President Emil Constantinescu’s
Speech at the
MENA RULE OF
LAW CONFERENCE 2010.
The Road to
Justice in MENA:
National,
International and Traditional Justice Systems Working Together
June 25th, 2010
Panel “Why Does The Rule of Law
Matter to MENA?”
Mr. Chairman, distinguished audience,
ladies and gentlemen,
When president Newkom invited me to
sign together the invitation letter at the MENA Rule Of Law Conference
2010, I felt not only honored, but also emotionally involved. This is
because in my capacity of professor at the Faculty of Geology I had tens
of students form the Middle East and North Africa region. Also as a
rector of the Bucharest University I signed a great number of diplomas
for graduates that are today part of the academic, political or
economical elites in the countries of this region.
After the conclusion of my term as
President of Romania, I had the honour to lead commissions for
monitoring the presidential or parliamentary elections that marked the
transition towards a democratic regime of some African countries. When
the World Justice Project Board asked me to speak, during the “Why Does
The Rule of Law Matter to MENA?” panel, about Romania’s and my own
experience in establishing the Rule of Law, the democracy and the fight
against corruption in the post-communist transition, I felt that it can
be really useful for this symposium. It is so because we are talking
about not only laws and institutions, but also about transforming some
worldviews, of which the ones in South-Eastern Europe have many
similarities with those in the Middle East and North Africa.
The question of restoring the Rule of
Law in a state and a society that were submitted for more than 50 years
to a succession of arbitrary regimes in which the Law itself was deeply
corrupted and distorted is a complex endeavor. It exceeds the simple
facts of the use of legislated powers by officials of all kinds for
illegitimate private gain. We all know that no individual is above the
law and that everyone must answer to it. But do not forget that, for
more than 50 years, many of the Romanian citizens were not above, but
under the law. They were not citizens, but second rank subjects, be
it for political or social reasons discriminated. After the genocide,
this classicide, as we may call it, distorted the very
foundation of the law. The perpetrators were protected according to
their rank in the Communist Party for the most violent crimes – illegal
arrests, abuse, torture and even murder. The illegal behaviors were
sharply condemned only when it was convenient for the political power,
but were tolerated, even cultivated, when the play for power of the
communist elites needed it. This hidden face of the communist economies
and societies is still waiting its researchers.
This illegality was quickly
transformed into a predatory capitalism by the nomenclature of the
second rank that took power in 1989. Very few of the fortunes of the
first years did not have a connection with the former networks of the
political police or of the higher levels of the communist hierarchy. As
in Russia, the first privatizations were made to the benefit of the
communist elites, quickly converted to the market economy.
The theme of corruption invaded the
public consciousness, wrapping in one simple word this knot of
collusions which revealed everywhere in the post-communist world. The
new style corruption exploded on the front pages of the medias, now free
and judgmental or simply in search of sensational news. All of the
frustrations for the people left out in the cold of this painful process
come together to make of the struggle against corruption the most
popular theme, but also the most populist one — not only for the
impoverished masses of the Eastern societies, but also for the
well-to-do elites of the West. Without taking into account, however
evident, that, to have corrupt people, there must be some corrupters,
the West developed its discourse on corruption in South-Eastern Europe
countries and called for immediate and radical solutions without
preaching too much on their own involvement into this process through
the transnational companies.
The responsibility for the corruption
in Romania is often placed in a distant history, especially in the
Ottoman times, characterized by the practice of “Bakshish”, “Peshkesh”
and so on. There was a system in which the contractual relationships
went hand in hand with older ones that became a formal practice, as is
for instance the gift exchange. But, above all, it is the lawlessness of
the communist dictatorship which was openly above the law, that
destroyed in depth the very sense of justice. My essential mission as a
democratic president was to restore it. I do not pretend to have
succeeded in every way, but I was able to prove openly and by my own
acts, that power can be obtained and exerted fairly and legally, in the
full and complete respect of the Rule of Law.
Soon after being installed as a
president, in 1996, I realized that the action of justice was blocked
not only by the parallel system of power relationships coming from the
Old regime, but also by an aspect present even in the developed
democracies: the lack of communication between the different
governmental law-enforcement agencies. That is why I initiated, under
the aegis of the National Security Council, a National Committee for
Combating Corruption and Organized Crime, CNAICO, with notable
results, above all in insuring the necessary communication between the
police, the General prosecutor’s office, and the different information
services.
Far from trespassing the independence
of justice, the committee was instrumental in providing the inquests
with solid proofs, on important affairs that had a political
implication. Between 1997 and 2000, more than 3,500 files of corruption
went before the tribunals of which 1545 were judged. In more than 80
important cases of contraband and of embezzlement of all sorts, more
than 1000 convictions, often at the highest levels, were pronounced. In
the first year only of my administration, the State was able to recover
more than a billion dollars. Unfortunately, after the power change in
2000, many of the condemned were pardoned, almost without exception the
lawsuits were blocked and the Prosecutors Office was encouraged to draw
up appeals for the annulment of sentences. The government of the years
2000-2004, acquired a sad reputation by the manipulation of justice for
personal ends and in the institutionalization of corruption at the
highest levels, with the result that the struggle against corruption
became the central focus of the objections to the integration of Romania
in the European Union.
A government of law and not of men
needs a legal system in which rules are clear, well-understood, and
fairly enforced, including property rights and enforcement of contracts.
One of the elements least taken into account by public opinion during my
term was that of the legislative effort. Eager to see palpable results
and not very careful about formal legality, the public at large lost
patience each time it was explained that it was necessary to first of
all debate in the Parliament and then adopt laws, establish institutions
assigned to set them into effect—and all that took time. This was the
case in a goodly number of areas of public life, and notably those of
the struggle against corruption.
During the first seven years after
the fall of communism up to my term, the legislative system did not
punish either the money laundering, or the insider trading, or the
conflict of interests, or the unsecured credit. The law bearing on
ministerial responsibility stipulated in the 1991 Constitution had not
been adopted yet. Combined with the insufficient number of special
magistrates with expertise in the cases of corruption, money laundering,
or bank fraud, with an infrastructure that was still insufficient, these
deficiencies made the area of justice, an area still badly waiting to be
dealt with.
Corruption is far from posing a
simple problem that can be resolved by simple means. Passionately
endorsed by liberal institutions like the International Monetary Fund
and the World Bank, and NGOs like Transparency International, the
rhetoric of the fight against corruption complicates the very fight they
promote, at least in two ways. First, as I already said, we cannot have
corrupt people whether there are not an equal number of corrupters. It
is difficult to establish unilaterally the Rule of Law. As long as the
corrupters are tolerated and shielded by the consolidated democracies,
those from young democracies will continue to be submitted to
temptation.
On the other hand, the
anti-corruption became a popular story. Many of the post-communist
citizens had experienced a collapse in their social and economic status,
and they came to see accusations of corruption as the only way to
express their disappointment with the political elites, and to deny any
responsibility of their own for their eventual failures.
There are lots of reasons, good or
bad, for politicians to pick the rhetoric of the anti-corruption fight
as the main instrument and the “Royal way” to win the elections. That is
how populists are winning elections as anti-corruption movements.
Populism turns into a worldview that considers society ultimately
separated into two antagonistic groups, the "pure people" and the
"corrupt elite" – and that anti-corruption politics is the ultimate
embodiment of this worldview. Liberals see anti-corruption discourse as
a chance to legitimize capitalism. The conspiracy-minded majority sees
it as an opportunity to delegitimize the competition in society and to
prone egalitarian ideas without the risk of being accused of communism
or other ideological diseases.
Governments that talk about
transparency create even wider suspicion in the eyes of the public – who
then choose to vote not for "transparent institutions" but for "honest
politicians". Democratic politicians view corruption as an institutional
issue requiring institutional reforms. But in the eyes of the public,
fight against corruption means fight against corrupted people, and it
simply requires honest politicians in power. Corruption is seen as a
moral issue: fairness or even a question of faith: God does
not take bribes. The anti-corruption imagination of society displays
a growing anger: people begin by believing that everybody in power is
corrupt, and that everything the government is or does is pervaded by
corruption.
This kind of anger is dangerous for
the democratic Rule of Law, because it fosters precipitated and mock
trials, as well as the popular mistrust against the legal institutions
of the State. Politics is reduced to the choice between the corrupt
government and the not-yet-corrupt opposition, while the popular and
populist war-cry of the anti-corruption crusade is: "get rid of them
all!" To the extent that it substitutes the Rule of Law with a so-called
popular, informal justice, that cry opens the way to the 'rule of man',
as opposed to the Rule of Law: governance and rules of conduct are set
and altered at the discretion of a single person, or a select group of
persons.
Corruption is an undeniable
fact in the very heart of Romanian society, as it is in most of the
post-communist societies. Corruption is a general phenomenon, and
political corruption is only part of the problem, that does not exhaust
the topic. Corruption follows a decreasing spectrum from East to West,
it devastates Russia and the Ukraine and fades gradually away in Central
Europe without totally disappearing however. It is compulsory to contain
and control it in all its components. That does not mean that we should
give away democracy for the sake of the struggle against corruption. The
Rule of Law, as a fundamental cornerstone of democratic society meanins
that everyone is subject to the law. At it turn, the State, no less than
the individuals it governs, must be subject to and obey the law. It
should be a guardian of democracy both against the tyranny of one, and
the tyranny of the many. That is the truth for Romania as it is probably
the same for the Middle East and
North Africa region.