Some judges and prosecutors in the top judicial body, the Supreme Body of Magistrates, have rejected according to their press releases, the idea of a referendum initiated by President Nicsuor Dan in which magistrates would have been asked how the justice system functions_ whether it serves the public interest or is subservient to an interest group.
Although in essence their messages is similar, there is a nuance: judges have made it clear that they feel like a state within a state, and consider any questioning of the activity of the SCM from outside the system inappropriate. Prosecutors have a slightly more constructive perspective, at least at the discussions, admitting that, in the event of a vote, members of the section would resign their mandates in case that a majority voted that the SCM does not serve the public interest.
As a first remark, it should be noted that the attitude of the judges was consistent with the arrogant positions of other judges’ representatives in recent weeks, especially in the context of discussing reform of magistrates’ special pensions.
The feeling that they are a state within a state has been cultivated by judges repeatedly, whether it was points of view expressed at the SCM, or whether there were points of view expressed at a court level, including the highest – the High Court of Cassation and Justice.
In their positions on the referendum called for by Nicușor Dan, they both try to speculate on the possible legal weakness of the presidential approach, from the perspective of the principle and norms that regulate the separation of powers in the state.
However, their interpretation is limited, being purely legalistic (this is hardly a surprise, it’s a professional defect – as those concerned are still lawyers and are tempted not to look at the big picture). But this does not mean that their interpretation merely a cover-up, and they least cat least consider that Romania’s justice system sometimes produce chain misfortunes_ social, economic and political_ on numerous levels other than just the legal one.
Moreover, Nicusor Dan who bothered the “legal” purists of the SCM during the holidays cannot naturally raise the issue exclusively from a legal point of view, since he himself is not from this profession.
He president is neither a prosecutor nor a judge, but the president of the country, and he therefore he acts politically and, represents an extremely wide category of stakeholders: taxpayers and litigants (attention: the taxpayer is a potential litigant, and the litigant is a taxpayer).
This does not exclude the head of state from the game, on the contrary, it pushes him to get involved since the president himself has the constitutional obligation to ensure the smooth running of the entire institutional architecture. Then, and since the president is the most legitimate public actor in society, from the perspective of the Constitution says and the votes he has behind him.
In any case, it is common sense to admit that the problem of the justice system is not limited to the SCM, just as the problems of health and education, for example, cannot only the problems of the relevant ministries and other relevant representatives.
The involvement of politics in the course of justice will also come with controversies and question marks, but that doesn’t mean it isn’t legitimate.
In Romania today, the president has reached a situation of getting involved not because he wanted to, but because society has called for it as we have seen in recent days, including from magistrates who feel oppressed or disillusioned by their colleagues who control the way the system is run.
If the heads and members of the SCM had done their job to the letter and in the spirit of the laws that they invoke today, either society, nor some more courageous or merely fed up magistrates, nor Cotroceni presidential palace would find themselves today in the position of an intruder disturbing the internal affairs of the justice system and the SCM.
But the SCM (and not only) has acted long and outrageously enough creating the current situation with its own hands.
Nicușor Dan also had the opportunity wash his hands of his obligations under the Constitution and the duty he owes to the Romanian society that he represents both inside and outside the borders.
Fortunately, Nicușor Dan did not choose this path, but opted to be involved a an undoubtedly delicate path, a path that is riddled with controversies. A path that is neither exclusively legal nor exclusively political.
As things have shown so far, what seems to be really disturbing for some magistrates is not the fact that Nicușor Dan called for an referendum in the justice system but the fact that he has kept the issue in the public opinion for the long term and has welcome division among magistrates for the wider public interest.
In just a few days, a stack of documents was collected in Cotroceni that highlight complaints about the most serious aspects in the justice system and prevent it serving the public, while simultaneously harming a significant number of justice professionals.
In a single day, Cotroceni held public consultations with magistrates, who have a loots n their hearts, but who cannot get solutions from the justice system which is rotten. And more delicate consultations could follow, behind closed doors.
The referendum for magistrates, initiated by the president, seems to be not a destination, but rather a stage on a much longer road. This is also the reason why the SCM judges and prosecutors who are now trying to put a stop to purely legal obstacles, risk committing a big error.
Because the justice system has fallen into such a state that today it has become primarily a political issue, a social project, and a problem of broad national interest.
Gone are the times when the mafia at the top of justice could dictate what ‘diseases; there were within, invoking the fact that what is on the inside is treated inside.
Those times are over, but from the statements put out by top judges and prosecutors on the referendum requested by the president, it can be understood that they do not understand what world they are in.
By requesting this referendum, the head of state actually seems to be aiming far beyond some narrow legal aspects. In fact, it seems that he is aiming to create new levers of action on a particularly rough terrain. He also seems to have understood that it is neither good nor practical for him to be alone on this road.
Romanian president calls referendum among magistrates after street protests against the judiciary
