Recently, the Justice Appointments Council (KED) has started the evaluation of the candidates for the current 9 vacancies at the Constitutional Court. This has been treated largely as a good development in the justice reform, meaning that it could bring an end to the de facto lawless situation in Albania.
However, we should take a moment to step back and look at the broader picture. The justice reform was sold to the Albanian people as the only way of creating an independent and strong judiciary, thus improving the rule of law in Albania. A recent poll funded by the Open Society Foundation has shown that this message has not arrived. 63% of the Albanian population does not believe the vetting of the judiciary will clean up the judiciary, and 63% believes the vetting will not bring justice.
Considering that the strength of the rule of law is to a large extent dependent on the belief and trust of people in it, these numbers don’t bode well. However, that could change, of course, if the highest court of the country would comprise the best, wisest, and most experienced jurists Albania has to offer. If the highest court of the country – whose verdicts cannot be overturned and which is the final authority on all legal matters, with the exception of the European Court of Human Rights – could prove its credibility, much of the justice reform could be salvaged. It is therefore imperative that both the election procedure and the candidates to be elected by the High Court, President, and Parliament, are beyond reproach.
So let us look at both the procedure and the candidates. The KED itself is of questionable legitimacy. As I’ve argued before, the election of the KED was done in haste without following the legal procedure and in violation of legal deadlines. When it was elected, a majority of its members had not passed the vetting. The dismissal of Bashkim Dedja added a second vacancy, meaning that the KED has only 7 of its 9 constitutionally prescribed members. At the same time, the current KED only has the minimum quorum of 5 vetted members. This is far from an ideal composition to evaluate and rank all 9 new judges of the Constitutional Court.
Furthermore, the current round of KED evaluations does not comprise candidates applying for the candidates elected by the High Court, because the High Court has no quorum. In other words, we are currently looking at the election of only 6 out of 9 Constitutional Court judges by the President and Parliament. This means that the “new” Constitutional Court will be imbalanced without any representation chosen by the judiciary itself.
The KED will produce three ranked lists that will be sent to the President and three to Parliament. The President will select his preferred candidates, while Parliament will select its preferred candidates with a qualified 3/5 majority. Currently, Parliament is arguably dysfunctional, with the opposition having vacated its seats. However, it appears that “renegade” opposition members will be able to help the Socialists to a qualified 3/5 majority. This implies, in turn, that the Socialist majority will be able to determine 3 judges in the Constitutional Court on its own, thus immediately politicizing it.
So even without looking at the actual candidates and their profiles, what we can say with relative certainty is this: the next Constitutional Court will be reviewed and ranked by a partial KED of 7 out of 9 members, of which only 5 have been passed the vetting. It will consist of only 6 out of 9 members elected by Parliament and President, and the election process will be a highly contested, politicized affair.
It is questionable whether the new Constitutional Court will be able to establish any form of legitimacy without the opposition returning to Parliament. If the Socialist majority chooses to take the risk to elect 3 members of the Court on its own, this will poison the judicial system for years to come, let alone lead to multiple verdicts on hotly contested issues that will be without broad support in society. And when that happens, the justice reform has accomplished the precise opposite of its stated aims.