Constitutional courts and the rule of law: navigating democratic integrity

• Pages: 367-386
• Author: Andreea Vertes-Olteanu

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CONSTITUTIONAL COURTS AND THE RULE OF LAW:

NAVIGATING DEMOCRATIC INTEGRITY

ANDREEA VERTES-OLTEANU

%4%

Timisoara. Romania.

SUMMARY: 1. INTRODUCTION. 2. BACKGROUND. 3. PROTECTING THE

RULE OF LAW – 2024 SAGA – 1ST ATTEMPT. 4. PROTECTING THE RULE

OF LAW – 2024 SAGA – 2ND ATTEMPT. 5. AFTERMATH. 6. THE VENICE

COMMISSION’S TAKE ON ELECTION ANNULMENTS. 7. CONCLUSION.

1. INTRODUCTION.

It is enough that the people know there was an election. Free elections,

although indispensable, are insufficient alone to sustain a constitutional

democracy. History repeatedly demonstrates that democratic procedures

can be manipulated to undermine democracy from within. The collapse of the

Weimer Republic serves as a stark warning that democratic legitimacy does not

by itself prevent the erosion of constitutional safeguards against unconstrained

political manipulation and passive judicial responses. Therefore, constitutional

democracy must necessarily be underpinned by robust institutions capable of

sustaining the rule of law despite intense political pressures.1 The necessity

for courts – particularly constitutional courts – to act decisively in democracy’s

defence, while necessary, is hugely challenging in terms of legitimacy,

proportionality, and the public’s trust.

          0, January 16, 2025,

available at www.dilema.ro/tilc-show/intoleranta-nu-trebuie-sa-fie-tolerata

ANDREEA VERTES-OLTEANU

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Romania’s democratic institutions were tested towards the end of 2024. A

wave of coordinated pressure – both domestic and international – was intended

to capitalize on popular outrage against the political elite. Initial discontent

soon gave way to profound distrust and anger. A magazine report2 broke down

the mechanics of this phenomenon: a strategic campaign of disinformation,

coordinated mainly on social media, had taken hold. Through incessant repetition

and expert messaging, these campaigns planted seeds of doubt in voters’

minds. Familiar falsehoods, repeated often enough, came to sound like truths –

truths that were eventually accepted by large segments of the electorate. This

artificially created certainty opened the door to what became widely accepted as

the fraudulent conduct of the presidential election’s first round on 24 November

2024.

Against this tense background, the annulment of the presidential ballot by

the Constitutional Court of Romania (CCR) ignited a firestorm of controversy.

For some, the ruling was not only justified but necessary. In their view, a

constitutional democracy owes it to itself to stand against electoral manipulation

and cannot risk legitimizing transgressions against the democratic order. Under

these circumstances, the CCR fulfilled its constitutional role by being a defender

of democratic integrity. Others attacked the legal basis of the ruling, saying that

the Court, confronted by a runaway political crisis, could have acted more from

necessity than from principle of law – concluding first, and then creating its

rationale. This argument embodies a fundamental dilemma facing constitutional

courts: how to balance the imperative of protecting democracy in moments of

crisis with the equally important need to remain rooted in legal thinking and

institutional restraint.

The Court’s decision is undoubtedly a clear act of militant democracy, a

theory developed under the shadow of Europe’s interwar instability, emphasizing

pre-emptive constitutional measures to prevent democratic self-destruction.

Loewenstein, the architect of the theory, envisioned a democracy that was

capable of legally and constitutionally defending itself against extremism

and authoritarian ambitions, with the emphasis on the notion that tolerance

need only cease when confronted by active intolerance aimed at undermining

 Operațiunea 7!&L&«`«,

in Financial Intelligence, December 27, 2024, available at financialintelligence.ro/operatiunea-

gospodin-georgescu-de-intoarcere-a-romanilor-la-intuneric-opinie-razvan-nicolescu/

In short: For nearly 15 years, Romanian society has been bombarded with messages portraying the

country as a Western colony, its leaders as corrupt and compromised, and its resources as plundered.

Narratives warn of cultural and territorial threats - multinational exploitation, foreign religious

dominance, an impending war, and the loss of Transylvania or Moldova. Patriotism is framed as

incompatible with European identity, while Romanians are cast as powerless and deceived.