Interpreting the Constitution

Having briefly depicted Romanian constitutionalism, I want to argue that no matter what vision of constitutionalism one wishes to embrace, for constitutional adjudication and thus legal, or rather judicial, constitutionalism to remain credible (alone or alongside other forms of constitutionalism), less formalistic and more open to debate, Constitutional Courts have to be able to boast an important cpistemic authority, by which I essentially mean the capacity to do things with language wisely. In particular, I will look at two decisions that could be qualified as populist or at least as problematic from a rule of law point of view. My aim is to see whether there are any significant differences in the language and the reasoning of the Court in these decisions as opposed to the more ‘regular’ ones, which are usually perceived as purely

technical interventions, eliciting no special attention from the political point of view. This discussion will further allow me to draw some conclusion on what kind of Constitutional Court the Romanian Court is/should be and what kind of judicial politics it is/should be doing thirty years after the fall of the communist regime.

Decision no. 358/2018 – a problematic constitutional intervention

The political background

I should note from the very start the Romanian context of a bicephalous executive: on the one hand, the elected President, whose prerogatives are rather limited and more honorary, and the Prime Minister and their government, on the other. As presidential and parliamentary elections are held at different times, cohabitation is generally the norm in Romanian politics. Hence, the Government and the President exercise a certain amount of control upon each other.

Under the patronage of the European Union which monitors the progress made by the country, in the last ten years, Romania assumed anti-corruption as one of its main goals, and therefore a scries of corresponding measures were implemented. Accordingly, the independence of the judiciary became much stronger than in the aftermath of the Revolution, and prosecutors felt encouraged to go after high-profile politicians who were long suspected of crimes involving public money. The chief of the National Anti-Corruption Prosecuting Office (Laura-Codruta Kovesi, who was recently elected head of the newly formed EU Prosecutor’s Office) was soon made into a public hero. She posed a problem to the ruling party, many members of which had already been convicted, were being under investigation or simply hoped that once she was no longer to be in office, they would be able to move on with the type of crony capitalism that kept PSD together as a party for thirty years now.

Speculating on some of the rumours about mass surveillance techniques being used by the secret services to target corrupt officials as well as on a couple of proven instances of abuses by prosecutors, some of which started to feel overconfident under Kovesi’s direction, the Minister of Justice initiated a procedure for removing her from office. The President interpreted his constitutional and legal (infra-constitutional) prerogatives in the procedure as decisive and refused to confirm her removal from office upon reception of the proposal from the Minister.

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