As the Constitutional Court is soon expected to give its judgment regarding the constitutionality of the vetting law, government officials have made further statements that cast a shadow of doubt over the fairness of its implementation.
In the parliamentary session of December 15, Minister of Foreign Affairs Ditmir Bushati made several remarks about the judicial reform that neither have their basis in the Constitution, nor in the vetting law:
The judicial reform will start where there are violations of the law. And no one is prescribed and no one has any reason to feel threatened because it is a reform that in an unprecedented way is done in full collaboration with our international partners. […] I have never understood what is the public interest of a party to the Constitutional Court for the vetting law.
First off, Minister Bushati’s statement is incorrect. According to the Constitution, the judicial reform starts with the vetting of the members of the Independent Qualification Commission (KPK), Appellate Court (KA), and Public Commissioners who will conduct the vetting of the rest of the magistrature. This initial procedure will be carried out by the President, an ad-hoc parliamentary commission informed by international observers, and finally the Parliament itself.
The KPK and KA will then continue with the reassessment process of judges and prosecutors, investigating whether any of those magistrates has violated the law. Every single magistrate is presumed innocent until the investigation of the Independent Qualification Commission (KPK) and Appellate Court (KA) has proven otherwise, based on a thorough evaluation of background, wealth, and professional ethics. Simply put, before the reassessment starts, “violations of the law” are still unknown and therefore cannot possibly inform the order of the reassessment.
It is up to the KPK and KA, and not to the government, to decide on the precise procedure and the order in which the magistrates are vetted. There is, however, a very strong argument to start the reassessment from the top of the magistrature, at the Constitutional Court.
The reason is that, as the Venice Commission has pointed out in §44 of its amicus curiae brief, it would be legally possible for anyone to appeal a decision of the KPK or KA at the Constitutional Court. This means, that the Constitutional Court has the power to overrule the KPK and KA. It is therefore logical that the members of the Constitutional Court should be the first to undergo the reassessment. If a potentially corrupt Constitutional Court were allowed to have the final say in the vetting, as would be the case if Minister Bushati’s idea were followed, the entire aim and purpose of the vetting law would be lost.
Finally, Minister Bushati’s statement sets a dangerous precedent, because it shows the tendency of the government to influence a process that at all costs should be considered neutral, independent, and impartial. The reason the opposition brought the vetting law before the Constitutional Court was clear: a fear that the executive power would influence or capture the reassessment process. The exclusion of governmental influence on the reassessment process is vital to its impartiality and therefore in the public interest.
The opinion of the Venice Commission has now clearly stated that the KPK and KA have full authority over the entirety of the investigative process, and, more importantly, that classified information provided by the government cannot be used for a negative reassessment.
