- In early 2006 Bulgarian constitution was changed to reflect EU concerns about unaccountability of magistrates and their related deficiencies. In the last 15 years judiciary managed to maneuver itself from a divided power into a shareholder of power beyond democratic control. The applied treatment was to extend the constitutional functions of justice minister to draft the judiciary budget, to suggest to supreme judicial council the promotion or demotion of magistrates and to monitor the administration of court cases-art.130a. This medicine looked too strong for the EU and US doctors of Bulgaria fearing it could poison the division of powers from art.8 into legislative, executive and judicial. It took all the art of government face making to turn a wild cat’s frustration into a pet’s obedience. If we have to change the changes, they say, now we need your advanced approval. So on this issue Bulgarian parliament has positioned itself as a pharmacy, as an apotheke, waiting to implement the foreign prescription, to cook and to pass the new medicine to the judicial patient- the latter already showing signs of apathy. No wonder the prescription has not arrived yet.
- Those who want to save the balance of divided powers should first find out whether there is anything left to save. Bulgaria is not unique in its democratic pattern where the political party which won the elections forms the parliamentary majority and this majority votes the government usually headed by the party leader. In this domino line of political build up ther is absolutely no division, separation or independence of powers. Majority legislators and their government are only two extensions of the same political party, they act as its transmissions but not as a counter balance to each other or to their party. The will and the decision making for both legislative and executive has one and only source- the election winner who has sent them into office. Allocation of hats and functions is not division of powers. It seems that for every election term we elect a collective monarch who commands both parliament and government. Those who shaped the concept of divided powers in the Enlightment age could hardly be called democrtic republicans- some did imply a souvereign divider above the divided powers. After all every religious republican believes in the heavenly monarchy.
- The only decision maker with binding powers beyond the legislative-executive unit is the judiciary. It is neither elected or appointed nor recalled or dismissed by a direct democratic vote. And magistrates’ term of office is time unlimited till retirement. Their acts are binding for everybody within the jurisdiction- a court can directly repeal a government decision but a government cannot repeal a court decision- it can only indirectly affect future court decisions by changing the law through its legislators but it cannot save from a painful court repeal its present dearly cherished government ruling. So legislative-executive versus judiciary is the existing dualism, the counter balance within the architecture of power. Rulers against magistrates- this is the match where the ball is the word of law, exclusively drafted by the rulers but exclusively interpreted on facts by magistrates. Rulers try to restrict interpretation freedom of magistrates by specifically worded laws leaving no room for maneuver but specific words are less likely to cover unforseeable facts and circumstances of life- which is the magistrates’ chance for interpretation. That is why good old laws are abstractly worded
- So if one wants to control judiciary there are only two possible sources of such control correpsonding to the two avenues of power- that control should come either from judiciay itself or from legislative-executive. The experimeint with judiciary’s self control by supreme judicial council proved inadequate. Therefore the only left source of control power is the ruling majority in parliament and government. And this is the logical direction in which the constitutional amendments of early 2006 moved- too far they say but how far they do not say. So the situation has crystallized into the simple question: What egg do you want this hen to lay and can you make an omlette without breaking it? Should it be something with real teeth that judiciary fear or a kind of a judicial wailing wall, a legal ombudsman?
- While the above question is pending at foreign quarters we should recall that the switch key to judiciary is to overrule their decisions. If Bulgarian magistrates know that an absurd local court decision could be repealed by some European jurisdiction and that the access to the latter is easy and affordable for the ordinary citizen- this will quickly tune their mentality to the standards of European jurisdictions. For they will learn that a crazy ruling cannot be arranged to survive and therefore related corruption is senseless. Bulgarian EU accession is imminent partly due to foreign strategic appetite and political charity.
- But most important of all is the control on legislation. Laws are the software by which courts (the hardware) operate. Often courts are blamed for the bad laws they must apply. Most of those laws are delibeately made bad and not out of negligence or ignorance. In most such cases publc opinion and opposition has rung the early alarm but have failed before rulng arrogance. The only institution to control legislation is the constitutional court. But right of appeal to that court is restricted to:1. 20% of all MPs (i.e.48), 2. President, 3. Council of ministers, 3. Supreme courts, 4. Chief prosecutor. 5. National ombudsman (on human rights). There is no individual and direct access of ordinary citizens to constitutional court- they have no way to raise a case there. That court cannot act on its own initiative even when judges see blunt and brutal anti-constitutional laws coming out. 15 years of experience have proven that it is easy to arrange among the above appeal holders a tacit coalition of inaction so that brutal laws survive. One of the first moves of the new chief prosecutor was to withdraw a constitutional appeal of his predecessor against a controversial law for confiscating criminal property without a criminal verdict. Now there is no one to appeal an outragoeus law introducing collective liabiliy for central heating bills- in the midst of a corruption scandal for over E 100 mln in central heating where corruption liability is individual and not collective, same prosecution says. People appeal their bills, regular courts reject those appeals, judiciary get cursed and the political fox is pleased that it is her judicial tail to blame. But it should be extremely clear to spectators that curses are directed not only to judiciary but to EU and NATO as well since adults claim there was no such outrage in communist times.
- The monopoly appeal before constitutional court is the sacred pillar of legislative corruption which will be fiercely defended by the elite to the last coin. If foreign well-wishers mean business they should help cut that pillar because it is the poor silent man on the street that matters- who avoids looking at cars and shop windows. He should be given a chance to challenge power (if not to share) by a constitutional appeal. It is his children who volunteer for foreign peace missions in Iraq/Afghanistan- not the children of rich ruling yes-men. Otherwise he will continue to perceive the so called market-democratic legislation as a raging Godzilla chasing his last savings.
01.09.2006
Sofia
Valentin Braykov
Braykov’s Legal Office