The presentation by the Justice Ministry of the new draft codes and procedural laws was the starting point for major debates in the political and media communities. Also worth mentioning is that the strengths and weaknesses of the Ministry’s drafts have been hijacked by political leaders, who are ready to plead for or against the criminalisation of certain deeds, and to mount small-scale media crusades defending the civil rights threatened by the legislative provisions in question.
Faced with such opposition, the government was forced to accept parliamentary debates on the drafts, but hinted that its patience was not unlimited (unless the four bills are amended and endorsed in due time, the Government will take responsibility on their enactment). I find this situation, or rather the paradoxes that it generates, to be relevant for the institutional failures in the Romanian political system.
On the one hand, the call for legislative debate is entirely legitimate: when the four key Codes that regulate most human interactions and most of the judicial process are not to be discussed in Parliament (which is the ultimate authority in the field in all democratic states), then the role of Parliament itself is seriously questioned. Leaving aside the disinterest of the MPs (who, in a first stage, only bothered to echo the criticism brought by the media), the attitude of the government is questionable in other respects we well. For instance, if we admit that a debate is necessary, we should not introduce any time constraints. After all, the special parliamentary committees are not a bunch of friends who chatter away at the government’s judicial policies. To admit that amendments are necessary means, at least in form, to admit that the bills are perfectible – which is why we should not hurry the MPs, either under the false pretext that we have to endorse the Codes at the request of the European Commission, or under the threat of governmental responsibility. The latter is particularly illogical: since the debate is intended to improve the Codes, I don’t believe that the risk of prolonged debates is as high as to justify a return to the initial drafts.
On the other hand, there is extensive debate on the amendable nature of these four bills. I was disappointed to find that the public paid no attention whatsoever to the Code of Civil Procedure — in a public communication effort, the Justice Ministry posted on its homepage its replies to the issues in the media agenda. And, as far as this bill is concerned, the Ministry had nothing to reply to, according to its web side.
In the current reductionist debate (the draft Codes are either good or bad) worth mentioning are several institutional policy aspects, which are in fact recurrent in the Romanian political practice, and which invite criticism and, possibly, improvements. On the one hand, supporters of the Codes rely on judicial doctrine and comparative legislation, as the ultimate justification for the amendment of the new bills. This emphasis on doctrine, which is claimed to be a specialist approach (hence the key role of the professionals who have drawn up the bills or who criticise them) significantly reduces the political nature of these bills and the responsibility for their enactment. It is one thing to criminalise and punish corruption, as attempted by one side in this dispute, and it is an entirely different thing to leave this to moral censure alone, as the opposite side would have it. Essentially, the regulation of such important aspects must be based on a specific view on doctrine, for which policymakers must take political responsibility. While there may be utilitarian reasons that may support the need to adopt a particular policy, its moral validation resides not in its efficiency or celerity, but in a broader outlook on the Romanian society and on how it should be organised. Otherwise, we may claim that we have studied the legislation of other states and taken over the best parts of each, but we run the risk of endorsing laws that we regard as the universally reasonable solution, only to find ourselves unable to handle the practical problems generated by the enforcement of those laws.
On the other hand, this emphasis on the criminal or civil law of other states, just like the criticism of the draft Codes, sheds light on how these legislative changes are being justified. The impact of legislation changes is of an institutional nature: there is a set of rules that regulate people’s conduct and expectations, and we change these rules (sometimes radically). The problem is not so much with the change as such, but with measuring its prospective effects. Basically, individuals are rational actors, although their reasoning process has its limitations. They will respond to a change in rules, and will create new behaviours and attitudes (that code supporters or critics have not even tried to predict), new action patterns that may or may not be socially desirable. What will be the effect of sentence abatement? Without in-depth research, we can only rely on comparative legislation and on more or less informed opinions. What will be the effect of de-criminalising prostitution? Or of accepting evidence indirectly generated by illegal evidence? Will we have offenders who try to take advantage of this newfound lenience, or will we have public authorities which push the limits of the law, in an attempt to create de facto power for themselves, in spite of the new legislation? This medium and long-term analysis is imperfect; citizens’ responses to new provisions may be utterly unexpected and unpredictable. But resorting to a political or judicial doctrine alone does not guarantee the existence of judicial instruments that are immune to criticism and perfectly applicable. At most, it can guarantee a consistent approach, in terms of doctrine, and an approach lacking political endorsement (because the political doctrines that Romanian parties claim to embrace should tell us exactly where a politician will stand on the issue of ownership or on criminalising a particular behaviour, for instance).
Meanwhile, another element is noteworthy. While interaction patterns in the Romanian public space gave us reasons to expect that we will approach such laws at this level alone, we cannot overlook the absence of debates within institutions or professional associations that represent the direct interests of those in charge with the administration of justice. There are magistrate associations, there is a Higher Council of Magistrates, there are bar structures and there is a trade union of police forces. These institutions and associations should overcome their petty clashes over salaries, status and role, and should take direct interest in this debate. Nowadays, the lawyers, judges and prosecutors are more than just members of a profession intended to support and enforce the law. When law changes are proposed, their opinions on the matter should be heard and paid heed to (and when such opinions are not expressed, there are always polling methods that are highly relevant to this particular case).
The overall conclusion of debates on the four draft Codes is pessimistic. Without questioning the professionalism of those who put them together or the good faith of those who criticise them, I believe that at the end of this debate we will have a well defined and doctrine-consistent set of laws (in technical terms, the renumbering of a judicial act that has been successively amended is, in itself, a step forward). But we have no hint of what will happen from now on in judicial practice, and of the unforeseen effects of the enactment of these four Codes.
By Radu CUCUTĂ
