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The Challenges and Formative Moment of Romanian Semi-Presidentialism.

The problematic nature of semi-presidential regimes has been thoroughly analyzed in comparative politics. That is why the popularity of semi-presidentialism in post-communist Europe is still surprising, at the same time contributing to its research appeal. This paper has a dual scope: first, it examines the challenges of Romania's semi-presidential constitutional design, with a focus on the area of foreign policy decision-making; second, it unpacks the formative moment of Romania's political system, underlining the contextual elements that were at play when drafting the post-communist Constitution. The discussion begins with an overview of the key literature on semi-presidentialism and its main issues reflected in the Romanian model.

Then the study takes a closer look at the constitutional prerogatives for foreign and defence policies, where the complicated interconnection between the three state pillars (presidency, cabinet, parliament) makes it very difficult to establish which institution is the primary authority. To understand the tightly interwoven chain of constitutional powers, it is necessary to consider the turbulent events surrounding the newly democratic Romanian regime, together with the prevalent meanings that circulated during constitutional debates and which ultimately impacted the final version of Romanian semi-presidentialism. The arguments are brought together within the concluding remarks.

Overview of Semi-Presidentialism and Its Romanian Challenges

In the literature on comparative constitutional engineering, semi-presidentialism has been viewed as a hybrid political system or a middle ground between the two opposite sides: parliamentary and presidential government. Parliamentarism and presidentialism represent pure models of political executives, where the main powers lie either with the prime minister and cabinet (accountable to parliament), or with the directly elected president. As a mixed format, the semi-presidential system embraces the strength of centralized government and the allure of democratic legitimacy, at the same time trying to deal with the weaknesses of both presidentialism and parliamentarism. These issues are also a reason why the concept has been prone to definitional difficulties (Shugart, 2005).

Duverger has introduced the analytical category of semi-presidentialism, while examining the constitutional layout of the French fifth republic - "[a] political regime is considered as semipresidential if the constitution which established it combines three elements: (1) the president of the republic is elected by universal suffrage, (2) he possesses quite considerable powers; (3) he has opposite him, however, a prime minister and ministers who possess executive and governmental power and can stay in office only if the parliament does not show its opposition to them" (Duverger, 1980: 166). Semi-presidential systems differ in terms of how powerful the president is, hence the classification of "figurehead presidencies", "balanced presidency and government" and "all-powerful presidencies" (Duverger, 1980: 167).

Yet Duverger's definition has been regarded as ambiguous because scholars disagree about what constitutes a clear model of semi-presidentialism and the actual number of such state constitutions worldwide (Elgie, 2005: 100). In this respect, the second criterion appears to be the most problematic since the notion of a president having "quite considerable powers" is vague.

Linz has circumvented the problem by succinctly describing semi-presidential regimes as those which "have a president who is elected by the people either directly or indirectly, rather than nominated by parliament, and a prime minister who needs the confidence of parliament" (Linz, 1994: 48). Elgie has aimed to exclude "the opportunity for subjective classifications" altogether by advancing a more nuanced definition - "[a] semi-presidential regime may be defined as the situation where a popularly elected fixed-term president exists alongside a prime-minister and cabinet who are responsible to parliament" (Elgie, 1999: 12-13).

Sartori has also expanded on "the common core" or main traits of semi-presidentialism - "(1) the head of state (president) is elected by popular vote - either directly or indirectly - for a fixed term of office; (2) the head of state shares the executive power with a prime minister, thus entering a dual authority structure whose three defining criteria are: (3) the president is independent from parliament, but is not entitled to govern alone or directly and therefore his will must be conveyed and processed via his government; (4) conversely, the prime minister and his cabinet are president-independent in that they are parliament-dependent: they are subject to either parliamentary confidence or no-confidence (or both), and in either case need the support of a parliamentary majority; (5) the dual authority structure of semi-presidentialism allows for different balances and also for shifting prevalence of power within the executive, under the strict condition that the 'autonomy potential' of each component unit of the executive does subsist" (Sartori, 1997: 131-132).

Besides the definitional difficulties, political scientists caution that a semi-presidential model presents many risks. Linz argues that it associates the most prominent "perils of presidentialism" with an additional unique drawback; such perils include the high stakes and polarizing effects of zero-sum presidential elections and the danger that a president endowed with a direct mandate from the people might be inclined to interpret his powers in an expansive or even authoritarian manner (Linz, 1994: 55-59). The additional drawback points to the acute possibility for conflict between the president and prime minister, which comes from the dual democratic legitimacy (Linz, 1994: 55). The dual executive does not function according to predetermined and predictable patterns. It can present good executive coherence and cooperation, when the hierarchy between the two offices is clearly established (Suleiman, 1994: 139).

Nevertheless, a serious institutional crisis is possible and even imminent, especially if the elections highlight a legislative majority with a different political agenda from that of the president. Skach (2006: 15) notes that the "tensions between the president, the prime minister and the legislature are inherent in the structure of semi-presidentialism, and are therefore permanent" (cited in Dimulescu, 2010: 106). She also identifies three types of semi-presidential government depending on their parliamentary support.

First, in a consolidated majority government, both the president and premier benefit from legislative backing. Second, in a divided majority government, the president faces a parliament dominated by an opposing majority. Third, a divided minority government displays no evident and solid parliamentary majority due to "shifting legislative coalitions and government reshuffles" (Skach cited in Dimulescu, 2010: 106). The conclusion is that even the best case of a consolidated majority government might be subject to grave crises, which can turn into institutional deadlock if the two executive heads do not reach an agreement or their relationship deteriorates (Skach, 2006: 16).

In spite of the potential conflict inside the executive branch, semi-presidential constitutions have been a popular choice among the post-communist European states after 1989. Romania is not an exception and fits Elgie's conceptualization of semi-presidentialism, with a directly elected president for a fixed term and a prime minister accountable to parliament. Romania's Constitution shares many similarities with that of the French fifth republic. The traditional friendly relations and cultural affinity of the two states played an influential part in the drafting process.

For example, the set up and links between central and local administrations reflect the French approach, specifically how the regime functioned before President Francois Mitterand's reforms in 1982 (Verheijen, 1999: 197). The Romanian legal culture has been characterized by "an importing mentality" and elites were "tempted to appeal, more or less rationally, to constitutional transplant", rather than find local solutions (Gutan, 2012: 276). The members of Romania's Constitutional Drafting Commission eventually adopted a variation on French semi-presidentialism, in which the most significant difference is the limited powers of the Romanian president.

The 1991 constitutional drafters envisioned the state's post-communist system as a "limited or parliamentarized" version of semi-presidential government, where the general objective was to increase the decision-making role of other institutions, particularly parliament (Calinoiu, Duculescu & Duculescu, 2007: 216). Sartori (2002: 10) further explains that "the Romanian political system is parliamentarian characterized by a strong head of state (but who is not strong enough to change the parliamentarian nature of the system) and whose strength derives from popular legitimacy, but also from several reinforcing constitutional provisions" (cited in Dimulescu, 2010: 111).

Shugart (2005: 9) has categorized the Romanian constitutional design as "premier-presidential", where the president is elected by popular vote and has the right to appoint yet not dismiss the prime minister, who is accountable only to parliament. Considering the cabinet's dominant position in directing governmental policy, the system is institutionally semi-presidential but was expected practically "to function at latitudes closer to parliamentarianism" (Gutan, 2012: 280).

However, in their quest to strengthen parliamentary prerogatives, the constitutional drafters have created a complicated but unclear semi-presidential arrangement. Mungiu-Pippidi has underlined the inherent problems of the Romanian Constitution, where in practice there is no clear separation of powers between and within state institutions. She views the political system to be "overloaded with checks and balances to the point of deadlock" and prone to institutional conflict in areas of joint responsibility (Mungiu-Pippidi, 2002: 42-43).

Other scholars have remarked on the potential instability of Romania's semi-presidentialism and its unclear constitutional provisions, in which parliament actually has a secondary contribution in the decision-making process (de Waele, Soare and Gueorguieva, 2003). The diminished role of parliament is caused by the government issuing emergency ordinances on a regular basis, which at least temporarily bypass the legislative body and become law until the relevant chamber of parliament makes a decision (Dimulescu, 2010: 112).

Metaphorically, the rapport between the major Romanian political actors has been portrayed as follows: "[t]he constitutional framework (...) confronts a president of the republic, with a strongly outlined judicial status, and a parliament which can be dissolved only in exceptional circumstances. It goes without saying that such a constitutional regulation mirrors the principle of separation of powers. This narrow separation is softened by the fact that between these two bodies, which do not depend on one another, has been placed a cushion: the government, a scapegoat, designed to be the sole possible victim in the clash between two titans" (Draganu, 1998: 232).

In such an arrangement, the president sits uneasily as his mandate and political agenda voted by the electorate cannot be implemented without the government's agreement and help. There is "incoherence between the high political legitimacy of the popularly elected president and the number and importance of his constitutional powers" (Gutan, 2012: 281).

The reasons for this incoherence and the general diversity of semi-presidentialism go back to Elgie's framework, who draws from Duverger to underline three variables that explain why semi-presidential systems operate in varied ways: "the constitutional powers of the major political actors; the events surrounding the formation of the regime; the nature of the parliamentary majority" and its relationship with the president (Elgie, 1999: 15-16).

Although he distinguishes between the degrees of presidential power ("figurehead", "balanced" and "all-powerful"), Duverger (1980: 179) stresses that constitutional law and political practice do not necessarily coincide. The constitutional rights of state institutions are only "secondary compared to the other parameters" like events around the drafting of the constitution and the nature of parliamentary majorities (Duverger, 1980: 179).

The second factor - events surrounding the regime's creation - is contextual and "helps to engender national differences that persist over time and which can distort the operation of the set of de jure constitutional rules" (Elgie, 1999: 17). In Duverger's opinion, the third variable - relationship between the president and legislative majority - accounts to a large extent for the operational variety of semi-presidentialism, as the nature of a parliamentary majority conditions how powerful the president can become de facto (Duverger, 1980: 186).

All three factors or variables have impacted on the dynamic of Romanian politics and contributed to its specificity. Here the analysis focuses on the pivotal "formative moment" of 1989-1991, which features the emergence of Romania's post-communist system: constitutional prerogatives and the contextual elements.

The core dilemma is that the Romanian constitutional system presents problems such as the lack of a clear delineation between the powers of the state pillars (presidency, government and parliament), potential institutional conflict in areas of joint responsibility and an overload of checks and balances that can relatively easily lead to political deadlock. These aspects are most obvious when trying to identify who is the primary decision-maker regarding the state's foreign policy.

The president has a wide range of prerogatives related to foreign affairs and national defence (Constitution of Romania: articles 91, 92). Still, if the presidency wishes to issue a foreign policy or national defence act, the latter needs to be counter-signed by the prime minister (Constitution of Romania: article 100.2). The government also ensures "the implementation of the country's internal and foreign policy" (Constitution of Romania: article 102.1). The president signs an international treaty "on behalf of Romania", yet the document has been "negotiated" by the government; then the treaty is submitted to parliamentary ratification (Constitution of Romania: article 91.1).

This reflects a tightly interwoven chain of decision-making, in which neither state authority is able to formally take command of Romanian international relations. So the president can have a foreign policy initiative, but cannot impose it without the government's consent and legislative approval. As Gutan (2012: 280) pointed out, the Romanian president was "designed to be a head of state endowed with relatively limited institutional autonomy (...) with numerous executive and legislative controlled powers, in a manner akin to parliamentary regimes, with predominantly mediating powers which were supposed to be exercised in the impartial, equidistant and apolitical spirit of a constitutional monarch or a moral magistrate".

Another good example for ambiguous and overlapping constitutional rules originates in the government-parliament relationship. Parliament is "the supreme representative body of the Romanian people and the country's sole legislative authority" (Constitution of Romania: article 61.1). But the government has the right of "legislative delegation" and can adopt emergency ordinances that at least temporarily bypass parliament; such a procedure is constitutionally restricted to "extraordinary circumstances", when the cabinet can pass urgent laws that have immediate legal effect without being first sanctioned by the legislature (Constitution of Romania: article 115).

The emergency ordinances can be contested at the Constitutional Court, which may overrule a legal act that has already been put into practice. A persisting problem in Romania is that "most post-communist executives have abused the right of legislative delegation and especially the use of emergency ordinances, irrespective of their extraordinary character" (Dimulescu, 2010: 117).

Why did the Romanian constitutional drafters opt for such a tightly interwoven chain of decision-making in the post-communist democratic system, particularly within the dual executive represented by the president and cabinet? If one looks at the French fifth republic that was an inspiration for Romania's semi-presidentialism, the president of France is in charge of the state's foreign policy.

So where did the need to further restrict the constitutional powers of the Romanian presidency come from? To answer these questions, the formative moment of Romania's semi-presidential model is meaningful in understanding how certain contextual factors like the turbulent transition to democracy and problematic historical precedents have decisively influenced the regime's constitutional design.

The Formative Moment of Romania's Semi-Presidential Regime

As a starting point, the notion of "formative moment" encapsulates certain periods in the life of individuals and societies when pre-assumed issues come under scrutiny. In "normal times" particular meanings and interpretations are simply taken for granted, while formative moments should be seen as favourable times which allow new understandings to emerge and new projects to be established (Ringmar, 1996: 83). Profound transformations are more likely, because formative moments often appear as times of "unprecedented poetic freedom", when actors believe they can "become whatever they want to be" (Ringmar, 1996: 86).

To understand why and how the Romanian Constitution emerged, the contextual elements are highly significant, since historical precedents and the state's transition to democracy have shaped the configuration of the post-communist political system. Romania did not have a good long-term democratic record even before the installation of communism. After 1866, Romania was a constitutional monarchy and maintained this form of government until the last king was forced to abdicate by the communists in 1947. The functioning of the monarchy depended on the king's dominant personal attributes and hence alternated between democracy and authoritarian rule (Gutan, 2012: 289-291).

Linz and Stepan (1996: 347) have depicted the Romanian communist dictatorship to be "sultanistic", meaning totalitarian with an extreme kind of patrimonialism, where the supreme leader treated the country as his personal domain. Romania illustrated a distinct example of closed-off society strangulated by nationalist communism and was the only central-eastern European state that went through a violent revolution to restore a democratic regime in 1989.

There was widespread violence associated with Romania's revolution and questionable transition to democracy: the large number of victims during the popular protests in Timisoara, Bucharest and other cities; the execution of dictator Nicolae Ceausescu, alongside his wife and co-ruler Elena Ceausescu (25 December 1989); the Jiu Valley miners' extremely violent actions in Bucharest (June 1990 and September 1991). Such turbulent events contrasted with the peaceful transitions occurring in the rest of central-eastern Europe (Salajan, 2017).

Taking each one in turn, in December 1989 Romania experienced a painful revolution and began a difficult transition to democratic rule. Small-scale protests, repressed by the regime's security forces, turned into mass demonstrations that eventually removed Ceausescu's dictatorship (Siani-Davies, 2005). On 23 December 1989, protestors gathered in Bucharest were shot by unidentified "terrorists"; thousands of people were killed during those street fights (Gallagher, 1995: 96).

Two days later, the Ceausescu couple were accused of committing genocide against the Romanian people and sentenced to death by an extraordinary military tribunal. Their execution was seen as a "purifying act" for Romanian society, until the promises of the new regime did not live up to the population's expectations (Gallagher, 1995: 96).

There is still no definitive answer as to whether Romania went through a revolution or a coup in late December 1989. One argument says that a coup orchestrated by second rank communists managed to "hijack" the Romanian revolution (Geran Pilon, 1992: 4). Another opinion is that Ceausescu's rule could not have been abolished without a wide popular uprising; a coup would simply not have been sufficient to overthrow the dictatorship (Verdery and Klingman, 1992: 121).

Amidst the disagreement about what prompted the removal of communism, the revolution clearly consolidated Romania's exceptional case within the "velvet" transitions of central-eastern Europe and shaped the state's transition to democracy (Roper, 2005: 60). In the resulting political turbulence, it cannot be denied that the experienced "second-rank communist officials managed to fill the power vacuum by emphasizing their revolutionary mandate" and organized a "popular front" called the National Salvation Front - FSN (Dimulescu, 2010: 108).

They argued having a vital part in the revolution to gain legitimacy from the population, while condemning Ceausescu and not the dictatorial regime itself. The phenomenon is known as "the capture of a revolution" by former communists, who remained unchallenged in their discourse and actions during the initial moments of transition (Linz and Stepan, 1996: 345).

In February 1990, although it was supposed to be a provisional body ensuring government until the first democratic elections, FSN converted into a political party and its leader Ion Iliescu became Romania's first post-communist president. They had all the advantages to win, since civil society and other political groups were organizing slowly. The early timing of elections - May 1990 - was also useful in limiting the possibility of opposing political parties to be a substantial threat (Karl, 2012: 95).

Despite its semi-authoritarian tendencies, FSN had to prove a commitment to democracy and political pluralism. Between February and May 1990, the Front was replaced by the Provisional Council for National Unity (CPUN) - a governing entity that contained members from FSN and the newly reformed historical political parties, which had been outlawed by communists in 1947. These were the National Peasant and Christian Democratic Party and the National Liberal Party.

CPUN was viewed as an idea deriving from Iliescu's concept of "original democracy", where "narrow party positions are avoided in favour of 'unity in mind and action'"; it was an efficient means through which the future president consolidated his candidature among public opinion (Culic, 2002: 68). Iliescu was definitely charismatic and held wide popular appeal, thus he was expected to represent a strong president.

In the first years after 1989, Iliescu was "able to impose himself as the principal element of stability in the context of unstable parliamentary majorities, with government action otherwise paralyzed by the absence of a clear majority and deprived of leading political personalities" (Frison-Roche, 2007: 72-73). He was also supported by the FSN (later transformed into the governmental party), which had irrevocably marked Romania's transition to democracy.

The new constitutional regime was established gradually, starting on 14 March 1990 with the adoption of Decree-Law 92. Apart from laying out the foundation for the national democratic elections in May 1990, Decree-Law 92 configured the basic premises of Romania's institutional framework. After the May elections, the Constituent Assembly (Parliament) had a double mandate - "to draft the new constitution and to adopt the most urgent economic reform legislation" (Verheijen, 1999: 195). The general semi-presidential principles advanced by Decree-Law 92 were developed and a constitution draft was presented to the Constituent Assembly in July 1991. Following a few months of parliamentary deliberations, the Romanian Constitution project was approved via referendum in December 1991.

To a certain extent, the hegemonic nature of FSN managed to "control the constitution making process and to tailor the fundamental law according to their political and institutional interests" (Dimulescu, 2010: 109). Yet the formative moment was complex and other forces came into play as well. Drafting the new political system was an opportunity to put forward "the hopes of the Romanian people" and to deal with "constitutional anxieties" such as the historical obsession for national unity and territorial integrity, an aversion towards monarchy coming partly from the communist indoctrination and, most of all, a fear of authoritarianism (Gutan, 2012: 281).

In 1989, Romania had just finished "a disastrous republican experiment", a dictatorship whose later stages emulated the North Korean model of personality cult (Gutan, 2012: 281). The communist Constitution of 1965 granted President Ceausescu extensive prerogatives that were enhanced by the sole ruling party and the ferociously repressive apparatus, giving him unrestricted control over the state and society. He was periodically reelected by the Great National Assembly, which in turn had been the unchanging outcome of unfree votes.

Consequently, one of the revolution ideals was about promoting free elections that would give true legitimacy to the exercise of political power; and this was reflected in the Constitutional Drafting Commission, where the majority of members resonated emotionally rather than rationally with the direct election of the president (Gutan, 2012: 282-283). A head of state voted by parliament was associated with the communist dictators. Moreover, the constitutional debates brought to the surface a number of fears with historical origins that predated communism.

As a member summarized during the deliberations, "[w]e had an absurd parliamentary system, due to the Constitution of June 1866. After June 1871, Carol I switched the parliamentary system to an authoritarian regime. The monarch appointed the head of the executive power. In this period, Romanian political life underwent great instability. Many cabinet changes were made (...) So Romania started with a mixed parliamentary system and reached an authoritarian monarchical system" (Lazarescu cited in Iorgovan, 1998: 35). There were two strikes against parliamentarianism, because of the constitutional monarchy and communist dictatorship.

Having already decided on a directly elected president, the most suitable constitutional arrangement for Romania was either presidentialism or some type of semi-presidential system. The FSN members of parliament had a very comfortable majority in the Constitutional Drafting Commission. It was surprising that they did not push for a truly powerful presidency, even though it would have certainly benefited Iliescu and the governmental party.

A possible explanation for this restraint is that the "abuse of power under the previous regime was fresh in the memory of politicians of all political convictions and it was also obvious that the adoption of a model with a strong president was likely to be rejected by the people in the referendum" (Verheijen, 1999: 197). A United States inspired presidential format was rejected because it had the potential to personalize the power of the presidency - "[t]he presidential regime (...) is a bad memory. It can develop into an authoritarian regime, where the executive power rules. Therefore, we should choose a mixed system (...) We could opt for de Gaulle's model of the [French] fifth republic" (Lazarescu cited in Iorgovan, 1998: 35).

It is useful to note that there was no historical precedent for a semi-presidential design in Romania. France was a reference point and source of inspiration, but the constitutional drafters did not resort to mimicry. Regardless of the political affiliation, they were anxious about the powerful presidency of the French fifth republic and made sure to constrain the presidential institution as much as possible in the Romanian context: "[t]his is our concern, we all feel it, the need to avoid another Carol II, a Ceausescu (...) Everyone agrees with a semi-presidential republic, yet one very well regulated to cut off any excessive authoritarian initiatives, as they occur in dictatorships" (Motiu cited in Iorgovan, 1998: 35).

The prevalent discourse during the constitutional debates showed a distinct lack of interest in the advantages of semi-presidentialism for Romanian democracy, as well as in the prerequisites necessary for it to function reasonably well. The Constitution drafters were influenced by historical factors and experiences of past regimes, being preoccupied with what the post-communist system should not be, rather than what it should accomplish.

Barbu (2004: 157) has summed up the situation eloquently - "the debates that should have been conducted on a solid institutional analysis, on the study of constitutional traditions and Romanian political culture, on the legislative strategies of transitional societies, on a macroeconomic calculus, on comparative law and politics, on empirical studies and surveys, have concentrated exclusively on ideology and on mystifying the values of the past".

Concluding Remarks

A survey of the literature on comparative constitutional engineering highlights that semi-presidentialism has sparked a variety of opinions regarding its appropriate definition. There is consensus, however, on the fact that semi-presidential regimes tend to foster tensions and even conflicts within the dual executive, especially when the directly elected president and the cabinet accountable to parliament have diverging political agendas.

A widespread choice in post-communist Europe, the semi-presidential model contains inherent vulnerabilities that have proved to be even more challenging in the Romanian case. It hence prompted this article to employ the notion of "formative moment", which helps to reevaluate where exactly the problematic nature of Romania's semi-presidentialism comes from. The formative moment lens is useful in showing the factors that have impacted on the Romanian constitutional system in the early 1990s.

The events surrounding the emergence of post-communist Romania began with a violent revolution and a questionable transition to democracy. The large number of victims fallen in unclear circumstances and the disappointing trajectory of FSN contributed towards the strong political turbulence. Even so, the prevalent meanings in the constitutional debates indicate a deep seated fear of authoritarianism due to Romania's historical experiences. The only desirable solution was a semi-presidential arrangement inspired by the French fifth republic, but with a restraining twist.

The Romanian presidency had to avoid any authoritarian potential, which translated into limited or codependent constitutional prerogatives, including in the area of foreign policy and national defence. Considering that government and opposition members agreed on this during the constitutional discussions, it is difficult to say whether the subsequent challenges of Romanian semi-presidentialism could have been avoided at the drafting stage.

The outcome was a convoluted design with several key problems: a president with direct popular legitimacy but without extensive executive powers, a political system that should operate like a parliamentary republic yet not actually be one, a democracy that should somehow work even if it was prone to ambiguous responsibilities and institutional conflict or even deadlock.

The saddest realisation for an outside observer is that, even after two decades of democracy with plenty of good and bad experiences, political elites have not wanted or been capable of addressing the intrinsic challenges of Romanian semi-presidentialism. The mistakes of the past are perpetuated and reflected in recurring institutional conflicts at present, while future prospects remain dim.

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Loretta C. Salajan(*)

(*) Lecturer, PhD, "Vasile Goldis" Western University of Arad, Department of Social and Humanistic Sciences, International Relations and European Studies specialization, Email: l.c.salajan@gmail.com.

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Received: April 05 2019

Accepted: April 15 2019
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Title Annotation:ORIGINAL PAPER
Author:Salajan, Loretta C.
Publication:Revista de Stiinte Politice
Article Type:Report
Geographic Code:4EXRO
Date:Apr 1, 2019
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