By Vincent W.J. van Gerven Oei
The Internationals Have Lost the Plot of the Justice Reform

As the idea that the justice reform is turning out to be a complete failure is slowly percolating through the main Albanian media outlets, the international diplomats who heavily supported the fated project in Tirana are quickly running out of platitudes to defend either the government’s policies or their own. They have planned this nicely – because the main culprits are on their way out this summer. US Ambassador Donald Lu is looking at a new posting in Kyrgyzstan, while EU Ambassador Romana Vlahutin will most probably (and hopefully) never be seen again in EU diplomatic circles.

During the interregnum, the diplomatic missions in Tirana try to keep up appearances as the legal framework of the justice reform is starting to produce, in an ever more visible way, monstrous results.

A recent example of these undesirable results, following from legislation passed by bipartisan support under enthusiastic applause of the international community, is that the School of Magistrates (ShM) will not be able to recruit new students (and therefore future judges and prosecutors) for the coming school year 2018–2019, nor will those who graduated this year be able to be recruited within the judicial system. As the School’s director, Sokol Sadushi recently stated in interview, “it is not the School that is blocked, but the justice reform.”

We have first brought this problem to the public’s attention in April, and it appears that also the EU was aware of this issue at least already in March. In their internal memo, the EU Delegation suggests as a possible measure a “revision of the Status Law [that] introduce[s] the provisions allowing the start of the initial training.” However, in spite of its “high priority, “[i]t is questionable whether a political consensus may be reached and which would be the ‘prize’ for it.” (Note that the word “prize” already contains an implicit negative value judgment of Albanian parliamentary politics.)

This week we have found out the opposition’s “prize” in return for approving an amendment to the Status Law (Law 96/2016 “On the status of judges and prosecutors in the Republic of Albania”) that would set the student quota for the School’s new students and allow new judges and prosecutors to be nominated while bypassing the High Prosecutorial Council (KLP) and High Judicial Council (KLGj) as the vetting of potential candidates continues in the foreseeable future. The opposition’s “prize” is, in short, a withdrawal of all justice reform legislation passed unilaterally by the Rama government after the bipartisan approval of the new Constitution and legal framework in 2016 and undoing all unilateral moves of the Rama government, supported by the international community, such as the unconstitutional nomination of a Temporary General Prosecutor.

The position of the opposition is strong as long as it manages to stay united, for Rama does not command a 3/5 majority. Without newly trained prosecutors and judges to fill in the gaps left by the vetting, the judiciary is bound to collapse. A seemingly minor legislative detail – even EU Commissioner Johannes Hahn sheepishly admitted “he should have known” – now suddenly appears to determine the fate of the entire justice reform.

US Embassy Chargé d’Affaires David Muniz tried yesterday to cast blame on both sides by declaring that the failure to pass the government’s Status Law amendment, which it had refused to change in any way to appease to opposition, as a “failure of all parties in Parliament.” His statement for the Voice of America shows the depths of the imbecility that has taken hold in the diplomatic minds of Tirana:

[We are dealing with] a simple amendment of the Status Law for Judges and Prosecutors to fullfil a basic requirement of a functional justice system, which allows new students to enter the School of Magistrates. […] Apparently, the politicians are afraid of the rule of law and that’s why they don’t work together to support the School of Magistrates and the justice reform.

The only thing missing from this statement is a crying face emoji.

Muniz’s statement shows precisely the enormous misconceptions that underpin international diplomacy in Albania. First of all, this lies in the phrase “simple amendment.” This suggests we are dealing here with a no-brainer, a technical fix for an unexpected glitch. In fact, this amendment is anything put simple and presents a moment of enormous political leverage of the opposition over the government of Prime Minister Edi Rama, which holds a majority in Parliament – enough to pass bylaws and nominate Temporary Prosecutors, but not to approve changes to the justice reform framework.

In other words, Muniz can only see the technical-bureaucratic dimension of the amendment, and not its political value to an opposition that has been largely sidelined and struggling to remain relevant and alive. This is the same attitude that led to the internationals’ support for the previous “glitch,” namely the impossibility to legally announce the end of the term of former General Prosecutor Adriatik Llalla and nominate a new one. As in the case of the School of Magistrates, this required the involvement of the KLP, which according to the Constitution should have been installed in April 2017. Back then, the internationals supported a creative circumvention of the Constitution by dubiously expanding the concept of a Temporary General Prosecutor. Such an unconstitutional fix, however, seems not to be an option this time (but you never know).

The second issue is Muniz’s suggestion that the amendment simply “allows new students to enter the School of Magistrates.” This shows an ignorance of the actual text of the amendment and the actual issues of the opposition. It is not the setting of new student quota that is the problem; it is the fact that the amendment would allow the Temporary General Prosecutor and High Council of Justice (KLD), both dominated by the government, to appoint new judges and prosecutors as long as the KLP and KLGj have not been installed. Needless to say this would provide a further powerful incentive for the government to stall the installation of KLP and KLGj for as long as possible.

The third issue with Muniz’s statement is that “politicians are afraid of the rule of law.” This is an echo of US Ambassador Donald Lu’s mantra that “politicians are afraid of the justice reform.” They cannot be more mistaken. The Albanian political class loves the justice reform. It has allowed those that happen to be in power to immobilize the justice system, opening the way for a variety of laws that would not pass the checks of the Constitutional Court but now risk becoming a fait accompli. It has allowed them, with the help of the internationals, to take over the Prosecution, and bury the dossiers that had been opened on PS politicians such as Vangjush Dako and Saimir Tahiri. It is further becoming increasingly clear that the Independent Qualification Commission (KPK) is operating with double standards, which sooner or later will lead to vetting cases being brought before the European Court of Human Rights – thus dragging out the vetting for the next decade or so. The uncertainty caused by the vetting and its no doubt many appeals to the highest European court, as well as the long-term understaffing that will be the result of the current legal conundrum, will continue to plague and weaken the judiciary for years to come. All of this is good news for the Albanian political class and the oligarchs that support it.

It is this simple: Albanian politicians do not fear the rule of law; they love ruling the law! Albanian politicians do not fear the justice reform; they love reforming justice!

The main and increasingly pathetic misconception of diplomats such as Muniz is that justice reform is a technical, bureaucratic, and logical process. They are flat-out wrong. The justice reform is an intense struggle for political (and therefore economic) survival. The party that will rule the justice reform from beginning to end has a good chance of ruling for much, much longer.