In the last few days, including the reaction he had after watching the documentary Recorder and on Tuesday, in Helsinki, when President Nicușor Dan declared himself a supporter of self-regulation of the justice system, and the self-government of magistrates, of distillation and internal resolution of various problems (many of them, really serious) between and by prosecutors, judges and their respective professional bodies.
Coming from the level of a politician, in a country where we have rule of law, therefore in a framework in which the separation of powers in the state is considered sacred, President Dan’s insistence on the subject of that self-regulation and self-government seems normal and should deserve to be welcomed.
But when applied to today’s Romania nowadays, the issue tends to become more nuanced.
Because, from the perspective of the situation in which the judiciary finds itself, Romania today is by no means a country where things work normally, but one in a deep crisis.
Moreover, the profound crisis in which justice finds itself inevitably goes beyond the boundaries of justice, reverberating on multiple complex levels – the political, the social and the economic.
Therefore, already this first finding – there is a deep crisis, and what should have actually worked fails – calls into question the president’s position (not from a principled point of view, but from a functional point of view).
A second remark is that the justice system, although it seems, is not something abstract.
The justice system means people (magistrates), it means regulatory and representative bodies, it means various governing bodies at various levels (all of them, too, also populated by people). It also means a set of internal norms and organic laws (well or badly conceived, also applied or violated by people – this time the spectrum of “people” is more diverse, because it is not reduced to magistrates, but also touches the legislative and executive spheres, made up of politicians).
So: part of what goes wrong in justice comes not only from internally, but also from externally, not only from magistrates, but also from politicians, as well as from the interactions and the interests of the two categories.
Consequently, the dimension of self-government and self-regulation, on which the head of state insists, is nuanced once again. It is necessary, but it is not enough.
As a third remark, again one that projects nuances on the issue of self-regulation and self-government that President Nicușor Dan insists on, it is probably worth paying attention to the fact that it is also about people here – magistrates.
How can things be repaired mainly from within, since it is precisely some of those in leading positions or among those with the status of members of key bodies that have not so far seemed genuinely interested in guaranteeing the independence and fairness of justice? In fact, in some places they have acted systematically to undermine them.
How can things be repaired mainly from within, when the press revelations of recent years and the testimonies from within the judiciary, which have appeared in recent days, indicate that, in addition to the “gods” who cut and hang as they please, there is also a chronically silent mass, in some cases chronically complicit and, in general, chronically feared by the magistrates?
This being the big picture, President Dan’s preference for rectifying the situation mainly through self-regulation and self-government is hard to understand and may not be the most productive.
Nicusor Dan has been in Cotroceni for a relatively short time and carries out his activity under an avalanche of crises, each a priority that requires his attention and involvement.
Therefore, it cannot be excluded that, in his approach to the crisis in the justice system, that he still has more things in mind than what he has so far hinted at through his public statements in which he placed a disproportionate emphasis on resolving that crisis from within.
But if this is not the case, then another scenario becomes possible: the one in which the head of state sees the crisis in the judiciary as a battle between different clans, and at least for the moment he is not tempted to tip the balance in favor of one or the other.
And if he really looks at the situation in this way (he would not be the only one, there were public voices that treated the story in this way), Nicușor Dan still has a problem: not so much on the analysis side, but on the involvement side.
Because no matter how things really stand, the head of state has both the position and the levers that force him to get involved and that allow him to be more than just a spectator.
Nicușor Dan is an intelligent man, an experienced politician and he had the opportunity to know well the underbelly of the justice system since his debut in the public space, when he made his run of work as a civic activist precisely in the courts, where he fought with the real estate sharks in Bucharest, and was probably frequently frustrated by the lack of celerity or fairness for litigants.
And it is precisely these qualities that should help him once again to understand that, clans or no clans, the head of state should stay off the sidelines.
In itself, the self-regulation and self-governance of justice do not automatically lead to a fair, credible, efficient, functional justice – the proof of this is precisely the state of affairs in this system, which we are confronted with and commenting on.
The direction also matters. And at this moment, the direction that self-regulation and self-government in the judiciary is anything but optimal.
The president of the country can contribute significantly, by getting involved and re-orientating the system.
