs is the key subject of the so-called debate. The electorate’s reaction was one of confusion, after which of conjuncture anger due to the faulty organization of the voting process abroad.

Iohannis sis not convince by any program, as neither Ponta did it, he won on the background of the people’s conjuncture discontent. The Romanians reacted in a unpredictable manner, as they also reacted against Băsescu when the removal of a state secretary from the Ministry of Health sent them to the streets, as the neglection of the public health system had not done it. Irrespective of the type of elections, all the debate teams seemed to be of conjucture and the solutions suggested superficial ones. The cause does not have to be looked for in the proven taste of Romanians for unsubstantial scandals and televised debates, but in the parties’ lack of ideology due to the absence of fundamental social cleavages which should structure the system of parties in order to polarize the electorate. The persistence of de- ideologization, explainable in the respective conjecture, seems to point out a certain intentional attitute to avoid political pluralism or a profound incapacity of post-Communist systems to produce it.

The appetite of Romanians for de-ideologisation of parties is historically explainable. In 1989 the electorate was not ready at all for other ideologies than the one promoted by the ex-Communist party as being Marxist and which, in fact, had no connection watsoever with Marx. Mr. Ion Iliescu and the group he coordinated immediately understood this. The consequence was lofic: the territorial structure was more important than the ideology, gaving in consideration that the electorate had neither the training, nor the appetite to understand the last one. Thus, a revolutionary formation was born, which followed the structure of the state and of the Communist party. This was, then, transformed into the party which shall dominate Romania for the years to come and decisive for the new and hesitant Romanian democracy. After building the FSN structures as territorial structures of public power and on the criteria of work place, by the Decree-Law no. 8 deom the 31st of December 1989, the other parties were prohibited to use this last type of structure, that is they were prohibited the territorial structure typical to the Communist part. These parties tried to renew the tradition of Romanian parties which existed before the war, but they noticed that the political debate did not reach the electorate, this being opaque. As they did not have structures comparable to the ones of FSN, they all had to ally in order to succeed in winning the elections. This lead to an attenuation of ideological differences between them and to a large coalition government, which was apprehended by the population as a long array of negotiated hesitations. The ideology was, thus, condemned. The moment of structuring a system of parties had been missed due to the conjuncture which put shape above content, due to the reason of electoral efficiency. We, thus, had a system of parties imitating Western cleavages, which borrows the respective denominations, but which does not have the necessary social supportr because these cleavages have no meaning in Romania (By

«cleavage» we understand a conflict representing a profound social fracture, different from the conjuncture conflicts linked to an event, a structural conflict, which is institutionalized, it is «consolidated»; Seiler, 1980; Seiler, 2000; Seiler, 2001). Such a system of parties cannot debate something consistent, because he does not find those Romanian themes which might polarize the electorate, and this cannot understand the stake of themes borrowed from the West and which are meaningless here.

The Western system of parties is structured around four fundamental social groups, which lead to a polarization of opinions which was so consistent and radical, that these

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opinions became ideologies and the confrontation between them became permanent. These groups are the result of consecutive social revolutions which shook the basis of society. We refer here to four cleavages: proletarians/possessors, state/church, urban/rural and center/periphery. The ideologies of Western parties, as well as their names, usually borrowed by us, follow a logic of positioning on one side or another of these cleavages, which makes sense to position to the “left” or to the “right”. In the case of Romanian political parties, there is no clarification of their positioning on these cleavages, having a tendency to be positioned in the center, that is in neither side, thus creating an ambiguity which confuses the electorate and homogenizes the electoral offer. The center usually exists only as a conjunctural compromise, usually to build an alliance in order to govern, when a coherent ideological majority exists. Usually, the parties have to decide on which side of the cleavage they position themselves. In our case, this centre became a constant due to the absence of ideological orientation of parties and due to the necessity, imposed to the opposition, to ally all parties in order to beat the dominant party. The absence of ideology has as initial explanation, as we have seen, a conjuctural one, but the reason for which the ideologization of parties was not succeeded for 25 years is a more profound one. It relates to the lack of functionality of Western cleavages in Romania. But I believe it is also related to the absence of consequences in the terms of socio-political cleavages of the anti-Communist revolution, in the former socialist states, as well as in the Western ones.

The possessors/proletarians cleavage should separate the social parties or democrat social parties from the liberal ones, irrespective of the manner they are called, the parties which are situated on the positions of possessors. A system of parties structured on this first cleavage does not seem possible in Romania, at least as long as the possessor class is regarded by the majority of the population as a bunch of thieves which, as a person which once reached the second tour of the presidential elections, currently candidate as well, said, should be executed on the stadium. Thus, we have, at the level of the names and statements, partie which, from an ideological point of view, would be situated on the position of possessors of means of production, but we did not succeed in building the necessary mentality for the existence of these latter parties, neither among the proletarians, nor among the possessors’ class. The education is missing. This fact is proven by pre-electoral alliances between the parties situated to the left and the ones situates to the right part of this cleavage, such as U.S.L (Social-Liberal Union), A.C.L. (Christian – Liberal Alliance) etc., which seem to become compulsory in the centrist vision of Romanian politicians, and by the pseudo- doctrine displayed by the socialist candidate to the 2014 presidential election, who wants (the manner to do so, is, however, unexplainable) “to erase the borders between the left people and the right people, between those involved and those uninvolved, between those who need state help and those who manage by themselves, between the ones who perform and the ones who perform less” (Quote from the candidate’s website), to unite, without understanding, in a paradoxical way I would say, that this is precisely what the regime existing before the Revolution did. The other candidate from the second tour, declared as belonging to the right, Christian and liberal, did not really approach a single theme of the right.

The state/church cleavage, which should polarize the electorate on the theme of political role of churches and of the clergy, separating the Christian-democrat parties of the anti-clerical ones is not, also, functional, because the Orthodox church is regarded rather as a public institution, religion is taught in public schools, the state universities have theology programs etc., tendency which is emphasized in favour of an absence of distinction between state and the church, also proved by the attempt to introduce in the Constitution a reference

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to the historical role of the Orthodox Church in the formation of the state (Article 1 from the legislative proposal). The parties declare themselves as being “Christian”, as if this would oppose them to another religion. The alliances declare themselves as being

“Christian” over night, as is the case of the Christian-Liberal Alliance, which results from the union of a democrat-liberal party (also suddenly declared liberal, because it is the former F.S.N. (National Salvation Front), that is a continuation of the socialist party from the ‘90’s, from which separated the wing lead by Ion Iliescu (first named F.D.S.N. - National Salvation Democratic Front and, then, P.S.D. – Social Democrat Party), with P.N.L. – National Liberal Party (which was, until recently, allied with the Social Democrat Party), that is by relative consolidation of two parties who had nothing in common with Christian-democracy. The electorate’s confusion was obvious, due to the fact that the president elected in 2014 was supported by an alliance declared as Christian-democratic, but his electorate voted against the public role assumed by the Orthodox Church, choosing a Protestant. The urban/rural cleavage cannot structurate, by itself, a system of parties in Romania, duet o the fact that the state does not exist anymore as system of values, being destroyed by the Communism, the traditional values, those which existed, being perverted by forced industrialization, which, relocating the youth of the 70’s to the city, failed to obtain an urban progressive culture.

Finally, the center/periphery cleavage is ethnicized in Romania, the opposition towards the Hungarian minority, centered in one part of the territory perverting any discussion on decentralization in one on territorial autonomy on ethnic criteria of this minority (Dănișor, 2013: 29-38). The clear proof is the fulminatory campaign launched by the U.S.L. – Social-Liberal Union regarding the decentralization and regionalization, which was extinguished when the Constitutional Court of Romania declared the entire draft law as being unconstitutional (Decision no. 1 of 10th of January 2014 on the unconstitutionality objection of the Law for the establishment of decentralization measures of competences belonging to certain ministries and specialty bodies of central public amdinistration, as well as reform measures on public administration, www.legalis.ro). If, until this moment, we were threatened daily that we could not absorbe European funds without building the regions, after the decision of unconstitutionality nobody said a word about it.

The conclusion may be only one: the Romanian system of parties is imitating the positioning on Western cleavages, this positioning not having any sense in the conscience of Romanian citizens. As such, the Romanian system of parties, which does not identify any typical Romanian cleavage, is not really structured as a pluralist one, being rather factions which claim to fight on ideological bases, but which really fight for the assertion of conjucture group interests. In fact, there are several political parties in Romania. In other words, the current political party is not different from the Communist totalitarian political system in which regards the system of parties and the ideological pluralism. The so-called Communist party was not a party, but a structure of public power, and the current so-called parties have no connection to what is usually called as such in a democratic and liberal state.

The Communist Romanian Party was imitating the Marxist doctrine, without knowing it, as well as, nowadays, the Romanian parties are imitating Western ideologies without being aware of them. The absence of ideology characterizes, in fact, both regimes. From the point of view of structuring the system o parties and of ideological pluralism, the current Romanian political system restores totalitarianism under the mask of democracy.

The question is whether this tendency is willingly induced by the Romanian politicians or if it’s due to more profound causes. The answer is not at all simple. It is obvious that, during the Revolution, there were two tendencies from this point of view. In Bucharest, the National Salvation Front wished, from the very beginning, only a reformed socialism,

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although the continuation of the system based on ideological monism or a type of pluralism belonging to the socialist ideology. In liberal terms, we might say that the National Salvation Front would hsve wanted multiple power centers, but not diverse. Even if, at declarative level, this desire was abandoned, in reality it was pursued with discretion, but with determination. The Timişoara revolutionists would have wanted a fracture decided by the Communist regime, the prohibition for ex-Communists to occupy public functions etc.

(Point 8 of the proclamation: “As a consequence of the previous point, we propose that the electoral law should prohibit for the first three consecutive legislatures the right to run, on any list, of the former Communist activists and of the former Securitate officers (Intelligence Service). Their presence in the political life of the country is the main source of tensions and suspicions which torments Romanian society nowadays. Until the stabilization of the situation and national reconciliation, their absence from public life is absolutely necessary. We also request that, in the electoral law shall be mentioned a special paragraph forbidding to former Communist activists to run for the position of president of the country”). They wanted more than an overturn of dictatorship, that is the establishment of a liberal state. If we look closely to the current Romanian political system, we will notice that the first version of structuring was imposed. Apparently, we have more parties, but all of them say the same thing or, rather, nothing. Democracy, which should be just arbitrage procedure between various doctrines, is understood as a doctrine per se, eliminating certain ideologies, such as the Communist one, or it eliminates even pluralism, because all the parties rather tend to eliminate the adversary than have a dialogue. The Romanians want consensus, not a debate; they have the nostalgy of the sole party. The cause is not one of conjucture, but a structural one.

The anti-Communist revolutions did not produce a new political polarization, they only operated an apparent comeback to the situation existent before the establishment of Communist states. However, this return is not possible. The political systems which emerged from the left totalitarianisms were not, thus, capable to polarize the electorate, duet o the fact that people want the same things, out of the desire to imitate Western civilization, thus believing that this imitation might bring them prosperity and rioting against partisan pluralism when this is not offered to them. The ideological engine of progress of these societies reversed the functioning sense: instead of leading the societies towards a new meaning, it reversed them to an idilic past, which, in fact, most of the times, they never lived.

The cause of imposibility to function of socio-political cleavages in the states undergoing transition from Marxist totalitarianism towards democracy is due to the fact that anti-Communist revolutions are the first which are not based on a new ideology, but assert superiority of a used ideology and of the democratic society which cannot be functional anymore, working only as an arbitrage between ideologies. In this case, the arbiter has nothing to arbitrate, duet o the fact that all joined the same team. Only a new ideology might operate the system, and it is long in coming. This is the reason for which the Hungarian Prime-Minister affords to claim, from a political point of view, that Hungary does not have to try to build a state based on liberalism anymore.

The Western world, itself, does not have the force of polarization anymore. The traditional cleavages worked, to a large degree, evern before the anti-Communist revolutions due to the external polarization with the Communist block rather than duet o the internal situation. After the fall of Communism, the West seems blocked. The economic crisis imposed the model, and the states prove to be incapable to offer an alternative. The only cleavage which seems functional is the one between the Western secular democracy and the fundamental states based on Islam. But this cleavage has two flaws: it is, on one side, an external one, and it is not an ideological one, on the other hand, because it compares a religious doctrine with an arbitrage procedure. In fact, The West unconsciously asserts another type of fundamentalism, due to the externalization of cleavage, and the ex-

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Communist states return to totalitarianism by other means, due to the permanency of transition.

The ideology seems, thus, condemned not to a conjuncture death – a clinical one, with hopes of resuscitation – but to a more profound death, one which would set us back to the cleavages base don attachments to primary groups of identification: religious, ethnic, racial etc. Or, this setback may be operated only with the risk of missing the political integration of conflicts. The reactivation of these cleavages even in Europe is visible. For example, the integration model by granting citizenship, a functional one in Western world for such a long time, does not seem capable anymore to lead to the integration of Muslims.

Also, the integration of Roma population does not seem to be possible in the classical framework of Western democracies. On the other hand, the reactivation of ethnic cleansing practices in former Yugoslavia is not only a conjuncture issue, nor the imperialism of the Russian Orthodox curch or, moreover of the Russian state, is not a conjuncture either. In our case, the activation in force of nationalism, in its anti-Hungarian form, as well as in its anti- Gipsy form, is not due to conjuncture, as well, not denied by the election of a German ethnic president, as some might be quickly tempted to believe. All these phenomena converge.

They are due to de-ideologization and coming back to the social cleavages prior to modernity. The trumpeted post-modern state does not seem achievable, and, in which concerns us, seems rather a delayed effect bomb (Dănișor, 2009b: 99-109).

Romania is firmly situated within this trend. The absence of a new ideology creating new cleavages made our system to imitate the Western structures of the system of parties, the democratic mechanisms and the ones of the constitutional state, the legal restructuring in order to achieve it. The Romanian society seems inconsistent. Nothing seems authentic.

This is why we become nostalgic: glory between the two World Wars, the king, even Ceauşescu, the safety of Communism … replace from a sentimental point of view the future objectives, because these have no basis on which to build.

Autonomous civil society or mass society?

The liberal democracies are base don the separation between state and civil society.

The Communist state was based on their unity. If in Communism, the single party is confused with the state at the peak and replaces the trade unions at the basis, in liberal democracy the structures of the civil society shall remain autonomous in relation to the state and in relation to each other (Dănișor, 2009a: 256-278), and the state shall be, in its turn, functional autonomous in relation to these. Did Romania succeed to build such a system, or it continued to practice, despite the democratis system, the unity of state and civil society, which leads to its destructuring and to a mass society?

I believe that our system continued as well in this aspect the old regime by discreditation of intermediary bodies. Parties are aimed by this mentality of withdrawal of trust. The mistrust in parties, due to ideologization and incapacity to polarize the electorate, is speculated in order to accredit the idea that the democracy should not be supported on parties, that is should be directly based on the citizen, that is should revolve around referendum, as president Traian Băsescu did, or that we should erase the differences between them, as the social-democrat candidate to the presidential elections does.

The mistrust does not regard only political parties, but the entire associative life.

The trade unions are destructured, the groups of interest are demonized or trivialized, the associations of vulnerable social categories are manipulated… and the entire social movement seems to rebuild the mass society, that is a society made up of a mass of individuals, unorganized and that is why, a formless one, incapable to resist to state power.

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What cannot be understood ist hat democracy without intermediate structures is always rapidly transformed in dictatorship, even in totalitarianism, because the latter is not a political system without relation to democracy, it appears following a certain type of disfunction of democracy (Le Goff, 2012). Or, such a vision produces a mass society characterized by the impossibility of the individual to be backed by an associative structure autonomous from the state in order to oppose it. It is, thus, alone in front of the public opinion. The society is atomized in order to dominate without forbiddances the individuals.

From this point of view, also, there is a continuity between the regime existent before 1989 and the prior ones, a resemblance which is more and more obvious. The lack of trust in parties leads to the destructuring of democracy, the consequence not being “the return to the people”, because we lived before the illusion of popular democracy, but the seizure of power by a transpartinic camarilla, that is dictatorship. Noboby achieved a democracy without parties or with only one party, so that, until we invent an ideological alternative, it would be more prudent to remain attached to the old framework, if we do not want totalitarianism again. The trade unions were discredited by the obvious political affiliation, contrary to art. 9 from the Constitution, but constantly practiced without anyone making any protest. The frequent appointment of trade union leaders in important political positions, as the case of Victor Ciorbea or Miron Mitrea, proves that the trade unions are only the launching platforms. The student organizations are also politically affiliated, those of women are not visible if not situated within a political organization, etc. The Economic and Social Council, consultative body which reunites the associative structures of civil society and, which, in Western democracies, plays an important role is basically not visible for years.

These trends prove that nowadays society, depite imitation of diversity of centers of influence, is destructured in the same way as the Communist society. Romania does not have a civil society distinguishable from the state, with multiple and diverse centers of influence, the category and intra-category pluralism being illusive, which makes the current society to be a mass one, that is one specific to totalitarian states.

Priority of just or of well-being, of liberty or of general interest?

The Communism differentiated from liberal democracies by reversing the relations between just and well-being. In the liberal states, the correct arbitrage procedure between ideologies which preach this “good” society has priority over any of them, meanwhile the Communist state chose one of them and declared it as the only one which is true, eliminating the others. In liberalism, the right has priority over ideology, in this sense being a constitutional state, meanwhile in Communism, the ideology is superior to the law, because the law looses its nature: it does not arbitrate anymore, it promotes a particular well-being, generally asserted. The question is if the Romanian society achieved, after 1989, to re-establish the priority of well-being that is, the constitutional state or i fit remained tributary to a substantial doctrine. The liberalism has several structural ideas: (1) the priority of just over well-being, (2) establishment of basis of space and public decision on the citizen detached from the primary groups of identification (Dănişor, 2007: 291–333) and which (3) self-determined, by self-building, (4) equality of chances, (5) state neutrality and (6) postulation of individual as finality of each social system, which is translated into the principle of priority of libery. I analyzed before the modality in which these fundamental ideas are observed in the jurisprudence of the Constitutional Court (Dănișor, 2014: 9-101). I will not mentioned again here all the arguments, instead, I will change the point of view, only referring to the main question of

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priority of just and to its main consequence, that of priority of liberty. The direct or implicit option for a doctrine, irrespective of its nature, betrays a vision contrary to the liberal democracy. In Romania, this option was done by the transformation of democracy into a doctrine, although by its nature it is a procedural one, this being the reason for which it can accomodat with the presence of any doctrine, being translated into a real fear of pluralism.

The setting up of democracy into a substantial doctrine was done by Bucharest Tribunal and Bucharest Court of Appeals, when they rejected the registration of the Party of Communists non-PCR. The fear of pluralism is proven by the legislation in the field of parties, which links the registration of an association as party to the number of party members, by setting up an a priori representation threshold, when, in fact, the representativeness of the party would depend only on its results in the electoral procedure.

The Constitutional Court considered this legislation pursuant to the Constitution, grounding its jurisprudence on a supposed danger for democracy resulted from an excessive pluralism.

a. Nostalgia of ideology masked in the rejection of Communism as sole doctrine Democracy is a procedural one. There is no substantial doctrine of democracy, this being, due to this reason, compatible with any doctrine observing the cohabitation procedures with other doctrines, that is pluralism. Bucharest Tribunal, followed by Bucharest Court of Appeals, transformed democracy in a dogmatic one, which would be a priori incompatible with the Communist doctrine. Thus, the courts reject the registration of a political party, without proving in any way that it acts against democracy, being based only on the provisions of its statute, which assert, in essence, that “PCN is a revolutionary political formation of workers, which acts in an organized and conscious manner, in the constitutional framework, in order to eliminate the effects against the Revolution and in order to re-initiate the building of the most human and democratic society the history ever knew – Socialism”.

The reasoning of Romanian courts is, in essence, the following (This abstract is reproduced from the decision of the European Court of Human Rights, Troisième section, Affaire Party of Communists (non-PCRs) et Ungureanu v. Roumanie, (Requête n^o 46626/99), 3 février 2005, definitive on 6th of July 2005): “Examining the documents submitted at the file, it results that, in the status of the party, at the chapter which establishes its purpose, (…) it is mentioned that it acts in order to conquer political power in order to establish a human and democratic society. Thus, it results from its political status and program that the party wishes to establish a human state grounded on Communist doctrine, which means that the constitutional and legal order in force after 1989 is inhuman and is not based on a real democracy. This is why, the party breaches the provisions of art. 2 para. (3) and (4) of the decree-law no. 8/1989 according to which «by their purposes, the political parties shall observe the national sovereignty and the means used in order to achieve it shall be pursuant to the constitutional and legal order of Romania»”. Why this reasoning is not compliant to the Convention eloquently explains the Strasbourt Court: “In the Court’s opinion, one of the main features of democracy is the fact that it offers the possibility to debate by dialogue and without appealing to violence the issues raised by different trends of political opinion, even when they bother or concern. Democracy is, indeed, fed by the liberty of expression. From this point of view, a political group observing the basic principles of democracy (…) cannot be sanctioned only for criticizing the constitutional and legal order of the country and because it wants to debate this in a public on the political arena (…). Or, in this case, the internal

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jurisdictions did not prove in what way the program and statute of PNC would be contrary to the constitutional and legal order of the country and, especially, to the fundamental principles of democracy. From this point of view, the Court cannot receive the Government’s argument according to which Romania cannot accept the fact that the creation of a Communist party would represent the debate of a democratic debate”.

The essence of democracy being one of procedure, for the Strasbourg Court it is obvious that, if the party accepts the democratic procedures, it has to have a doctrine. What interests from the point of view of my study is that Romanian courts and Romanian Government consider that democracy is incompatible with Communist doctrine. This doctrine is eliminated from the debate, due to a presumption of incompatibility with democracy. Democracy thus becomes dogmatic, because incompatibility is asserted prior to any experience. The substantialization of democracy imposes an official doctrine which eliminates the competition, considered contrary without being necessary the debate. It is what clearly states the Government and in a disguised way the courts: the establishment of a Communist party “cannot make the object of a democratic debate”. By stating as such, the Romanian state proves that it is the advocate of the essence of the doctrine which it eliminates: imposition of a sole thuth controlled by the state.

The fear of pluralism seems to bear the fault, which in Romania is a conditioned reflex. As a joke from the Communist regime once said, even the tramways should travel on the party’s line. In the mentality of the representatives of the Romanian state, nothing seems to change. Only if the line belongs now to democracy. Or, this statement is a contradiction in terms: democracy is never linear. The sinuosity given by the proceduralization, reflex of priority of just over well-being, confuses the representatives of the Romanian state, who still have the reflex of the priority of well-being, so of a perfectionist doctrine. Liberalism is too mundane. This is why democracy is converted into a doctrine pursuing perfection, if not the one of the “new man”, at least of the “new society”.

b. Aporias of excessive partisan pluralism – numerical limits imposed to the right to associate in parties

The political parties law imposes a condition of the number of members for a party to be registered. The tendency of the system is to increase that number. In addition, the members must be relatively equally distributed on the territory of the state.

The Romanian legislator starts from the idea that excessive pluralism may be damaging to democracy. The issue is extremely sensitive, due to the fact that it presumes a limitation of the right to pluralism and the right to associate, precisely in the name of preservation of democracy.

The Constitutional Court, controlling these legal norms, admits that political pluralism must be moderated so that democracy can function. It may be right, in principle, but we believe that, in a mistaken way, it considers that the modality of moderation of pluralism is an issue of legislative opportunity and not a constitutionality one. Thus, referring to the establishment of a representativity threshold for the establishment of parties by the Law no. 27/1996, the Court states that “the assessment of opportunity of a certain threshold of representativity is not a constitutionality issue, as long as the threshold established does not have the effect of elimination of exercise of right, only pursuing, as in the respective law, that the association of citizens into parties shall have the meaning of institutionalization of a political trend, without which the party resulted cannot fulfill its constitutional role, foreseen by art. 8 para. (2) to contribute to the definitivation and expression of political will of the citizens. Even the authors of the notification appreciate

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that the provisions of the prior law «were too broad, resulting a real inflation of political associative subjects». It is considered that the «phenomenon of depreciation of parties»

should not be counter-balanced by the representativity condition mentioned, but by the

«electoral threshold». These arguments do not concern the constitutional legitimacy of the provision called in question, but the dispute related to its political opportunity. In the law, the electoral criteria was only mentioned in order to assess the continuity to function of the party, pursuant to art. 31. As such, the representativity criteria is not, per se, unconstitutional, being generally acknowledged in the field of exercise of the right to associate in political parties, having in mind their role in the formation and expression of political will of the citizens. This criteria might be unconstitutional, if, by its effects, might lead to the elimination of the right of association or i fit would be synonimous with such an elimination” (Decision no. 35/1996, published in the Official Journal of Romania no.

75 of 11th of April 1996).

The Court states that the representativeness threshold imposed for the establishment of parties might be considered as a limitation to the exercise of the right of association. But, afterwards, it does not make the real application of the control of necessity and proportionality of the limitation measure by law of this right. Thus, it is not clear why it would be necessary to limit the right of association in political parties for one of the reasons enumerated in a limitative manner by art. 53 of the Constitution. On the other hand, the Court states that the issue of representativeness threshold i sone of constitutionality only i fit would lead to the elimination of the right of association or it would be synonymous with this, without explaining this “synonymy”, meanwhile the Constitution states that not only the elimination, but also the limitation of the exercise of the right is not constitutional if not done for one of the causes mentioned and it does not fulfill the conditions of necessity and proportionality established by the Constitution.

The necessity to limitate the pluralism by limitation of the right to associate in political parties in a democratic society is not really analyzed. In fact, the Court avoids the issue, making reference to the statement of the authors of the complaint, in order not to rule on the necessity to limit in a democratic society. Why the selection of method to reduce excessive political pluralism is one of opportunity and not of constitutionality, it cannot be understood, because the assessment of constitutionality or opportunity to limit the right of association in relation to the number of founding members mentioned by the law is not relevant, due to the fact that it induces a quantitative assessment where it would have been suited a choice of principle. It does not result from any consideration of principle which would be the maximum number of founding members imposed by the law so that it does not become unconstitutional. The numerical criterion is wrong, the authors of the notification being right when they use as criterion of representativeness of the party

“the electoral threshold”, depending of the citizen’s vote and not a representativeness criterion imposed by the legislator without having as basis a clear principle of limitation of its power, so, possibly, arbitrary. In my opinion, the legal limitation of the right of association and of the right of pluralism is disproportionate, because it is not a minimum interference necessary to reach the purpose of the law – avoidance of the excessive character of pluralism – this minimum interference being the imposition of an electoral threshold for the representation of parties in Parliament, as the notification’s authors validly affirm.

But, besides the discussion of the issue of proportionality, the unclear issue is why the Court infers that pluralism is a danger to democracy. Of course, apparently, it seems like that in the Court’s opinion, only if excessive, leading to the devalorization of parties.