17 August 2008

Rule-of-Law, Rest(s) In Peace!? (EN)


Let's have a black celebration
Black Celebration
Tonight
To celebrate the fact
That we've seen the back
Of another black
Day...
An intro to journalism class I audited some 10 years ago taught me that "nobody cares about yesterday's news--reportedly, Londoners say that yesterday's paper is only good to wrap the fish and chips of today..." But I do care about yesterday's news, as it provides the context and, possibly, the motivation of today's decisions, actions or events... Do you remember this cover of the Economist, back in June? Think of that poor sparrow to depict Romania's aspiration for genuine rule-of-law, while the arrow is the Parliament of Romania. You may still keep the EU flag as the target on the sparrow's chest, as it would picture the place of Romania's Judiciary in the EU--buried 6 feet under; under the nerve of our parliamentarians, under the twisted sense of rule-by-law, under the incredibly original interpretation of parliamentary immunity, under the utter and complete disregard for the prevention of conflict of interests. Under these circumstances, Romania's rule-of-law rests in peace, apparently awaiting its funeral--but was it killed this week, or simply been in a coma for a long time?!? What's the context, what's the cause, what's the motivation?!?

On Monday, minister Predoiu announced his proposal for a new Chief Anti-corruption Prosecutor at DNA, in an attempt possibly meant a) to avoid handling a hot potato, and b) to stimulate decision-makers and legislators in reaching consensus over justice and anti-corruption reforms (JAR). Tuesday, President Băsescu summoned all political leaders, discussed and convened that Romania would make all efforts necessary to reach a common position regarding JAR, in order to put an end to CVM (MCV), the hEUmiliating monitoring mechanism by July 2009. Wednesday, Parliament decided that big fish cases (former PM Năstase and former minister Mitrea) may not be investigated by DNA's prosecutors, in spite of Predoiu's invitation, Băsescu's aspiration, or even their own word, committed live in front of TV cameras, and reinforced, by request, from several civil society organizations... Thursday, one very active professional association of judges announced their intention to sue Parliament on the administrative charge that parliamentarians do not have the prerogative to block criminal investigations. Thank God it's Friday, and nothing else happened, yet... Although I'm terrified at the possibility that some spokesperson from our retrograde CSM would make yet another ill-inspired or dormant statement, since today is the Dormition of the Virgin Mary...

The overall impression is that we have a really odd constitutional framework, since all of these things happen in close connection with constitutional provisions. To begin with, it's impossible to tell whether prosecutors are executive agents, subordinated to the minister of justice, or independent magistrates, only responsible before the CSM--we have a confusing mixture that clearly satisfies none of the parties involved, especially when analyzing appointment procedures for top prosecutorial jobs. Then, we have a semi-presidential system that imposes severe limitations on the agenda-setting powers of the President, in spite of his direct election and highest representation quota--the same limitations are visible, though for different reasons, with the Parliament and Prime-Minister, especially when decisions regard the Judiciary, where consent from CSM is necessary. Since 2003, parliamentary immunity has been reduced, and the same happened with ministerial immunity, since 2005--but when we get down to former ministers that currently serve as parliamentarians, the situation gets so complicated, based on residual provisions of the 1991 Constitution, that minister-MPs actually enjoy a meta-immunity almost placing them above the law.

Therefore, I'm thinking that rule-of-law died a little bit every day, at least since 1991, with poison being slowly dripped through the veins of the Romanian justice system :( The final blow coming from Parliament on Wednesday counterpoised at least two major principles placed without the Judiciary, but with the utmost bearing thereupon--parliamentary immunity, somewhat coupled with presumption of innocence vs. prevention of conflict of interests, somewhat coupled with separation of powers; rule-of-law is (was?) the victim in this battle, via the principle of judicial independence. I still believe that Parliament needs some radical, conceptual reform--not just here, but everywhere! I think parliamentary and/or ministerial immunity is a concept of the past, no longer needed, no longer relevant. If, however, immunity is deemed necessary, at least have someone else decide on the issue--maybe the Constitutional Court, but not the parliamentarians themselves! Otherwise, the conflict of interests kicks in, becomes so crystal clear, that common sense should stop them parliamentarians from making any decision! To wit, in the Wednesday case, one cannot really discriminate whether MPs cast their vote in due representation of their actual constituents, or in representing their private interests against some other potential investigations...

Maybe there is hope?!? The judges' bold move of yesterday suddenly begs the question: is it appropriate for a judge to charge a decision of the Parliament, to the benefit of a prosecutor that would, eventually bring the case to court? Probably not, if you put it that way... But what if this (generic) judge is simply protecting the independence of the Romanian Judiciary, questioning the Parliament's prerogative, the parliamentarians' representativeness and the decision-makers' potential conflict of interests?!? Of course this case will land in the lap of the Constitutional Court, and I don't expect them to make a just ruling :( Of course this case will backfire, and the CSM's judicial inspection will investigate the professional integrity of the judges who initiated the lawsuit :( Of course I don't trust the CSM's verdict, and I expect that some of these judges will finally appeal to ECHR, in order to be reinstated :( But only such course of action may, eventually, open up the eyes of our politicians, point out to the fallacies and loopholes in the constitutional text, and ultimately redeem rule-of-law from its current comatose rest...

But I'm not ready to write an obituary for Romania's rule-of-law, for though I think it rests, I can see that it's not dead! I believe that Dormition is followed by Assumption! And I trust the final Judgment will find our MPs (especially the Constitution-makers) guilty of the mortal sin called lack of accountability under the rule-of-law! I'm optimistic in my strong belief, so I will simply hang in there, throughout this Black Celebration :)

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