By Vincent W.J. van Gerven Oei
The Intolerable Disingenuousness of US Ambassador Donald Lu

In a statement following the election of Temporary General Prosecutor Arta Marku, which was met by violent protests outside Parliament and smoke bomb inside of it, US Ambassador Donald Lu released a public statement condemning the violence and claiming that the resistance of the opposition against Marku’s election showed that they are “afraid” of the judicial reform.

The people of Albania should not be surprised that their politicians are fighting amongst themselves.  This means the judicial reform is finally being implemented.  The Vetting Commissions will soon have their first results.  The Prosecutor General who refused to prosecute politicians is gone. We will soon see the creation of the SPAK and BKH to investigate and prosecute high-level corrupt officials.  The people of Albania are impatient for justice.   And the politicians are afraid.

This paragraph is either the result of a profound naivety of the US Ambassador, or – more likely – a display of profound disingenuousness and deliberate misinformation of the Albanian and international public.

First of all, Lu casts the confrontations in- and outside Parliament as “politicians […] fighting amongst themselves.” No one indeed is claiming that the deputies in the Albanian Parliament are selfless paladins of rule of law and constitutionality, but it is a misrepresentation to portray this conflict as without any content.

The issue is the constitutionality of the election of the Temporary General Prosecutor, an issue that should not be taken lightly as it affects the credibility of the Prosecution and, more generally, the rule of law. Elsewhere we have already discussed the legal complexity of the case, as well as the dubious role the international legal missions have played in it, so I will not repeat the arguments here. However, the current situation is anything but senseless political infighting.

Second, Lu claims that these fights are a sign that “the judicial reform is finally being implemented.” I do not recall violent clashes in Parliament being mentioned as one of the indicators of the success of the judicial reform in any of the international reports on the subject. What I do recall from the Constitution, is that the General Prosecutor is to be vetted before being elected, and neither Arta Marku nor any of the other candidates has been vetted. In fact, her election is the result of the judicial reform not being implemented. Had that been the case, the High Prosecutorial Council would have made the selection, and not a parliamentary commission headed by Marku’s former boss.

Third, Lu claims that the “Vetting Commissions will soon have their first results.” It is completely unknown what these results will be. A while ago, International Monitoring Mission chief  Genoveva Ruiz Calavera said that she “was convinced that many judges and prosecutors will pass the vetting without difficulty,” implying that the considerable part of the current magistrates will remain on their posts. There is no one in Albania who believes that a considerable part of the magistrates is not corrupt, so if Ruiz Calavera is right, the vetting will have failed in the perception of the public. Without at least 80% of the judges and prosecutors gone, no one will believe the courts are free of corruption and no one will believe justice will have been “reformed.”

Furthermore, as Reporter recently reported, the vetting institutions are considerably deficient in terms of transparency, without press office, and without publishing the dates of the hearings, which are meant to be public. So there is no public scrutiny of the vetting process, which will weaken any of its “results.”

Fourth, Lu claims that former General Prosecutor Adriatik Llalla “who refused to prosecute politicians is gone.” Apart from the fact that under Llalla former Minister of Interior Saimir Tahiri has been prosecuted for corruption and organized crime – a “big fish” who has elicited not a single comment from Lu – there is no guarantee that Marku will now finally prosecute politicians. We recall that Marku’s career has been guided by current Legal Affairs Commission chair Ulsi Manja, and there no reason to assume she would be “independent” from politics. This is a dangerous delusion for a foreign diplomat to have.

Fifth, Lu also declares that “We will soon see the creation of the SPAK and BKH to investigate and prosecute high-level corrupt officials.” Again Lu has little understanding of the Albanian law or the (im)practicalities of the judicial reform. According to Law 95/2016 art. 4, the SPAK is nominated by the High Prosecutorial Council (KLP), which should have been nominated in February 2017. The unconstitutional delay in the installation of the KLP, allegedly caused by the curious absence of a candidate from civil society, led to the fraught election of Marku. She will have precisely zero influence on the SPAK or the BKH. If anything, her election has probably further complicated the installation of the KLP as a result of the complete breakdown of Parliament it has caused.

The “politicians” who “are afraid” may be part of the opposition, but they are in the government too. And this fear has brought them to delay the installation of the KLP, and as a result a legal General Prosecutor, SPAK, BKH, and a number of other institutions. The government has soiled the Constitution, and Lu has helped them do it.

I am impatient for justice, too. And I am especially impatient for the day that unelected international bureaucrats with the smug arrogance of Rama’s sneakers and the intelligence of a Valbona hydropower plant will be given a single ferry ticket to Bari.