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On separate opinions and their impact on constitutional courts

Elena Simina TANASESCULate Ruth Bader Ginsburg, id est “notorious RBG” for her fans, wrote in an opinion for The New York Times in the summer of 2016: “When a judge is of the firm view that the majority got it wrong she is free to say so in dissent.” In its obituary The Economist of September 2020 granted her the moniker “diva dissenter”. She was reputed to clearly express her views, even when these were quite different from those of the majority.

Pluralism of ideas is healthy in a democracy just as the variety of legal arguments is natural in a court, particularly on difficult and/or important legal issues. The last four or five decades have displayed a visible increase in the power of courts all over the world and constitutional courts are no exception to this phenomenon. In fact, constitutional argumentation has become an integral part of the public discourse to such an extent that the general public is no longer eager to learn only the operative part of any given constitutional decision, but focuses rather on its reasoning.[1] Presenting outward, to the public, all arguments presented inside a court is precisely what separate opinions do. Judicial reasoning plays an important legitimacy-building role beyond plain legal argumentation just as the explanatory memorandum of a normative act plays an important role for the full respect of the rule of law beyond its inherent expounding and clarifying value. Since judges and particularly constitutional judges lack democratic credentials while they have the power to set aside democratically enacted laws,[2] transparency and openness of their decision-making process, not only through the publicity of their decisions but also through the large dissemination of their legal reasoning, are essential elements that contribute to strengthen their authority and enhance public confidence in them. Hence, loyal approach with regard to their own jurisdiction and avoidance of ultra vires, sound judicial reasoning and evasion from subjective selection of precedents or arguments, and – most of all – a consistent and coherent case law can greatly contribute to legitimise courts, including constitutional ones. Together with majority opinions, separate ones stimulate reflection, dialogue and transparency and help explain the interest of the general public in the delicacies of legal reasoning. Synchronised with this general trend, the Romanian Constitutional Court is also underwriting both the legal and the general public discourse through its rulings.

Although a civil law country Romania has enjoyed a feature of common law jurisdictions ever since 1865. Thus, the first codification of civil procedural rules of the modern Romanian state provided that, if a majority of judges could not be met in a specific case, reasoned opinions of all judges should have been provided prior to the day of the ruling as to facilitate the grouping of opinions which expressed closer views in order to reach a majority one and finalise a decision (article 257), while the opinion of the minority judges should be presented at the end of that decision (article 261). Separate opinions, with the meaning of dissent, have existed in Romanian judicial proceedings since the creation of modern Romania and, rather paradoxically, they seem to have been inspired by techniques used in common law jurisdictions.

Historically, England is the home of dissenting opinions due to the oral procedure used in its courts: judges held no deliberations, but at the end of the trial they had to orally announce their opinion, including the legal reasoning supporting their conclusion (seriatim). In time, the decision-making process in English courts has been streamlined as to allow for the grouping of opinions which looked closer one to each other in a majority opinion and for the presentation of remaining opinions either separately or also grouped in a common minority opinion. This last technique, with contextual variations, is currently used nowadays in most common law or mixed jurisdictions.[3] At the other end of the spectrum, civil law jurisdictions tend to use a highly ritualised template and tend to avoid separate opinions through the technique of deliberations, which are carried out prior to the actual ruling on a case. Deliberations are accomplished in secret[4], but they are meant to become public[5] once they have been concluded since the result is encapsulated in the judicial decision, which is pronounced publicly and disseminated through official publications. In time, number of civil law jurisdictions started to tolerate if not make regular use of separate opinions. At supranational level, it is now common knowledge that the Court of Justice of the European Union does not authorise separate opinions, while the by-laws of the European Court of Human Rights expressly mention separate opinions.[6] The debate over the pro and cons separate opinions is large and well established by now.[7]

The current Romanian legal framework has preserved the mixture of common law and civil law judicial proceedings with regard to the decision-making process in courts[8]: all jurisdictions, including the constitutional one[9], take their decisions through deliberations and allow separate opinions in any event. This rule applies also to the Constitutional Court, where article 59 of law n°47/1992 expressly provides that minority judges have the possibility to draft separate opinions, be they dissident or concurring ones. Again, in doing so the Romanian Constitutional Court is joining a large majority of European constitutional jurisdictions.[10] And despite recent internal hesitations with regard to the legal regime of separate opinions[11] and their normative follow-up at the level of the jurisdiction,[12] separate opinions have become a regular feature in the life of the Romanian Constitutional Court.[13] So much so that the internal decision-making process has been recently revised once more and details have been provided through another by-law. The Order n°52/2020 of the President of the Constitutional Court concerns the optimization of the process of drafting and the optimization of the circulation of jurisdictional acts inside the Constitutional Court. In a nutshell, it states that decisions will be drafted under the supervision of the judge-rapporteur, who may consult with judges that have voted for that solution. However, the President of the Constitutional Court may submit the final version of a decision to the attention of the Plenum based on a substantive criterion, namely the constitutional law issue examined in that decision. In other words, in case deliberations end-up with a split vote, the text of the resulting decision is to be circulated exclusively among the majority judges, while the minority judges are free to develop their arguments based on what they hear or say during deliberations. Taking into account that deliberations are free discussions among judges, on the basis of a document drafted by a rapporteur appointed by the President of the Constitutional Court, but where each individual judge may present his or her opinion on the case at hand, the decision-making process inside the Romanian Constitutional Court tends to resemble more and more with the seriatim technique of common-law jurisdictions than with the civil law tradition generally summoned for the Romanian judicial system.

It is too early to assess this novelty, which has been enforced mainly during the summer break of 2020, when the docket of the court tends to be cleared of decisions pronounced over the previous period. The 2020 autumn session of the Constitutional Court has brought forward a certain expectation within the jurisdiction for separate opinions to match each and every split vote, which again seems to be a move in the direction of a seriatim technique. Be it as it may, if such a move would be followed by the next logical step, requiring and not merely allowing judges to formally present each of them their own opinion on each individual case, this could take the Romanian Constitutional Court a step closer to a common law jurisdiction, where deliberations could as well disappear and be replaced with the oral presentation of the legal reasoning of each and every judge immediately after public hearings. Whether this evolution will actually take place remains to be seen. It would certainly be a first among European constitutional courts but it would confirm the tendency felt and heartily encouraged by academic research which favours openness and judicial accountability including toward the general public.[14] Also, such an evolution would bear consequences on the internal organisation and procedure of the court, as judges would have to select their own clerks in order to be able to duly prepare cases and their opinions, the court registry would see their role and functions tremendously increased, while the research department would need to be strengthened in order to cope with an enlarged and diversified demand. In that sense, the Supreme Court of the US could offer an interesting starting point and a potential element of comparison for a possible future reformed internal structure of the Romanian Constitutional Court. All these might well be wishful thinking of a person used with the Cartesian method of reflection or they might become reality if the trend initiated with the Order n°52/2020 of the President of the Constitutional Court will be followed by administrative and managerial steps consistent with it. Let us hope that wisdom and time will bring the Romanian Constitutional Court on the most adequate path for its own future.

[1] Andras Jakab, Arthur Dyevre, Giulio Itzcovich (eds.), Comparative Constitutional Reasoning, Cambridge University Press, 2016.
[2] According to the famous « counter-majoritarian » argument developed by Alexander Bickel in The Least Dangerous Branch: The Supreme Court at the Bar of Politics, Bobs-Merrill Company, 1962. For a different approach and solution see Hans Kelsen, “Judicial Review of Legislation : A Comparative Study on the Austrian and the American Constitution”, The Journal of Politics, vol.4 (1942), p.183-200 and Mauro Cappelletti, Judicial Review in Comparative Perspective, California Law Review, vol.58 (1970), p.1033 et seq.
[3] For a passionate pleading in favour of separate opinions and particularly in praise of the role of sentinel of the judge who assumes separate opinions see Tania Gropi, «Sentinella, quanto resta della notte?». Qualche considerazione sulla missione dei dissent del giudice Pinto de Albuquerque a partire dal caso Hutchinson c. Regno Unito », Rivista de diritti comparati (2020), https://www.diritticomparati.it/rivista/sentinella-quanto-resta-della-notte-qualche-considerazione-sulla-missione-dei-dissent-del-giudice-pinto-de-albuquerque-a-partire-dal-caso-hutchinson-c-regno-unito/
[4] Setting a precedent with value of commendable example, the French Conseil Constitutionnel has taken a step forward and made available 25 years of deliberations not only via the yearly opening of its archives (https://www.conseil-constitutionnel.fr/nouveaux-cahiers-du-conseil-constitutionnel/introduction-25-ans-de-deliberations-ouyverture-des-archives-du-conseil), but also in a publication accompanied by academic analysis. See B. Mathieu, J.-P. Machelon, F. Mélin-Soucramanien, D. Rousseau, X. Philippe (dir.), Les grandes délibérations du Conseil constitutionnel, Dalloz, 2009.
[5] Wanda Mastor, Pour les opinions séparées au Conseil constitutionnel français, https://www.courdecassation.fr/IMG/File/18_10_2005_intervention_mastor.pdf
[6] CDL-AD(2018)030-e, Report on Separate Opinions of Constitutional Courts, adopted by the Venice Commission at its 117th Plenary Session (Venice, 14-15 December 2018), https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2018)030-e
[7] For a detailed and recent academic analysis see Katalin Kelemen, Judicial Dissent in European Constitutional Courts: A Comparative and Legal Perspective, Routledge, 2018. For a pragmatic approach see Venice Commission, Report on Separate Opinions of Constitutional Courts, op.cit.
[8] See article 426 of the Civil procedural code and article 394 of the Criminal procedural code.
[9] For further details see the separate opinion at the Romanian Constitutional Court’s decision n°609/14.09.2020.
[10] Currently, in Europe only the constitutional courts of Austria, France and Italy ban separate opinions.
[11] See Venice Commission, Report on Separate Opinions of Constitutional Courts, specifically para. 44-46 & para.123-125.
[12] Arguably in order to avoid the risk that the Plenum decision n°1/2017 would be miss-interpreted as affecting the independence of the constitutional judge issuing a separate opinion, on the 5th of July 2018 the Plenum of the Constitutional Court revised that decision and, while re-confirming its jurisdictional and not administrative nature, expressly provided that separate opinions may not criticise the decision to which they are appended. Due to the time-line specific to such complex reports, this revision of the Plenum decision n°1/2017 could not be taken into account in the above-mentioned Report on Separate Opinions of Constitutional Courts of the Venice Commission.
[13] I have made public confessions on how I write my separate opinions in the special issue of Revista română de drept al afacerilor nr.3/2020, p.204-207 dedicated to the open question “How I Write?”.
[14] Aharon Barak, “The Supreme Court 2001 Term: Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy”, Harvard Law Review n°16/2002, p.162. Also see Andras Jakab, Arthur Dyevre, Giulio Itzcovich (eds.), Comparative Constitutional Reasoning, Cambridge University Press, 2016, passim.

Professor Elena Simina Tănăsescu
Faculty of Law, University of Bucharest
Judge, Constitutional Court of Romania