Perspective: Justice Reform and Paths Not Taken
September 14, 2024
In today’s Perspective article I’m going to address a topic that I’ve wanted to write about for a very long time. Specifically I’m going to look at Moldova’s work towards reforming the justice system and ask the question “did it have to be this way?” We’ll look at the current work, how it’s going and look over a few examples of how reform could have been done differently.
Firstly, what is this whole justice reform thing? Put simply the PAS government and President Sandu have made reforming and cleaning up the corrupt judiciary and prosecutors a priority of their time in office. Polls have consistently shown that the share of the public that distrusts the court system is in the upper 90% range. So when PAS won parliamentary elections there was mass public support for their plan to remove corruption from the judicial system. Beyond being a good in its own right, these reforms are critical to Moldova’s European aspirations.
So how’s it going? Broadly speaking most people in Moldova believe that the efforts at judicial reform aren’t going well. The perception is that things are moving too slowly and that major cases haven’t made much progress in the last few years. President Sandu echoed this sentiment when she was recently asked in a TV interview to look back at her first term as President and whether or not she had any regrets. To answer, the President stated that she didn’t regret anything but that she wished more progress had been made on Justice reform. She said:
'“Perhaps I should have been firmer from the very beginning on the issue of justice reform. Perhaps I believed too much that the system wanted to reform itself and that changes would come from within. But this did not happen. However, I still hope that when the system is cleaned up, we will see more courage and initiative on its part,”
She went on to say that the effort had been more difficult than expected “But the path we are taking is the only correct one.”
Speaker Grosu also recently addressed the speed of justice reform saying:
"We underestimated how much effort would be needed to implement justice reform, how much resistance there would be, and it continues to this day. We have no illusions anymore. But this train cannot be stopped, someone may try to slow it down or say that something needs to be changed,"
Anti-Corruption Prosecutor Dragalin also recently made comments defending her record and addressing why major cases against Gutsul, Dodon, Stoianoglo, Tauber and others have not been resolved and continue to linger in court. She explained that the cases have been investigated and sent for trial but are lingering due to procedural questions. Dragalin defended this saying that it is normal for litigations to move slowly because "human rights must be respected at every step.” She also made an interesting statement claiming that it is good that major fugitives such as Plahotniuc, Platon and Shor are not facing justice in Moldova. Essentially her claim is that they are facing their own kind of prison in exile and that "even if they sit in a corner somewhere in Russia or another country, they still do not have the same freedom as we do - for example, they cannot go to the seaside."
Now, Plahotniuc is widely believed to be in Turkish Cyprus, a place known for beaches. Ilan Shor spent most of his time after fleeing Moldova in Israel and Platon is safely in the UK without any know travel restrictions. So the beach thing is confusing on its face. But more telling is what likely sits behind this statement - Moldova’s courts have not proved that they would be in any way capable of holding these men or bringing them to justice. Better that they are outside the country where they can cause less trouble.
So the justice system is broken and the fix is moving slower than hoped. But why?
The Albanian Model
When Moldova set out to begin the process of justice reform the country was assisted by experts and funding from the US and EU. After some analysis of the problem a decision was made to adopt a reform concept that has been ongoing in Albania since 2016. This is the “Pre-Vetting” and “Vetting” process we frequently discuss in the weekly roundups. Essentially it goes like this. An independent vetting committee was formed comprising of half foreign experts and half local experts appointed by parliamentary factions in proportion to their electoral representation. This committee is responsible for looking through judges and prosecutors declarations of wealth and property, as well as their past decisions, to uncover any signs of corruption. Those found with questionable wealth or assets will be removed from office.
The process starts with 2 self-governing bodies, the Superior Council of Magistrates (SCM) and Superior Council of Prosecutors (SCP). These groups are elected by a professional college of judges and prosecutors respectively. The SCM is responsible for admitting judges to the bench, monitoring their work, sanctioning bad behavior and dismissing judges found to be corrupt. The SCM and SCJ are seen as key pillars to the independence of Moldova’s judiciary assuring that personnel decisions are non-political. We will return to this idea of “independence” soon.
The Pre-Vetting process was meant to assure that new candidates for the leadership of the SCM and SCJ are clean. This process has ended and has hopefully resulted in new leadership free from corrupt influence. The process of “Vetting” whereby all judges and prosecutors in the country will be checked is ongoing and still in relatively early days.
Critically, this process was never going to be fast. Albania began this reform in 2016 with the original scheduled end date being 2022. This was pushed back to 2024 and is still ongoing. Albania has been praised for how far the country has come in judicial reform - so the process is working. But it is not fast.
Differences with Albania
Moldova has a few key differences in its approach to justice reform from Albania. The biggest one is political buy-in. When Albania began this process all major political parties in the country knew that it was essential for future EU membership. That allowed for broad non-partisan support for the process. This in turn allowed the passage of 17 constitutional changes which provided the legal basis for creating the vetting system.
Moldova does not have broad support for justice reform, at least in terms of political parties. This project is driven by PAS and found no support from the Socialists, Communists or Shor party remnants in parliament. Because of this the vetting process was not formed on the basis of constitutional amendments but via normal legislation - legislation that can be overturned in a future parliament.
Outside of parliament, most opposition parties attack the vetting process in one way or another. There is broad popular support for justice reform, so few politicians spend time defending judges (though there are exceptions). Instead opponents both on the pro-EU spectrum and the pro-Russian spectrum largely accuse PAS of using vetting to take political control of the justice system. These accusations gain traction because the inherent complexity of the vetting process means that most people really don’t have any idea how it works - allowing the opponents of reform to define it publicly. In reality, the process is non-political to a fault, a potential problem we’re going to come back to.
So this outlines the basic issues with vetting so far. It’s slow, it’s confusing for the public and it does not have broad support from all political actors - a potentially serious issue for a process that has taken more than 10 years in Albania.
Path’s Not Taken
In any discussion of what could have been done differently, it’s first important to note just how little debate about this topic happens in Moldova. Opposition groups make vague promises to “do better” than PAS when it comes to reforms, but these never have concrete ideas behind them. I believe that PAS adopted the vetting process for a few key reasons. Firstly, it’s EU approved. The EU has been involved in the process in Albania for years and almost certainly presented it to Moldova as pretty much the only option. For Moldova this has multiple advantages, firstly, hopefully the EU knows what it’s doing, and secondly, they get points for trying so long as they’re following EU recommendations. Another reason PAS adopted the model is directly because of the Albanian experience. Albania is a country in our region (kinda) of a similar size and also with notorious corruption problems. If it worked there it should work in Moldova.
What did not happen was a broad conversation about how best to reform the justice system. Why? because no one was interested in having it. Pro-Russian opposition parties weren’t going to be constructive and pro-EU opposition at the time were disorganized and lost in the political wilderness. PAS had to make a decision and they did.
But that does not mean there weren’t (and aren’t) other options. The world has seen a clear example of this in Mexico’s passage of a highly controversial set of justice reforms this week. Mexico’s outgoing President, Andrés Manuel López Obrador (AMLO), pushed through a bill that would provide for the election of more than 6500 judges throughout the Mexican judicial system. These judges will be overseen by a new body, similar to Moldova’s SCM, that will also be popularly elected. The reform has seen massive international condemnation including from the US government. The US ambassador to Mexico, Ken Salazar warned that the reform threatens judicial independence and noted:
“Democracies can’t function without a strong, independent and non-corrupt judicial branch,”
I like this quote because it gets right to the heart of the matter - strong, independent and non-corrupt is exactly what we want from a court system. But what do you do when the system is strong, independent and corrupt. That’s the issue that Moldova is facing and that AMLO says he is trying to solve in Mexico.
I don’t believe for a moment that elected judges would work for Moldova. Firstly, the country is small and radical reforms that don’t have EU backing are a non-starter in this area. And the EU *hates* elected judges. But AMLO’s idea is less crazy than it seems at face value. Firstly, these aren’t free-for-all political elections. A field candidates for each position will be nominated in equal parts by the executive, legislative and judicial branches. This is a lot more protection than we find in the political election of judges found in many US states. In fact, most US states have elected judges in some way.
At the core is a tension in the chosen emphasis in the idea of strong, independent and non-corrupt. Moldova is pursuing reforms that brook no compromise whatsoever on the independent issue and therefore cannot directly pursue the non-corrupt part. This isn’t how things work everywhere.