B. Draft Law 2 relating to conditions of admissibility of a candidate as
member of the Constitutional Court (CDL(2006)008)
1. Exclusion of political party membership for candidates and their families
10. One of the most important requirements concerning the composition of constitutional courts is the guarantee of the independence of constitutional judges already during the process of their selection, nomination or election within the national parliaments. This approach does, however, not mean that the process of the selection of the constitutional court judges can or should be absolutely free from democratic political influences. This would be unrealistic and contradict basic concepts of constitutional justice.
11. According to the new Article 5.4 candidates for the position of a judge at the Constitutional Court shall not be or have been members of any political party, nor be relatives in the first degree or second degree, nor spouses, sons in law or daughters in law of persons who are or were during the last five years members of the leadership of political parties.
12. Such a restriction seems clearly excessive, especially as the provision deals not only with current party membership but even with membership during the last five years.
13. Two arguments can be made against such a restriction, relating to the right to participate in political life of the country and the right of access to public functions. These two rights would be endangered by the proposal. In addition, in a democratic country it is even desirable that the Constitutional Court is composed of persons who do not only have a legal qualification but also experience in the democratic life of a country.
14. The establishment of a specialised Constitutional Court as conceived by Kelsen and first applied in the Austrian Constitution of 1920, rests on the recognition that the annulment of acts of Parliament, which represents the sovereign people, is different in nature from the ordinary civil, criminal or administrative jurisdiction. The composition of specialised constitutional courts is different from that of the ordinary judiciary because the constitutional court needs added legitimacy (see the Venice Commission’s study on the composition of Constitutional Courts, Science and Technique of Democracy, no. 20). The closer this composition reflects the various currents of society the higher this legitimacy will be.
15. In order to prevent direct influence of political parties, it is not necessary to ask for complete political abstention. It should be sufficient that the members give up any party membership upon appointment or presentation of their candidature. Once the members are appointed, they act independently and in their individual capacity. They even have the famous ‘duty of ingratitude’ towards the body which appointed them and the principle of collegiality will help them to live up to these standards.
See the link here: http://www.venice.coe.int/docs/2006/CDL-AD(2006)006-e.pdf
What I’ve outlined in bold is in my opinion BULLSHIT. Those fossils in the romanian constitutional court were all the beneficiaries of Ceausescu’s nomenclature, in one way or an other. They were former PCR members and post ’89 they were members of the so called National Salvation Front (a den of traitors, criminals, former security collaborators and corrupt politicians), then of the other important political parties (which broke apart from the NSF). How the hell does this pro-oligarchical euro think tank (the Venice Commission), propose to keep the separation of powers intact and keep the judicial system independent, when they’re actually (textually) encouraging CCR judges to have political pasts?! (ergo to come from the political realm, and not the apolitical judiciary branch)
Etichete: basescu, bullshit, ccr, comisia, commission, constitutie, constitutionala, corruption, coruptie, curtea, de la, engleza, judecatori, judiciary, oligarchism, oligarhie, pcr, romania, venetia, venice, venice commission