Constitutional review or judicial activism?

Author:Simina Tanasescu
Position:Faculty of Law - Bucharest University - Romania
Pages:19-36
SUMMARY

Constitutional courts have come to play an important role in the transformative processes of their respective states and societies. While legal scholarship is divided on the issue of the beneficial impact that judicial activism of constitutional judges may have on a democratic transition, there is little to support the same conclusion with regard to judicial activism in general. The activism of the Romanian Constitutional Court seems to be discovered as of lately, thus bringing into question its raison d’être

 
CONTENT
Constitutional review or judicial activism? 19
ARTICLES
CONSTITUTIONAL REVIEW OR JUDICIAL ACTIVISM?
Professor Simina Tnsescu
Faculty of Law, Bucharest University, Romania
Abstract
Constitutional courts have come to play an important role in the transformative processes of
their respective states and societies. While legal scholarship is divided on the issue of the beneficial
impact that judicial activism of constitutional judges may have on a democratic transition, there is
little to support the same conclusion with regard to judicial activism in general. The activism of the
Romanian Constitutional Court seems to be discovered as of lately, thus bringing into question its
raison d’être.
Keywords: constitutional review, judicial activism, democratic transition.
Controversies on the legitimacy of judicial1 or constitutional review2 are a
regular feature of doctrinal analysis. However, they are rarely causes for social or
E-mail: simina_tanasescu@yahoo.com.
1 See the “unstaged debate of 1788 between Robert Yates and Alexander Hamilton” cf. A.T.
Mason, D.G. Stephenson, American Constitutional Law – Intro ductory Essays and Selected Cases,
11th edition, Prentice Hall, 1996, cases n° 59-61. For recent analysis in favour of the legitimacy of
judicial review see C.L. Eisgrubber, Constitutional Self-Government, Harvard University Press,
Harvard, 2001; Y. Eylon, A. Harel, The Right to Judicial Review, Virginia Law Review, vol. 92 (2006),
p. 1-43; C. Brettschneider, Democratic rights and the Substance of Self-Government, Princeton University
Press, Princeton, 2007. For recent arguments against see M. Tushnet, Taking the Constitution Away from
Courts, Princeton University Press, Princeton, New Jerrsey, 1999; R. Hirschl, Towards Juristocracy: The
Origins and Consequences of the New Constitutionalism, Cambridge, Harvard University Press, 2004;
M. Tushnet, Political Power and Judicial Power: Some Observations on their Relation, Fordham Law
Review, vol. 75 (2006-2007), p. 755-768; J. Waldron, The Core of the Case Against Judicial Review, The Yale
Law Journal, vol. 115 (2006), p. 1346-1406.
2 According to Mauro Cappelletti, unlike judicial review, which is performed in a decentralised
way by all ordinary courts - as in US - constitutional review refers to the review of legislation as
performed in a centralised way by special courts, created specifically for this purpose – like in most of
the European countries. See M. Cappelletti, Judicial Review in Comparative perspective, California Law
Review, vol. 58 (1970), p. 1033 et seq.
Law Review vol. III, issue 2, July-December 2013, p. 19-36
20 SIMINA TĂNĂSESCU
political unrest. According to some observers3, the events which unfolded in
Romania during 2012 have threatened democracy and raised again the “mighty
problem of judicial review”4. A closer analysis seems to point in a different
direction. The issue at stake was not so much the obvious question of how can an
appointed body check upon an elected body against its very own constitutive
document, but rather how is the review performed and what are its consequences.
In other words, the political (and not so much legal) debate that developed during
2012 in Romania had more to do with judicial activism5 than with constitutional
review as such. In order to understand the deeper causes of that broad
dissatisfaction of the Romanian society and polity with their Constitutional Court a
incursion in the recent past might prove useful since, in Romania, constitutional
review is a relatively new instrument of rule of law, endowed with an
ontologically inherent political dimension, which only recently adopted an activist
approach to its mission. Against a favourable political context, the activism of the
Romanian Constitutional Court seems now unstoppable, just as are challenges to
its raison d’être. Where and how did it all start? And what might be the
consequences?
A. Initial self-restraint
Romania has joined the wave of democratisation sweeping Eastern Europe in
the ’90 with its own specificities regarding both stages of democratic transitions.
First, Romania did not have a negotiated initial transformation, but a rather radical
one, the first revolution ever to be followed live on TV. Secondly, because of the
socially disruptive character of that transformation, there has been a somewhat
earlier and hasty passing to the second stage of the transition6, with the popular
ratification on the 8th of December 1991 of a new Constitution7. Indeed, after 1991,
the mere fact that a Constitution could exist has managed to appease the social
unrest and constitutionally frame political debates and the protection of
3 Members of the European Parliament expressed worries with regard to the authority and scope
of the Romanian Constitutional Court, http://www. europolitics.info/ commission-urged-to-
monitor-situation-in-romania-art339153.html (last visited on 1.09.2013); while Venice Commission
voiced concerns regarding pressures put on the Romanian Constitutional Court, http://www.venice.
coe.int/webforms/ events/?id=1544 (last visited on 1.09.2013)
4 M. Cappelletti, The “Mighty Problem” of Judicial Review and the Contribution of Comparative
Analysis, California Law Review, vol. 53 (1979-1980), p. 409-445.
5 In this context activism refers to the readiness of judges to invalidate decisions taken by other
legitimate actors in order to enforce their own vision of the Constitution. This approach of activism is
opposed to restraint and involves no evaluation of the positive or negative character thereof.
6 J. Elster even considered that there was “a general impression that Romania forms the rear
guard in the transition towards democracy and that a ‘second transition’ may be needed”. See
J. Elster, Constitutionalism in Eastern Europe: an Introduction, University of Chicago Law Review, vol. 58
(1991), p. 463.
7 E.S. Tnsescu, L’élaboration de la Constitution dans le processus de la démocratisation, Revue turque
de droit constitutionnel, vol. 1 (2012), p. 475-492.
Constitutional review or judicial activism? 21
fundamental rights8. And thirdly, probably because previous stages have been
somewhat rushed, consolidation has been relatively long and tortuous9.
Irrespective of all these, it is not at all sure that along the process the urgent
need for a Constitutional Court was felt; rather to the contrary. Indeed, although in
1911 Romania had imported judicial review through a precedent, following the US
pattern of Marbury v. Madison (1803) and with consistent theoretical and practical
support from French scholars10, in 1991 it shifted to constitutional review and
created a Constitutional Court. However, as I have argued in another place11, that
experiment did not seem to have immediate and direct effects neither on the
Romanian judicial, nor more generally on the legal culture or the institutional
organisation of the state, although an enduring and remnant impact is to be
noticed as of lately.
So, when in 1990 the draft Constitution provided for the creation of a
Constitutional Court instead of judicial review, reactions have been rather
unfriendly: members of the Constituent Assembly thought it was an undemocratic
political authority12, while the judicial system thought it was a device meant to take
away power from it13. In fact, already in 1990 and in the absence of a Constitution,
the judicial system had shyly started to remember its mighty past and proceeded,
8 B. Gutan, Transitional Constitutionalism and Transitional Justice in Post-Communist States - The
Romanian Case, Romanian Journal of Comparative Law vol. 1 (2010), p. 286.
9 One of the indicators that doubts still persist with regard to the soundness of the democratic
transition in Romania is the mere existence of the European Commission's Mechanism for
Cooperation and Verification assessing on-going progress. See http://ec.europa.eu/cvm/ (last visited
1.09.2013)
10 Gaston Jèze, Pouvoir et devoir des tribunaux en général et des tribuna ux roumains en particulier de
vérifier la constitutionnalité des lois à l’occasion des procès portés devant eux, Revue de Droit Public et de
science politique en France et à l’étranger, tome XIX (1912), p. 140. At footnote n° 1 of this contribution
mention is made of a Mémoire sur le caractère inconstitutionnel de la loi roumaine du 18 décembre 1911,
relative à la Société communale des tramways de Bucarest that several French law professors («Messieurs
Henri Bathélemy et Gaston Jèze, professeurs à la Faculté de droit de l’Université de Paris, avec l’adhésion de
MM. P. Beauregard, A. Esmein, F. Larnaude, A. Pillet, A. Colin, A. Wahl, N. Politis, tous professeurs à la
Faculté de droit de Paris») have put with the local court of Bucharest arguing in favour of judicial
review.
11 E.S. Tnsescu, L’exception d’inconstitutionnalité qui ne dit pas so n nom ou la nouvelle sémantique
constitutionnelle roumaine, Revue internationale de droit comparé, n° 4/2013 (forthcoming)
12 Qualified as "super-parliament" or "the fourth power in the state". See, ***, Geneza Constituiei
României, Regia Autonom "Monitorul Oficial", Bucuresti, 1999, p.954-876.
13 An ex-president of the supreme court of the land was justifying the preference of the
Romanian judicial system for judicial review in the following terms: "Case-law has the power of
prestige and not the prestige of power. The supreme court of the land considered itself able to
adjudicate on the constitutionality of law on the basis of two principles: the supremacy of the
Constitution and the separation of powers. The fundamental law declared that courts have the
jurisdiction to resolve controversies and no other legal norm forbids the judicial power to review
legislation. Per a contrario, the judicial system can only prove itself useful by doing so". (See Teofil Pop,
Rolul practicii judiciare a Curii Supreme de Justiie în consolidarea statului de drept, Studii de drept
românesc n 3-4/1992, p. 27.
22 SIMINA TĂNĂSESCU
in only three cases, to judicial review14. Unlike in Poland or Hungary, during the
transformative phase in Romania there was no Constitutional Court to support
democratic transition, and the judicial system only made some timid attempts to
adapt to the new values promoted by the democratic revolution. The main vectors
and supporters of the Romanian transition were the political actors, unconstrained
by any review mechanisms or referential standards, so they felt free to define the
main characteristics of the future political system as they deemed appropriate.
Due to its soothing effects on the social and political unrest, the popular
ratification of the Constitution on the 8th of December 1991 is considered to be the
beginning of the consolidation phase. However, it was only after that moment that
Romania actually began to build, at times from scratch, almost all its democratic
institutions. The text provided for what, at that time, seemed to be the standard
pattern of design for ‘transitional constitutional review’, allowing for an a priori
review of laws and initiatives to revise the Constitution, and an a posteriori review
of laws, standing orders of Parliament and delegated legislation15. The jurisdiction
of the Romanian Constitutional Court had been drafted as close as possible to the
theoretical model designed by Hans Kelsen16, but its actual clout was far from that
standard since whenever a law was found unconstitutional through an a priori
review it could be confirmed with the qualified majority of two thirds of the MPs,
who were thus rejecting the decision of the Court17. Although in practise such a
situation never occurred, the mere fact that this was possible seemed to comfort
MPs and stress constitutional judges.
Despite this “sword of Damocles”, during its first twelve18 years of existence,
constitutional review has proven to be a rather efficient tool for the transformation
of both the normative and the political systems during the Romanian transition. It
14 M. Criste, Un contrôle juridictionnel des lois en Roumanie?, Revue Française de Droit
Constitutionnel n° 8 (1992), p. 179 et s.
15 See article 144 of the Constitution in its version before the revision of 2003.
16 Already in 1929 Hans Kelsen was advising that constitutional courts should have jurisdiction
over law and delegated legislation, as well as any other legal act (individual acts of Parliament
included) which can be directly connected to the Constitution, but not on: (i) treaties due to difficulties
which may arise on the international arena, (ii) administrative acts in order to avoid overlapping with
administrative review, and (iii) judicial acts due to their individual character. See H. Kelsen, Wesen
und Entwicklung der Staatsgerichtsbarkeit, Verhandlungen der Tagung der deutschen Staatsrechtslehrer
zu Wien am 23. und 24. April 1928, Walter de Gruyter, Berlin und Leipzig, 1929, vol. 5, p. 86. The
jurisdiction of the Romanian Constitutional Court is limited, generally speaking, to acts of
réglementation primaire (see article 146 of the Constitution).
17 According to article 145 of the Constitution in its initial version, in case a law would be found
unconstitutional in an a priori review "the law shall be returned to Parliament for reconsideration. If
the law is passed again in the same wording by a majority of at least two thirds of the members of
each Chamber, the objection of unconstitutionality shall be removed and promulgation thereof shall
be binding".
18 Upon the first revision of the Constitution, in 2003, that specific provision of article 145 has
been repealed.
Constitutional review or judicial activism? 23
was precisely through an a priori review that already in 199219 the Constitutional
Court imposed the separation of powers as a constitutional standard, although was
the principle was not textually enshrined in the Constitution. The same procedure
has been used in 1994 in order to limit the appetite of the governing coalition to
overrule the Court’s decisions by trying to get their policies promoted through
legislative delegation20. It was again a priori review that prevented
parliamentarians from attributing themselves privileges21 or trying to limit
democracy by framing too tightly the popular consultations that the President may
initiate22.
A part this, the a posteriori review of legislation has been an important device
for filtering pre-constitutional statutes and modernising legal standards up to the
requirements of the new Constitution, a task that the Constitutional Court has
accomplished despite fierce resistance of the judicial system23. Even more
importantly, most of the case-law of that period is dedicated to the protection of
fundamental rights as enshrined in the fundamental law24 and the Constitutional
Court went as far as identifying new fundamental rights25 based on the
interpretation of the Constitution. All in all, during the first twelve to fifteen years
of its existence the Constitutional Court has managed to accomplish its main
functions (negative legislator, guarantor of fundamental rights and pedagogue)
despite reluctance or even opposition of co-workers (Parliament and Government)
or competitors (judicial system).
But it seems safe to say that until roughly 2003-2005 the Romanian
Constitutional Court has been rather discreet and preferred self restraint to judicial
19 Decision n° 6/1992 stopped the Parliament from regulating facts which were already
examined by courts with regard to the situation of real estate nationalised by the communist regime.
20 Decision n° 75/1994 and decision n° 139/1994 stopped the Government from adopting
delegated legislation with the same normative substance as laws previously declared unconstitutional
by the Court.
21 Decision n° 19/1995 declared unconstitutional a law meant to increase revenues of individual
MPs through an extensive interpretation of statutory provisions, while decision n° 6/1996 found that
any increase in the revenues of MPs has to respect the constitutional requirement of a balanced
budget.
22 Decision n° 70/1999 found that, according to the Constitution, the President may initiate a
referendum either before taking certain measures or after and cannot be limited to organise such a
popular consultation only in order to test the will of the people prior to a decision-making process.
23 E.S. Tnsescu, Roumanie – un système judici aire entre formalisme excessif et excès de pouvoir, in
G. Vrabie, Le pouvoir judiciaire, Institutul European, Iasi, 2011, p. 89-104.
24 The principle of equality, in its double function of overarching value of democracy and
fundamental right, has been one of the most important tools for accomplishing this task. See
E.S. Tnsescu, Principiul egalitii în dreptul românesc, All Beck, 1999, Bucureşti.
25 Such as the right to a differential treatment (positive discrimination) which has been deduced
on the basis of the principle of equality (decisions n° 107/1995 and n° 27/1996) or the right of a person
to answer in the press to allegations concerning her or him previously published by the same medi a
which has been deduced on the basis of the constitutional protection of human dignity and the
freedom of expression (decisions n° 8/1996, n° 55/1996, n° 394/1997, n° 132/1998, n° 177/2000)
24 SIMINA TĂNĂSESCU
activism: when having to directly confront the legislator in a priori review the
Court would rather act through interpretative decisions than through
unconstitutionality ones26 and when daring to be bold its most ‘activist’ decisions
were on procedural grounds27 or made appeal to the legislator not to allow for a
vacuum juris28. It most daring and controversial interventions on the realm of
political questions referred to the constitutional legitimacy of the person then
occupying that position to run again in the presidential election29 and to the
immunity of MPs30.
This self-effacing attitude of the Constitutional Court attracted criticism from
some authors31 who were comparing Romanian constitutional review with, say, its
Hungarian or Polish counterparts, often forgetting that those constitutional courts
had lived their most important activist times when the Hungarian or Polish
Constitutions were precisely under construction and political forces driving
transition were at their weakest, which enabled courts to manifest as main
promoters of change. In stark contrast with that situation, in Romania it was the
Constitution that ignited the real process of change, and consolidation actually
happened in several stages: the adoption of the new Constitution allowed only for
the preconditions of further consolidation to be put in place while the effective
creation of democratic institutions and their adaptation to the new values and
standards followed later. Therefore simply enforcing the Constitution despite
(sometimes opposition of) Parliament, Government or the judicial system was
progress enough and the Romanian Constitutional Court did not need to be
creative with regard to values or arguments as they were already provided by the
very text of the fundamental law. The strong democratic legitimacy of the
Romanian Constitution was sufficient to legitimise both constitutional review as
26 Between 1992 and 2004, out of 28 decisions of unconstitutionality ruled in a priori review in no
less than 16 cases the Court struggled to find an interpretation that would allow for the law to come
into force albeit with some limitations.
27 Confronted with inconsistencies in its own case-law the Constitutional Court dared once in
1993, twice in 1994 and three times in 1995 to gather its Plenum and adopt rulings with general
binding force despite the fact that such a procedure was not specifically mentioned in its internal
regulation (organic law n° 47/1992).
28 Decision n° 38/1993 prolonged with three months the validity of an unconstitutional provision
of the Criminal Code in order to avoid a vacuum juris and allow Parliament to take appropriate
legislative measures. Decision n° 1/1993 of the Plenum of the Constitutional Court has been adopted
as a consequence of inconsistencies in the case law of the Constitutional Court with regard to t hat
specific provision of the Criminal Code.
29 Ruling n° 1/1996 confirmed it.
30 Decision n° 63/1997 established that with a new mandate an MP gets a new immunity and
thus criminal investigations started under the previous mandate need to be refreshed with a new
application for the withdrawal of that new immunity.
31 B. Iancu, Constitutionalism in Perpetual Transition: The Case of Romania, in B. Iancu, The
Law/Politics Distinction in Contemporary Public Law Adjudication, Eleven International Publishing,
Utrecht, 2009, p. 187.
Constitutional review or judicial activism? 25
process and the Constitutional Court as institution. So, there was no need for
judicial activism since judicialisation32 of social and political life happened anyway
via the slow but sure construction of the rule of law33.
B. Expansion of jurisdiction
The revision of the Constitution in 2003 offered the opportunity for a political
bargaining with regard to the status of constitutional review: while its impact was
to be consolidated, its jurisdiction was to be reframed.
On one hand the Constitutional Court saw its jurisdiction34 expanded by the
possibility to adjudicate on international treaties prior to their ratification by
Parliament, in an attempt to put in line Romanian constitutional review with what
seemed a generalised trend in European constitutional review despite Hans
Kelsen’s views on the subject matter35.
On the other hand, noting that the Court had been quite efficient in dealing
with political actors and imposing on them the constitutional standards with
regard to the repartition of powers, it was also granted the attribution to settle
“legal conflicts of constitutional nature” despite contrary advice from the Venice
Commission36.
And finally, displeased with the fact that - as an outcome of political
negotiations - it could no longer have the possibility to overturn decisions of
unconstitutionality taken within the a priori review, Parliament decided to get at
least some control over the jurisdiction of the Court and appended the respective
32 G. Caspar, loc. cit., p. 445: “Every social issue will become a constitutional issue, and law and
its oracles will be severely overtaxed. It will also create the potential for constitutional
disappointments on the part of those who will come to believe that constitutional promises have been
breached.” Also see R. Hirschl, The New Constitutionalism and the Judicialization of Pure Politics
Worldwide, Fordham Law Review, vol. 75 (2006-2007), p. 722.
33 On the "collateral damages" of rule of law see W. Leisner, "L'Etat de droit - une contradiction?",
Mélanges Eisenmann, Cujas, Paris, 1975, p.65.
34 Currently, article 146 of the revised Constitution provides that the Romanian Constitutional
Court can rule upon initiatives for the revision of the Constitution, international treaties as ratified by
Parliament, laws, delegated legislation, and standing orders of houses of Parliament and can solve
legal conflicts of constitutional nature between public authorities; supervise the procedure for the
election of the President and of circumstances that justify the vacancy/suspension of that office;
supervise the procedure of and ascertain the results of referendums; supervise the procedure for
popular legislative initiatives; decide on the constitutionality of political parties.
35 Hans Kelsen advised that constitutional courts should not have jurisdiction over treaties due to
difficulties which may arise on the international arena. See H. Kelsen, Wesen und Entwicklung der
Staatsgerichtsbarkeit, Verhandlungen der Tagung der deutschen Staatsrechtslehrer zu Wien am 23. und
24. April 1928, Walter de Gruyter, Berlin und Leipzig, 1929, vol. 5, pp. 86.
36 Who was right in asking "What does “conflict of a (legal) constitutional nature between t he
public authorities” mean? It may, of course, mean, first of all, positive or negative conflicts relating to
powers in a specific case. However, the proposed text goes further. It appears to embrace all conflicts
between the public authorities concerning the interpretation and application of the Constitution in a
specific situation. The concept of “conflict” remains to be defined". See http://www.venice.
coe.int/webforms/documents/ ?pdf=CDL-AD(2003)004-e, p.11. (last visited 1.09.2013)
26 SIMINA TĂNĂSESCU
article of the Constitution with the following sentence: “other duties stipulated by
the organic law of the Court”37. This meant that Parliament would be able to
dispose of the Court’s jurisdiction and no longer exclusively the pouvoir constituant,
a noticeable depart from the legitimacy envisaged for constitutional review in the
theory of Hans Kelsen38. Constitutional judges have tried in vain (decision
n°148/2003) to warn the pouvoir constitué that this would represent a breach of the
general framework under which constitutional review functioned so far in
Romania and thus alter the delicate balance of legitimacy, functions and purpose
between Constitutional Court and Parliament, although nothing explicitly forbade
such an action in the “eternity clause”39 of the Constitution.
Irrespective of all these considerations, the jurisdiction of the Court in this last
respect had been altered already in 2003 in the Constitution but not in the organic
law of the Court. Therefore no effective impact could be noticed, despite the
sharpening of the political struggle on the Romanian political arena after 2005,
with violent in-fights between Parliament, Government and President often taking
the Constitutional Court as hostage. The situation remained as such until 2010,
when the political context allowed for a revision of the organic law of the Court to
be performed by Parliament40.
Indeed, following an unsuccessful impeachement41 of the Romanian President
in 2007, when Parliament suspended President but the people refused to remove
him from office42, both President and Parliament have tried to prevent or,
respectively, prepare future political actions. The Constitutional Court has to
deliver an advisory opinion on the circumstances that would justify the suspension
from office of the President, but Parliament can take its decision irrespective of the
opinion of the Court, and this is exactly what happened in 2007 and again in
201243. Such parliamentary decisions were not part and parcel of the Court’s
jurisdiction according to the Constitution and the Court’s organic law, but they
became so in 2010 through parliamentary (and not constitutional) procedure44 .
37 Constitutional provision which reminds art. 93(3) of the German Fundamental Law: "The
Federal Constitutional Court also acts in such other cases as are assigned to it by federal legislation."
38 H. Kelsen, Judicial Review of Legislation, loc. cit.
39 See article 148 of the Constitution in its version prior to the revision of 2003.
40 Law n° 177/2010 for the revision of law n° 47/1992, of the Civil Procedural Code and of the
Criminal Procedural Code, published in Official Journal n° 672/2010.
41 See detailed provisions of article 95 of the Constitution. It worth mentioning here that the
Romanian Constitutions has a separate provision (article 96) for the criminal liability of the President,
which requires a more intensively judicialised procedure.
42 Also see E.S. Tnsescu, The President of Romania, or the Slippery Slope of a Political System,
European Constitutional Law Review, vol. 4 (2008), p. 64-97.
43 Also see E.S. Tnsescu, Suspension du Président de la Roumanie, Constitutions, n° 4/2012,
p. 550-557.
44 It worth to be noted that although initially wanted by political forces opposing President, as
the composition of the Constitutional Court seemed favourable to them back in 2007-2008, the
expansion of the Court’s jurisdictions in 2010 proved beneficial to the President due to the fact that
Constitutional review or judicial activism? 27
The provision added to the organic law of the Court was idly drafted45 and the
Court, after several attempts to enforce it in ways which it thought were best
adapted to the circumstances of the cases46, ended up by clarifying it in one of its
decisions47 although later it continued with a peculiar type of indiscriminate48
examination of parliamentary decisions. However, even under these
circumstances, in some cases strong doubts subsisted that the Court had simply
replaced the will of MPs with its own political preferences49. And, despite claims of
the Venice Commission that review of parliamentary decisions exists elsewhere
(e.g. Germany) and that "judicial control of individual acts of Parliament is not only
a rule of law issue but, as the right to vote is affected, even a question of human
rights"50, it is not clear whether it was "the procedure, not necessarily the substance
meanwhile he, together with the parliamentary parties supporting him, had managed to appoint fou r
out of the nine constitutional judges.
45 It merely appended "and decisions of the Plenum of the House of Deputies and decision of the
Plenum of Senate and decisions of the Plenum of houses in common seating" to the legal provision
stating that "the Constitutional Court adjudicates the constitutionality of standing orders of
Parliament upon notification from one of the Presidents of houses of Parliament, a parliamentary
group or at least 50 deputies or 25 senators."
46 In decisions n° 53/2011 and n° 54/2011 the Court ended up invalidating nominations made by
MPs to the Superior Council of Magistracy although, in separate opinions to both decisions, three
judges have tried to draw a distinction between political and normative parliamentary decisions, and
among these last ones between those referring to individual persons (appointments to public offices)
and purely normative ones, arguing that only the later can be subject to constitutional review. No
longer taking the same precautions, in the years to come the Court simply invalidated several
parliamentary decisions of political nature or void of normative substance: decision n° 667/2011
invalidated a memorandum of understanding between parliamen tary groups on the composition of
the standing bureaus of the Houses of Parliament, decision n° 1630/2011 invalidated an agreement
with regard to the legal regime of a specific senator, decision n° 1631/2011 invalidated the election of
the President of the Senate; decision n° 209/2012 invalidated the vote of no confidence granted to
Government, decision n° 307/2012 invalidated the nominations made by MPs for the National
Council of Audiovisual.
47 In decision n° 732/2012 the Court ruled it cannot invalidate a parliamentary decision which
bears effects with regard to a specific person (nomination or dismissal in a public office).
48 In its decision n° 783/2012 the Court not only invalidated nominations made by MPs for the
Council of Administration of the national television, but it also introduced a different distinction
among parliamentary decisions between those which pertain to values and norms of constitutional
ranking, which can only be review against the high standard of the Constitution itself, and those
pertaining to public authorities mentioned in the Constitution, which can be reviewed against legal
standards of the Constitution and other relevant laws. Through this interpretation, in fact, the Court
has expanded even more its jurisdiction, far beyond the Constitutional and legal limits.
49 I. Muraru, A. Muraru, Un siècle de contrôle de constitutionnalité en Roumanie, Est Europa, numéro
spécial 2013, p. 49-50
50 See Opinion on the compatibility with constitutional principles and the rule of law of actions taken by
the Government and the Parliament of Romania in respect o f other state institutions and on the Government
emergency ordinance on amendment to the law n° 47/1992 regarding t he organisation and functioning of the
Constitutional Court on the Government emergency ordinance on amending and completing the law n° 3/200 0
regarding the organisation of a referendum of Romania, adopted by the Venice Commission at its 93rd
Plenary Session on 14-15 December 2012, http://www.venice.coe.int/WebForms/documents/
?pdf=CDL-AD%282012%29026-e, p. 7
28 SIMINA TĂNĂSESCU
of the decision (e.g. which person is appointed to a given post)"51 that had been
controlled. Moreover, neither the Constitution, nor the revised organic law of the
Court ever allowed it to review various internal decisions of Parliament against
different yardsticks (some of them not even of constitutional ranking) as the trend
seems to have developed as of lately.
The events which unfolded during the summer of 2012 placed the
Constitutional Court in the middle of a political storm. The Court had no choice
but to step into the realm of politics by addressing political questions which
meanwhile had become part and parcel of its jurisdiction. Although the words
"judicial activism" were never articulated by any of the concerned actors, not even
at the highest of the political struggle, all grievances and complaints against the
Constitutional Court pointed rather in that direction. In a nutshell, long and
continuous political in-fights contributed to a large extent to the weakening of
political actors, which created some room that has been quickly grabbed by the
Court. Unlike in other East European countries, where political actors had been
weak in the beginning of the transition, but once consolidation started they grew
stronger and thus reduced the possibilities of self-expansion of constitutional
review, in Romania political actors have led the transformation, but seem to have
exhausted their forces on the way and created strong premises for self-promotion
of constitutional review.
Judicial activism does not fall from sky; it is politically constructed and it
would be unfair to put the entire burden of such an enterprise on the sole
shoulders of constitutional judges52. As the case of Romania plainly shows, judicial
activism of constitutional judges would not have happened if political actors
would not have enabled and even stimulated it. However, the timing, dimensions
and, more importantly, the consequences of that phenomenon do deserve further
attention.
C. Judicial activism
The summer of 2012 was not the first time that the Romanian Constitutional
Court had been faced with accusations of political interference and saw its
legitimacy questioned. Following the parliamentary and presidential elections of
November 2004, the Romanian political scene became more and more conflictive
and, given the expansion of its jurisdiction, the Constitutional Court more often
than not found itself in the middle of the storm. And, step by step, constitutional
review of legislation became the arena on which political fights were fought until
the Constitutional Court found its own interest in power sharing and, finally,
resorted to judicial activism.
51 Ibidem.
52 "Neither a constitutional framework that is conducive to judicial activism, nor a
nondeferential, power-hungry constitutional court forms a sufficient condition for expansion of
judicial power or the judicialisation of mega politics.[...] Political choices and interests are crucial
factors in explaining the origins of constitutionalisation and judicial empowerment". R. Hirschl,
Towards Juristocracy, op. cit., p. 12.
Constitutional review or judicial activism? 29
The first time the legitimacy of the Constitutional Court had been dramatically
questioned was as early as 2005. Following a somewhat controversial decision of
partial unconstitutionality (decision n°375/2005) a full scale political storm was
unleashed. The Executive of the time and MPs supporting it loudly expressed their
frustration, at the same time questioning the political independence of members of
the Constitutional Court and even the legitimacy of the institution. The horribile
dictu “political decision” has been used53. Journalists suddenly discovered the
existence of the Constitutional Court and found it ‘unconstitutional’ because not
validated by principles of moral politics valid in the XVIIIth century54, while
magistrates all over the country found the best occasion to remember all the
difficulties they ever faced in their relation with the Constitutional Court through
the exception of unconstitutionality. The President of Romania declared he was not
surprised with the decision, since it came from a Constitutional Court with a
composition established almost entirely under the previous Government by the
main political party now in opposition, thus questioning the independence of the
Court. There have been a few days in the summer of 2005 when the very fate of the
Constitutional Court seemed “doomed” for reasons that had little to do with
judicial review or the substance matter of the decision as such55. With that decision,
irrespective of its will, the Constitutional Court had not only entered the political
arena, but it did so under the big lights on the front of the scene; from that moment
on, constitutional review of legislation became a mere concealer of political fights.
Then came the political clashes of 2007-2008, when the Prime Minister, who no
longer enjoyed presidential confidence since the political storm 2005, decided to
replace, one at a time, two ministers of his Cabinet and faced the opposition of
President. Asked to settle the legal conflicts of constitutional nature thus generated,
the Constitutional Court had to step in and, trying to please both sides, it arrived to
different conclusions in two identical cases. In the first one (decision n° 356/2007)
the Constitutional Court ruled that the President cannot arbitrarily veto the
replacement of a minister and may only check if the person suggested for
replacement fulfils all necessary requirements. The second time (decision
53 “In my opinion, it is more a political decision, than legal and constitutional” declared the
president of Democratic Party, Emil Boc, who is also professor of constitutional law at a public
university in Cluj-Napoca. http://www.bbc.co.uk/romanian/news/story/2005/ 07/050706_reactii_
curte.shtml (last visited 1.09.2013)
54 C. Avramescu, Desfiinarea Curii Constituionale (Dismantling the Constitutional Court), in the
daily newspaper Cotidianul of 4.10.2005.
55 In fact, the political context was more complicated, with collateral evolutions and political
intentions of a much bigger scale and involving a huge number of actors. The political storm was just
another attempt to force anticipated elections into a political regime which had barred them on
purpose, in order to avoid political instability known in Romania particularly between the two World
Wars. It also was a desperate attempt to get a comfortable if any majority in Parliament for a President
who knew he would have a hard time if he was to base all his future (political) actions on the volatile
majority then existing, faced with a numerically strong opposition.
30 SIMINA TĂNĂSESCU
n° 98/2008) it found that the President may require the Prime Minister to suggest
another person than the one already proposed, but he can only do so once because
the Constitution also allows him to veto laws only once. Of course, all decisions
concerning legal conflicts of constitutional nature are political questions in
disguise, so the Constitutional Court can hardly be accused of stepping into the
realm of politics at its own will since it was the very revision of the Constitution
that made it possible. However, it is only the Constitutional Court who masters the
consistency of its case-law56 and discrepancies like the one above do not enhance
arguments in favour of constitutional review as a useful corrective instrument for
power-sharing between political actors.
Then followed the difficulties of the most recent economic crisis, when
President announced that salary cuts are unavoidable and Government proceeded,
with the support of its political parties in Parliament. Asked by the supreme court
of the land if a cut in the salaries of judges would not infringe upon the
independence of justice, the Constitutional Court answered by the affirmative
(decision n° 872/2010), while when asked by the opposition parties if such a cut
would not undermine constitutionally protected socio-economic fundamental
rights it answered by the negative (decisions n° 873/2010 and n° 874/2010). As a
result of these decisions, salaries have been cut by 25% for all public employees
save magistrates and pensions have been cut by 15% for all pensioners save retired
magistrates. In addition, the general VAT had to be increased from 18% to 24%,
thus worsening even more the economic situation of vulnerable categories of
population. A general public perception of the Constitutional Court as an
expression of judicial corporatism could not be prevented as it was difficult to
anchor those specific decisions in the positive text of the Constitution.
Furthermore, if during the first ten to twelve years of its existence the
Constitutional Court attempted to convince the judicial system to correctly
implement the Constitution,57 just like its counterparts in other East European
countries, over the past seven to eight years it started to prevent it from dealing
directly with the Constitution. Following a long staged and complicated judicial
war which took place between 2008 and 2010 among the highest court of the land
and the Constitutional Court58 the later came to the conclusion that “the supreme
court of the land does not have the jurisdiction over legal norms of legislative rank, nor can
it adjudicate their constitutionality”. (decision n° 838/2009) As a result, the legislator
56 Previously the Court had resorted to procedural innovations in order to ensure the consistency
of its case-law. See note n° 57.
57 B. Gutan, Transitional Constitutionalism and Transitional Justice in Post-Communist States - The
Romanian Case, Romanian Journal of Comparative Law vol. 1 (2010), p. 303. Also see decision
n° 186/1999 where the Constitutional Court explicitly stated that regular courts "should directly
implement relevant provisions of the Constitution and remove unconstitutional legislative provisions
if the legislator has not revised or abrogate them".
58 E.S. Tnsescu, Cour Constitutionnelle et systèm e judiciaire: des rapports de force?, Analele
Universitii din Bucureşti - Drept, n° 2/2012, p. 240-251.
Constitutional review or judicial activism? 31
had to intervene in 201059 in order to deal with power-sharing between the judicial
system and the Constitutional Court60 .
As far as legislative procedures go, Parliament seems to be framed more by the
wishes of the Constitutional Court than by the Constitution itself. Thus, "when laws
have been declared unconstitutional before their promulgation Parliament must reconsider
only the provisions concerned in order to bring them in line with the decision of the
Constitutional Court. [...] Therefore, "other improvements" can only be operated through
other laws or ordinances."61. The danger of excessive formalism in legislative
procedures looms large behind such positions of the Constitutional Court,
although the Court itself seems to fight against it in the name of rule of law62.
But it is on substantive grounds that the Constitutional Court has decided to
fight policies adopted by democratic bodies despite all odds. Thus, when
Parliament resolved to abrogate insult and slander from the Criminal Code63 as a
measure meant to take into account in the domestic legal system the consequences
of a constant case law against Romania64 of the European Court of Human Rights,
and the judicial system followed65, the Constitutional Court re-enacted66 those
59 Through the revision of the organic law n° 47/1992 pertaining to the Constitutional Court
through law n° 177/2010.
60 Beyond relevant provisions of the Constitution and its organic law, the Constitutional Court
declared unconstitutional a ruling of the supreme court of the land and not the law on which that
ruling was based upon. (decision n° 206/2013)
61 Decision n° 975/2010 dealt with a situation where Parliament attempted to take advantage of
the re-examination of a law which occurred due to an a priori review of constitutionality and generally
improve the content of that piece of legislation while also taking on board the arguments developed
by the Court. The Court found this approach unconstitutional.
62 The fight however seems to be limited to the only year 2009 as only decisions n° 303/2009,
n° 458/2009 and n° 1629/2009 mention that excessive formalism is not a consequence but an
infringement of the rule of law.
63 Through Law n° 278/2006 for the revision of the Criminal Code, published in the Official
Journal of Romania n° 601/12 July 2006 articles pertaining to the criminal punishment of insult
(art. 205) and slander (art. 206) have been simply taken off the law on the books despite the fact that
they did not concern only journalists, but every possible form of insult and slander.
64 Dalban (ECHR, 25 September 1999) ; Constantinescu, (ECHR, 27 June 2000); Cumpn&Mazre,
(ECHR, 17 December 2004); Sabou & Pârclab, (ECHR, 28 September 2004); Boldea (ECHR,
15 February 2007)
65 In its decision n° 8/2010 the High Court of Cassation and Justice ruled that no other body than
Parliament can adopt or abrogate laws and a decision of the Constitutional Court which declares a
piece of legislation unconstitutional cannot be mistaken for a normative act that would create new
legal standards because that Court is defined as a mere “negative legislator”; such a decision can only
prevent already existing legal standards from taking unconstitutional paths. In other words, the
supreme court of the land imposed on all regular courts the interpretation in accordance with which
insult and slander had been decriminalised by Parliament.
66 In a nutshell, in its decision n° 62/2007 the Court found that the abrogative l aw is
unconstitutional and, instead of confronting the legislator with a situation where a vacuum legis would
have imperatively required its intervention, it reasoned that, as a result of the demise of the
abrogative law from the books, the previously in force provisions would come back to life; id est insult
and slander are again criminal actions.
32 SIMINA TĂNĂSESCU
crimes and persisted with determination67, irrespective of the constant contrary
will of political authorities68. And once the device of re-enacting legal provisions
via the constitutional review of abrogative laws discovered, it has been used at
will69, despite the theoretical background developed by the 'father' of
constitutional review70. One of these decisions (n° 1039/2012) actually reads "no
other public authority, be it even a regular court, can challenge the reasoning of the
Constitutional Court, all of them being obliged to put in practice accordingly the decisions
of the Constitutional Court as an essential element of the rule of law", thus inducing the
idea that its mere legal reasoning is not enough convincing, and the Constitutional
Court needs to constantly remind and impose its authority. Sad and worrying
situation for a judge who feels obliged to resort to arguments of authority instead
of laying its authority on legal arguments, and the more so since the Romanian
constitutional judge has recently assumed the role of an active promoter of rule of
law and defender of democracy.
D. Potential consequences
Judicialisation of politics being a world-wide phenomenon particularly over
the last few decades71 it was probably inevitable that the Romanian Constitutional
Court escapes it. Sometimes confused with a generic form of judicial activism and
sometimes equated with a de facto transfer of decision-making power from
governmental bodies to judicial ones, when it is not conceived as a mere
by-product of the enhancement of the rule of law, the phenomenon has its obvious
67 In its decision n° 206/2013 the Constitutional Court invalidated the decision n° 8/2010 o f the
High Court of Cassation and Justice because "the highest court of the land cannot and should not
interfere with constitutional review" and should only limit itself to the mere implementation of the
legislation "without attempting to influence the rest of the judicial system". The outcome of all this,
according to the Constitutional Court, is that insult and slander are criminal actions and must be so
punished.
68 Already in a draft Criminal Code adopted in June 2004 insult and slander were no longer
criminal offences. This piece of legislation could not come into force until laws for its implementation
had not been adopted by Parliament, which took longer than expected and meanwhile, in 2006, the
decriminalising law had been adopted. In 2009 another draft Criminal Code has been adopted, which
abrogated the one of 2004. This new Criminal Code together with all necessary laws for its
implementation is now foreseen to come into force on February 2014. This new draft Criminal Code
does not provide insult and slander as criminal offences.
69 The Constitutional Court ruled that the invalidation of abrogative laws simply brings back to
life the legal act which had been abrogated in decisions n° 783/2009, n° 124/2010, n° 41/2010 and
n° 1039/2012.
70 When H. Kelsen concluded that constitutional courts could be given, under specific conditions,
the possibility to invalidate a legal norm and inferred that, for a limited period of time, previously
existing legal standards could be brought back to life, he rather had in mind the technique generally
used by the German Constitutional Tribunal consisting in an explicit call to Parliament for an
immediate legislative action in order to avoid a vacuum juris. See H. Kelsen, Wesen und Entwicklung der
Staatsgerichtsbarkeit, Verhandlungen der Tagung der deutschen Staatsrechtslehrer zu Wien am 23.
Und 24. April 1928, Walter de Gruyter, Berlin und Leipzig, 1929, vol. 5, pp. 80-88.
71 R. Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, Fordham
Law Review, vol. 75 (2006-2007), p. 721-753.
Constitutional review or judicial activism? 33
detractors and defenders among state powers, while providing an excellent
ground for academic debates.
However, the activism72 recently displayed by the Constitutional Court cannot
go without questioning. Openly assumed by members of the Court73 and clerks
alike74, this form of activism is described as a transfiguration into a “positive
legislator, official interpreter of the Constitution”, “associated to law-making
activity” and whose actions are nothing less than “specific forms of ‘impulse’ or
‘coercion’ on the legislator to proceed in a certain way”75. How does it relate with
the on-going democratic transition of Romania?
As mentioned before, the Romanian Constitutional Court has only recently
discovered judicial activism. In the abstract, timing should not be an important
factor in itself. After all, judicial review exists in the United States since 1803 and
according to some it was the very product of judicial activism, while according to
others the Supreme Court turned activist only once it started to challenge the New
Deal, i.e. towards the beginning of the XXth century. And judicial activism proved
relevant and even beneficial for democratic transitions elsewhere in Eastern
Europe, particularly when practised during the early beginning of that
transformative process. But then why did it not happen in Romania as well during
the initial phase of transition? The brief saga presented above seems to point not so
much to causes internal to the Constitutional Court as towards external, political
ones76. When the political context became permissive, the Constitutional Court
started to approach political questions more willingly and when relevant political
actors supported it, the Constitutional Court turned activist. Such an activism
represents a mere 'collateral damage' of sharpening fights between main political
actors, which created a vacuum of power that, in its turn, allowed judges to get in
the front row of the scene.
However, this timing may raise concerns with regard to the democratic
transition. There are numerous ways in which incipient transitions differ from
already consolidated ones; consequently judicial activism must be made relative to
context. If political actors are still under construction, civil societies are weak and
the complexity of a political, economic and moral transition is overwhelming, the
72 In academic usage activism generally refers to the propensity of a judge to strike down the
action of another branch of government or to overturn a judicial precedent, with no implied judgment
as to whether the activist stance is correct or not. Activist judges enforce their own views of
constitutional requirements rather than deferring to the views of other government officials or earlier
courts. Defined in this way, activism is a mere antonym of restraint.
73 A. Zegrean, T. Toader, La Cour Constitutionnelle de Roumanie, Les nouveaux Cahiers du Conseil
Constitutionnel n° 38/2013, p. 259.
74 M. Safta, Developments in the Constitutional Review: Constitutional Court between the Status of
Negative Legislator and the Status of Positive Co-Legislator, Perspectives of Business Law Journal vol. I
(2012), p. 1-17.
75 M. Safta, loc. cit., p. 1.
76 R. Hirschl, Towards Juristocracy, op. cit., p. 12.
34 SIMINA TĂNĂSESCU
protection of fundamental rights can only be ensured by a strong promoter of
change such as constitutional courts proved to be in Hungary or Poland77. But if
the main elements of a democracy are already in place and they have barely started
to articulate together, despite inherent difficulties, the 'counter-majoritarian'
argument78 may have a role to play and a hyper-activist constitutional review may
endanger whatever limited democratic acquis there could be, without even fully
succeeding to protect fundamental rights. Trapped between political evolutions
upon which it had no clout and lost in a transition which proved more difficult
than others, the Romanian constitutional judge started by approaching political
questions with lots of precautions and ended up in full judicial activism. The burst
during the summer of 2012 has been symptomatic for this evolution but it did not
question any deeper the legitimacy of constitutional review in Romania. However,
it remains interesting to see what will be the path that the Romanian Constitutional
Court will adopt for the future.
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36 SIMINA TĂNĂSESCU
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