CRITICIZE THE WORK, NOT THE PERSON. THE PROHIBITION ON MAGISTRATES DEFAMING OTHER POWERS. FREEDOM OF EXPRESSION VS. THE OBLIGATION TO RESERVE
"Our criticism will be unbiased. We will criticise the book, not the person", said Mihail Kogălniceanu in Dacia Literară in the middle of the 19th century, trying to instil a critical spirit in the citizens of that time, introducing the concept of objective criticism.
Kogălniceanu's commentary is still applicable today, from the way a public debate is (or should be) conducted to the way we discuss with those close to us, whatever the subject.
Today, this concept exists in the form of the thorough argumentation of the ideas presented in a discussion, at the opposite pole to the attack on the person, considered to be the last resort of people without arguments, likely - in a society with deep-rooted values - to discredit more the sender of the attack than the addressee.
In the new Statute for Judges and Prosecutors [1], Article 9(3) has been inserted: "Judges and prosecutors are obliged, in the exercise of their duties, to refrain from any defamatory expression or expression, in any manner whatsoever, against the other powers of the State - legislative and executive".
There has been much public discussion about this restriction, whether it is really a limit on the freedom of expression of magistrates, whether it refers to any kind of comment or only to possible attacks on political representatives.
Although now, less than a month after its entry into force, there have been discussions in Parliament to repeal this paragraph 3, it is important to know the exact limits of application and interpretation of this apparent new restriction on freedom of expression, regardless of further interventions on the law.
At first glance, given the dictionary definition and the general obligation of each person not to defame another, the regulation may seem superfluous, since - according to the DEX - defamation evokes the idea of contempt, humiliation, degradation, gossip, slander, stigmatisation, slander and derision [2]. A magistrate, like any other citizen, is forbidden to humiliate and demean another natural or legal person, be it a public institution; it can therefore easily be argued that such a regulation is useless from a legislative and practical point of view.
The argument of futility was also expressed by the Venice Commission in its Opinion no. 924/13.07.2018, strongly recommending in its conclusion the removal of the newly introduced restrictions: "The new obligation imposed on Romanian judges and prosecutors seems unnecessary at best and dangerous at worst. It is obvious that judges should not make defamatory statements about any person, not only about the state powers. To make this specification by law seems unnecessary" [3].
However, since it is necessary to interpret the legal rules in such a way that they apply and not in such a way that they cannot apply [4], I propose to read this paragraph 3 in the sense that it mirrors - and nothing more - the provision prohibiting magistrates from expressing their political convictions; paragraph 2 of the same Article 9 states that "judges and prosecutors shall refrain from expressing or manifesting their political convictions in any manner whatsoever in the performance of their duties" [5].
The new paragraph therefore strengthens and particularises the restriction on magistrates to express their political convictions, even by disapproving of other convictions. In other words, while paragraph 2 prohibits the appreciation of a particular political party, paragraph 3 prohibits the admonition of political factions, whose representatives are active in the legislative or executive branch.
The only key way in which this article can be interpreted is merely as an additional form of protection for magistrates, by detailing their constraints on expression.
Under no circumstances could this prohibition of defamation be interpreted as prohibiting any comments on the measures adopted by Parliament or the Government, especially since in the field of justice magistrates are directly involved and targeted, like all Romanian citizens.
Under no circumstances could "defamation" be equated with "opinion"; although it has been interpreted in the press that the legal provision was introduced in order to limit the right to free expression of magistrates, we must remember that there are also rules for the drafting and interpretation of laws - Law no. 24/2000 on the rules of legislative technique for the drafting of normative acts [6].
According to Article 36(4) of this law, the drafting of texts is done by using words in their current meaning in modern Romanian. In other words, speculations about certain interests have no place in the legal interpretation of a law, the explanatory dictionary being sufficient in this case to understand the exact meaning and scope of the restriction.
To interpret 'to defame' as meaning 'to comment' on a person, measure or institution would exceed, firstly, the dictionary meaning of the word and, secondly, the restrictions imposed on freedom of expression by the Constitution.
Article 30 of the Romanian Constitution states - on the one hand - that freedom of expression of thoughts, opinions or beliefs and freedom of creation of any kind, whether by speech, writing, images, sounds or other means of communication in public, are inviolable, and - on the other hand - that freedom of expression may not be prejudicial to the dignity, honour, private life of the person or to the right to one's own image.
To place more constraints and restrictive interpretations on freedom of expression than those expressly provided for in the Constitution is undoubtedly unconstitutional. Such an interpretative approach would fail the double test of semantics and basic constitutionality.
In short, one person's right to image/dignity is the limit of another's right to free expression. It is a simple concept, also presented to fifth graders in legal education classes, and requires no further explanation in this context. However, in no democratic state and no functioning community can any kind of criticism be considered as damaging to one's image or dignity. Even less so when that comment, positive or negative, concerns public policy.
Thus, an insulting statement about a person may harm the right to image and dignity, but a statement about measures implemented by a person as a representative of the legislature, executive or judiciary could not fall into this category and therefore could not be restricted.
Public policies, as a rule, essentially need trust in order to be implemented and respected by citizens, and trust is not built through silence but through dialogue. Constant, honest and constructive dialogue.
This useful dialogue involves, as Kogalniceanu urged, a criticism of the proposed measures and the public policies implemented, and not of the people involved in the dialogue. A battle of arguments, not attacks on individuals. And only the latter can be legally interpreted as subject to the prohibition of defamation.
This interpretation is also in line with the recent view of the Constitutional Court on the text of the law; the CCR assimilated defamation to contempt, insults and denigration, stating that the text does not remove the right of magistrates to take a position on measures with which they disagree: "Their public statements of position may be firm, but at the same time they must be animated by an institutional respect which must characterise the activity of any state official" [7].
7] To interpret 'defamation' as including any kind of criticism by the judiciary of legislative acts or any public policy would render meaningless the very notion of a constitutionality exception raised ex officio by the court.
At present, a judge may submit to the Constitutional Court a plea of unconstitutionality of a legislative text applicable to the case before it [8]. Similarly, the plea may be raised by a prosecutor in court. Simply put, a magistrate may argue, and the Constitutional Court will decide, that a particular law or ordinance violates the Constitution and, implicitly, that the issuer of the normative act in question (Parliament or Government) has committed an error in adopting the law or ordinance in violation of the Romanian Constitution.
Such a plea of unconstitutionality is undoubtedly a criticism of the other powers, but - equally certainly - it could not in any context be a defamation of them. Saying that a law does not comply with the Constitution is not tantamount to insulting or humiliating members of Parliament or the Government. Rather, it is an obligation laid down by law by virtue of the duty of magistrates to respect the Constitution and ensure respect for the values of the rule of law, as they swore when entering the profession: 'I swear to respect the Constitution and the laws of the country, to defend the fundamental rights and freedoms of the individual, to perform my duties with honour, conscience and without bias. So help me God!
In order to respect this oath, magistrates have the right, and the obligation, to constantly monitor the evolution of public policies and measures that directly concern them (the functioning of the judiciary, the career of magistrates, etc.), as well as the basic values of the rule of law, which include - among others - predictable, clear and well-founded laws. Implicitly, when public policies and laws deviate from the principles of the rule of law, magistrates have a duty to point out these inconsistencies, irrespective of the institution that prevents the implementation of these principles - legislative, executive or even judicial.
In addition to the exception of unconstitutionality, there are other legal mechanisms through which judges directly or indirectly criticise measures of the legislative or executive power: administrative courts can annul acts of public institutions by saying, inherently, that they have acted contrary to the law, and judges are obliged to apply directly and with priority the European Convention on Human Rights and European Union law when Romanian laws are contrary to the latter.
None of these mechanisms could be restricted by the aforementioned prohibition of defamation, for the simple reason that an objective criticism - of the "work" - cannot be considered in itself as defamation, an "attack on the person".
Similarly, the following cannot be considered defamation: individual or collective opinions on bills, individual or collective positions on policies adopted by public institutions and any other opinions expressed by magistrates, as long as they do not contravene the Code of Ethics for Judges and Prosecutors [9]. Moreover, professional associations of magistrates are called upon to debate draft legislation, the Superior Council of the Magistracy is obliged by law to issue opinions on certain measures adopted by other authorities, etc.
Of course, there may be those who claim that all these mechanisms are expressly provided for by law and that judges and prosecutors can only express themselves within a framework clearly defined by law and not outside it.
The simple answer to these arguments is that freedom is the rule, and restrictions are the exceptions, of strict interpretation and expressly laid down in the Constitution, and not the other way round.
Consequently, the so-called duty of reserve of magistrates is subsidiary to the right to free expression and, above all, to the duty to uphold the rule of law. The duty of reserve, although not mentioned as such in the legislation, essentially implies the duty of magistrates to refrain from comments or statements that may compromise their dignity and confidence in their impartiality. The duty to uphold the rule of law sometimes involves stepping out of the isolated comfort of the courts and prosecutors' offices and criticising measures that undermine the basic principles of democracy - the rule of law and equality before the law.
Freedom of expression is the rule. The duty to reserve is the exception.
In conclusion, this new paragraph introduced, concerning the prohibition of magistrates to defame other powers, the reasons for which we can only speculate, as they are not expressly stated in the draft amendment of the Law [10], will in no way hinder the right of magistrates to express themselves or the fulfilment of their obligation to ensure respect for the rule of law, as our criticism will be unbiased, will concern and relate to measures and not to individuals, and will concern and relate to issues of general interest to citizens and the rule of law, and not to particular interests.
Last but not least, it should be stressed that this obligation of respect between institutions, which stems from the prohibition of defamation, is a mutual one. The same prohibition on making defamatory statements or engaging in insulting and defamatory behaviour is fully applicable to representatives of the legislature and the executive in their relations with the judiciary, as between any institution and any citizen in a society where respect, equality and the rule of law are fundamental.
Relevant in this last note of mutual respect and constructive comments are the conclusions of Opinion No. 18/16.10.2015 of the Consultative Council of European Judges (CCJE), an advisory body of the Council of Europe: "Analyses and criticisms made by one power of the state to the other powers must be made in a climate of mutual respect. Unbalanced critical comments by politicians are irresponsible and can cause a serious problem as they can undermine public confidence in the judiciary and, in extreme cases, can amount to an attack on the constitutional balance of the democratic state. Each court and the judiciary as a whole must discuss how to deal with such criticism." [11]
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[1] Law No 303/2004, one of the three "justice" laws, amended as of 18 October 2018 by Law No 242/2018 (published in the Official Gazette, Part I, No 868 of 15 October 2018), amended in turn by Government Emergency Ordinance No 92/2018 (published in the Official Gazette, Part I, No 874 of 16 October 2018).
[2] https://dexonline.ro/definitie/def%C4%83imare.
[4] Actus interpretandus est potius ut valeat quam ut pereat = The law must be interpreted in the sense of producing its effects and not in the sense of not applying it.
[5] Naturally, "political convictions" refers strictly to politics, in the sense of expressing a preference for a particular political party or person, and not to comments and opinions on public policies, a set of principles of action adopted or proposed, which should be debated, discussed and - if necessary - challenged by all the actors concerned by them, including magistrates.
[6] Published in the Official Journal, Part I, No 260 of 21 April 2010 and last amended on 18 March 2011.
[7] Decision of the Constitutional Court No 45/30.01.2018, published in the Official Gazette No 199 of 5 March 2018.
[8] Article 29 of Law No 47/1992 on the organisation and functioning of the Constitutional Court, published in the Official Gazette, Part I, No 807 of 3 December 2010:
(1) The Constitutional Court shall decide on exceptions raised before the courts or commercial arbitration courts concerning the unconstitutionality of a law or ordinance or of a provision of a law or ordinance in force, which is related to the resolution of the case at any stage of the litigation and whatever its subject matter.
(2) The objection may be raised at the request of one of the parties or, of its own motion, by the court or commercial arbitration court. The objection may also be raised by the prosecutor before the court in cases in which he participates.
[10] Explanatory memorandum to the draft amendment of Law 303/2004: http://www.cdep.ro/proiecte/2017/400/10/8/em526.pdf.