Romania’s Constitutional Conflict Explained (EN)

CCR guarantees the supremacy of the Constitution in Romania. CCR is a political-jurisdictional body of 9 members that are appointed by the two Chambers of Parliament and the President (3 each, for non-renewable terms of 9 years, staggered such that one third of the body renews every 3 years). CCR is separate from the Judiciary, and plays the role of ultimate arbiter among the three branches of government. CCR has two fundamental attributions under the Constitution:

• to review the constitutionality of legislation (negative legislative power), and
• to resolve conflicts between public authorities (namely, institutions that are specifically named in the Constitution).

In fulfilling its constitutionality review function, CCR may be called to intervene

• ex ante—CCR reviews acts of Parliament (or emergency ordinances, in some very limited cases) before they start producing any legal effects;
• ex post—CCR reviews the practical applicability of laws (and ordinances) in cases where a judicial lawsuit is pending in a regular court of law.

If CCR finds and article or an entire law to be unconstitutional ex ante, Parliament takes back the text to fix it, with no time constraints. If the same happens in ex post review, that specific article or law is suspended for 45 days. If Parliament fails to fix or amend that article or law during that term, the unconstitutional part gets legally abridged (occasionally, the Cabinet of Ministers steps in, regulating ex post situations by emergency ordinances—a form of delegated legislative powers).

In constitutionality review, CCR has full discretionary power on the extent of the review. Namely, you may challenge that article 54 of the law is unconstitutional, but CCR may expand the scope of the review to other articles in the same law, and rule those unconstitutional, as well. However, CCR may not expand the scope of the review to other laws, outside what was initially challenged.

In the conflict resolution component of its activity, CCR checks whether one party to the conflict has undermined (by action or inaction) the constitutional attributions or prerogatives of the other party to the conflict. Of course, there are several technicalities to check beforehand, in order for the case to be admissible. Once the case is admitted, CCR rules whether the conflict really exists:

• if CCR rules there was no conflict, the interpretation is that similar behaviors are permitted in the future;
• if CCR rules there was a conflict, it also has to interpret the limitations, so that similar behaviors do not happen again in the future.

In conflict resolution, CCR has full discretionary power to instruct the party at fault on how to correct the situation and how to prevent such situations from happening again in the future. Until now, CCR has refrained from ordering an explicit behavior to a party at fault, and rather suggested what the party at fault should do.

There are two major arguments for CCR’s refraining from ordering specific solutions, deduced from doctrine and jurisprudence:

• if CCR ruled a specific behavior, it would seem to overstep into the purport of the Judiciary, more specifically that of the regular administrative courts;
• if CCR introduced a novel type of behavior, it would undermine the Parliament’s role of sole and supreme legislator, as guaranteed by the Constitution.

Romania has a specialized anti-corruption prosecution since 2002; the DNA got its current name after 2005. The chief anti-corruption prosecutor and the chief of the specialized structure against organized crime and terrorism have the status of adjuncts to the General Prosecutor. The 3 chief prosecutors are on almost equal footing, serve 3-year mandates (renewable only once), and have a similar appointment and revocation procedure, regulated by law: the Minister of Justice makes a proposal, the Judicial Council (CSM) reviews the merits of that proposal, and the President of the Republic approves or rejects the proposal.

On February 22, the Minister of Justice (Mr. Tudorel Toader) proposed that the chief-prosecutor of DNA (Ms. Laura Codruţa Kövesi) should be revoked, the revocation procedure being regulated in art. 54 of Law 303/2004. According to the regulated procedure, CSM reviewed the Minister's proposal, and on March 13 advised the President that revocation is unwarranted at this time. According to the same procedure, on April 16, the President (Mr. Klaus Iohannis) announced his decision not to revoke her. On April 23, CCR was asked to resolve the conflict between the Minister and the President. CCR made a decision on May 30, but the motivation is not yet published.

Minister Toader argued that President Iohannis undermined the constitutional authority of the Minister over the activity of the prosecutors, as provided in art. 132 of the Constitution. The President argued there was no conflict to be solved under the Constitution, but rather under the Law 303, and that would be a case for a regular administrative court, not CCR. In addition, the President argued there was no real conflict under the law either, since all parties involved (the Minister, CSM and the President) simply followed the regulated procedure—and the result must be accepted by all parties involved, according to the law.

CCR decided there was a constitutional conflict, and resolved that the President cannot evaluate the opportunity of the Minister's proposal, but only whether the legal conditions for revocation were met, and whether the regulated procedure was followed. Questions arise on this particular matter, since the CSM review argued that the Minister’s proposal didn’t meet the legal conditions required for revocation. Note that, under art. 133 of the Constitution, CSM guarantees the independence of justice. The CCR ruling seems to imply that CSM doesn't matter in the process, since the independence of justice only relates to judges, but not to prosecutors. Yet, since the amendments of 2003, the Constitution provides a somewhat equal footing for judges and prosecutors, in calling them both magistrates (thus, CCR jurisprudence dated before 2003 is irrelevant).

By the same CCR decision, the President seems obligated to simply rubberstamp the Minister’s proposal, rather than exercise the full decision-making prerogatives of the office, when appointing or revoking the chief prosecutors. In the second part of the ruling (as presented in the press release), CCR appears to order the President to change his decision of April 16, in the sense of outright revoking the chief-prosecutor. When the motivation will be published, we’ll learn whether CCR may have also ruled that the legal conditions for revocation were met, and the regulated procedure was followed, thus breaking the President's ruling on the opportunity of the revocation.

What seems to be wrong?

The first thing that looks wrong is that CCR took too broad an advantage of its discretionary powers, and may have deliberately conflated its two major attributions: conflict resolution and constitutional review. To be more exact, the prevailing opinion is that CCR should've ruled there was no constitutional conflict here, but could've signaled that art. 54 may be unconstitutional. Thus, CCR could’ve hinted to the Minister of Justice that he'd have a case, had he found a way to take a breach of that article to a regular court.

There’s also a question regarding the admissibility of the case, by way of the Minister’s proper standing in front of CCR. In his attributions concerning the Judiciary, the Minister should have addressed CCR either on his own (as an institution specifically named in the Constitution), or via the Judicial Council (CSM), where he’s an ex officio member. In contrast, CCR was addressed via the Prime-Minister, which would only be applicable if the Minister accused a conflict regarding the Executive attributions. Of course, the case wouldn’t hold water in the latter scenario, since the President and the Cabinet are both part of the Executive.

Leaving admissibility aside for a while, if CCR were to rule on a constitutional review of art. 54 from Law 303, it would probably find that article unconstitutional, as already indicated earlier this year, in Decision 45/2018. This may be the first wrong: CCR seems to have cherry-picked an issue from the alleged conflict, decided that a false constitutional conflict was a genuine one, then treated the issue as it would a constitutional review, ruled as if the regulated procedure were unconstitutional, and then repackaged the whole thing under the guise of a conflict resolution. Very Machiavellian.

What appears debatable?

Assuming the contention above is right, note that CCR has discretionary powers that are quite distinct in conflict resolution vs. constitutional review. Normally, CCR cannot interchange those powers and roles. It's not really clear whether CCR indeed has such conceptual limitations to its discretionary powers. Such interplay with the distinct roles and powers of CCR is unprecedented, and not even experts could agree on its validity. If this were indeed a "transgression," CCR might become a full participant, rather than an arbiter, in the political scene.

Another debatable thing is the CCR ordering the conduct of one party to the conflict. In so doing, does CCR chip away at the powers of the Judiciary, or of the Legislature? On the basis of the press release only, it seems that CCR ruled for the past (the President's decision of April 16), rather than the future. Such prerogative is normally reserved for the regular administrative courts, as part of the Judiciary, while CCR is not at all part of that branch of government, but rather an arbiter among all three. By the same token, it seems that CCR added a new rule to the game—the President's restriction to evaluate opportunity, and positive legislation is a power invested solely in the Parliament.

Here may lie the second wrong: If CCR may dictate against past decisions of public authorities named specifically in the Constitution, why stop at the President? By the same token, will the President be obligated to simply rubberstamp more decisions, from other public authorities, as well? What if CCR could now go beyond substituting administrative Justice (suspected above), and start also substituting criminal Justice? Unsanctioned, CCR could also substitute the Legislature or the Executive, not just the Judiciary. Both of these wrongs, even if taken individually, have the potential risk of turning CCR into an "oligarchy"; taken together, they induce the fear that Romania’s democracy, separation of powers and rule of law may come to an end.

What may be right, though?

CCR may have enough grounds to rule that the President should not be part of the procedure, at all. There is no constitutional provision that would explicitly warrant the President to appoint or revoke the chief prosecutors. This would be sufficient ground to rule that art. 54 of Law 303 is not fully constitutional, and that Parliament may legislate that procedure in more ways than one. Actually, CCR has already done that in Decision 551/2009 and, to some extent, in Decision 45/2018 (also mentioned above). An equally compelling argument may be construed for the President to be part of the procedure, but the conceptual confrontation is not necessarily of a constitutional substance.

What the Parliament, rather than CCR, should decide is how to reconcile some very specific texts of the Constitution:

• art. 132 states that prosecutors are part of the Judiciary, but they function under the authority of the Minister of Justice;
• art. 133 states that prosecutors are magistrates, on almost equal footing with the judges, as part of the Judicial Council (CSM);
• art. 125 says CSM is in charge of the judges' promotion and demotion, which means the same should apply to the prosecutors, by virtue of art. 133.

Apparently, the crux of the matter lies with the “authority” of the Minister, in art. 132. If Parliament decides that prosecutors are fully subordinated to the Minister, they should not be magistrates, should not participate in the Judicial Council, and the President would play no role in their promotion/demotion. In contrast, if Parliament decides that prosecutors remain part of the Judiciary, then the President may play a role in their promotion/demotion, but what is the extent of the Minister’s “authority”? From a strictly political perspective, such decisions would be too taxing on Parliament, while a CCR decision is swifter and more “beneficial” to politicians in the short run. Yet, the “quick win” at CCR may prove too hot to handle, if magistrates find a way to retaliate.

One other popular confrontation relates to defining “political control” over the prosecutors. How is it different if prosecutors are appointed or revoked by the Minister or the President, since both are political figures? One argument holds that there’s no real difference, but the Minister has a better standing simply because s/he may influence crime-fighting policies or priorities, according to the popular vote for a specific governing program. The opposing argument holds that, when s/he decrees appointments or revocations, the President acts as the representative of the State, in the name of the Law, as visible in the equal footing of (and appointment procedures for) the Minister of Justice, General Prosecutor and Chair of the Supreme Court, in art. 133 of the Constitution.

In the long run, however, Parliament will have to confront the reconciliation of the constitutional texts, or CCR will be called again to cut the proverbial knot. Hopefully, next time, CCR will also consider the relevance of the Bangalore Principles to our prosecutors. At this juncture, based on the CCR decision of May 30, Romania’s prosecutors are situated in a grey area between the Executive and the Judiciary: They are now subordinated to the Minister of Justice, in matters regarding appointment and revocation of top prosecutorial positions, but are expected to exhibit the status of magistrates, and depend on the Judicial Council for their careers. The silver lining is that such tension cannot last for too long, and we should see either an amendment to the Constitution, or a new piece of legislation clearing the air; alas, we may see yet another CCR decision, soon.

At systemic level, prosecutors may become directly subordinated to the Minister of Justice, being stripped of their apparent status of magistrates. This potential effect already created tensions within the magistracy. Most probably, CCR will be once again called to solve the problem—namely, to reconcile the effects of the May 30 decision with the combined effects of art. 132, 133 and 125 of the Constitution. A lot of political turmoil will ensue in the coming 6 months, with spill-over effects into the 100-year celebration since Romania’s Unification (1 December 2018), into the rotating presidency of the EU Council (first half of 2019), into the campaign for the European elections (May 2019), and definitely into the campaign for the Presidential elections (November 2019). Most probably, the conflict will be protracted into to the creation of a parliamentary committee for amending the Constitution, whose works will shape the campaign for the parliamentary elections (December 2020).

Closer in time, depending on the final wording of the CCR decision, the President is faced with the theoretical choice of not signing the revocation decree. In practical terms, however, the "nuclear" option of disobeying the CCR decision is simply off the table! Yet, if that happens, President Iohannis will see the end of his political career, in spite of the fact that he'd most probably win the impeachment referendum that would ensue. The biggest problem with the "nuclear" option is that he’ll be suspended by Parliament, for the duration of the impeachment referendum campaign. During that time, his seat would be occupied by Senate Chairman Tăriceanu, who would sign the decree, because the interim President has extremely few restrictions to exercising the attributions of the office. In addition, there is no clear political advantage for Iohannis in maintaining chief prosecutor Kövesi at the helm of DNA—only the political cost of ousting her appears very high.

The manner of the President’s obeying the CCR decision may be more cunning, though, as several options are available (the list below is not indicative of either preference or priority):

• he revokes Kövesi only after he secures a political guarantee that the next chief prosecutor at DNA is an equally independent and combative individual, such guarantee being pronounced publicly by the Minister and the chairmen of the political parties in the governing coalition; even better, such guarantee may be a sort of pact signed publicly in front of the President;
• he issues a revocation decree that explicitly states the date some time in May 2019, when Kövesi's mandate will naturally expire; that will cause a new political conflict, but chances are that new conflict will be wrapped legally for the administrative section at the Supreme Court, instead of CCR;
• he finds some ground for the revocation decree to be "suspended" until he consults the electorate in a referendum; he can reactivate the decision of 24 January 2017, and buy some time before he finally signs the revocation decree (in no way can the result of the referendum be used to substantiate disobeying the CCR decision); then, depending on the result of the referendum, he may push the option regarding the political pact;
• he revokes Kövesi swiftly, but re-appoints her (while she suspends her status in magistracy for a while) as head of a presidential committee for the fight against corruption, that would at the same time monitor all forms of judicial independence and provide protection of whistleblowers; later, he uses all of his political weight in the European Council, to get Kövesi appointed as head of the European Public Prosecutor’s Office (EPPO);
• he challenges the CCR decision at the European Court of Justice, on some dubious grounds that it might come against some provisions in the EU Treaty or in the treaty regarding Romania’s accession to the EU; some provisions under the Cooperation and Verification Mechanism (CVM) might come in handy, but it’s still very far-fetched;
• he finds a way to argue that this situation is a crisis that requires an extraordinary session of Parliament, and challenges them to regulate, in emergency procedure, 3 very sensible things (that may also be negotiated as part of the political pact):
• the meaning of the words "under the authority of the Minister" from art. 132 of the Constitution,
• the exact status of the prosecutors as equal magistrates from art. 133 of the Constitution, and
• the specific promotion/demotion procedure for prosecutors, similar to art. 125 of the Constitution (also specifically mentioned in the CVM reports).

Apparently, President Iohannis cannot solve this problem now on his own; nor just within the confines of the Presidential Administration. He needs cooperation from some external actor—the electorate, some kind of court, the European partners, or the politicians in the national Parliament. The only (quasi-)independent option for him is to announce his own resignation, but he'd need to prepare/negotiate that thoroughly. And there are two variants to this last option:

• Kövesi resigns from DNA (and magistracy), so that Iohannis doesn't have to revoke her; at the same time, Kövesi announces her independent candidacy for the presidency, and Iohannis admits that he won't run for a second term;
• Iohannis announces he'd take Donald Tusk's seat in 2019, at the European Council, and calls early Presidential elections for this fall, thus precluding Parliament to suspend him and Tăriceanu to become interim President.

Kövesi's future is of no real interest as a prosecutor, unless she steps up to EPPO—but the plagiarism verdict regarding her doctoral thesis may backlash soon enough, in spite of several international awards bestowed on her for the fight against corruption. If she renounces her career as prosecutor, she may become an influential politician, possibly with better chances of affirmation in the European Parliament than in domestic politics.