27 October 2004, Volume 6, Number 20
CONSTITUTIONAL LESSONS FROM ROMANIA: THE MINORITY RIGHTS FACTOR
By David Adam Landau
Romania's constitutional reform, finalized in October 2003, represents a significant step forward in improving Romanian relations with ethnic Hungarians living within its borders. Although improving interethnic relations did not rank among the government's top priorities, support from Romania's largest minority group helped validate and politically legitimize the revised constitution. Many Hungarian leaders in Romania saw the constitutional referendum as an opportunity to secure greater rights for themselves while the Romanian government successfully used the vote to demonstrate its serious commitment to democratic reforms. Of course, the constitution applies to all groups and not just to the Hungarian minority. Despite a few limitations and lingering doubts about the reforms, the amended constitution has been viewed as a political victory for both the government and Hungarians. In the process, Romania has set a very positive example to other European states struggling to find common ground on minority rights issues.
Traditionally guided by discriminatory sentiments embedded within the old constitution -- attitudes that were then reflected in policy debates and practices at the national and local levels -- Romanian-Hungarian relations have often been strained by the politics of exclusion and the dichotomous discourse of "us versus them." However, overwhelming Hungarian support for amending the constitution and the Romanian government's reliance upon that support suggests a new stage in the process of minority accommodation that can be modeled by other states. In order to highlight the significance of the amended basic document as "good practice," this article first examines specific constitutional changes that have affected Romania's minority relations. Second, it discusses the benefits and drawbacks of the reforms on several levels. It examines the significance of the Hungarian minority's involvement in the ratification process and the effects of the constitutional referendum on Romania's European interests. However, it also critiques the amended constitution's failure to account for broader minority rights issues. Last, this essay explores ways in which Romania's unique PROCESS of minority accommodation and interethnic cooperation can be replicated in other European contexts. While redrawing constitutions elsewhere is unrealistic, the inclusive and adaptive PROCESSES of Romania's reforms can serve as a model of how other European states can begin to resolve their deep-seated interethnic conflicts.
Romanian Constitutional Reform: Minority Relations and International Repute
In late October 2003, Romania amended its first postcommunist basic document through a nationwide referendum whose success relied heavily upon the support of ethnic Hungarians in Romania. The amended constitution entered into force on 29 October 2003. Since revisions to the 1991 constitution are numerous and often technical, only those provisions that are most important to interethnic relations and the accommodation of national minority objectives are highlighted here. The relevant articles will be discussed in terms of both their achievements and shortcomings.
Although Article 1.1 controversially remains unchanged, declaring that "Romania is a sovereign, independent, unitary and indivisible NATIONAL STATE" (Constitutia Romaniei, p. 7, emphasis added), many advancements were made towards legally guaranteeing expanded rights for minority groups. Romanian remains the official state language, but Article 32(3) stipulates, "The right of persons belonging to national minorities to learn their mother tongue, and their right to be educated in this language are guaranteed." However the legislature retains the right to determine by law the manner in which to enforce Article 32(3), leaving the door open for possible government suppression of the right (Constitutia Romaniei, p. 22). Nonetheless the clause represents Romania's strongest commitment yet to legally protecting minority languages. The new provision is thus likely to create convergence between Romanian law and the linguistic demands of minority groups.
Article 127 in the former basic document (Constantinescu et al, 1992, pp. 284-286) was also amended by introducing a new Article 128, which allows "Romanian citizens belonging to national minorities" to use their mother tongues in court (Constitutia Romaniei, 2003, p. 70). Under the old constitution, members of other national groups were only granted the right to an interpreter and, consequently, were frequently barred from full access to Romania's judicial system. The added new article thus satisfies Romania's efforts to democratize its judicial system while offering minority groups an important form of legal recourse heretofore difficult to achieve.
One of the most important changes addressing ethnic Hungarian demands, however, is the amendment to former Article 41 on the "right to private property" (Constantinescu et al, 1992, pp. 102-106). The new Article 44 provides for equal guarantees and protections under the law for private property "irrespective of its owner" (Constitutia Romaniei, 2003, p. 27). While conforming to European Union regulations, the article will create new economic opportunities for minority groups (particularly Hungarians) that traditionally faced stubborn obstacles to economic inclusion in Romania.
As already mentioned, the constitutional changes affecting Romania's national minority groups described here are by no means exhaustive. They are, however, among the most controversial and significant changes that were accepted in the October 2003 referendum. These provisions received the greatest support from ethnic Hungarians, and they are consistent with Romania's bid for EU membership. But, as discussed below, these provisions are also likely to pose the greatest challenges towards recognizing the rights of other minority groups in Romania.
A New Constitutional Balance Sheet: Positives and Negatives
Following the successful referendum on Romania's Constitution, a public statement by Bela Marko, chairman of the Hungarian Democratic Federation of Romania, captured the dual benefits of the amended constitution for the Hungarian minority and the Romanian government. He stated:
*If we [ethnic Hungarians] had listened to those who urged us to stay away from the referendum, the constitution would have remained unchanged which would have entailed unpredictable consequences. A failure would have obstructed Romania's Euro-Atlantic integration and deprived the ethnic Hungarian community from the chance for expanding its rights (MTI, 20 October 2003).
President Ion Iliescu mirrored these sentiments and placed particular emphasis on the greater degree of civil liberties and rights granted to national minorities. Hungarian participation in the referendum thus signifies two important changes in interethnic relations. First, such participation signaled the first time that the ethnic Hungarian minority was able to determine for itself -- and on a national scale -- how to shape the rights it is granted by the state and the form state-minority relations should assume. Even though leaders of the Hungarian political parties in Romania expressed dissatisfaction over the continued definition of Romania as a "national state," there was a predominating consensus among them that their role in approving the referendum provided the official stake in Romanian politics they had long been hoping to achieve. Second, the government's reliance upon support from ethnic Hungarians on the referendum demonstrated a new symbiotic relationship between the government and national minorities permeating down from the state level. The Romanian government realized that if the constitutional reform was to be successful and legitimate, then it would require the approval of the groups towards whom some of the most controversial and important changes were targeted. This level of cooperation, communication, and coordination was unprecedented in Romania's history of addressing minority rights issues.
While the constitutional referendum represents a significant domestic victory for Hungarians in Romania, it also represents a large supranational step forward for Romania, which is hoping to join the European Union in 2007. Minority rights have, in recent years, dominated political talks between Romania and the European Union on issues of enlargement. In order for Romania to become a viable candidate, it would have to demonstrate inter alia democratic processes, economic stability, and overall policy liberalization at all levels of government. This includes making all necessary domestic changes to comply with the Copenhagen criterion of respecting and protecting the rights of national minorities. Past legal attempts to resolve minority rights issues have accomplished these goals only in part or have altogether fallen short of European requirements for good minority rights practices. However, adopting the revised constitution demonstrates a deep and genuine commitment to the European Union's goals in this vein. Romania's determination to democratize produced a constitution that will help reform the underlying structures of government that until now impeded, in many ways, its EU candidacy. At the same time, subsequent legal changes will bring into action minority rights, protections, and further guarantees that can help stabilize interethnic relations in Romania.
But despite general optimism for Romania's constitutional reform, several limitations and potential challenges to realizing improved minority rights remain. While the majority of ethnic Hungarians believe they will benefit from the amended constitution, the referendum did not address all of the critical issues facing Romanian policy towards other minority groups. Not surprisingly, the group most thoroughly omitted from the constitutional debate is also the group most frequently excluded from participation in various aspects of Romanian society -- the Roma. While EU Enlargement Commissioner Guenter Verheugen had, on several occasions, requisitioned the Romanian government to correct its abuses of Romany rights, little progress has been made in this area. The revised constitution should, of course, apply equally to the Roma as it does to groups such as Hungarians; however, Romania's historical record on Romany rights issues suggests that the group will continue to be marginalized either through legal means OUTSIDE of the bounds set by the constitution or through de facto discrimination. The European Union's inconsistent stance on Romany rights across the continent and the lack of a viable political voice among the Roma will no doubt compound the problems of racism that the constitution is not likely to transcend. Nonetheless it is the responsibility of the Romanian government to ensure that the amended constitution, which has been championed by both the government and the Hungarian minority, benefit the Roma on equal terms with other national minority groups.
Replicating Romania's Reforms?
From a normative perspective, it is unreasonable (and undesirable) for all European states with large national-minority groups to undergo a process of constitutional reform in order to restructure their state-minority relationships. Constitutions can shape the political dynamic between states and their resident minority groups in important ways (see Landau and Vanhala, forthcoming), but they also serve other critical functions that should not be unnecessarily tampered with. Constitutional overhauls should be reserved for particular circumstances requiring fundamental and dramatic changes and should not be used as a generic policymaking tool. In the Romanian case, the purpose of amending the constitution was not limited to minority rights issues but rather extended into broader areas of democratization and much needed government reform. Thus it is the PROCESS of minority accommodation embodied in Romania's referendum and amended constitution -- and not the redrafting itself -- that can and should be used as a model for addressing state-minority relations in other cases.
Romania's strategy of incorporating the Hungarian minority's demands for greater linguistic, educational, and economic freedoms in the revised constitution is both an innovative and effective form of policymaking that other states can imitate when designing domestic laws. While the government did not compromise on fundamental issues, such as the definition of the Romanian state in national terms, it willingly addressed the concerns most often associated with discriminatory policy and practice at all levels of government. These issues included educational rights, linguistic rights, and property rights. From this process, other states can learn that there are flexible boundaries within which policies favorable to the state AND to national-minority groups can be enacted. Romania attached issues of importance to national minorities with issues that were critical for the state, thus creating a package that would have been difficult for either group to oppose. Just as ethnic Hungarians wanted greater access to courts using their own language, Romania needed to demonstrate its ability to comply with EU norms and regulations in that policy domain. By accepting certain aspects of the Hungarian program for expanded rights, the Romanian government was also able to (re)negotiate for a new set of rules that accommodates national minorities without offsetting the government's overall posture on particular issues.
Other states can use the same approach by translating minority demands into national legislation that the minorities will support and that does not greatly upset other aspects of political society. Small but symbolic steps can serve as a precursor to greater cooperation, increased mutual trust, and can become a platform for later reforms. As demonstrated by Romania, permitting minority-language use in courts, though highly important, actually represents a relatively small change to Romania's judicial system. As with many aims of national minorities, incremental reforms executed at the national level can have profound impacts on state-minority relations. Both groups can benefit even if the motivations for supporting particular policies are not identical.
Romania's experience also highlights the responsibility that national-minority groups have in promoting and encouraging good state practices. While the Romanian government realized that support from the Hungarian minority would be crucial for passing and legitimizing the referendum, the Hungarian elite understood that its actions would determine the extent to which it would have a say in its own future relations with the state. Good state practice thus requires active participation from minority groups that are willing to compromise and to allow national governments to take the initiative on minority rights. It is also critical to remember that one minority group alone cannot resolve interethnic tensions. Although Romania's revised constitution applies to all minorities, it would have benefited the Roma, for instance, to become involved with the referendum to the same degree as ethnic Hungarians. Good state practices often begin with the willingness of several groups to cooperate with national governments and with each other. Although such cooperation is much easier to praise in retrospect than to create, the Romanian example should demonstrate to other states and national minority groups the utmost importance of relying upon each other to accomplish common goals. Romania's constitutional overhaul was a unique solution to its equally unique national preferences and circumstances, but the 2003 referendum has clearly made it the exemplar of how to use political processes to successfully redefine state-minority relationships in positive ways.
The 2003 Romanian Constitution provides specific guarantees that address several of the Hungarian minority's demands for greater rights and participation within Romanian society. As a result, the reforms have begun to create greater symmetry between minority demands -- stemming from internal state dynamics -- and state interests, which have been markedly shaped by the prospect of EU membership. However, the amended constitution does not directly address the status of Romania's Romany population and therefore has left open the possibility of their further exclusion from political and economic life. Nonetheless, Romania's experience sets new standards for state-minority relations that can be used as a model guiding the resolution of other ethnic tensions across Europe. It has also raised the bar at home for dealing with future minority tensions in Romania.
(David Adam Landau is an MPhil student at St. Antony's College, University of Oxford. He completed the article while conducting research at CSIS this summer.)
Constantinescu, M. et al, 1992, Constitutia Romaniei: Comentata si adnotata [Romania's Constitution: Commented and Annotated] (Bucharest: Regia Autonoma "Monitorul Oficial"), 1992.
Constitutia Romaniei 2003 [Romania's Constitution 2003] (Bucharest: Editura Proteus).
Landau, D., Vanhala, L., forthcoming, "Circumventing the State? The Demands of Stateless Nations, National Minorities, and the European Constitution" (for a previous draft see http://www.inter-disciplinary.net/AUD/landauvan paper.pdf).
MTI (Budapest), 2003.