As Exit has argued yesterday, the decisions made during the “Temporary” Justice Appointments Council (KED) meeting of January 15 are unlawful because only 4 out of 9 KED members have been vetted, while the legal quorum requires 5 members.
We pointed out that this KED itself is potentially illegitimate, as there were numerous legal violations in its election process, and that the self-chosen designation “Temporary” has no support in the law.
Furthermore, the meeting was not announced on the KED website, and the minutes of the meeting have not been made public, in spite of the clear legal requirements to do so.
KED started inauspiciously without being completely vetted. As I wrote in December, the entire point of the justice reform is make sure that from the top down all justice governance institutions are “clean.” The vetting is a method to make sure they are. So if members of these governance institutions are not completely vetted before they start making decisions, these decisions are not “clean” either. You would think that this is logical, and completely in the spirit of the justice reform.
However, the EU accession clock is ticking, and the EU functionaries and the government want to make haste.
In June 2018 we published a confidential internal EU document drafted by the EU justice assistance mission EURALIUS in which it argued to skip the vetting of the KED members altogether, and let it elect a new Constitutional Court as soon as possible:
Invite the [KED] to expediently draft its internal rules and process the applications. The law does not require the [KED] members to be vetted; therefore, there is no impediment to proceed.
However, the Constitution, art. 179(11) clearly states that KED need to be vetted “as soon as possible”:
The members of the Justice Appointments Council shall be as soon as possible subject to the transitional re-evaluation of the qualification of judges and prosecutors under Article 179/b of this law.
But EURALIUS suggests that the slow pace of the vetting should be even considered an advantage for the KED. It should quickly pass their regulations and rank the Constitutional Court candidates before more members could be dismissed by the vetting! This is what EURALIUS advised:
the risk, that the functioning of the [KED] will be hampered due to further dismissals by the vetting bodies, is considered low as the vetting of assessees beyond the priority assessees seems to still take several weeks/months. Until then it is assumed that the [KED] has completed the assessment and ranking for the judges of the [Constitutional Court].
In other words, EURALIUS argues that a KED in which no one is vetted is better than a KED in which everybody is vetted – because in the former at least there will be a quorum that can act!
EURALIUS thus actively advocated for an election process of the new Constitutional Court by non-vetted KED members. And that is exactly what happened two days ago. Under the agreeing eye of EURALIUS (see their name card on the right of the photograph), a KED composed of a majority of unvetted, and therefore potentially unfit, members started the process to install a new Constitutional Court.
One may call this a travesty of law. And one should.
