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According to this article, Romanian Constitutional Court decided upon a notification coming from a parliamentary party regarding its own members immunity. Shortly put, they are deciding the constitutionality of some laws related to them.

According to Britannica, checks and balances is:

principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power. Checks and balances are applied primarily in constitutional governments. They are of fundamental importance in tripartite governments, such as that of the United States, which separate powers among legislative, executive, and judicial branches.

So, according to this principle, checks and balances does not seem to apply when it comes to some of the Constitutional Court's decisions (those involving Court's members).

Question: Does Constitutional Court deciding upon a law related to its members break the "checks and balances" principle?

  • The principle implicated is that of not being the judge of your own case, rather than of checks and balances. Many countries with small court systems (e.g. Singapore) have a process whereby lower court judges form a special court to rule when some or all highest court judges are conflicted. – ohwilleke Mar 30 '18 at 5:56
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The first great decision of the United States Supreme Court was whether or not the Supreme Court could invalidate a federal law. Obviously such a decision affects the power of the court.

In general, when we talk about checks and balances on the courts, we talk about two main limitations:

  1. Courts can only interpret laws passed by the legislature.
  2. Judges are selected by the other branches.

When we talk about judicial independence, we create limitations like

  1. Lifetime terms, so judges aren't dependent on the other branches once selected.
  2. Pay can't be reduced once appointed.

The reason why judicial independence is important is that if the judges are not independent, then they don't actually check the other branches. If the other branches can just pass laws that control the decisions (or the judges making the decisions), not the law upon which the laws are supposed to be based, then the courts are not independent.

From that perspective, we can see that if we allowed anyone but the courts to interpret laws affecting them, then they'd stop being independent. They would no longer balance and check the other branches but be their tools.

One can imagine a system where there's a second court that only rules on cases impacting the first court. However, courts should be impacted by most of their own decisions. Because decisions affect citizenry, and judges are citizens. Further, what happens when both courts are affected by a case? Does the second court rule on both? Thereby creating the same problem for them. Does each court rule for the other? Possibly creating different rules for the two courts. Who decides which court has jurisdiction over a particular case?

A second court devolves into the real top court. People would appeal the first court's decisions to the second court, arguing that the first court was impacted by the decision. And we'd be back to the same problem.

  • In the US judges can be impeached. – user9389 Mar 30 '18 at 1:58
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    @notstoreboughtdirt Sure, by two thirds of the Senate. This weakens their independence somewhat, but since a two thirds requirement almost always requires bipartisan agreement, abuses have been rare. – Brythan Mar 30 '18 at 2:27
  • en.wikipedia.org/wiki/… says most committee recommendations to impeach have been ignored probably because of that impracticality. It's not been a particularly powerful check, but it still exists so I think it ought to be mentioned. – user9389 Mar 30 '18 at 3:59
  • It should be pointed out that SCOTUS views impeachment as a political matter, not a legal matter, and thus refuses to hear appeals on the impeachment once it is conducted. – hszmv Mar 30 '18 at 13:48
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Not certainly. Final say over what the rules say is dangerous, but if there are to be set rules someone must have it.

In this case they are defining the method to unseat themselves, which if they had said "it cannot be done" would have changed the nature of checks and balances, but they didn't. Even had they effectively prohibited unseating there would still be checks in the process of seating that might be good enough.

Their ability to weigh in on such rules is a balance.

Every act of government ought to be inline with the constitution, and that court is exactly who is supposed to make those judgments. If they could not it could undermine the system, since some law could be made blatantly unconstitutional without anyone to challenge it or other branches could whittle away their power freely.

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