Political rule of law

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At this moment, Romania is proving to be a dysfunctional state. At least from the standpoint of the mechanisms that form the basis of any democratic state’s existence, as described in political textbooks and observed in practice in other parts of the world.

And this omni-dysfunctionality oozes and transpires through everything we can see happening within all state structures. Starting with the one at the top of its pyramid – the political system – and ending with its wide base – civil society.

Theoretically, a democratic political system is the guarantor of principles that define the rule of law. And the rule of law represents the cornerstone of any modern democracy that has so far existed in humanity. However, before anything else, let us see what the rule of law is or should be.

Many political theory and constitutional law specialists define the rule of law as the one that generates and manifests its existence based on the fundamental principle of the separation of powers.

According to this principle, the branches of government – legislative, executive and judicial – should each observe the notions of separation and should nevertheless manage to ensure, together, unitarily, that harmonisation of structural forces that would determine an optimal functioning of the state as a whole.

But, going beyond the theory and its exhaustive interpretations, I would like to get back to what is happening now in Romania. And I will start with the judicial branch.

In recent weeks, the endless Romanian political-media scandal has refocused its whole power and attention on what incumbent Justice Minister Tudorel Toader is doing, saying and especially not doing.

Minister Tudorel Toader has become the media’s predilect target. And not because his person stirs more or less antipathy among Romanians and the press, but because, according to the rule of law principles I was talking about earlier, as a person nominated and designated to lead the Romanian judiciary, Minister Tudorel Toader has acted more, and more obviously, as an exponent of the political system he comes from. And not like one of the judiciary whose custodian he is and which he should lead in a manner as neutral as possible, oriented exclusively to the benefit of the Romanian state and to the interests of its citizens.

Two of the members of the current PSD-ALDE Government – Ms Rovana Plumb, European Grants Minister, and Ms Sevil Shhaideh, Deputy PM and Regional Development Minister – are the topic of another huge political scandal. The ladies mentioned being suspected of committing abuse of office during the time they were Environment Minister and Secretary of State respectively, as members of the Government that was in office in 2013. Guilty acts written down in the dossier publicly known as the Belina Dossier. One that concerns another case of grave political corruption whose central point is none other than Liviu Dragnea, the head of PSD and the de-facto leader of the ruling coalition.

The two ministers’ link with the leader of the left wing is undeniable and hardly worth analysing or questioning.

And the link between incumbent Justice Minister Tudorel Toader and the two ministers, leaving aside its cooperative aspect at governmental level, proves to be also one of a strictly political nature. Via the same levers and paths all of which are leading to the same Liviu Dragnea.

As a matter of fact, how could a Justice Minister remain neutral in the face of an act of political corruption at governmental level, if the Justice Minister himself is one of the ultra-important pieces of the huge political puzzle? Consequently, Mr Tudorel Toader put up a political “shield” (that is how President Klaus Iohannis called it) around the two colleagues and members of the Government whose members they all are so far, using – how else?! – that essential component of law: the presumption of innocence. Which says that, in the absence of any concrete evidence that would prove the guilty acts of which someone is suspected and indicted, it takes precedence.

However, Tudorel Toader does not represent an exception of the PSD-ALDE Government. Let us recall another Justice Minister – Mr Florin Iordache – who, no later than last winter, through a similar attitude and another shield put up around Ordinance 13, managed to bring thousands of people into the streets and to generate anarchy in Romania in a matter of days.

Thus, the said ministers, staunchly defended and backed by the Romanian Justice Minister himself, remain untouchable and perfectly functional for an undefined period. Their dismissal or self-suspension is out of the question, as has been well understood out so far.

Because, isn’t it so, before the public office, a minister holds a political office. And before his accountability before the Romanian state and its citizens, a party soldier must answer before the party hierarchy.

In this case, the office of minister becomes secondary and the annex of personal or group political obligations and interest.

So, then, the question that naturally stems from this entire episode is this: is there a case and an example of political interference appearing in what should be the separation of powers?

The answer is more than obvious: yes! There is interference. And not only does it exist, but it seems to be present in any other aspect and level of state mechanisms.

As is well known and can no longer be confused or denied in any way, the state’s entire executive body, the Government, is appointed based on political criteria.

And, overall, the entire state hierarchy, starting with the country’s president – who, constitutionally and theoretically, must not have political stripes nor political involvement – and ending with any petty local councillor or any other kind of civil servant who olds a more or less politically privileged position, stems from, exists and is expressed via the direct will of the ruling leaders, party, union or political alliance.

So then, again, I wonder: how could one still obtain and especially how could one maintain a depoliticized or apolitical state structure protected as much as possible from the huge temptation of corruption that power confers, when, starting with the Head of State and ending with the doorman of any political party, everyone is subjected to political whim and authority?

At this point, each time there appears a huge fracture between that part of rule of law political theory and its immediate functional reality.

And, also at this point, Justice ceases to be blind, unbiased and intransigent in the progress of its processes within the state mechanism.

And this irreconcilable and irredeemable conflict in real terms includes and engulfs all those state institutions such as the DNA, the Judicial Inspection, the CSM etc., which, theoretically, should be in perfect concordance and empathy with the Justice Ministry and the rest of state institutions whose real and undoubted goal should be and should remain that of monitoring and censuring all political – or any other – decisions and acts that may perturb the mechanisms of the Romanian state or may be deleterious to them.

In the rule of law, the body politic, its will and decisions, does not prevail over any other element or part of the state.

All citizens of the state obey its laws with no distinction and without bias. Be they politicians, ministers, high-level or low-level officials and civil servants, or simple citizens.

In a rule of law, the political does not close ranks and form a shield against the law and justice, nor could it trigger a veritable media war that would bring about, in its turn, social chaos and anarchy, taking advantage of the attributes conferred by the political power.

“I want to believe Romania is a country that strengthens the rule of law, and in a rule of law persons who are criminally prosecuted, tried or convicted should not be at the helm of the state.”

This is the statement that President Klaus Iohannis made on Tuesday, September 26, regarding his view on the current status of the Romanian rule of law.

And something makes me think a great part of the Romanian citizens, leaving aside any political sympathy, antipathy or neutrality, are on the same page with President Iohannis.

With the only observation that, unlike the President, whose position in the state hierarchy has and allows for the adoption of palpable solutions to the grave anomalies and perturbations that have appeared in the proper functioning of the rule of law, Romanians are left only the hope and lucidity of the vote offered once every 4 or 5 years, as only instrument of (probable and increasingly volatile) censuring the political.