Conclusion
In the debate on judicial activism of constitutional courts, within their competences to control political power, a legitimate question arises: who controls the reviewer, in our case, the constitutional court? Should the constitutional court become more influential, through its activism, in respect of political authorities? The answer to this question depends largely on the degree of democratic development of a particular constitutional system, on the constitutional culture of the given country and, not in the least, on the degree of professionalisation of the constitutional court itself.
As B. Iancu rightly put it:In the abstract and on the presupposition of a healthy constitutional culture and generally accepted normative standards, a strong constitutional court is a guarantee of the supremacy of the constitution and consequently of the rule of law. In a context such as the one described above [the post-communist Romanian context] an increase of the power of the constitutional tribunal is not necessarily conducive to the legal integration and normalisation of the political order. Judicial power without accountability may just as easily lead to perverse forms of politicisation under the guise of constitutional principles.[431]
In the case of the Romanian Constitutional Court, the particular cases of activism that were analysed are hard to explain, especially when one takes into account the moderate attitude of the Court in the first years of its existence. This initial selfrestraint is partly due to the fact that the Court started its activity when the Constitution had just been enacted and it needed to be consolidated as a reference standard and not in the absence or in the process of drafting a new constitution, like in other countries in the region. A possible explanation for the Court’s activism in the last decade could be the fact that the political fights in the period 2007-2009 (a period of co-habitation between the President and the Government, which entailed a suspension from office of the former) generated a ‘competition’ between constitutional judges and supreme court judges in imposing their views on the main controversial issues.[432] Another possible explanation for the Court’s activism could be the actual failure of the democratic transition.
In fact, Romania remains a ‘non-consolidated’ democracy, where the political actors are still not mature enough to solve their conflicts by applying the mechanisms of the balance of powers, and they refer them instead to the RCC, transforming it into the most powerful political actor, and by bringing it into the heart of politics. At this point, the Constitutional Court has a choice: to remain in the limits set by the original spirit of the Constitution (a ‘negative legislator’ designated to remove the unconstitutional errors from the legislation) or to be caught in political games that question its very role in the constitutional architecture.In this context, two possibilities of reform are thus envisaged: first, to curtail, via constitutional amendments, those of the Court's powers that come into close contact with the political game, thus avoiding the risk that the Court is being used as a political instrument. Nevertheless, due to the Court's expressed reluctance to give up the ancillary powers by denying the autonomy of the legislator in this respect and by creating thus a new limit to the constitutional amendment, this will be very difficult to achieve.
A second possibility would be to increase the degree of professionalisation and of ethical accountability of the constitutional judges, by changing the criteria (more career judges, not affected by political affiliation and used to the independence requirements, more academics and specialists in constitutional law, which would bring added quality to the Court's interpretations) and procedures of appointment (more transparency, the increase of the majority required to appoint constitutional judges by the chambers of Parliament, so that they will be appointed by consensus and not unilaterally by the ruling majority).
In addition, the whole paradigm of the Court constantly invoking its own power and authority against others should be reconsidered, because, as E.S. Tanasescu points out, ‘it is a sad and worrying situation for a judge who feels obliged to resort to arguments of authority instead of laying its authority on legal arguments'.[433] In the absence of such an internal reform, the Court's public image and the public trust in its objective and professional decisions would be significantly shattered and would fuel the discourse which questions the utility of its very existence. In any case, and subject to thorough reforms, a form of judicial control of political power should be maintained, through the force of constitutional interpretation of norms, as a powerful tool in consolidating the rule of law.
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