The Association of the Romanian Magistrates (AMR), the National Union of the Romanian Judges (UNJR), the Association of the Judges for Defense of Human Rights (AJADO) and the Association of the Romanian Prosecutors (APR) submitted on May 12, 2020, the following public statement due to unprecedented attacks against the Romanian Constitutional Court after a ruling which found as unconstitutional some of the previsions related to the state of emergency law in Romania.
The recent attacks against the Romanian Constitutional Court (RCC), of an extraordinary gravity, coming from political leaders, journalists, commentators or representatives of some NGO’s, prove that, 30 years after the fall of the communist dictatorship, autocratic reflexes still persist in the Romanian society, the violations of the Constitution being excused in the name of security and the “interest of the people”. This justification has always been used by autocrats in the dark times of history to seize more and more power.
The ease with which the violation of rights and freedoms in Romania is argued and justified by various authorities and opinion leaders brings back into actuality the words of the former US President Ronald Reagan, who said that “freedom is a fragile thing and is never more than one generation away from extinction”.
Romania is only two generations away from the communist period in which there was no Constitutional Court. Although the Romanian Constitutions from 1948 and 1965 covered the equality before the law, freedom of conscience, religious freedom, the person’s right to liberty, freedom of the press, freedom of assembly, freedom of association, inviolability of domicile, secrecy of correspondence, property rights, Romanians suffered violations of all these rights in the communist period by laws enacted by the Great National Assembly, in contempt of the Constitutions in force. Since in that period there was no mechanism for controlling and correcting those laws, Romania was transformed into one of the most cruel and brutal communist dictatorships.
On the 6th of May 2020, the Romanian Constitutional Court decided that some provisions from the Government Emergency Ordinance no. 1/1999 were unconstitutional, on the grounds that they were not clear enough to allow citizens to adjust their conduct in accordance with the law. Over 300,000 people have been fined based on these unconstitutional provisions during the state of emergency.
Immediately after the ruling, the Constitutional Court became the target of extremely aggressive and unfounded attacks, starting with the President and the Prime Minister, then continuing with other political leaders and many others, which proves that the frequently invoked rule of law principles, which they claim to respect and defend, are simple slogans.
Exceptional times are the ones that separate those who believe in the values of the rule of law, in freedom and the supremacy of law, from those who use them only to create an artificial image or to seize more and more power, outside democratic control.
Balancing the arguments of the Constitutional Court with the pseudo-arguments contained in the virulent attacks directed against it, the present professional associations highlights the following conclusions:
1. The Constitutional Court has given a predictable decision, anticipated in many articles by a number of legal professionals.
It is generally accepted that, when the state imposes a sanction, the state must also indicate precisely, in a clear legal norm, the conduct that the person is allowed or not allowed to adopt. Specifically, the unconstitutional articles did not contain such a description, but defined, without distinguishing, as contraventions any violations of any measures “established in this emergency ordinance, in the related normative acts, as well as in military ordinances or in orders, specific to the established state of emergency”.
According to any domestic and international standards, such a rule of incrimination could not be considered “clear and predictable”, which is why it was found to be unconstitutional.
The court adopted its decision UNANIMOUSLY, which simply makes the accusations of political partisanship directed against the judges of the Constitutional Court ridiculous and demagogic.
2. The reactions that immediately followed the ruling of the Romanian Constitutional Court, corroborated with the fact that the Executive power did not use the measures that had available and could have been applied to solve the problem, prove that all these critics do not want to solve the problem, but cynically take advantage of the opportunity to attack the Constitutional Court.
“Because of this decision, it can be said that the Government and the authorities are almost impeded from defending the health and life of Romanians during the state of emergency,” Prime Minister Ludovic Orban said.
Prime Minister Orban’s statement reminds us of the one from 2015 by former SRI (Romanian Information Service) director George Maior, who attacked the RCC by saying: “I want to warn very seriously that there is also a moral responsibility somewhere in the state, in connection with the national security of the Romanian citizens – not of the state, I am not talking about the state anymore – and that when a catastrophe happens I will know who to point my finger at”. This attack was generated by the displeasure of the former SRI director Maior caused by the fact that the RCC safeguarded the individual rights of the Romanians against the illegitimate intrusion of the state in their private life through the Big Brother laws , which were declared unconstitutional.
Five year later, time during which the observance of the rule of law principles should have been consolidated, another high official of the Romanian state demonstrates the alarming degradation of democracy in Romania.
The attack against the Constitutional Court by the Romanian Prime Minister in the same rhetoric used by the former SRI director demonstrates the slow progress of the political leaders in understanding the rule of law, democracy and respect for human rights.
3. By its decision, the Constitutional Court held a mirror in front of the institutions and showed them their weaknesses in knowing their own competences and limits: The Government, in the middle of a pandemic, adopted an unconstitutional Emergency Ordinance and failed to establish legal sanctions for those who do not respect the rules; The President ruled/legislated by the decree that established the state of emergency, violating the exclusive competence of the Parliament; in its turn, the Parliament left the President’s conduct unsanctioned, fully ratifying his decree.
The decision of the Constitutional Court should have had the effect of a cold shower for all these state authorities, which should work hard to restore the balance between the powers, for the benefit of the citizens. When an institution or authority goes beyond its constitutional limits, the normal reaction is to correct the mistake and solve the problem, not to attack those who expose it.
It is important for all political forces and various commentators, who encourage autocracy, to know that the rule of law is not suspended during the state of emergency. This is emphasized by all international institutions, which draw attention to the possible autocratic tendencies that may appear during such periods.
“It is vital to prevent the COVID-19 crisis to progress into a Rule of Law catastrophe. (…) This crisis should offer a welcomed opportunity to prove that the EU can protect us even from our own governments“, said Jose Igreja Matos, the President of the European Association of Judges (EAJ).
“These are difficult times for us all with many stresses upon democracy and the Rule of Law (…). It is also a time, however, when we can learn much about ourselves and about the importance of the Rule of Law and of the independence of a judiciary. It is precisely during times of pandemic that both are essential. The difficult measures, which have been put in place right throughout the world, cannot confidently be maintained, and cannot be preserved, unless there is the Rule of Law and the confidence of an independent judiciary to apply those laws fairly“, also stated Tony Pagone, the President of the International Association of Judges (IAJ).
With a frightened population, locked inside the house, it is the role of the competent institutions to defend the rule of law and the fundamental rights and freedoms. This is exactly what the Romanian Ombudsman and the Constitutional Court did, fulfilling their constitutional mission to safeguard the fundamental rights and freedoms guaranteed by the Constitution at an extremely difficult time.
A call for vigilance was also launched by MEDEL, which called “the entire European legal community, including human rights organisations, associations of lawyers and magistrates and academics, to serve people suffering from violation of their human rights and to alert on all abuses of authorities who take advantage of the pandemic“.
AMR, UNJR, AJADO and ARP emphasize that, 30 years after the fall of the communist dictatorship, all Romanian state institutions are expected to understand and respect the supreme constitutional values, like the rule of law, democracy and fundamental human rights, to protect them when they are in danger and to restore them when they are violated. The instauration of an autocracy, by taking advantage of an “exceptional state”, is already a recipe patented by history, which is why we have sanctioned and we will always publicly sanction any rhetoric that may precede such instauration.
Judge dr. Andreea Ciucă
AMR
Judge Dana Gîrbovan
UNJR
Judge Florica Roman
AJADO
Prosecutor Elena Iordache
APR
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