The Honor of General Ciucă between the Army and His Office

UPDATE. 8 january 2019 

The Government of Romania will attack in administrative litigation the decree of President Klaus Iohannis extending the mandate of General Nicolae Ciucă.

President Iohannis sparked another constitutional crisis. The origin of the crisis lies in the illegal attribution of the mandate of Chief of Staff of the Combined Armed Forces to a person without Government support. How will the army follow the orders of a general which lacks the authority conferred by a legal appointment. How will NATO react? Will general Nicolae-Ionel Ciucă accept the involvement of the army, through this appointment, in a domestic political struggle?

Read here: Penal darkness falls over the Supreme Court

 THE PRESIDENT CANNOT DECIDE WITHOUT A NOMINATION FROM THE GOVERNMENT

While Romanians and Romania’s NATO allies were preparing to celebrate, according to tradition, the New Year’s Eve 2019, with hopes for a better future, President Klaus-Werner Iohannis threw Romania into another constitutional conflict. This time the novelty consists in the fact that the army was involved in the crisis.

The unconstitutional act that led to the trouble consists in the issuance of a Presidential Decree that, without any nomination from the Minister of Defense and any approval from the Prime Minister, extended for another year the mandate of general Nicolae-Ionel Ciucă in the most important position of military command in the army, that of Chief of Staff of the Combined Armed Forces. According to the law on organizing and functioning of the Ministry of Defense (346/2006), „The Chief of Staff of Defense is the serviceman with the highest rank in the army, appointed by the President of Romania, after being nominated by the Minister of Defense, with the approval of the  Prime Minister, for a period of four years, with the possibility of extending its mandate up to an year.”

The Constitution of Romania does not include among the powers of the President regarding National Defense (article 92) the power to nominate the Chief of Staff of the Combined Armed Forces. At the same time in an article called „other powers” (in paragraph c) it states that the President „appoints people to public offices, in accordance with the law”.  The law defines the presidential appointment as a simple formal procedure, not as a political decision. A procedure which enshrines the proposition (nomination) of the Minister of Defense, which can be opposed, by the Prime Minister on the basis of opportunity, and by the President, as decided by the Constitutional Court (abbreviated CCR in Romanian), only based on legal reasons. The same law does not confer the Supreme Council of National Defense (abbreviated CSAT in Romanian) any role in this appointment.

CSAT Does not decide, it Coordinates

In this regard, according to the legislation governing it (415/2002) CSAT is „an autonomous administrative authority tasked, according to the Constitution, to organize and coordinate in a centralized manner the activities that concern the defense of the country and national security.” The constitution also states that the President of Romania presides CSAT meetings.

Unfortunately, over time, previous Presidents of Romania, in an attempt to extend their powers, gave CSAT, sometimes with the coverage of the parliamentary majority and other times by taking advantage of the submissive silence of the Parliament’s members, increasingly extensive and unconstitutional prerogatives (e.g. the prerogatives which allowed the conclusion of secret protocols between the Romanian Intelligence Service – abbreviated SRI in Romanian – and the judiciary, as well as the extension of SRI competences to include criminal investigation). Therefore the presidents transformed themselves, in an abusive manner, from consensus facilitators between institutions which do not have a direct hierarchical subordination to each other or a common head, as initially intended, in administrative chiefs of CSAT, the latter becoming a parallel legislative and executive.

Even so, especially due to the lack of any explicit legal provision, the intervention of CSAT in appointing the Chief of Staff of the Combined Armed Forces cannot have any role beyond a recommendation – meaning an opinion that must be requested, but is not mandatory to follow.

Read here: Ciucă: The army had bright or half-shade moments

 An illegal Nomination DOES NOT JUSTIFY AN ILLEGAL DECISION

Should President Iohannis or CSAT discover that a nomination does not fulfill the legal requirements, the latter can issue a negative opinion, and the prior, even if that opinion would have been positive, could reject the nomination and ask the Minister of  Defense to fix the legality issue.

According to information available to Q Magazine, the Minister of Defense, Gabriel Leș, sent to the President of the Republic, on the 17^th of December, the nomination of general Dumitru Scarlat for the position of Chief of Staff of the Ground Forces, a position he had held before and which was required in order to be appointed as Chief of Staff of the Combined Armed Forces, but the president refused to include this topic on the CSAT agenda in due time. The lack of that position in the hierarchy of the Army was later used as the legal pretext to reject as unlawful Dumitru Scarlat’s nomination for Chief of Staff of the Combined Armed Forces.  This proves the crisis was premeditated by the President.

 CSAT does not vote on its decisions, because the choice of any of its member institution cannot be imposed on the others, but rather only uses consensus as its decision making mechanism. Thus its decisions can be mandatory for the entire state administration, as stipulated by the law.

 As regards the opinions, when, due to lack of consensus, a common position is not reached,  since (by definition) they are not mandatory, once they are asked for, the impossibility of being issued do not stop the adoption of the decisions concerned. This is the general rule formulated by the CCR, regarding the legal status of the consultative opinions.

 As for the President, he cannot impose its options to CSAT since, although he presides the meeting, he is still a mediator. Presiding does not mean deciding. The President can at most suggest solutions to overcome the legality problems that proposals coming from the executive (which he is not a part of) might have. These type of problems do not justify, excuse or permit violations of the Constitution by means of appointments which do not follow the legal procedures.

  Regarding this path, it is without a doubt that the extension of a mandate originally granted based on the proposal of the Minister of Defense and with the Prime Minister’s approval is in fact a new mandate, and this can only be issued based on the nomination and with the approval of those who generated and endorsed the former. The offices that originally decided the opportunity of granting the mandate of Chief of Staff of the  Combined Armed Forces to a particular person must also decide this with regard to its extension. The reasoning is the same. The procedure must be the same. The law does not mention another procedure for extending a mandate. If the law does not explicitly describe a different procedure,  President Iohannis should not use a different procedure.

In support of this conclusion, one has the precedent of General Gheorghe Marin, the only one whose mandate of Chief of Staff of the  Combined Armed Forces was extended for three months from autumn 2010 until January 1, 2011. That was done at the proposal of the then Defense Minister, Gabriel Oprea, and with the approval of Prime Minister Emil Boc. Given that Q Magazine was able to find this information, we assume thar President Iohannis could have done it too.

But Klaus Iohannis refuses to understand that he is not the “head of the state”, that he is not part of the executive power and that Romania is a parliamentary republic, not a presidential or semi-presidential one. He does not want to accept that, according to all the constitutional texts that describe his powers, he cannot take any executive decision without the proposal coming from the Government or without the Parliament’s approval. Absolutely none.

Furthermore, he refuses to admit that his role, apart from mediation and congruent with it, is to ensure that the Constitution is observed by controlling the legality of democratic procedures, and not to set the agenda for the country’s Government and block the Government’s actions, in violation of the Constitution.

In addition one notes that the Presidential Decree that extends General’s Ciucă mandate is not legal from the formal point of view, as well.

Indeed, according to Article 100 of the Constitution, unpublished presidential decrees are considered non-existent. The second paragraph of the same article states that, inter alia, decisions made under Article 92 (decisions having to do with national defense) are to be countersigned by the Prime Minister. Which is in line with the parliamentary character of our republic.

Under these circumstances, it is likely that the Official Journal of Romania will refuse to publish the decree extending the mandate of General Ionel-Nicolae Ciucă, if it is not countersigned by the Prime Minister.

This would block the effects of the Decree, but it would not solve the constitutional conflict and would not absolve President Iohannis of the responsibility for his unconstitutional act.

Read here: Untold Truths about Viorica Dăncilă

Legality AND Authority, Power and Legitimacy

These issues of legality and constitutionality, appear in the given context, to be rather theoretical and eminently internal. What is more worrisome is their practical consequences for the defense of the country and their impact on Romania’s foreign relations. From this perspective the situation will be of course regarded by Romania’s strategic partners.

Several diplomats contacted by Q Magazine Friday evening, a few hours after the Presidential Decree was issued, expressed their astonishment and told me they had already informed their governments on the allegations of illegality voiced by the Prime Minister Viorica Dăncilă, at the beginning of a cabinet meeting, in regard to the extension of the mandate of General Nicolae Ciucă. At the same time, it was confirmed that that unlawful procedure gave rise to a real dilemma about the future approach towards the Romanian ally, among foreign high-ranking officers who worked along with the Chief of Staff of the Combined Armed Forces of Romania in different joint missions.

Beyond the name of a man, it’s about the country’s army. It is about the army of one of the most important NATO members in terms of size, military power and geostrategic position. All this in the context of the ongoing hybrid war which directly involves Europe, as well as of the threat of the outbreak or expansion of conventional wars in the proximity of Romania. Possible Russian-Ukrainian and Serbo-Kosovar military confrontations are just two examples that immediately come to our minds.

Președintele Comitetului Militar al NATO, în vizită la MApN, Foto Valentin Ciobîrcă

The legitimacy of an army’s commander – as well as the legitimacy of any leader in general – has two components or two pillars: legality and authority. The former confers formal power. The latter, the ability to optimally exercise this power in the field.

Especially when talking about the army, authority is more important than legality. This is all the more important in the case of armies with loyalist traditions, as it is the Romanian army. An army that has never really interfered in political battles (as opposed to what Turkish or Greek, French or South American armed forces did, for example). When it was forcefully involved in political battles by some of its commanders (some paid that with their life) it discreetly but firmly distanced itself from them.

In fact, the Romanian army did not support the change of the constitutional order of Romania neither on August 23, 1944, nor on December 22, 1989, without wanting to challenge that change either. It saw its role only at the frontiers, against the external enemy. The only exception was the ridiculous, rapidly failed attempt of general Candiano-Popescu, in the XIX century.

The Communist regime forcefully politicized the army. Albeit politicization remained superficial. Although it tried to remain in the service of the nation and not of the single party, in 1989 the army experienced firsthand the negative consequences of involvement in the political sphere and hardly escaped from the brink of a disaster that would undoubtedly have been a national one. Certainly the generals, officers, commanders and soldiers, from the highest to the lowest rank, do not want to repeat that experience.

Read here: „We are the DNA!”: 63% of judges and 60% of prosecutors in Romania were under penal investigation

THE RISK OF DIVIDING THE ARMY

Let us imagine an order given by General Ciucă, as Chief of Staff of the Combined Armed Forces, given after December 31, 2018, when his mandate expires and the unlawful and unconstitutional extension of his mandate comes into force. There will be subordinates who will not be able to accept executing the orders coming from an illegitimate commander. Maybe others will. The Romanian army will be thus divided and the authority of the act of command will be compromised.

The irresponsible gesture of President Iohannis abducted the authority of one of the most valuable generals of the Romanian army and destroyed the cohesion of the army. From the moment the Presidential Decree is published in the Official Journal of Romania, each serviceman will ask itself whether to be loyal to the Government or to the President, to the Constitution or to a hierarchical chief, who even if competent and respected until recently, is from now on the result of a violation of the Constitution. Even this dilemma alone turns the army into a domestic policy actor instead of being a national player without political engagement, a defender of the nation in against external aggression.

By his deed Klaus Iohannis induced in the Romanian army hostility towards general Nicolae Ciucă, which I found with stupor in several discussions that I had yesterday with some high-ranking officers. In short the opinions I have collected sound like „Now it’s obvious that Ciucă is serving Johannis!” or „General Scarlat did not deserve this. People will love him even more now!”. The outcome of such a controversial decision is unpredictable in the midst of hostility (which will be hidden; or not) towards the „winner” and solidarity with the „loser”.

Additionally, sources from the Ministry of Defense told Q Magazine that the very attitude of General Nicolae Ciucă was perceived as changed from Thursday, when he was „destroyed and distracted,” until Friday when he became „relaxed”. Which raises questions about his coordination with the President Iohannis in the procedure the latter followed.

ANTAGONIZING ALlIES

What will happen, however, in a few months, when the CCR most probably would declare the appointment as unconstitutional? Who in Romania or at NATO command will recognize an army led, even for a short time, by a person who, in the language of criminal law, could be described as an usurper of office?
Did Klaus Iohannis think about this? Did he think that thus he is destroying the prestige that General Ciucă had gained in the eyes of the North Atlantic alliance, and thereby reduce the prestige of the Romanian army to zero?

Reactions from allies had been quick, although not yet public. According to information obtained by Q Magazine alarm signals have already been sent, although they are hard to be conceived in a coherent and formal manner at a time when Euro-Atlantic officials are on vacation for the winter holidays.

Perhaps this is not even a coincidence. Someone wants to force the internationalization of the conflict between President Iohannis and the Government, and the President tries his best to bypass those who oppose such an internationalization by putting them in front of an accomplished fact.

An observer and political advisor appreciated in the transatlantic circles, told Q Magazine, under the protection of anonymity: „If Romania keeps in Washington an ambassador who does not have the support of the National Parliament, then it’s just its problem. If, however, the Romanian Army is under the command of a Chief of Staff of the Armed Forces not supported by the Romanian Government, then it’s a problem for the entire alliance (NATO) and the alliance will not remain passive.”

Saving the army (also) Depends on GENERAL CIUCĂ

Making the Romanian Army the object of domestic political games and destroying its credibility with NATO allies are really acts of high treason. We can only hope that they will remain without practical consequences.

Generalul Nicolae Ciucă salută reprezentanții asociaților militarilor în rezervă și retragere. Foto MApN, Eugen Mihai

In this regard, limiting the damage, which is to say avoiding the constitutional crisis which follows the illegal extention of the mandate of Chief of Staff of the Combined Armed Forces, depends precisely on General Ciucă, his professional conscience, his patriotism and his honor, which so far seemed to be beyond any doubt. By rejecting the illegal extension of his mandate, he is the only one who can immediately and unconditionally take the army out of the political struggle in which the President of the Republic is ready to sacrifice it. He can do it with a unilateral act that cannot be refused – the resignation (of honor).

Sooner or later he will leave the army’s leadership. It is one thing to do it as a gesture of honor and a very different thing to do it as a result of a decision of CCR and at the request of our  foreign allies, or perhaps even as a consequence of a criminal procedure started by the Military Prosecutor’s Office against him.

Only by his resignation, from the victim of an anti-national political game, general Ciucă can become a national hero. The alternative is complicity. That would be tragic to all: the army, the country, the alliances, the government, the general who is used in a cynical manner, and even, ultimately, to President Iohannis.

On several occasions general Ciucă stated, including to Q Magazine, that “his only loyalty is to the country and the army.” I hope that he will be able to prove in these difficult moments the sincerity of such statements by bringing his actions to the level of his speech.