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Constitution Irregular—Strike, Stroke, Stricken by the Court (EN)

Constitution Irregular—Strike, Stroke, Stricken by the Court (EN)

. 3 min read

I want, and I go at great lengths, to preserve and cultivate my naïveté–at least in order to be able and uphold the presumption of innocence for policy-makers, as I prefer to blame bad decisions on incompetence, rather than malevolence. But every once in a while I feel defeated in the face of ignobility 🙁 How else would you label the attitude of public officials who twist and bend reality just to make an (illogical) argument supporting their own incompetence–or malevolence, as it were?!? To my mind, one of the strongest features of the law is predictability: behavior, compliance or enforcement, as well as adjudication should be predictable at all times! I submit to you that legal arguments should also be predictable, within reason, in court proceedings and decisions… That would be regular rule-of-law, with Justice being an effective check or balance to either or both the Executive and the Legislative, and not discretionary power at its peak…

But the Constitutional Court strikes again! Two decisions, extremely controversial, just one week apart (April 16 and 22), with no predictability whatsoever! Are the Constitutional Court justices ignoble when they bend legal arguments to subdue the text of the Constitution?!? Nay, ignoble is allowing the perception that the Court had been captured by political interests! Anti-corruption literature speaks of state capture as the worst possible scenario of private-interest groups subjugating the state apparatus and public resources, in order to serve their own objectives. But they usually refer to capturing political parties and/or the Executive… Can anybody fathom the effects of capturing Justice? But there’s more: the Constitutional Court is above mere Justice–it represents the ultimate, supreme umpire of the political, social, economic and legislative game. Capturing the Constitutional Court may easily ensure absolute impunity, especially when the Fundamental Law may be twisted and bent or re-written in the most irregular and unpredictable ways!

With a swift stroke, last week, the Court ruled out an amendment to the asset control law 115/1996. The old text of article 18 was clearly unconstitutional, while the proposed amendment was somewhat useless, since it only managed to re-heat the political debate on whether unjustified wealth could be confiscated or not. Whether useless or not, the proposed text managed (although was not intended) to strike out the provisions running against the constitutional provision that only illicit wealth should be confiscated. Instead, it introduced a redundant provision that only courts may individualize unjustified goods from the unjustifiable assets that remain under the absolute presumption of licit origin. While deciding (for irregular reasons and outside of the scope of the case’s arguments) the proposed text ran against the Constitution, the Court maintained the old text, clearly breaching its own mission! The situation is not necessarily without solution, since this article 18 may still be mended in the careful public debate proposed by PM Tăriceanu and Justice Minister Predoiu.

But what are we to make of this week’s decision of the Constitutional Court?!? Seemingly stricken by a virus of absolute vanity or omnipotent infallibility, the Court denies the Parliament’s role of sole legislative body! [The substance of the case, regarding ministerial responsibility, is not important–the text invoked may be easily deemed unconstitutional, but for different reasons than explained in the Court’s decision.] The twisted argument goes along the lines that a decisional chamber may not adopt “significant changes” outside the scope of the reflection chamber’s opinion and/or outside the purport of the Cabinet’s proposal. As if a second reading may never reach “better” decisions than the first?!? As if the differentiated, specialized competences of the two Chambers stem not from this Constitution?!? As if Parliament may not exercise oversight and control over the Cabinet?!? The Court’s argument glorifies a wrong interpretation of bicameralism and sacrifices the Parliament’s essential features in a liberal democracy under rule-of-law 🙁 This problem can no longer be solved, since the Constitutional Court decisions are definitive, irrevocable and directly applicable–the damage is done, and the effects are unpredictable!

If it pleased the Court, I would agree that our Parliament is weak, non-representative, and our Cabinet inept, illegitimate–as already explained in one of my earlier dilemmas. But the Constitutional Court may not re-write the Constitution! One effect may be that Parliament is no longer the sole legislative body, since the Court may legislate in this manner, by means of irregular decisions. Another effect may be that minority political groups in Parliament may use the Court to overrule majority decisions, any time they please–provided they’d already captured the Court, of course! A third effect could be that, now, Cabinet may overtly disregard the will of the Parliamentary majority when significant amendments are adopted to Government Bills. A possible fourth effect is that Parliament might no longer be able to overrule a veto from the President?!? Finally, a new Constitution might be needed?!? You’ll be the judge as to who benefits most from the Court’s irregular conjugations…

Let me know if I’m right to talk about Court capture, and who you think may be the ignoble instigators, perpetrators, accomplices and executioners joined in this despicable matrimony–or forever hold your peace!