Comment: Extending the mandate of oversight bodies: options on the table – Quit

1- The decent proposal: the Albanian Helsinki Committee

On October 27, the Albanian Committee in Helsinki, in a press release, recommended that the extension of the mandate of the first level supervisory bodies (in particular the Independent Qualifying Commission or IQC) as officially proposed by the Party socialist, be the subject of a broad and in-depth consultation, where in addition to the official institutions should also be heard “constitutional and judicial experts, professors of law faculties of our country, civil society organizations that have monitoring the implementation of the justice reform ”.

AHC is so far the only institutional voice that rightly calls for that before the Constitution is amended, there should be an inclusive public debate with all those with the knowledge, skills and interest. to have their say on the matter.

In a functioning democracy, such a debate should take place before the amendment itself is drafted; the latter undertakes to put on paper one of the debated alternatives. Moreover, the principles of a functional democracy exclude politics from a fait accompli; all the more for the constitutional changes which, according to the law, cannot be made without the consensus of the opposition.

Parliament’s rules of procedure provide for a certain amount of time for consultation and debate, in particular on constitutional amendments. But when it became clear that the constitutional deadline was approaching and the scrutiny was far from over, interested parties should have thought about and discussed this issue and how to resolve it.

Unfortunately, this did not happen, although issues relating to oversight and the justice system in general are of great public interest and impact on people’s daily lives.

At the end of the constitutional five-year term, just over half of the magistrates were vetoed by the IQC. Considering the circumstances, it is necessary to understand why this happened and find the optimal way to complete the check. There are three clear options for this:

a- The worst option: Extend the mandate of the existing commissioners for a few more years:

At first glance, this proposal would seem reasonable, except for the significant problems observed in the functioning of this body. Formed by people mainly close to the SP (the DP neglected the process even though the Hahn-Nuland formula allowed it to appoint half of the commissioners) The IQC proceeded to the dismissal of the unworthy magistrates. But in addition, he also fired respected people and kept others in offices who deserved to be fired. The method was the application of double standards; the motives were partisan-personal; even material reasons have been mentioned.

The International Monitoring Operation (IMO) was unable to prevent these cases. The blatant case of the Tirana prosecutor, which was confirmed by the IQC as the ruling party wanted, was the straw that spilled the glass and sparked public protests from the IMO. The EU delegation and the US Embassy also protested loudly. To add weight to the statement, they reminded the audience that they are speaking on behalf of Brussels and Washington and not in a personal capacity as one might think. In addition, five IQC commissioners (out of a total of 12) were found not to meet the nomination criteria; some of them have been prosecuted for this.

This would suffice to qualify this option as unacceptable and, compared to others, as the worst option. This even without having to wait for investigations into the allegations of “material grounds”.

b- Reasonable option: Appoint new commissioners and extend the mandate by a few years;

If a constitutional amendment made it possible to appoint new commissioners, the advantages would be that: 1) the party’s monopoly on the IQC would be replaced by a political “check and balance” in the spirit of the Hahn-Nuland formula; 2) Candidates for the posts of Commissioners would be rigorously selected on the basis of criteria of integrity and professionalism. They would also inherit the infrastructure and the positive part of the experience so far. A renewed CIQ would allow better control of the remaining magistrates. The problem may be that the old IQC may become a “loose cannon” until June 2022.

c- The constitutional option or listen to Venice;

The Venice Commission’s insistence that monitoring, like any extraordinary measure, should not last long, led to the agreement that after five years the monitoring process should be carried out by the two governing councils. judges and prosecutors. At that time, no one thought that the “performance” of the IQC would be so poor. This option may overload both boards. In this case, the advice should be supported by the existing IQC infrastructure and the additional resources required. IMO must continue to function. The risk of the “loose cannon” until June 2022 remains.

d- The unknown option;

I dedicate this paragraph to the human mind which, through curiosity, reasoning, and argument / counter-argument deliberation, has generally come to wise conclusions. Noting that the public debate on finding the best option, apart from a note or a discussion, has not yet taken place, this substantive debate should begin as soon as possible.

2-Indecent silence: official opposition

Surprisingly, the official opposition has remained silent on the issue; its leaders initially called it “non-priority”, which is absurd. Then they said it was just a “matter of commissioners’ salaries”, which is unnecessary trivialization.

In the past, the DP has had the courage to tell the awkward truth about justice reform to a powerful front of political profiteers and useful idiots. After the DP, civil society and media began to notice and discuss many related issues

It would therefore be unforgivable for the DP to continue like an ostrich hiding its head in the sand; and it would be unthinkable for him to support bad options for Albanian justice.

3-Indecent proposition: Balla plus two

As expected, over the summer the Socialist Party signaled its support for the worst option. The constitutional amendment which provides for the continuation of the current IQC until December 2024 was ironically introduced by the MP known as the political hinge of drug gangs in his constituency town. Moreover, they quickly pushed him through parliamentary procedure with no consensus in sight. The SP, however, is consistent in its efforts to shape the “new justice” to its liking. But it’s interesting to run through the reasoning in the eight-page explanatory report (yes, only 8 report pages for a constitutional amendment!). In fact, the reasoning summarized in less than three pages (p. 6, 7 and 8) shows a certain intellectual misery of its editors. I am sure it is not the average level of the Socialist Party. Instead of full data, exhaustive analysis and in-depth reasoning to match the capacity of a large party, these few paragraphs explain that the delay was caused by the (predictable) drafting of the working regulations, the lack of offices and laptops (responsibility of the government which at the time unjustifiably reduced the control budget) and by Covid-19 (force majeure). By a very creative logic, he affirms that the proposal is in accordance with the opinion of the Venice Commission. No further issues are analyzed and there is an explanation why the December 2024 deadline is enough this time to get the job done.

The EU ambassador in early October and the US ambassador three weeks later requested an extension of the oversight bodies (but without specifying whether they were the same or new commissioners). They refer to an IMO opinion which has not been made public; we do not know at whose request it was written (should we also think about the conflict of interest?). But they do not explain or reason: they simply proclaim that Albania must change its Constitution. Even in a country like ours, experienced in the arrogance of certain internationals, that sounds a bit too much. Sadly, we see a cabal that remains a bad model for democracy and the rule of law; precisely by the representatives of the countries that have contributed and invested in these values ​​in Albania.

Genc Pollo is a former Deputy Prime Minister, Minister of Education, Minister of Telecoms and Informatics, former Chairman of the Parliamentary Committee on Education and Media and also on European Integration.

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