Post on 19-Mar-2016
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Ramona Coman Université libre de Bruxelles
http://www.sciencespo.site.ulb.ac.be/fr/membres_coman-ramona.html
Réformer la justice dans un pays post communiste
Editions de l’Université, Bruxelles
Book presentation Reforming the judiciary in a post-communist democracy the result of a 5 years doctoral research at the Université libre de Bruxelles.
Aim of the book/ starting point Theoretical assumptions/MethodologyOverviewThe independence of the judiciary (judges)
in Romania between past, present and future
First part: (pre and communist period) No hope, white hope
Second part: (post-communism)One step forward, two steps back
Conclusions/new research agenda The book is not the end of the story. After the independence of the judges (2004)
=> what about the independence of the public prosecutors? In 2008, political parties are discussing about a new institutional reform... To be studied
Starting point This research = started in 2004
the academic community was interested in understanding the process of Europeanization and the post communist transformations
the political agenda of the post-communist democracies was dominated by a crucial and controversial issue, that of the judicial reforms
In addition, ten years after the collapse of the communism,
Romania was... =>
...at the bottom of the European heap The Romanian economy was ranked below Namibia and
Paraguay.
The life expectancy was lower than anywhere else in Central and Southern Europe.
The EU listed Romania as last among the EU candidate countries and most Eurocrats privately hoped Romania won’t join the EU for a long time.
The general perception was that “Romania will be a hard pill for Brussels to swallow” and “will expose the EU to the ills of far-eastern Europe”.
In 2000 these considerations presented by Judt in the New York Review of Books were totally shared by the academic community
=>
A deviant case from the established generalisationFor twenty years, scholars and experts never tire of
mentioning Romania as a case of dismal failure
Romania = the perfect example to speak about the “last transition”, “the most violent regime termination”, “the most crying violations of human rights” (Linz and
Stephan),about a country where the civil society was still missing and
the power of the former communists was still significant.The main conclusion : the Romanian communism
and post-communism was peculiarThe need to find new methodological tools to
analyse such a deviant case. In this peculiar country, one reform proved to be long
and difficult =>
Judicial reform = for a political scientist => a reform about power and powers, power relations, institutions…My reserach project addressed the following
questions:
Why it is “harder” for Romania? Why this reform is “long and difficult”? To what extent the study of this public policy
allows to confirm the Romanian post-communist “exceptionalism”?
How the policy change or the policy stability in this field can be explained?
My main objective…
…to analyse How, after the collapse of the communism,
Romania intends to eliminate the supervisory powers of the MJ over the judiciary AND
how and why a quite different institutional model is put in place in 2004?
How Romania moves form “here” to “thereform a traditional French pre communist model
(set up in 1992 by the adoption of the law on the judicial organisation)
to a new institutional framework (established in 2004 by the law on the Superior Council of the Magistracy) that I consider in between of the French tradition and the Italian institutional configuration.
Put it briefly, the aim was to seek... why, ten years after the collapse of the communism,
the independence of the judiciary suddenly becomethe main problem of the Romanian democracy an end in itself the miracle solution to solve any kind of social,
political and economic problems. to present a comprehensive picture of this process of
post-communist transformation and adaptation to the EU pressures
by looking at…How Romania responds to the EU incentives for
changeThe role played the domestic and European political and
social actors
In 2008 I felt that I had sufficiently plumbed my empirical data for, it is to be hopped, an illuminating interpretation of this policy process. An invitation...
Political scientist Kenneth Jowith: political science books “are filled with disciplinary jargon, are historically uninformed, unimaginative, and therefore boring”.
My book is not “historically uninformed”, it is not at all “boring” but it contains some « disciplinary jargon »
In political science, we cannot go beyond the canon of our Method.
We cannot explain and understand political process without theoretical
assumptions.
A necessary disciplinary jargon
How to study this constitutional public policy...taking into account the warning that the Romanian
post-communism could not be analysed using the theoretical tools developed in the Western political science
knowing that no widely accepted paradigm exists to model the relationship between justice, society and politics
and that the theoretical approaches to democratic judicial reforms are hard to convert into empirically testable assumptions ?
The solution or my solution =>
The theoretical pluralismOnly by considering a variety of factors from a variety of
methodological perspectives one can get a more complete explanation of policy change.
I take the theoretical concepts and methodological approaches of three generations of studies on policy change:
The literature on neo-institutionalismThe concept Europeanization The (French/American) cognitive approaches on public
policies
3 explanatory factors are advanced: institutional, sociological and anthropological (integrated into a longue durée analysis).
First theoretical assumption ...is to say that in Romania the institutional setting concerning the relationship between the political power and the judiciary is path dependent.
Path dependence (the neo institutionalism)USED
in explaining and understanding the post communist difficult transitions
in showing that the communist past of the nascent Eastern democracies = the main obstacle to change
“history matters”past policy decisions can influence the futureoffers explanations for deviant, particular
outcomes and for instances of exceptionalism
FOR ME= a form of analysis that simply traces the policy outcomes back to temporally remote causes
Second theoretical assumption...EU influences the development of governance in Central and Eastern Europe through its conditionality and mechanisms of Europeanization
This approach allowed me to investigate
the policy problems perceived by the European Commission (in the functioning of the Romanian judiciary) demanding the need for change
the possible policy solutions formulated by the institution
the policy preferences expressed by the European Commission
But =>
The process is much more complex
« It is more difficult to
establish an independent
judiciary than is to maintain one. The forces that go into creating an independent
judiciary are complex and
difficult to capture »
(Barry Friedman)
New methodological tools are needed: this approach focused on the EU is
somewhat too tainted by the top-down perspective
what happens at the domestic level is presented as following a clear European path, while
“situations” that act as pressures for policy change are not perceived as “problems” only at the European level
They came also from the domestic arena...
Therefore =>
Third theoretical assumption which I believe essential to understanding the dynamics of policy change, is to say that
policy problems perceived by the European Commission are influenced by the policy problems as they are defined by domestic actors
fits and misfits between EU requirements and the functioning of the domestic institutions are politically and socially constructed
It is up to political and social actors at the European and domestic level to determine what a “good fit” is
both policy problems and policy outcomes are the result of a domestic competition between political and social actors in defining the “problems” of and the solutions for the sector to be reformed
By this theoretical assumptionthe book aims at situating the adoption of the law on the independence of the judiciary not only in its political context, but also in the social one
The book tests the influence of cognitive and
normative elements in the public-policy making
takes a social constructionist view of policy problems by looking at“social construction of knowledge
and meaning in the State action”how the domestic actors
construct the social meaning of the independence of the judiciary
This is to say that…
Actors’ preferences matter...but What it is more important is how the actors express themselves
Symbols, ideas, norms, values…matter too!
the book
offers insights into the process of problem definition and agenda setting,
offers an explanation based on the role of causal stories in the formation of policy agendas
The reform of the judiciary in Romania is about... =>
Narrative story lines on corruption and symbolic devicesBy these stories
difficulties are transformed in problems
and the problems in
policy solutions.
They are used by all the actors involved in this process…
For the political domestic elites: The main problem = the corruption within
courts The solution = to empower the MJ to clean it up
For media and civil society: the problem = the political and economic
corruption and the corruption within the magistracy,
the solution proposed is quite different => to drastically reduce the political power over the magistracy
What about the actors concerned by these debates?
In 2002 they were « scared ». The Romanian judges did not have the courage to speak…about their working conditions, the political pressures and on how corruption works with courts => a diabolic Ministry/minister of justice.
It could have a theoretical value as it weakens the original preposition
(EU) and suggests a modified theoretical assumption (on the
cognitive dimension) that may be stronger.
A comparative case study for three methodological reasons=>
The book = a case study to be extensively explored
A comparative case study: 3 aims a longitudinal case study ( 19th century – 2004)
Creation of the JC after the WWII in Europe“Dispassionate” the debates about the Romanian difficult
reformPut the Romanian case in relation with other cases (necessary
when interested in deviant cases) to apply the “pathos of distance” to the understanding and
the writing of my research
it tests the explanatory capacity of different theories
Pre communist past: The independence of the
judiciary, no hope, white hope
OVERVIEUW The judicial reform between past, present and future
Chapter 1 As the institutional development is a process, not a single episode in time...
Focuses on the independence of the judiciary in the Romanian pre communist and communist state.
The aim is to look at: the institutional setup the political and social understandings
on this constitutional principle, the domestic perceptions on the
functioning of the judiciary and how the communist regime managed
to find a solution for a salient pre-communist problem: the independence of the judiciary.
Chapter 1 Pre communist period Laws on the judicial
organisation (1865 – 1948) The need for a « great »
reform attempts to reduce the
powers of the MJ over the magistracy
Creation of the CSM (1909) The attitude of the political
parties (Liberals and Conservatives) with regard to the judges’ career
The attitude of judges towards the policy solutions proposed by political parties
Debates focused on the statut of judges
Communist period The amendments to the
law on the judicial organisation
The new ideology on the “independence of the judiciary”
How the RCP accomplishes the « great » judicial reform (purification, training, people’s assessors, the supreme supervisory powers of the Procuratura)
The role played by the Romanian association of magistrates
Debates on Procuratura
The empirical evidence of this first Chapter represents the starting point in understanding the judicial
culture and the process of institution (re)building after the collapse of the communism
But before analysing a peculiar case, let’s have a look at how it happens in a “an exceptional” context =>
Chapter 2 After the WWII, the Judicial Councils are in Western Europe “an original solution at the service of an idea”
Explores the establishment and the reforms of the Judicial Councils in Portugal, Spain, Italy, France, Belgium…
to better understand what a political and social process in this field should look like in a well established democracy and why the Romanian one is “long and difficult”
Chapter 3: represents a theoretical intermezzo
One step forward, two steps back
The independence of the judicary after 1989
Chapter 4 the establishment of an independent judiciary after the collapse of the communism:-1991 RO Constitution-1992, the law on the judicial organization-1997, the amendment -2004, new revision
The 1991 Constitution institutionalized a powerful CSM in charge of promotion, assigning and dismissing magistrates.
it was a step forward in establishing a new, democratic, institutional framework
BUT the law on the judicial organisation represented two steps back
an opportunity to both reiterate the constitutional principle and to deny it
introduced a transitional period before the CSM starts to accomplish its functions
allowed the MJ to keep all its administrative and disciplinary powers, inherited from the pre communist period and reshaped in terms of practices by the communist one.
Before 2004, this transitional period seemed to be never ending
Chapter 4
As in the pre communist period, in the post-communism the CSM was a decorative institution
the composition of the Council itself was totally determinate by the elected branches
But even if it was a Potemkin institution
in 1997 (under a liberal MJ)in 2004 (under a social democrat MJ
the Romanian political parties tried to go further in consolidating the attributions of the Minister of Justice over this Council
Chapter 4 On the policy problems perceived by the
Romanian legislative/executive related to the functioning of the courts
On the political views and policy knowledge on how to implement the principle of the independence of the judiciary
Main discours of the ro. Political parties: empower the MJ
with one exception: The Democratic Union of the Hungarians in RO = since 1992 clear position on a drastic reduction of the attributions of the MJ.
In 2004... both the political and the judicial commitments to independence were in doubt at the domestic and the European level.
The Executive => institutional changes that would make judges more responsive.
As the Romanian political parties proposed institutional models that disappointed the European Commission, the following chapter...
Chapter 5 looks at
the European conditionality in the field of the judicial reform and
at the Europeanization mechanisms
The European conditionality First question:
Was the European Commission engaged in the diffusion of a particular institutional model concerning the powers of the Ministry of Justice ?
The informal conditionality has been highly ambiguous.
It is far from being clear what kind of institutional solutions the Commission proposed when suggested to reconsider the institutional independence of the judiciary
The Commission has accepted models with extensive powers accorded to the Minister of Justice ( Czech Republic). In others, the Commission has suggested to drastically reduce them (Slovakia).
The models proposed by Romania = criticised as violating the constitutional principle of judicial independence
The EU conditionnality Second question:
Why the EU’s conditionality is not as great as it potential might suggest?
2 reasons:
1. The Western European legal systems provide a plurality of institutional models of judicial independence
2. European Union doesn’t have competencies in this field.
On principle, the breathing space of the candidate countries in choosing one model or another was significant, but in reality it was quite limited
This ambiguity created a lot of confusion in Bucharest
1. Romania had a long experience in duplicating Western institutional models. In 2004 the Romanian government tried to do the same, but it didn’t work.
2. The opinions given by a French advisor to Romania on how to consolidate the Superior Council of the Magistracy were not at all appreciated by the European Commission for various reasons... => in order to understand them =>
Chapters 6 and 7 cover the domestic political
and social context in which the debates take place as reflected in media
The role of the civil society organisations and the Romanian Association of magistrates
Chapter 6 This social context is important.
It influenced the international perceptions on the functioning of the judiciary in Romania
In this chapter I tried to demonstrate with a variety of examples how media emphasize the need for a
judiciary fighting against society’s evilshow the “effective” working of political and
economic corruption is compared with “the blindness and confusion of the judiciary”
Romania = presented as the paradise of the corruption
Journalists denounced politicians, business men, members of the Parliament, Ministers...
They create the conditions for a « judicial activism », but…
Chapter 6 ...distrust of Ministers and politicians was as big as the distrust of judges.
Newspapers reported on corruption within the magistracy
and the incompetence of judges and prosecutors.
the need of punishing past human rights abuses and purging the judges and the prosecutors who had been servile to the Romanian Securitate (LUSTRATION)
They deplored the small number of “honest” and “uncorrupted” magistrates.
How do they react?
Chapter 7 In every liberal-democratic regime, a characteristic of the judicial system is its passivity (Guarnieri, 1981).But in Romania there is a need for « more » active judges and prosecutors. An opportunity window is opened => judges become political actors
This chapter is a sociological analysis of the Romanian post-communist magistracy
It looks at the how judges and the RAM perceive the dysfunctions of the judicial system
At how and why starting with 2003 they present at the domestic and at the international level the policy problems of the sector to be reformed and their preferred policy solutions
How they collaborate with NGOs and the Delegation of the European Commission in Bucharest and how they arrive to take part to the elaboration of the law on the CSM in 2004...
Chapter 7 In 20034 judges,3 avocats,1 prosecutor, with the support of some NGOs and « in the name » of the RAM establish the « policy agenda » on the Romanian Judicial Reform…and think to some policy solutions
Brussels is waiting…for a clear political signal from Bucharest
The Romanian judges understand that time has come to speak about their working conditions, the relationship with the MJ and the corruption within the courts…with tears and fear, but they speak on TV and at the international level…
Critical situations => problems => policy solutions that should be taken into account by the Romanian government (Brussels insists!)
What institutional model in 2004?
in between the French tradition and the Italian model
The European Commission considered that the laws adopted in 2004 = an important step forward
Romania consolidates the attributions of the CSM for the appointment, nomination, career and disciplinary sanctions for judges but keeps the French tradition with regard MJ and the public Ministry
What about the political parties? The story did not end here...
New political debates concerning the independence of the public prosecutors
The Romanian political parties wish that public prosecutors be as independent as judges!
the issue is very controversial. The European Commission said “no”.
The Romanian political parties are once again “confused” because this time THEY are asking for more independence for public prosecutors and they don’t understand why the European Commission suddenly is against the “independence of the judiciary” in Romania.
The attitude of the Romanian political parties vis-à-vis of the European commission is now very different than in the past.
Suddenly they discover that the European Commission is quite “arrogant” in its relationship with the Romanian government and “intrusive” in the domestic political life.
Conclusions
The time has come to conclude…This book started with three theoretical assertions. It is now time to put these three assertions to the test in the light of the empirical results.
The first assertion of the book – that the judicial reform in Romania is path dependent is fully confirmed.
The second assertion of the book – focused on the resistance to change of the post-communist Romanian political parties – is fully confirmed.
The third assertion of the book – the role of the European conditionality and the mechanisms of Europeanization – should be nuanced and corroborated with domestic factors. The conditionality should not be analyzed as a constant factor of causation.
In this book I seek to demonstrate that...
the institutional outcome of this public policy is the result of a process of hybridization between the ambiguity of a principled idea (the independence of the judiciary) and domestic requirements.
Institutions matter, actors matter too!
But actors change institutions by using ideas, symbols, normes, values…
Is the Romanian case a deviant one?
The convergence of public policies could be analysed in terms ofAims : NOOutcomes : NOInstruments: NOActors and process: NO If we take into account these 4 elements
the Romanian case is not a deviant one if compared with similar process in France (Mény, Minc…), Belgium (Mertens), Italy (della Porta, Mastropaolo, Ginsborg, Briquet, Guarnieri, di Federico), Spain…The outcomes are not the same but policy processes present similarities.
Theoretical and empirical conclusions
This book is aboutDemocracy civil society, Policy processes,Ideas, Symbols which orient the actors and help to make sense of confusing policy problems.
This case study contradicts the conclusion that the EU changes the political regimes of the Member States (The functional logic of the EU)
the research challenges the conclusions traditionally drawn by the literature on Europeanization and public policy analysis
it shows the importance of taking into account symbols and anthropological factors in explaining the increase of the power of judges
New empirical research agenda
New case studies
The activity of the CSM After the « war » => study the
new alliances established between the MJ and the CSM
Debates on the independence of the public prosecutors
The 10 cases of big corruption (the Big fish)
The emergence of new associations of magistrates
More comparative research….?
New empirical and theoretical agenda
My case study invites
TO THINK TO A COMPARATIVE ANALITICAL
FRAMEWORK in order to elaborate
“a political
theory of the judicial reforms
in Europe”
To explore in more theoretical terms the Institutional Political (weak parties/fragiles coalitions) social conditions (politics of rights,
perceptions on the policy-making institutions)
under which such reforms take place What are the domestic/international
conditions that promote such reforms? What are the causes behind these
developments? Idea => to point some general
determinants/to see if these reforms are likely to occur in a particular setting …
WHY? (new debates at the EU level) BUT HOW?
Thank you!
Réformer la justice dans un pays post communiste
DataThis book combines comparative historical analysis and personal interviews.
Information collected = checked against several sources in order to minimize the distorting effect of the self-serving memories of participants to the process analysed
Pre communist and communist period: parliamentary debates and political discourses, the collection of the Romanian Law Review, party publications and newspapers
Post-communist period: parliamentary debates, political declarations, reform plans elaborated by the MJ, newspapers, international reports produced by the European Commission, Freedom House, American Bar association, Open Society Institute...
Interviews conducted with representatives of the political parties, members of the CSM, Ministers of Justice, judges and prosecutors, members of the AMR, representatives of the Bucharest based NGO-s involved in the political debates on the judicial reform, journalists and civil servants at the Delegation of the European Commission in Bucharest.