Muddling through Democratic Transition. The Romanian Constitutional Court

Romania’s first democratic constitution has entered into force towards the end of 1991, while the Constitutional Court began its activity the next year, issuing its first decision on 30th of June 1992. The first quarter of century of the Courts’ activity might be divided in two major parts; the watershed being the 2003 revision of the Constitution, which eliminated the Parliament’s possibility to override the Court’s decisions. Another distinction might be made from the perspective of the docket of the Court: in the period between 2007 and 2012 the Court issued at more than 1.000 decisions pro year. This period covers one of the most tumultuous phases of post-communist Romanian politics, during which the President of the Republic faced two attempts of impeachment, in the years 2007 and 2012. The Court’s huge workload has also procedural explanations: it has no preliminary screening mechanisms, thus each complaint is decided upon by the full Court. Further, as individual complaints can reach the Court solely by way of exceptions raised before regular courts, regarding the constitutionality of the legal norms applicable in a given case, the Court might be facing recurring complaints regarding the same issue. Consequently, in the given period (1992-2015), roughly 95% of the judgments covered by this research were refusals or rejections. Adopting a strong positivist stance, the Court is reluctant to become a “positive legislator”, hence it generally refrains from offering consistent remedies, leaving it up to the Parliament to decide upon how to correct faulty legislation. Further, in more than 10% of the cases in which the Court found for the plaintiff, it sought to identify such an interpretation of the given text that could be in line with constitutional requirements and therefore managed to refrain from declaring it unconstitutional. This presentation, as part of the JUDICON project, focuses on the critical 2007-2012 period by analyzing the trends in the strength of the decisions in order to determine whether, and how political struggles are reflected by the Court’s activity. Data is assessed against results from the early years of the democratic transition (1992-1997), a period in which other constitutional fora from the region – notably the Hungarian and the Czech courts – have assumed a prominent role, as well as against a period of relative calm from political (and social) perspective: the pre-EU accession years (2001-2006). The enquiry concludes that the Constitutional Court has never been a too strong check upon Parliament. This role is traditionally assumed by the Government, which possesses various means to impose its will upon the legislature. In the past decade, during which tensions between Government and/or Parliament and the Presidency have escalated, the Court had several occasions to become an arbitrator, a role that it was not particularly enthusiastic to interpret.