The lie detector as a parliamentary instrument

Attempts to form a government cannot be aimed at achieving a negative effect, namely the dissolution of Parliament, possibly followed by early elections. On the contrary, the formation of a government in constitutional terms must take place through the appointment by the President and the acceptance by Parliament of a candidate for the position of prime-minister and their government, as a decision of a majority which would revalidate either the majority in Parliament created by the vote cast by the voters upon the initial configuration of the Parliament, if that majority still exists, or a majority which reflects the current configuration of the majority in the Parliament.

This thesis has long been present in the Romanian Constitutional Court Decision no. 80/2014, in paragraph 319: "Therefore, the President of Romania, not being able to act as a decision-maker in this procedure, but rather as an arbitrator and mediator between the political forces, only has the power to appoint as a candidate the representative proposed by the political alliance or the political party which holds the absolute majority of parliamentary seats or, if no such majority exists, the representative proposed by the political alliance or the political party that can provide the parliamentary support necessary to obtain the vote of confidence of the Parliament".

In other words, the government proposal cannot be aimed at dissolving the Parliament, as the National Liberal Party states, but, on the contrary, at strengthening the Parliament by achieving a parliamentary majority that can validate the government. Only the failure in fact of such an attempt to achieve a majority can lead to the dissolution of Parliament.

Under no circumstances can the action to appoint the government, which the President participates in through the appointment of the candidate for the position of prime-minister, as does the Parliament, in that it secures or believes that it can secure the majority necessary for the appointment of the government in question, have an opposite, eventual and publicly announced purpose that is the repeated non-appointment of the government and its outcome, the dissolution of the Parliament.

In the current situation in the Parliament, the PSD simultaneously meets both requirements which may lead to the government's appointment described in RCC ruling 80/2014, meaning that it is the party that represents both the majority that was designated by the electorate in the 2016 parliamentary elections, as well as a parliamentary majority that exists under the current configuration of the Parliament, as evidenced by both the record number of votes it got in order to dismiss the government, as well as by the votes that can now be cast by the ad-hoc alliance between the PSD and PRO ROMANIA.

As a result, the President is required, as a result of the stipulations of the RCC found in paragraph 319 of the Decision no. 80/2014, to designate as the person in charge of the formation of the government a candidate proposed by the "political party that can provide the parliamentary support necessary to obtain the vote of confidence of the Parliament", respectively, in this case, by the PSD. Under no circumstances can the President nominate a candidate proposed by a party whose purpose is to dissolve the Parliament and call for early elections, such as the PNL.

The letter and spirit of the constitutional procedure are focused on the positive, meaning that the effect sought by applying this procedure is the appointment of the government, and not the rejection of the appointment request. The rejection of the request cannot appear as a declared goal of the act requesting the appointment (the granting of trust), but only as a "direct" effect of the vote in the Parliament, as a factual failure to confirm the estimations by which the success of the appointment was sought.

(...)

I wrote those words the day before the Constitutional Court's ruling. Today's communique of the RCC expresses the thesis of the RCC decision no. 80/2014, which we quoted above: "The Court found, in essence, in agreement with RCC Decision no.80 / 2014, that the nomination of the candidate for the position of prime-minister must have the purpose of ensuring the coagulation of a parliamentary majority with the goal being to form a new Government". I'll wager that the argumentation of the RCC that will follow this ruling will make direct reference to said paragraph 319 of ruling 80 of 2014.

One of the first statements following the CCR ruling comes from one of the vice-presidents of the PNL, Virgil Guran, who states that, after finding out the CCR decision, PNL is calm.

Indeed, the CCR has given the PNL a strong palliative.

However, the calm that the PSD is demonstrating via Ciolacu's statement about the PSD's lack of intention to propose a candidate and to remain in the opposition cannot be explained. The PSD is the only one which can form a parliamentary majority, as it showed when it nominated Pricopie or when it ousted Orban. PSD has a clear path to power following today's ruling of the RCC...

Meanwhile, Orban explains to the press: "Nothing prevents the President from appointing a prime-minister like me" (ed. note: with the subtext being that it is now likely that the PNL will seek an Orban clone to replace him - for whom Orban himself could serve as a stunt double, during high risk times). He's also the one saying that the RCC is affecting the constitutional powers of the President. Presumably, a prime-minister cannot honestly believe he can afford to speak out against RCC rulings. Especially since, immediately after this impossible declaration, Orban mentions the lie detector as a necessary instrument in the appointment of a prime-minister. He then states that "The first thing that is going through my mind is to publicly declare that I will try to form a parliamentary majority." He then repeats that statement several times, but suddenly puts on a playful expression. As if he had already entered "let's go take the lie detector test" mode.

The technical conclusion of this comical episode is that in actuality, by melding the provisions of paragraph 319 of decision no. 80/2014 and the text of today's communique, the RCC has explained how one should interpret the meaning of the term "political alliance" which, in the case where no party has the absolute majority in the parliament, could designate the prime-minister, and which it used to be said had to be formally registered: namely, it is enough that this alliance be the de facto work of a party, which would raise votes from other parties, without being officially consecrated. What is important is to ensure the parliamentary support of the will of the party in question.