The Romanian Constitution, the 2nd Edition of the 2003 adaugita revized and dedicate two articles, the Superior Council of Magistracy. We learn from them not only as a guarantor of the independence of MAGISTRATES, justice is but also how Board members are selected, which voting procedure within the sessions, a member's term of MAGISTRATES etc. Excessive attention to detail the constitutional exceeds normal care for institutional stability and becomes an obstacle in the path of the MSC enable deep, reaching to dependant revision of the Constitution. Hence, the need to include the topic in any Council reform debate concerning a possible constitutional reform.
And, we say, without detours, there are many institutions in this country that have a greater need of reform than the MSM. An inventory of legitimate criticisms to address utility is found in the excellent report of the society for Justice entitled legal system from Romania and published in September 2006. To mention that irregularities are inventoried by the report are, in their great majority, directly attributable to the perverse incentives menu put into play by the legislation in force (law no flagrant abuses such as will failure to timely statements of wealth, scrambling the illegal some sessions of the Council of magistrates made pressures in cases involving members of the Board, etc.).
The legislation defects, add a Constitution the selection mechanism ineffective, facilitate access to Council persons with authority and hierarchical seniority in the legal system before, so some potential opponents of reform. This contraselectie takes place in daylight, by a method whose legitimacy no one would think of today was a question put, namely through the freely expressed vote of judges. You need, however, to stay away from the typical rushed conclusion that Council member e in the mirror image of the roman magistrate. No, the explanation of this contraselectii resides not in the quality of human lower magistrates with voting rights. The result of the vote to select members of the CSM e normal consequence of any situations in which competing for their votes with subordinates, bosses the other subalterns. Those interested can consult the press for details about the pressures meant to discourage candidates without pedigree, who accompanied the CSM since 2004.
We are therefore in a situation no enviable: not just that the legislation will not abuse, but rather allows populating the Council with people who have every reason to commit them!
And yet, it would seem that we, as hopes any diagnosis that blame stupid legislation, made themselves a natural solution: to change the law, if the law problem! Nothing more simple in appearance, but as experience teaches us that good laws are adopted, and the impossibly perfect. The process of lawmaking in the long and tortuous and e any initiator by law cannot impose their vision in detail. Everyone must compromise, designed to soothe nelinistile more or less guilty of those affected by the laws. When talking about e revision of the Constitution itself, the need for compromise is greater and requires the legislature to establish a list of priorities. That amending laws is more important? Are there any that, adopted first, to increase the chances of their adoption of the other, for example, by weakening opposition to reform from within the system?
The thesis of this article is that in the top of the list of priorities should sit a radical change in the mechanism of selection of members of the SUPREME COUNCIL of MAGISTRACY, which has limited access to the Council of judges hostile to reform. This aim cannot be achieved through simple regulations aiming to prevent contracandidatilor by intimidated candidates with managerial functions. They have at their disposal sufficient non-transparent ways of making them hard life his comrades, so that the rules meant to discourage such practices are doomed from the start to the inefficiency. Measures of lustration or equivalent type will be rejected by those doubtless intended audience. Then, why do we have to do? Well, no matter how radical it may sound, the solution is to give up altogether at present selection mechanism and to replace it with one that does not have recourse to a vote in any way. The alternative is not, as one might think, the appointment of magistrates discretionara in the MSM, but their selection is random. The method of selection by drawing of lots is not new: it is known that in the anglo-Saxon world e practiced successfully for juratilor selection.
It would solve our problem, annulling the advantage that dishonest people with managerial functions (and, implicitly, with the old antedecembrist system States) in elections to the SUPREME COUNCIL of MAGISTRACY. By no means neglected is that selection by drawing of lots, and cooperative with the increasing number of Board members and the drastic of the duration of their mandates, would transform MSC into a microcosm of the body of magistrates. The merits of such transformations cannot be overlooked: on the one hand, each Member of the MSC and would lose power and, implicitly, of opportunities to put in jeopardy the reform of the legal system; on the other hand, the body of magistrates, took in its entirety, for the first time would gain a seat at the table at which decide the destinies of the justice system.
We no longer stays than hopefully proposal drafted here will be cantarita on the basis of its intrinsic merits and shortcomings, and not owing to the illusion of power which give us a vote. If magistrates put to choose leaders, there's just an illusion, but one obvious and dangerous.
