Beyond Judicial Independence: What Kind of Judiciary is Emerging in Post-Communist Eastern Europe?

Abstract

The judiciary is a high-impact institution which affects social well-being as well as economic development. Following the fall of Communism, most of the countries in Central and Eastern Europe (CEE) undertook judicial reforms, spurred in part by the conditionality of accession to the EU. What have been the actual outcome(s) of these reform efforts? Have judiciaries in CEE remained subservient to the State, or have they come to exercise uncontrollable power, i.e. ‘supremacy’, over the democratically elected political powers? Has a third possibility, the co-equality of the judicial with the political branches, been seriously considered?

The argument is divided into a theoretical/normative and an empirical part. The theoretical part develops the typology about the relationships that can exist between the judiciary and the elected branches of government and their consequences. The empirical part examines in more detail the type of judiciary that has emerged in post-Communist Romania, assessing and explaining the major judicial reform of 2003-2004 which empowered the Constitutional Court; eliminated recurs in anulare, a mechanism which the Executive could have used to check and balance the judiciary; and greatly empowered and made autonomous the Judicial Council, the putative constitutional guardian of judicial independence. The evidence presented strongly suggest that a particular type of relationship between the judiciary and the other powers of government, which I have labelled 'vicious supremacism' is in process of taking root in the CEE. This outcome has been the result of both external pressures, especially exercised by the EU, and domestic motives.

Paper presented at the Social Foundations of Constitutions Workshop, Wolfson College (Oxford), 8-9 December 2009.

Keywords: courts, judiciary, power, checks and balances, separation of powers, EU influence, Romania