From: Vincent W.J. van Gerven Oei
US Embassy Calls for “Rigorous Vetting” of Constitutional Court Judges

In a statement on the local elections held yesterday in violation of a Presidential Decree whose constitutionality is disputed by the Socialist government, the US Embassy stated that

Those who wish to challenge the election results can look to the Constitutional Court, which we hope will be established soon with judges who have passed a rigorous vetting process.

There is an inherent tension between establishing the Constitutional Court “soon” and a “rigorous vetting process.” You can have either one or the other but not both.

“Established Soon”

Having a Constitutional court “established soon” means believing the promises of the Rama government, most recently articulated by Minister of Justice Etilda Gjonaj:

[The formation of the Constitutional Court] is in progress. The Justice Appointments Council is creating an extraordinary process around the Constitutional Court candidates. They will finish this process as soon as possible, in a way that in September of October the Constitutional Court starts to function.

In order to get the Constitutional Court up and running later this summer, those in charge of the Justice Reform have two options, both of which violate the spirit and letter of the Justice Reform and pose a serious threat to the independence of the Constitutional Court.

Both options entail skipping the vetting of the candidates with a final verdict by the Independent Qualification Commission or the Special Appeal Chamber. This is arguably unconstitutional in itself.

1) As there is currently no High Court in place, pass the three Constitutional Court candidates elected by Parliament and the three elected by the President, ignoring the transitory provision in the Constitution that states new judges can only be appointed by rotation, i.e. first one by the President, then one by Parliament, the next one by the High Court, etc.

Even if the President challenges this illegal process, it will take more than 30 days to push 6 candidates through, unvetted, and in violation of the Constitution.

2) Appoint a “temporary” High Court consisting of unvetted low-rank judges appointed to select 3 candidates for the Constitutional Court. Because the High Court will consist almost entirely of unvetted judges, this will lead to a highly politicized Constitutional Court with little credibility.

The upside is that the transitory provisions of the Constitution do not need to be violated. Nevertheless, as with Option 1, not vetting the High Court judges before they take a decision as important as electing the next Constitutional Court judges, is fully against the spirit and letter of the Justice Reform.

This process will take at least 60 days (assuming President Meta will try to slow down the process). The legal argument supporting this option has been proposed by EURALIUS legal expert Klodian Rado, who himself is a candidate for the Constitutional Court. So don’t be surprised if he ends up there.

“Rigorous Vetting Process”

There can be only a single interpretation of a “rigorous vetting process,” which is a final verdict by one of the vetting institutions, either the Independent Qualification Commission or the Special Appeal Chamber.

Implementing a “rigorous vetting process” therefore means to suspend the election of a new Constitutional Court until all candidates from within the judiciary are fully vetted in accordance with the provisions of the Constitution and the Vetting Law, and not the regulations adopted by the Justice Appointments Council.

Therefore, the US Embassy statement is inherently contradictory. It is impossible to have a functional Constitutional Court “established soon” and have all candidates undergo a “rigorous vetting process” at the same time.

The coming week will show which path the Socialist government will choose of Prime Minister Edi Rama: lawlessness and anti-constitutionality, or acceding to the fact that the absence of a Constitutional Court implies they should obey presidential decrees until they are invalidated.