By issuing a decree yesterday to nominate Besnik Muçi to the Constitutional Court, President Ilir Meta has exposed one of the foundational design flaws of the justice reform.
The justice reform was conceptualized as a reform that works its way from the top down. Through a rather convoluted procedure aimed to minimize political instrumentalization, the vetting institutions would be elected. These vetting institutions would then vet the candidates for the judicial governance institutions, such as the Justice Appointments Council (KED), which then would appoint new judges to the Constitutional Court to replace those dismissed by the vetting. That was the idea.
At no point was it predicted by the designers of the reform, anonymous bureaucrats and experts without any public accountability, that the Constitutional Court would be dysfunctional. And at no point was it imagined that the Constitutional Court would be filled with new judges that were unvetted. And yet, we are today in such a situation.
In an attempt to deal with the constitutional crisis caused by the de facto absence of the Constitutional Court, and pressured by the Socialist Party that promised a functional court by the end of the summer, the KED decided in March to forgo the full vetting of candidates.
Rather than awaiting a final verdict, the KED decided that a preliminary confirmation by the Independent Qualification Commission (KPK) was enough to be elected to the highest court of the country. Decision no. 4 from March 11 states:
“Art. 112. The verification procedures for the vacant position cannot be finished until the KPK has made a decision with relation to the magistrate candidates and other subjects that are subjected to the transitory reassessment procedure according to law 86/2016 [the Vetting Law].”
Despite the empty calls of the US Embassy for “rigorous vetting,” this decision entailed that the KED started verification procedures when a candidate was confirmed by the KPK, even if the decision was appealed.
This was precisely the case for Besnik Muçi, also a former candidate for the High Prosecutorial Council, former candidate for Temporary General Prosecutor, and current candidate for SPAK. Muçi was confirmed by the KPK on July 30, 2018, the decision was published on August 1, and the Public Commissioner filed an appeal on November 12.
The appeal is currently pending at the Special Appeal Chamber (KPA), with the Public Commissioner claiming that Muçi cannot justify his wealth, while the KPA is waiting for the National Security Agency to declassify documents pertaining to Muçi’s case. None of this bodes very well for Muçi, especially considering the KPA’s history of overturning KPK verdicts in high–profile cases.
There can be no doubt that President Meta was aware of all these issues, especially since the other three candidates for the Constitutional Court seat all passed the vetting with a final verdict and were therefore a “safe” choice. The President went with the risky candidate.
There are now two possible scenarios. First, if the KPA confirms Muçi, this confirmation will always be tainted by the intense national and international pressure to create a functional Constitutional Court. Especially if the verdict is poorly argued, it will be taken as a sign of politicization of the vetting institutions.
Second, if the KPA dismisses Muçi, the establishment of a functional Constitutional Court will be even farther away than before. The seat would have to be declared vacant, and the KED would have to start the entire nomination procedure, including the priority vetting of new candidates, all over again.
This could easily add months of further delays. Especially in the latter scenario, the credibility of the justice reform would be utterly undermined.
That these scenarios may not be very off the mark is proven by the complete silence that Muçi’s election evoked on the social media accounts of the EU Delegation, US Embassy, and the Albanian government. I am convinced that the selection of any other candidate to the Constitutional Court would have been hailed with congratulatory messages and applause from all directions as a “step in the right direction,” as a “positive development,” and “concrete evidence of sustainable progress.”
The election would have immediately been used by Prime Minister Edi Rama and Acting Foreign Minister Gent Cakaj to proclaim the success of the justice reform in a last attempt to push for the opening of accession negotiations. Instead – complete radio silence.
It is no secret that President Meta has in the past been critical of the implementation of the justice reform. In May, this resulted in a rare public rebuke of the EU Delegation in Tirana, claiming that the “justice reform is being implemented in full compliance with the Constitution of Albania and the relevant national legislation.”
With the election of Muçi, the President has followed the Constitution and relevant national legislation to a tee. Let’s see the final outcome.