REVIEW #4: The Winner Takes It All – Kaczyński, Orbán and Ponta Versus Constitutional Courts

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The processes leading to the EU accession of post-communist countries in 2004 and 2007 posed for those states a unique challenge. They were required to transform politically while at the same time strengtheninig democracy and the rule of law. The EU and the mechanisms of integration effectively pushed for much needed reforms. The Copenhagen criteria and the adoption of the EU’s acquis has helped the Central European region to resist the calls of special interest groups that would eventually result in bad policies. Central European countries remain committed to a parliamentary system of governance as opposed to the presidential system favored by most of their counterparts in the former Soviet bloc. They remain committed to the balance of powers and the rule of law as opposed to the authoritarian tendencies and the rule of a party or a leader. Their stories were supposed to have happy endings and make Central Europe a valedictorian of the European Union. Unfortunately, this did not last long.

The governments of Victor Ponta in Romania, of Victor Orbán in Hungary, and of Law and Justice in Poland showed that the transition into a liberal democracy is not given once and for all. So far in the 2010s, we could observe dangerous and populist attempts of limiting the balance of powers and shifting in a direction of strong-arm regime in the three abovementioned countries. Radical agenda came into Central European picture, in the heart of the European Union, and made it go astray. Even if the goal of the actions taken was very similar, the means applied were different. Despite that, there is one thing that the governments of Romania, Hungary and Poland had in common: they all perceived constitutional courts as their enemy and tried to circumscribe their power and authority. Thus all three governments embarked on a journey the destination of which was to cripple constitutional courts, and silence all possible reactions after the damage has been done.

ROMANIA

The Romanian Constitutional Court was significantly empowered in 2003, in the light of the EU accession. Until then it had been a subordinate of the parliament. The external, European dimension of this reform was clear in the parliamentary Commission for the Revision of the Constitution and in the parliamentary debates. The reformed Court received a role of a warrantor of the supremacy of the Constitution. It was provided with the power of ultimate interpretation of the Constitution as well as with powers of mediation and legal resolution with regard to conflicts between public institutions.

President Traian Băsescu (Democratic Liberal Party; PDL) and Prime Minister Victor Ponta (Social Democratic Party; PSD) became locked in a constitutional judicial conflict over Romania’s representation at the meeting of the European Council on June 28, 2012. Băsescu issued a complaint to the Constitutional Court. Ponta got the parliament to pass a resolution mandating that the prime minister represents the country in Brussels. That decision triggered a fierce conflict between the president and the prime minister. President Băsescu sent to PM Ponta a letter which drew attention to the fact that participation in the European Council without a mandate from the president legally means the ownership of constitutional prerogatives of the president. Shortly after this, Ponta has torn up the letter during a press conference.

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Milosz Hodun
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