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.