Populist Attack on Judicial Independence Threatens Romania's Security

  • Mihai Turcanu
  • 8.1.2018 14:56

When the Soviet’s ultimatum on 26 June, 1940 demanded the Romanian territory of Bessarabia, the Army’s Chief of Staff himself, Florea Țenescu, begged the King to yield. Alone, after its allies had successively fallen, Romania, he argued, was not in the position to withstand a Soviet invasion. The motive for that pessimism was the decades of neglect, profiteering, and high-level corruption which left the army – the main guarantor of Romania’s territorial integrity – under-equipped and unprepared to fulfill its duties. The take-away from this is that sometimes a country is confronted with threats from within no less important than those from abroad. In Romania’s case, this seems to be a rule, as its institutional corruption is, yet again, threatening its national security.

For Romania, 2017 was the year of a continuous political crisis. After winning the 2016 December elections, the first concern of the populist Social-Democrat Party (PSD) was to look into the criminal files of its members. During previous years, many PSD members were convicted of corruption, while others – including its president Liviu Dragnea – were on trial. Thus, the aim of the government’s emergency ordinance passed on 31 January was to decriminalize a number of graft offences, to shield officials from allegations, and grant amnesty for committed crimes. These cynical measures triggered the largest protests of post-Communist Romania which forced the resignation of Justice Minister Florin Iordache. Though facing a hostile public opinion, PSD was undeterred. It must be understood that, wishing to escape punishment, many of its deputies were all but fighting for their freedom. They waited for the hostility to wane and towards the end of the summer resumed their offensive by employing a two-fold strategy.


In 2017, PSD launched their offensive on the judiciary aiming to bring it under their control and restrict the power of the prosecutors


First, their aim was to neutralize the source of their troubles. Their criminal files were brought to court by the National Anti-corruption Directorate (DNA), a body tasked with fighting high-level corruption. Between 2007 and 2014, DNA indicted 4700 defendants, with a 90% conviction rate, 700 of which were holding very high-level position. In 2015-2016, the DNA indicted 2520 persons, resulting in 1840 convictions, among which were 8 ministers, 38 parliamentarians, and tens of mayors and magistrates. The DNA is enjoying the support of 60% of Romanians, and the European Commission (EC) exemplified the DNA as a model of good anti-corruption practices across the EU. Many of those convicted were high-ranking members of PSD. Last month, Dragnea was indicted by the DNA for creating an organized crime group siphoning EU funds, an accusation backed by OLAF the EU anti-fraud watchdog. For these reasons, PSD launched their offensive on the judiciary aiming to bring it and its prosecutors under their control. Together with two of their much smaller allies they have, in the last four months, passed a set of legislative amendments intending to eliminate the role of the president (an office they weren’t able to win for the past 12 years) in appointing Supreme Court judges and chief prosecutors, and instead granting this power to the Senate they control.


The legislative measures, regarded together, amount to a coup staged against the judiciary


The other side of the PSD strategy is to shield themselves from justice, as the parliamentary committee that came with the above referred amendments also drafted a series of changes to the Criminal Code and Criminal Procedure Code. These amendments propose to institute a ban on public statements regarding ongoing investigations, but oblige the prosecutors to inform the suspect that he or she is under investigation. During trials, they intend to allow powerful suspects to be present when witnesses are giving testimony. Under some circumstances they would prohibit the usage of video and audio materials as probes, and stipulate a six-month validity period for reports of corruption cases from the moment the witness knew about the crime. Moreover, they grant the power to political appointees to terminate ongoing investigations for ambiguous reasons. The amendments further stipulate a sum of 200,000 as the lower limit for abuse in office cases to be treated as a crime, while proposing lower sentences of up to three years for bribery and influence peddling. All these measures, together amounting to a coup staged against the judiciary, were publicly protested by thousands of prosecutors and judges, and, after being passed by the parliament, it is now up to Romania’s president, Klaus Iohannis to either veto, or sign them into law. This indicates that Romania’s political crisis is expected to continue well into 2018.


The reaction abroad

Partially due to the volatility of the international environment, and in part due to the speed with which PSD has pushed through this legislation, the international reaction to these developments has so far been rather disappointing, although not entirely lacking. The EC’s November CVM reports criticized the stagnation of the anti-corruption fight in Romania, but the criticism were derided by PSD’s leadership. Similarly, the US State Department on 27 November stated the amendments threatened the progress made by Romania in its fight against corruption. PSD’s parliamentary faction and its allies publicly rejected this, but it is worth noting that it was the same parliamentarians who spoke publicly, (and at about the same time) about moving Romania’s Israel embassy to Jerusalem – a distraction to attract President Trump’s favor. On 22 December, the head of the Council of Europe (CoE), Thorbjorn Jagland, wrote to president Iohannis expressing his concern regarding the legislation, while the embassies of seven EU countries simultaneously condemned the legislation “weakening the judiciary's independence and the fight against corruption”. In both cases, it was suggested that Romania ask the Venice Commission for advice on the proposed amendments, a scenario rejected by PSD.


It is in the immediate interest of Romania’s allies that the country has capable institutions


While the media controlled by PSD and its allies already began pushing the well-known Soros narrative (as if it was George Soros stealing from Romanians), the interest manifested by Western countries in the state of the rule of law in Romania has obvious underlying causes, the first of which is their reasoning as its Allies. They care because, for instance, in the current international environment Romania plays a key-role on NATO’s eastern flank, or because the U.S. have significant defence investments in the country. A state is a political organism able to function only when its constitutive parts are operating properly. It is thus in the immediate interest of Romania’s allies that the country has the capable institutions to ensure its viability and dependability in the face of present and future dangers. The army being one of such institutions, it would be naive to assume the military would not be greatly affected in a country deeply ridden with corruption. This is troubling as the times lying ahead indicate the need to be strong and self-reliant, despite the presence of allies.


At no point in the evolution of post-Communist Romania was the divergence between the interests of a segment of the political elite, and those of the vast majority of Romanians more evident than it is today.


Romania’s underground economy was estimated at $46 billion for 2016, or about 22% of GDP. In spite of the progress made, Romania ranks 57th on the 2016 Transparency International Corruption Perception Index. PSD’s encroachments on judiciary’s independence, as explained above, indicate that even this progress is not irreversible. These developments also reveal that the corrupt segment of the Romanian political elite, popularly identified with PSD (the political the heirs of the Communist Party), see themselves as locked in a deadly fight to preserve their freedom, their wealth and their future in the face of justice which demands they be punished for their past and present misdeeds. It is also clear that, based on this consideration, there is little they are unwilling to sacrifice to achieve their goal – be it the country’s political or economic stability, its foreign image, and even its security. At no point in the political evolution of post-Communist Romania was the divergence between their interest, and those of the vast majority of Romanians, more evident than it is today, and never did this divergence present such a threat to Romania’s national security.







About author: Mihai Turcanu


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