Fact Checking Fatmir Xhafaj, Chair of the Parliamentary Judicial Reform Committee Chair of the ad-hoc committee on judicial reform Fatmir Xhafaj.

It is not without irony that the two figures who in recent days have defended the unconstitutional decision of Parliament to return the lists with vetting candidates to the National Ombudsman and “reopen” applications for another seven days, are both intimately related with the regime that was supposedly replaced by democracy in 1991.

Gramoz Ruçi, currently the leader of the parliamentary group of the PS, was former first secretary of the Labor Party of Albania (PPSh) in Tepelena and later Minister of Interior Affairs in 1990, just before the fall of communist regime. As such, he was politically, if not personally, responsible for the “April 2 Massacre” in Shkodra, when four people were shot by the regime when protesters invaded the local PPSh headquarters. He is also thought to be responsible for the wholesale destruction of archival materials of the Sigurimi, Albania’s secret services police.

Fatmir Xhafaj, the current chair of the parliamentary ad-hoc committee on judicial reform, has been an investigator during the communist regime and was secretary of the Central Committee of the Youth Union of the PPSh.

In short, both Ruçi and Xhafaj were part of the communist nomenklatura, and one should perhaps wonder whether these two figures are well equipped to defend a reform that aims at establishing the independence of the judiciary branch, rather than, as was the case until 1991, considering it an extension of the executive branch. To illustrate: until 1991 the profession of lawyer was abolished, because the judge was supposed to practice the law and the law could not be disputed. This gives us some insight into the mindset of both Ruçi and Xhafaj and the regime they sustained.

So let us inspect Xhafaj’s defense of the Parliament’s unconstitutional maneuvers. His first argument is one based on expedience:

If the vetting process isn’t completed on time, it would create direct effects on the installment and functioning of new governing institutions of the judiciary, including the High Judicial Council (KLGj) and the High Prosecutorial Council (KLP), because the current organs that fulfill those functions have a limited deadline according to the Constitution.

It is correct that the KLP and KLGj are bound by constitutional deadlines, but they are not dependent on the vetting institutions. According to art. 147 and 179(5) and (6) of the Constitution, the vetting of KLP and KLGj candidates is performed by the Parliament, with support of the International Monitoring Operation (ONM). It is therefore not dependent on the three vetting institutions.

Ideally, all candidates of the KLP and KLGj would have already been vetted before discussed in Parliament, in order to avoid later movements inside the two institutions. However, this is not constitutionally mandated, contrary to what Xhafaj claims.

Parliament has more than once in the recent past violated its own deadlines. So why would this one be different?

Furthermore, if there would be such a haste, Parliament could have formed the ad-hoc committee, which, according both to the Constitution and the recommendations of the ONM, could very well do exactly the work that is now, unlawfully, demanded from the National Ombudsman.

That the opposition is boycotting Parliament is not the problem of the Constitution, it is the problem of Xhafaj, Ruçi, and their party’s inability to arrive at a reasonable compromise with the opposition. It is a problem of Basha and his party, too, because a further derailment of the vetting process is certainly not going to help them in the future.

Then, to defend the decision to return the lists of applicants to the National Ombudsman, Xhafaj claims: “We seek to impose equality on all those who wanted to apply,” but couldn’t “because of the short [application] time or distance.”

Our response to this ridiculous statement should be obvious. How can it be that for any application in the world deadline means deadline. You cannot apply after the deadline, you cannot send in extra documents after the deadline, but not for this one? Any Albanian student who manages to go abroad can confirm this. But somehow, legal professionals, who apply for perhaps the most important positions in the history of the Albanian judiciary system, don’t even understand the meaning of a deadline? How can we expect those people to be rigorous in the vetting of their colleagues if they don’t even respect a simple date? Xhafaj does not seek to impose “equality,” but mediocrity!

Xhafaj finally attempts to defend his decision by saying that handing the lists to “another institution” than the National Ombudsman would be unconstitutional:

This return is an administrative process and this return has been made for this aspect of this process, not for the constitutional aspect. If we would take away this role from the National Ombudsman in this phase of the process and give it to another institution [e.g. the President], we would have a deviation from the norms and our constitutional duty.

Again this is a bunch of mealy-mouthed nonsense. Precisely by sending the lists of qualifying candidates and the ONM recommendation back to the National Ombudsman Parliament has deviated from its “constitutional duty.” The National Ombudsman is not even allowed to open the envelopes containing the ONM recommendations and check which “additional” candidates it could ask documentation from!

There was and is only on constitutional way: the installation of a parliamentary ad-hoc committee with 3 members from the majority and 3 from the opposition. Forwarding the lists and ONM recommendation, and tasking them, according to the Constitution, was assembling the final list of qualifying candidates. This is one and only “constitutional duty” there is.