Judge Election System: a solution

Judges have never been elected by the citizens in Romania. They have always been appointed by the rulers of the land, later known as the executive branch of the government.

The establishment of the Supreme Judicial Council in 1989 was a good intention gone bad.

After 20 some years of social experimentation, the Council turned into a type of an organization nobody could foretell.

In a 2009 Report commissioned by the European Parliamentary Assembly’s Committee on Legal Affairs and Human Rights, Finnish Rapporteur Kimo Sasi, said: “Public trust in the judiciary has continued to decline in recent years. The Supreme Judicial Council reportedly acts as a syndicate attempting to obviate the requirements vis-à-vis transparency. Since the second half of 2008, efforts have been made to reinforce the transparency of the judiciary, but they have been limited to technical aspects (publication of case-law). The procedures for recruiting and promoting judges and judicial staff have been made more transparent in order to reinforce the independence of the judiciary. I am alarmed to note that although the law prohibits this, judges, indeed whole benches, are often replaced for no apparent reason. This raises the question of the random assignment of cases to courts and suggests that the latter are subject to certain types of influence.” That is an interesting word choice in describing the Supreme Judicial Council (CSM), since “syndicate” is mostly known for its criminal implications. Kimo Sasi tried to alleviate the strong connotations of the statement using the word “reportedly” but we all know that judicial rumors in Romania hold more credibility than official dispatches from the Justice Department. And if the rumor was merely a rumor, it would not have been included in the official report to the European Parliament. As a result of this report and others, the Romanian judicial system painted a catastrophic image in Strasbourg. Or should I say, maybe, Brussels, since the European Parliament is the only assembly in the world with several meeting places, in effect, a “traveling circus”.

Since not a day goes by without a judge, lawyer or public prosecutor thrown in a Romanian jail, the public is rightfully concerned with the state of justice, recruiting and dismissal procedures.

The public complained incessantly of lack of power to admonish judges for prejudicial behavior. What’s wrong? How did we become so corrupt that the Eu commission has to place our country on a special justice watch? Presumptuous as I am, I’ll tell you what it is. It’s the judges. It’s the “merit-selection” system of the judges (recommended by the Supreme Judicial Council) and tested, kindergarten style, by the “Judge School” (National Institute of Magistracy).

So we end up with kids acting as judges at the tender age of 22 when they should be more concerned with chasing girls and clubbing rather then sentencing from the Bench. Moreover, we read in a Romanian lifestyle magazines of lady judge retired at the age of 47, after 25 years of work, who took up pottery to enhance her retirement life! Shall I mention that the demographics tell us that the medium appointment age to the US Supreme Court is 53? Or that the average age of federal judges appointed in US is 48? Is a human being qualified to take judgeship at 22 or even 26? No way. Such an aberration would be impossible in other systems of selection. How is it possible to appoint a judge or a prosecutor at 22 (even a trainee)?

Preposterous is a very mild assessment. Now that’s a real travesty of justice.

I was observing a trial in Bucharest the other day and noticed a trainee judge on the bench. First I thought the sitting judge brought her child to the office ‘cause she couldn’t get a babysitter in time. The trainee judge looked like a 16 y.o. adolescent page of the Congress. With the right outfit and pom-poms she would have made a perfect cheerleader for the high school baseball team. But it was no mistake. The sign said “trainee judge” – (judecator stagiar).

Judgeship is a question of prestige and proven professionalism that comes with maturity and age. Democracy is election. We vote for our legislators, we vote for our president and mayors so why don’t we vote for our judges? The legislators are the people who pass our laws and the judges are the people who interpret them. True democracy is election, not appointment. 85% of the United States have an election type of system for judges. Most of them have been in force for more than 150 years, so it’s a time tested system. “Judicial protests” or justice strikes in such jurisdictions are unheard of. Such a move would bring unspeakable shame upon the judge and would mean instant dismissal or at least defeat at the next election.

Judges in Romania think themselves demigods in human skin, almighty and untouchable. No matter how wrong their decisions are, no matter how uncannily young they are or unprofessional, they know one thing: Nobody can hold them accountable, they are above law and only the superior courts are the only means of recourse to a miscarriage of justice. But trouble is the superior courts are made of the same cloth. No matter how many wrong sentences they issue, they cannot be censored. They are appointed till retirement and have zero responsibility and 100% margin of error in the interpretation of the law. Jurisprudence is not recognized as legal authority so they reinvent the law or recreate it with each sentence. Even worse, case-law is not published in Romania so statistics are not available to public. When it is published, it’s carefully selected and edited and the names of judges are obliterated so you won’t know who issued the oddity.

What’s to be done? Resort to the Supreme Judicial Council? What good would that do? The European official position it’s that this organization is a mere syndicate more concerned with concealment of scandals rather than disciplining judges. It’s just a good ‘ol case of one hand washing the other.

The current system of “merit selection” has filled the system with spineless bureaucrats, only becoming vocal and spirited when their wages are in question. They even grant each other court decisions augmenting salaries and benefits. In 2009, they effectively shut down the judicial branch in their quest for money. Of course, they already have the highest paying jobs in Romania and pension schemes. One judge even displayed his public indignation on the diminishing of salaries saying that he won’t be able to buy beer to his fellow judges. Now he’s chairman of the Supreme Council.

The right to vote belongs to the citizens, not to judges appointing other judges and claiming independence. I’ve heard criticism about the North American system of election of judges. Now isn’t that the pinnacle of arrogance and ignorance especially coming from the worst judicial system in Europe? The Supreme Council will never vote for its own dismantling and will always fight for taking the power from the citizens and keeping it for eternity. That’s socialism with a “human face” (whatever that means), original democracy and perpetuation of dynastic heritage in the judiciary. The supporters of the present “merit selection” system think that you, dear voter, are too stupid to pick good judges. You’ll be duped by campaign slogans and elect lousy judges. They want to take away your power because you, the electorate, are not smart enough to make the right choice. Their choice, that is. They’ll also lose their right to produce brainwashed drones from the “Judge School”. No more fake promotion tests, no more loopholes in the law which enable low court justices to jump stages and become appellate court justices without any merit. The justice system now is like a big lottery draw . Who goes to the top the fastest? Who wins the games and quizzes show? It’s a competition and tests for “meritorial” goals. How can you win “merit” and “reputation” through tests? There’s no test for reputation, the only test is an election of judges.

We’ve all heard of the Thyssen Case, dragging on and on for the last 27 years in Romanian Courts. How are the judges accountable for such mistakes? If you ask them, they’ll say it’s not their fault. It’s the law. It’s never their fault. There’s always something else. They are flawless. Questions and more question, but no satisfactory answers. Well, maybe it’s time judges become accountable to voters and let “merit” be considered by voters and not by “non-partisan” judges assembled in a “Supreme Council” or the “Judge School”.

The merit selection system is a sham in its current form. Consider that Bucharest Law School is not present in top 500 universities in the world, being outclassed even by African Kwazulu University, so you’ll get an idea where we stand on legal education.

Give us the power to vote out a judge that doesn’t fulfill her judicial function. Our trust in the Supreme Council and Kindergarten of Judges was badly abused. Don’t get me started on the Napoleonic legal system.

Roy de Bris

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