The new justice laws have passed. Both by Parliament and by the Constitutional Court. They have been promulgated by the President of Romania.
They passed at the same speed as the codes did in 2009, with devastating effects in criminal matters, for example. We were told, then and now, that the fate of the country depended on it (CVM – always plus Schengen, more recently). We still have, since then, since 2009, the CVM and we probably won’t be in Schengen any time soon.
Qui prodest?
Returning to the legislative path of the laws of justice, the initiator requested urgent procedure, approved by Parliament. The criticisms of extrinsic unconstitutionality essentially concerned the violation of parliamentary procedures laid down in the Rules of Procedure of the Chamber of Deputies and the Senate, more specifically, the fact that the report of the Joint Committee was not sent to the senators three days before the debate in plenary so that they could effectively exercise their constitutional mandate, as the draft laws were in fact voted on the same day collectively in the decision-making chamber.
The Constitutional Court has ruled over the years that compliance with the deadlines laid down in the Rules of Procedure of the Parliament is not a question of constitutionality, but of the application of parliamentary rules on which it cannot rule. Except for the case of Decision No 261/May 5th, 2022, partially cited by the CCR in decisions on justice laws. In the latter case, the CCR ruled that shortening parliamentary deadlines in a procedure that has not been declared urgent is unconstitutional. It is true that, in the case of the justice laws, there was no such hypothesis, as the procedure was approved as urgent. However, in the case of the above decision, the Court gave priority to Article (1) paragraph (3) in its ruling on democracy, ruling, inter alia, that:
74. In other words, the establishment of clear rules on legislative procedure, including at the level of the Basic Law, and compliance with the rules thus established constitute a guarantee against abuse of power by the parliamentary majority, and thus a guarantee of democracy. In so far as the rules on legislative procedure are embodied in the Constitution, the Constitutional Court is competent to rule on the manner in which the laws adopted by Parliament comply with them and to sanction their violation accordingly (Decision No 128 of 6 March 2019, paragraph 33).
75. Therefore, the compliance with the provisions of Articles 75 and 76(3) of the Constitution is the basis for democratic debates in the Parliament, which, by their value basis, imply an exchange of ideas between those who exercise national sovereignty. The avoidance or limitation of parliamentary debates by unjustifiably shortening the time-limits, without complying with the express constitutional provisions to that effect, is an infringement of one of the fundamental values of the State, namely its democratic nature. From an axiological point of view, the parliamentary debates in their common/general form are intricately linked to democracy, so that any deviation from it must be carried out only within the conditions and limits set by the Constitution. Therefore, although at first sight it may appear that the Parliament has not respected only a procedural, perhaps formal, aspect, in reality the consequences of this irregularity are serious, affecting the idea of democracy and legal certainty in substance.
It is quite difficult for the objective observer to understand when and when not the Court has a constitutional mandate to rule on violations of parliamentary rules. One might say, at first glance, that if the rules are of constitutional rank, the CCR can rule, whereas if they are of regulatory rank, it does not have that fall.
With reference to the recent decisions, the Court stated, in paragraph 76 of the Decision No. 524/2022 on the Law on the Superior Council of Magistracy (replicated in the other two decisions), that the regulatory provisions invoked in support of the criticisms have no constitutional relevance, as they are not enshrined, expressly or implicitly, in a constitutional norm; therefore, it is not a question of constitutionality, but of the application of regulatory norms on which the CCR is not competent to rule.
On the contrary, from our point of view, the fact situation, namely the law-making process in the case of the three laws, has constitutional valences, being exactly the opposite of what the CCR found, in the sense that we are faced with a special law-making procedure, namely by emergency procedure, on the latter the Constitution provides in Article 76 paragraph 3 as follows: At the request of the Government or on its own initiative, the Parliament may adopt draft laws or legislative proposals by emergency procedure, established according to the rules of each Chamber.
The Parliament is therefore sovereign in deciding how, in concrete terms, to adopt a law, but this must be done according to its own rules of procedure. And it has full sovereignty over the latter as long as it complies with it.
The derogation from the ordinary adoption procedure therefore has constitutional implications, as the Constituent Assembly stipulated that adoption should take place in accordance with the Rules of Procedure of the Chamber in question. This condition is not accidental, but aims to promote respect for the principle of legality, the lawfulness of the exercise of national sovereignty and the loyalty of the constitutional behavior of a majority which, in the absence of express democratic rules, may abuse the majority position it holds at a given time. As a result of such a danger, the Constitution made it compulsory to follow a procedure laid down in the Rules of Procedure of each Chamber. Consequently, in the event of a breach of such a procedure, the Constitutional Court is the only court which can rule on the serious infringement of a legislative procedure under the urgent procedure.
Specifically, the provisions of the Article 94 paragraph (4) of the Rules of Procedure of the Senate stipulate that the deadlines laid down in paragraphs (1) and (2) and those laid down in Article 93 for opinions, reports and amendments may not be shorter than 5 calendar days for the ordinary procedure and 3 calendar days for the urgent procedure. The special time-limit for urgent procedures is at least 3 days, which has not been respected.
In conclusion, contrary to what the Constitutional Court of Romania has alleged, it had, by virtue of its own recent case-law (Decision No 261/2022), the opportunity to correct the discretionary behavior of the parliamentary majority and its imposition of compliance with its own Rules of Procedure.
On the substance of the matter, the Court is -in most respects- right, since it is the legislator’s choice how to organize the judicial system, how to organize the Superior Council of the Magistracy, orthe rules governing the status of judges and prosecutors, as long as it does not affect the few constitutional provisions on the matter. For the most part, these aspects have been respected, even though many of the proposed measures are retrograde, yet constitutional. They build, for example, a caste of chiefs within the judiciary or impunity for magistrates who are undercover workers or intelligence collaborators (these issues will be detailed in another point of view). Well, these slippages could only have been rectified through ordinary parliamentary procedures, which was avoided by the unnatural recourse to the parliamentary emergency procedure.
With regard to the issues related to the elimination of disciplinary misconduct regarding the failure to comply with the decisions of the CCR and the decisions of the HCCJ (appeal in the interest of the law and preliminary decisions), the separate opinion of Constitutional Judge Varga Attila is relevant, showing the change in the jurisprudence of the Constitutional Court in this matter:
The new regulation therefore represents a step backwards in terms of the effects that the decisions of the High Court of Cassation and Justice and the Constitutional Court have on the national legal order. The binding nature of the decisions of the highest courts in the State is therefore weakened.
