Romania, December 2017. Exactly a week before Christmas, hundreds of Romanian judges, prosecutors, and trainee magistrates silently protested in front of their institutions, holding their robes or the Constitution, but most of them showing printed versions of the common oath they took when sworn into office at the beginning of their career:
”I swear to obey the Constitution and the laws of the country, to defend the fundamental rights and liberties of people, to fulfill my duties with honour, conscience, and without prejudice. So help me God!”
In essence, the protests came after the Parliament adopted the so-called ”justice laws”, consisting in substantial changes in the three main laws affecting the organization and the statute of the judiciary without taking into consideration the firm opposition of more than half of the judiciary. Moreover, the silent protests concerned the announced changes in the criminal codes which would dramatically limit the investigation powers of police and prosecutors, as well as the possibility to protect the victims and identify criminals, no matter the nature of the crime (murder, theft, rape, corruption etc.).
Bucharest, Cluj, Constanța, Timișoara, Iași, Galați, Craiova, Pitești, Brașov, Bacău, Baia Mare, Suceava, Botoșani, Brăila, Satu Mare, Oradea, Călărași, Miercurea Ciuc, Zalău, Slatina, Târgoviște, Târgu Mureș, Tulcea, Piatra Neamț. These are the main cities where magistrates protested against the actions of the Parliament.
During and after these protests, there where some voices in the news that challenged our right to protest, saying that the law forbids magistrates to protest in any way.
This text sets forth to prove that not only can magistrates protest, but also that there are causes and situations where their very oath calls on them to do so.
To begin with, aiming to settle the first issue, whether the law actually forbids any form of protest, we must say that the law only forbids political reunions by magistrates, not any sort of public reunion and gathering. Therefore, art. 9 from the Statute of Judges and Prosecutors states that judges and prosecutors cannot be members of political parties, nor carry out or participate in political activities, being also forbidden to publicly state or in any way show their political preferences.
What is essential in understanding the prohibition of political activities, but not any type of public activity (e.g. silent public protest), is the distinction between ”politics” and ”policies”.
Politics, defined very simply as the activity concerning governance, is – without a doubt – beyond the scope of a magistrate’s activity, falling under the interdiction stated above. Ironically, the changes made in the laws allow a magistrate to be a member of the executive branch (Government) and then resume his or her position as a magistrate. Although this is not the purpose of this short paper, it is worth mentioning that the most vocal critics of the magistrates’ right to protest voted that magistrates can be ministers in the Government; in simpler words, they are saying magistrates cannot criticize laws now, but they can pass laws in the future.
Policies, on the other hand, explained very shortly as a course of principle of action adopted or proposed by an organization or individual, should be debated, discussed, and – if the case – protested against by all the stakeholders involved by the policies.
Romanian magistrates did not protest against a political party or another (an activity strictly forbidden without a doubt), but against public policies adopted in the field of justice, affecting them directly as main stakeholders, along with each and every citizen or resident of the country.
Therefore, the question is not whether they can, but rather why and when magistrates absolutely should protest.
Judges and prosecutors are merely instruments; not instruments for a group of people, be it the majority or the minority of the population, serving fleeting material interests, but rather instruments serving constant values and principles of justice that guard the safety of a society as a whole, no matter the passing political and economical trends.
Magistrates are an instrument in serving justice and thus should be independent from any political influence. The independence of the judiciary is not a privilege of judges and prosecutors, but a fundamental right of every person. Art. 6 of The European Convention of Human Rights states that everyone if entitled to a fair trial by an independent court.
People should rise and speak up when magistrates – as a legal instrument – are threatened with political control, just as a surgeon should rebel if its knife – as a medical instrument – would be used to harm rather than heal.
Just as teachers should rise and speak up if they would be forced to teach children propaganda rather than science, art, and languages.
Just as policemen should resist if they would be forced to serve and protect their superiors and not the people.
It is not for magistrates to criticize politicians, only the members of a society can sanction or reward the behaviour of a politician, through the vote of the majority. However, this is not the case here, as the distinction between politics and policies has clearly proven it – our protest is not aimed at politicians, but at the policies they proposed and adopted.
When basic rule of law principles, such as the independence of the judiciary and the separation of powers, are constantly threatened, it is a duty for magistrates to send a warning, no matter the political affiliation of the ones initiating the threat. It is a duty for magistrates and every citizen to take a firm and constant stand against policies that harm the very structure of a democratic republic.
Lex iniusta non est lex – unjust law is not law. Romanian magistrates, similar to most around the world, pledged loyalty to the Law and not its makers.