Between a Rock and a Hard Place: Constitutional Conflict Cases before The Romanian Constitutional Court

Abstract

For the rule of law-based democratic regimes, at least two types of significant political challenges can be identified:1. Challenges coming from outside of the democratic regime, in the form of movements which, by making use of the constitutionally guaranteed rights and liberties, attempt to destroy the democratic establishment.2. Challenges coming from inside the democratic regime, in the form of authoritarian movements, which are attempting to overcome their political opponents and consolidate their power by the misuse of the institutions found under their control according to the constitutional blueprint.This paper is concerned with the second type of challenges and examines how the power struggle reflects in constitutional adjudication. Focusing on the case law of the Romanian Constitutional Court, it analyzes the trends in the evolution of the Court’s interpretation of constitutional conflict issues. The paper argues that in periods of great political fragmentation and power-struggle, constitutional conflict cases are more present in the Court’s docket and they result in much more disputed decisions, as actors attempt to present political conflicts as judicial ones. The Court itself is getting more drawn into these struggles and gradually loses its ‘independent arbitrator’ stance.