From: Vincent W.J. van Gerven
Martin Mendelski
Writing now already for some time about the fundamental ways in which the EU-supported justice reform has undermined the rule of law in Albania, I sometimes feel like a lonely voice in the desert. None of the stakeholders in the reform – the European Union, the Albanian government, or even the opposition – appear to be able to stand back and inspect the absolute havoc that has been wreaked on the Albanian state, which is steadily on the way to one-party rule with a decapitated, incapacitated, and politicized judiciary.
So great was my sense of vindication when I discovered, following the advice of a comrade in arms, the recent research of German political scientist Martin Mendelski, who for half a decade has been studying the detrimental effects of justice reform initiatives in Central and Eastern Europe.
What is remarkable is that although his findings are based on an in-depth knowledge of justice reform trajectories in countries such as Poland, Romania, and Moldova, his observations are directly applicable to the Albanian situation and give us a better and more coherent understanding about what is going wrong in Albania at this very moment.
Mendelski consistently defines the rule of law as comprising four components:
formal legality: degree of legal stability, coherence, generality, and enforcement
substantive legality: presence of good laws that ensure certain principles (civil, political, and socio-economic human rights)
judicial capacity: inputs, means, and resources required to establish a capable judicial system
judicial impartiality: unbiased and impersonal enforcement of law by independent, accountable and impartial magistrates who are bound by law. (Mendelski 2016, 350)
These four components constantly interact with each other, and in a society with a stable rule of law they positively reinforce each other.
What Mendelski refers to as the “pathologies of Europeanization” that are the result of justice reform processes in states with a weak rule of law (such as Albania) negatively impact formal legality and judicial impartiality, while impacting substantive legality and judicial capacity positively. The overall result, however, is a weakening of the rule of law.
Indeed in Albania, much of the legislation introduced as part of the justice reform has positively impacted substantive legality. The independence of the judiciary was strengthened in the laws and independent governance institutions created. All of this was to align Albania further with the acquis communautaire, which provide the main guiding principles for any legal reform on the way to EU accession. Also judicial capacity was improved, at least on paper, by increasing the wages of magistrates and codifying its self-governance.
But these positive developments are counteracted and undermined by Mendelski’s three “pathologies of Europeanization”:
valuing quantity over quality
partisan empowerment of domestic “change agents”
biased assessments of the rule of law
All three of these pathologies have been on full display in Albania. The legislative package implemented as part of the justice reform was massive but incoherent, for example as regards the precise definition of “vetting.” The result is that different justice governance institutions have adopted different and contradictory definitions. Other aspects of the vetting process, including the manner of vetting and the precise role of the international observers has remained unclear. All legislation passed after 2016 by the absolute majority of the Socialist Party, was deficient that it had to fixed recently with another series of amendments in July.
Nevertheless, the European Commission has consistently valued the fact that the reform implemented en masse over the actual quality of its content. Furthermore, the “quantity over quality” discourse is also clearly discernible in the EU and US’s call for “big fish” and proud emphasis on the great number of magistrates dismissed by the vetting. None of this says anything about the quality of the reform.
Also as regards the “partisan empowerment of domestic ‘change agents'” we need to say little more. The EU Delegation and European Commission have consistently supported the Rama government as the principal “change agent,” despite his obvious disrespect for the rule of law and the clear attempts to instrumentalize the judiciary system to shield Socialist politicians and position “friendly” faces on all levels of the judiciary. Also the EU’s approach to the unconstitutional local elections of June 30 and their tacit support for the Special Law for the National Theater all reinforce the view of the EU as favoring Rama.
The EU (despite its rhetoric of neutrality and non-interference) has in reality constantly supported its own liberal change agents, and by doing so has disempowered some of the “guardians of the rule of law” (e.g. the Judicial Council and the Constitutional Court), especially when they were under the control of reform opponents (Mendelski 2016, 361)
Finally, then, we arrive at “biased assessments of the rule of law.” I have already mentioned the EU’s double standards and hypocrisy in these matters, for example with regards to the involvement of the Socialist Party in vote buying and voter intimidation during the 2016 and 2017 elections in collusion with criminal organizations and the police violence used against opposition and civil society protestors. The European Commission’s progress reports consistently fail to report on any serious rule of law issues, with the result that it fall to national parliaments to break the “bad news” that Albania is in fact backsliding.
These three pathologies combined lead to a vicious circle in which the rule of law stays weak at best, or at worst gets weaker under the influence of the EU-imposed reforms:
(1) Unfavorable domestic conditions (weak rule of law) → (2) Pathological reform approach of domestic reformers, which involves excessive politicization and instrumentalization → (3) Pathological power of the EU, which is partisan and inconsistent → (4) Creation/reinforcement of pathologies such as legal instability, legal incoherence, and increased politicization → (5) Decline of formal legality and judicial impartiality, thus undermining of the rule of law → (1) Weak absolute rule of law. (Mendelski 2015, 349)
Mendelski also provides us – fortunately – with some suggestions as to how to improve the currently failing justice reform:
First, the EU needs to become more consistent and non-partisan in its assessment of governments. In particular, the EU should not be tacit when pro-EU, “liberal” elites from (former) candidate, accession or membership countries politicize judiciaries and horizontal accountability institutions. […]
Second, EU conditionality should shift its focus from quantitative outcomes towards qualitative processes. In particular, the EU should not link conditionality to specific reform outcomes or quantitative benchmarks (e.g. bringing war criminals before the court, increasing the number of high-level corruption cases, increasing the number of adopted laws or first-best practices). […] (Mendelski 2016, 377)
One hopes that these valuable pieces of advice do not fall on deaf ears.
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