Sever Voinescu: Justice like a flood

You hardly get used to the idea that you are a law student and you learn about the principle Nemo iudex in causa sua – no one can be a judge in their own case. It is one of those legal principles that are so fundamentally and intuitively clear that they no longer need to be written down anywhere, in a law or in a Constitution. It comes from the Codex Justinianus (6th century) where it was taken from an edict of the emperors Gratian, Valentinian II, and Theodosius (4th century). The reasons why civil or criminal procedural laws state that a judge must abstain from judging a case or that, if they do not, they can be recused by one of the parties are developments of this fundamental principle.

The principle in itself is so natural, so normal, it is, in a slowly established expression, "so common-sense," that you remain amazed if someone were to tell you that, on the contrary, it is natural for a judge to judge a case in which they have a direct interest or, moreover, that they are even a party. Moreover, in an era where the obsession for "a fair trial" of the justice courts in all democracies has become almost neurotic and we make "the fair trial" a value in itself greater than justice itself, it is all the more astonishing to find courts that disregard this principle. And even supreme courts! Well, you can find them. In Bucharest, somewhere on Batiștei Street.

What do you say about the case between the High Court of Cassation and Justice and the Government of Romania that is being judged at the High Court of Cassation and Justice? How impartial will the High Court of Cassation and Justice be judging the case in which the High Court of Cassation and Justice is the defendant and the Government of Romania is the appellant? Obviously, in the lower court, at the Court of Appeal, in a case judged from the first hearing, which was set for a month after the filing of the action (my friends, civil litigation lawyers: is it that you feel envious to hear that at the Bucharest Court of Appeal the first hearing is set just one month after the filing of the action and the case is judged at the first hearing?), the High Court of Cassation and Justice won against the Government. And now the Government has appealed. And the appeal is being judged at the High Court of Cassation and Justice which is the defendant in this appeal. It’s funny, isn’t it? But let me also tell you what the subject of the case is, so you can see how impartial not only a panel from the ICCJ can be, but any judge in Romania in this case: it is about a case in which the High Court has judged the Government to compel it to pay within ten days the sum of five billion lei representing salaries earned by judges, all in court, all in cases judged by them, over the last twenty years.

In short: for years, judges have been winning all sorts of salary rights in cases they have judged. Now, the ICCJ is judging the Government compelling it to pay immediately all this amount plus penalties for delay – in total, one billion euros.

The reaction of a jurist will be: well, who is to judge the cases in this country, if not the judges? And if the case (the appeal in this case) is under the jurisdiction of the High Court and the High Court is a party to the case, who is to judge the case, if not the High Court? And yet, nemo iudex in sua causa!

The problem seems unsolvable, doesn’t it? On one hand, only the judiciary judges, and on the other hand, when the judiciary itself, with its most obvious interests (for example, salaries), is a party, it judges itself. The outcome of such a case is unpredictable, it is logical, it is natural – the judiciary will always judge, regardless of anything, in its favor. The judge will not hesitate for a moment to put into motion all the immense power they have in the state to make the Government give them money, more and more money. Yes, the whole situation is absurd. But let’s see why and, especially, let’s see that this situation is not of the category "it’s like that for us, for no one!".

The most serious challenge to today’s democratic systems is maintaining a healthy relationship between the three powers: legislative, executive, and judicial. It is fundamental that these must be, simultaneously, separate and equal. It is said that it is essential to control each other – agreed, but to control each other they must be equal and, above all, separate. The first condition of the democratic relationship between the three powers is their separation, their independence from one another. This implies that each of them has an exclusive domain. There cannot be a power if it does not have its exclusive domain, just as the relationship between separate powers cannot be conceived otherwise than if each has its exclusive domain. It is clear that the exclusive domain, of "sovereignty," if you will, of Parliament is legislation – no one else can make laws over the country. It is clear that the exclusive domain of the judiciary is the application of the law in disputes (judging contentious cases). No one else can definitively decide a dispute of any kind, and the solution must be imposed, if necessary, through the coercive force of the state. Well, what is the exclusive domain of the Government? The Government works according to the laws adopted by Parliament and, if it enters into litigation applying these laws, the judiciary decides whether it is right or not. But what is the exclusive domain of the executive power, of the Government, which is – admitting that the executive power is separate and equal to the other two powers? It can only be the budget execution. The budget legislated by Parliament is executed by the Government and only by the Government. No one can force the Government to execute a budget in one way or another, just as no one can force Parliament to adopt a law or a judge to give a certain solution to a dispute. In other words, through the annual budget law (the initiator of which can only be the Government), the budget execution is established – from now on there is no other power that can make it execute the budget otherwise. The appearance of the ICCJ in the area of budget execution is inadmissible in principle, before being morally scandalous, considering that it concerns the increase of judges' incomes. Just as it would be inadmissible for the Government to enter into the judgment of disputes. Tomorrow, the ICCJ will end up telling the Government whether to give money for the restoration of power plants from who knows where or to invest in the levee system from elsewhere. This is completely inadmissible and is a mortal blow to the foundations of the democratic functioning of the state.

It is immediately to be said that the tendency of the judiciary to subordinate the other powers in the state is a general phenomenon, specific to the current age of democracies. The concern for a fair Justice has led to the concern for an independent Justice, which has led to the closing of any possibilities of censoring Justice by other powers of the state, which has led to the immunization of Justice in relation to anything. Add to this the excessive legalism of social life, which implies that any social fact, whether it has or does not have an element of animosity, is a potential judicial process. The power of judges is increasingly greater in society and their independence is increasingly a dominance without recourse. Specifically, in Romania at least, the judiciary is increasingly taking control of the executive power. More recently, it is also taking control over the political acts of the parties. Romania is prey to one of the most dangerous trends: judicial activism. Somehow, during their formation, the idea enters the minds of judges that they are, in fact, activists and believe that they have the mission to change the world, that the power given to them (increasingly!) entitles them to decide on all social processes and public policies. In this case, the Government's salary policies.

Even if the ICCJ wants to hysterize civil society by announcing that the independence of judges is assaulted by the Government's refusal to give them the money it does not have, I urge lucidity and let’s look a bit at other houses, as they say, bigger. Here, in Great Britain, still a benchmark of democracy for anyone, one of the most influential think-tanks (Policy Exchange) has gathered high-quality and immensely prestigious jurists, such as Richard Ekins, John Finnis, Christopher Forsyth, Paul Yowell, or Anthony Speaight in a project called the Judicial Power Project. The project started in 2015 and studies this phenomenon of the judiciary stepping out of bounds, of inflated and flooding Justice, focusing on its excesses of power. The Judicial Power Project is very active today, publishing opinions, studies, organizing conferences – visit their site and you will find there ideas and positions that arise from the same concern that I have on the other side of Europe and democracy. Of course, the English discuss pragmatic cases of their own, they don’t really do philosophy there, but I mention the Judicial Power Project just to show that the problem is felt by others too. I will continue to write about this issue, among others, also because I do not see such a movement emerging in our country anytime soon. Moreover, because most legal theorists in Romania are also practitioners and, therefore, do not want to get into trouble with the judiciary by pulling its sleeve. And, later, because it is not our kind to take on those stronger than us, especially since today judges are extremely powerful in our society.

https://www.dilema.ro/tilc-show/justitia-ca-o-viitura