site.btaDirector at Centre for the Study of Democracy: Writing Constitution Today Might Not Improve It

If the Constitution were written today, it might not necessarily be better, but it would certainly be different, Director of the Law Programme at the Centre for the Study of Democracy Dimitar Markov said in an interview with BTA’s Konstantin Kostov and Marin Kolev on Wednesday.

April 16 is celebrated as Constitution Day in Bulgaria in commemoration of the adoption of the Tarnovo Constitution in 1879.

Asked whether political influence in the judiciary had diminished, Markov responded that it certainly has not, pointing to the structure of the Supreme Judicial Council (SJC) and its strong parliamentary quota. He suggested reducing the National Assembly’s role in appointing SJC members and introducing stricter constitutional criteria to prevent politically dependent figures from entering the judiciary’s governing body.

Regarding the practice of adopting legal changes in response to public pressure, Markov described it as “very flawed,” attributing it to populist moves by political forces. “They ride the wave of discontent and pressure, producing poorly thought-out and ineffective measures,” he said. While the Constitution should serve as a deterrent, Markov noted that the Constitutional Court itself is vulnerable to political influence, which can affect its rulings.

Commenting on so-called “brokers” of influence within the judiciary, Markov acknowledged that they pose a major problem, though not the most urgent. He argued that the most pressing issue is reform of the prosecution service, particularly its centralized structure and the extensive powers held by the chief prosecutor. “Under certain conditions, if this figure lacks public trust or has political or economic ties, the tools available to exert influence are very significant,” he said.

Full text of the interview below:

If the Constitution were written today, how would it differ from the one drafted in 1991? Would it necessarily be better?

It would certainly be different, but not necessarily better. Many of the changes made since the Constitution’s adoption have been reversed because they proved ineffective. Our experience suggests we haven’t really learned from our mistakes, so if we were to adopt a new Constitution now, we might repeat many of them. On the other hand, some past errors could be attributed to the enthusiasm for transitioning to democracy. A new constitution would be different but not necessarily an improvement over the current one.

Has political influence in the judiciary been minimized, or does it remain a problem? Is there a solution?

It has not been minimized. Information about such influence continues to surface. Various measures could be taken, particularly regarding how the governing body of the judiciary, SJC, is formed and functions. Reducing the National Assembly’s quota, which is quite large and exerts strong political influence, is one way to address this. We might also need constitutionally enshrined, stricter criteria for SJC membership, because the current requirements do not effectively prevent politically dependent individuals from joining the judiciary’s leadership.

Does the Constitution act as a deterrent when legal changes are prompted by public opinion, and how flawed is this practice?

This practice is very flawed. We often see changes driven more by populism than genuine public opinion. Political forces try to satisfy their voters by tapping into existing discontent, pressures, and tensions, adopting measures that appear to address public expectations but are poorly thought out and ineffective.

In principle, the Constitution should serve as a deterrent. However, that depends on the Constitutional Court, which, much like the SJC, is not immune to political influence. We’ve seen decisions that are strongly politically motivated, often linked to the composition of the Court. Even now, certain constitutional cases under review are likely to yield different outcomes as the political balance within the Court has shifted. While the Constitution is meant to be a safeguard, the body responsible for interpreting and applying it does not always operate at the level it should.

There has been talk of “brokers” in the judiciary. Are they its biggest problem?

They are not the most urgent concern, but they do represent a serious issue. We have seen at least two such figures exposed, revealing the broad extent of their networks and the scope of their influence—both of which are significant problems. Moreover, these issues are not being resolved. In the two known cases, there has been no progress in uncovering the underlying dependencies or sanctioning those involved. This automatically diminishes public trust in the judiciary, which has a broader negative effect on the entire system. Without public trust, there is tension that prompts populist legislative changes.

Currently, the most pressing issue is the management of the judiciary and reforming the prosecution service, which remains highly centralized and isolated. Too much authority resides in the office of the chief prosecutor. Under certain circumstances, if this role is occupied by someone who lacks public trust or is subject to political or economic pressures, the available means of exerting influence are extremely large.

Which reforms do you think should be prioritized?

First, reform of the prosecution service and, more broadly, the judiciary’s management structure. Once that is addressed, we can focus on tackling these so-called “brokers” of judicial power.