By ALBERT RAKIPI
The government’s initiative to reform the judicial system has finally materialized into a draft proposal that calls for constitutional amendments, affecting the entire structure of the judicial system. The need for reform has won the widespread support of the EU and US representatives in Tirana. Unfortunately, the final draft is controversial—to say the least.
Drafted by a group of experts appointed by the ruling coalition, the current proposal does not enjoy the support of the main opposition Democratic Party. It also does not have the support of the Socialist Movement for Integration, the Socialist Party’s main ruling coalition partner. This is important because SMI, through its role as Kingmaker, in effect keeps the SP-led coalition in power.
Political parties have shown an inability to co-operate, even when faced with a matter of national interest such as the reform of the judicial system. This is not a rare occurrence in Albanian politics. Regrettably, for the past 25 years political discussions have been marked by a failure to cooperate across party lines. In addition, the reform process thus far is reflective of a political culture dependent on international actors. A final matter that merits discussion is the fact that political divisions not only endanger the successful implementation of the reform but to a certain extent serve as a harbinger of what the future holds for political scene dominated by conflict and disagreement.
Who are the ‘enemies’?
Surely, maintaining the status quo in the judicial system is in the interests of corrupt politicians and officials as well as criminal organizations. A judicial system controlled by politicians does not serve justice; it only serves the political and financial interests of corrupt politicians. A judicial system that operates based on the rule of corruption as opposed to the rule of law is certainly not reconcilable with public interest. In an effort to push the reform process forward, US Ambassador Donald Lu explicitly mentioned, more or less, who the ‘enemies’ of the reform were, referring to the categories of people mentioned above.
Now that the reform process has reached a critical point, the idea that there are ‘enemies’ or opponents to the reform has made a comeback. It would not be untrue to say that this idea has been instrumentalised in order to serve short-term interests that seek to turn the judiciary into a subject of political control, and perhaps use the reform as a weapon against political opponents. Recently, the public is rather intensively feeding on the idea that the main opposition party, namely the DP, is an opponent, if not an enemy to the reform. Ironically, the head of state has been presented as another enemy of the reform process. The president himself is of the opinion that political propaganda is being put forward, seeking to present the president as an opponent of the reform in the eyes of the public.
Last, but certainly not least, Ilir Meta, the current speaker of parliament, seems to be portrayed as a ‘hidden’ enemy of the reform process.
It seems that the only party promoting the current draft is the SP, although the DP clearly believes such efforts are ultimately designed to enable SP to control the judicial system.
But if all these portrayals are the result of political warfare between the government and opposition, or internal warfare between coalition partners, SP’s Rama and SMI’s Meta, or even part of conspiracy theories that often permeate the minds of undeveloped societies in the Balkans, two essential and interconnected questions need to be answered:
Is it plausible to expect such a fundamental reform to be passed in parliament, in an instance when political parties are so far from achieving consensus? And perhaps more importantly, can the proposal in its current form — as vigorously as it is defended by the SP — be considered ‘fit for purpose’, when SP’s main coalition partner, the Head of State and main opposition party seem to think otherwise?
It is the consensus, stupid!
Disagreements as to the content of the draft proposal have been present from the start. As one would expect, differences in opinion have been consistent in the debate between SP and DP on this issue. However, the fact that SP’s main coalition partner has shown reluctance and expressed different opinions at key stages of the negotiation process is most striking.
In response, the ad hoc commission presented the drafts to the Venice Commission for review. Both the DP and SMI sent their respective comments and proposals, which to a certain extent diverged from — and sometimes were contrary to — the proposals set out by the experts’ commission.
According to the opposition and other independent experts, the resulting opinion of the Venice Commission has in fact invalidated the current draft, which as per DP was essentially drafted by the government through its appointed ‘independent’ experts. Despite differences in interpretation as to the opinions of the Venice Commission, through a joint effort coordinated by the US ambassador and the EU, parties agreed to work on a common draft. This rather short-lived attempt at cooperation broke down as opposition experts walked out of the negotiation process. Accusations were put forward by DP, as it claimed the government was not upholding its promise to act as per the Venice Commission’s recommendations.
In essence, the disagreements revolved around the process through which parliament would appoint high officials of the judicial system. The parties were now engaged in a ‘game of numbers’, the importance of which the general uninformed public does not fully comprehend and thus disregards.
The current draft introduced by government experts proposes that officials be elected by 3/5’s of parliamentary vote, currently controlled by the government. Opposition experts vigorously reject this proposal and — in line with the Venice Commission’s recommendations — demand that the 2/3’s formula must be applied in order to enable the opposition to have a say. These numbers mean nothing to the public. In fact, they may only serve to cause confusion. Why, they might ask, should we elect judges applying the 2/3’s formula when even the president is elected by 3/5’s of the vote?
In essence, the Venice Commission is pushing for consensus with regards to the election of officials — it is not just recommending numbers. Their point is simple, and would ultimately lead to an impartial judiciary, thus preventing the accumulation of legislative and judicial powers in the same hands — what was regarded by James Madison as the very definition of tyranny. Suppose for example, a theoretical scenario where the government controlled 75 seats of parliament out of 140 seats. The Venice Commission and the opposition would welcome the application of the 3/5’s formula, for opposition votes would be necessary in order to achieve the 84 votes needed for the reform to pass.
Discussions as to structural changes in the judicial system must not revolve around questions as to whether the Attorney General’s mandate should be interrupted, and where should he thereafter be appointed to work. A structural reform must be guided by the principle of impartiality and disregard the interests of people who — popular opinion would say unfairly — find themselves in positions of power.
A stable and successful reform requires consensus between government and opposition. On the other hand, consensus between coalition members themselves is equally important. As we saw, the Justice Minister made some radical, last minute proposals that clearly reflect the need for consensus, whilst Ilir Meta has officially stated that reform proposals must be all-inclusive.
The judicial reform will bring … prosperity
Once, there was a popular socialist realism film depicting a wrecked post- WWII Albania, led by an enthusiastic communist regime, which believed the country, would flourish under its rule. In one of the scenes, the ‘hero’ of the film — namely the party secretary — turns his attention to a giant slogan that read: ‘The two-year plan will bring prosperity’. What’s this slogan going on about? – He said to his comrades. This is nonsense, that’s what it is!
The analogy might not be adequate, and it certainly is politically incorrect, but the fact remains that great expectations have been formed around the results that the reform will bring. There is no doubt that the status-quo of the judicial system is eroding whatever little trust people have in justice, the rule of law, politics, politicians and Democracy. On the other hand, it is clear that this reform will not bring about ‘prosperity’ under rule of law, it will not put an end to a culture of untouchability, and will not bring about the separation of politics from corruption or crime. Experience has shown that Albania does not lack legislation necessary to advance rule of law and state building. Rather, what is lacking is the will to implement laws. One needs only to recall the great expectations formed around the abolition of laws granting immunity to members of parliament. However ironic it may sound, it was only after immunity was stripped away that Parliament was filled with strong-men and people who had trouble with the law, including murderers.
*With apologies to Bill Clinton and his advisor, James Carville, who coined the term “It’s the economy, stupid” as Clinton’s successful 1992 U.S. presidential campaign motto.
