Rule-of-Law, Rest(s) In Peace!? (EN)

Let's have a black celebration
Black Celebration
Tonight
To celebrate the fact
That we've seen the back
Of another black
Day...

An intro to journalism class I audited some 10 years ago taught me that "nobody cares about yesterday's news--reportedly, Londoners say that yesterday's paper is only good to wrap the fish and chips of today..." But I do care about yesterday's news, as it provides the context and, possibly, the motivation of today's decisions, actions or events... Do you remember this cover of the Economist, back in June? Think of that poor sparrow to depict Romania's aspiration for genuine rule-of-law, while the arrow is the Parliament of Romania. You may still keep the EU flag as the target on the sparrow's chest, as it would picture the place of Romania's Judiciary in the EU--buried 6 feet under; under the nerve of our parliamentarians, under the twisted sense of rule-by-law, under the incredibly original interpretation of parliamentary immunity, under the utter and complete disregard for the prevention of conflict of interests. Under these circumstances, Romania's rule-of-law rests in peace, apparently awaiting its funeral--but was it killed this week, or simply been in a coma for a long time?!? What's the context, what's the cause, what's the motivation?!?

On Monday, minister Predoiu announced his proposal for a new Chief Anti-corruption Prosecutor at DNA, in an attempt possibly meant a) to avoid handling a hot potato, and b) to stimulate decision-makers and legislators in reaching consensus over justice and anti-corruption reforms (JAR). Tuesday, President Băsescu summoned all political leaders, discussed and convened that Romania would make all efforts necessary to reach a common position regarding JAR, in order to put an end to the hEUmiliating monitoring mechanism (CVM) by July 2009. Wednesday, Parliament decided that big fish cases (former PM Năstase and former minister Mitrea) may not be investigated by DNA's prosecutors, in spite of Predoiu's invitation, Băsescu's aspiration, or even their own word, committed live in front of TV cameras, and reinforced, by request, from several civil society organizations... Thursday, one very active professional association of judges announced their intention to sue Parliament on the administrative charge that parliamentarians do not have the prerogative to block criminal investigations. Thank God it's Friday, and nothing else happened, yet... Although I'm terrified at the possibility that some spokesperson from our retrograde CSM would make yet another ill-inspired or dormant statement, since today is the Dormition of the Virgin Mary...

The overall impression is that we have a really odd constitutional framework, since all of these things happen in close connection with constitutional provisions. To begin with, it's impossible to tell whether prosecutors are executive agents, subordinated to the minister of justice, or independent magistrates, only responsible before the CSM--we have a confusing mixture that clearly satisfies none of the parties involved, especially when analyzing appointment procedures for top prosecutorial jobs. Then, we have a semi-presidential system that imposes severe limitations on the agenda-setting powers of the President, in spite of his direct election and highest representation quota--the same limitations are visible, though for different reasons, with the Parliament and Prime-Minister, especially when decisions regard the Judiciary, where consent from CSM is necessary. Since 2003, parliamentary immunity has been reduced, and the same happened with ministerial immunity, since 2005--but when we get down to former ministers that currently serve as parliamentarians, the situation gets so complicated, based on residual provisions of the 1991 Constitution, that minister-MPs actually enjoy a meta-immunity almost placing them above the law.

Therefore, I'm thinking that rule-of-law died a little bit every day, at least since 1991, with poison being slowly dripped through the veins of the Romanian justice system :( The final blow coming from Parliament on Wednesday counterpoised at least two major principles placed without the Judiciary, but with the utmost bearing thereupon--parliamentary immunity, somewhat coupled with presumption of innocence vs. prevention of conflict of interests, somewhat coupled with separation of powers; rule-of-law is (was?) the victim in this battle, via the principle of judicial independence. I still believe that Parliament needs some radical, conceptual reform--not just here, but everywhere! I think parliamentary and/or ministerial immunity is a concept of the past, no longer needed, no longer relevant. If, however, immunity is deemed necessary, at least have someone else decide on the issue--maybe the Constitutional Court, but not the parliamentarians themselves! Otherwise, the conflict of interests kicks in, becomes so crystal clear, that common sense should stop them parliamentarians from making any decision! To wit, in the Wednesday case, one cannot really discriminate whether MPs cast their vote in due representation of their actual constituents, or in representing their private interests against some other potential investigations...

Maybe there is hope?!? The judges' bold move of yesterday suddenly begs the question: is it appropriate for a judge to charge a decision of the Parliament, to the benefit of a prosecutor that would, eventually bring the case to court? Probably not, if you put it that way... But what if this (generic) judge is simply protecting the independence of the Romanian Judiciary, questioning the Parliament's prerogative, the parliamentarians' representativeness and the decision-makers' potential conflict of interests?!? Of course this case will land in the lap of the Constitutional Court, and I don't expect them to make a just ruling :( Of course this case will backfire, and the CSM's judicial inspection will investigate the professional integrity of the judges who initiated the lawsuit :( Of course I don't trust the CSM's verdict, and I expect that some of these judges will finally appeal to ECHR, in order to be reinstated :( But only such course of action may, eventually, open up the eyes of our politicians, point out to the fallacies and loopholes in the constitutional text, and ultimately redeem rule-of-law from its current comatose rest...

But I'm not ready to write an obituary for Romania's rule-of-law, for though I think it rests, I can see that it's not dead! I believe that Dormition is followed by Assumption! And I trust the final Judgment will find our MPs (especially the Constitution-makers) guilty of the mortal sin called lack of accountability under the rule-of-law! I'm optimistic in my strong belief, so I will simply hang in there, throughout this Black Celebration :)

Sweet and Sour Pork, á la Roumaine (EN)

On July 23, the European Commission issued a new Report regarding Romania's progress towards justice reform and the fight against corruption, as already convened under the Cooperation and Verification Mechanism. As you may know, when Romania and Bulgaria joined the Union, on 1 January 2007, a special verification tool was established, unlike the case of the previous 10 Member States. If you ask me, the special verification tool, crowned with the "menace" of the sanctioning safeguard clause, was the right way ahead of a possible deadlock. The four benchmarks of the Cooperation and Verification Mechanism convened with Romania relate to the shortcomings of the Romanian justice system, and to Romania's poor capacity to fight corruption. Therefore, two weeks ago, before the floods, everybody was breathlessly waiting for the Report--would there be sanctions, would there be cuts, would there be sticks or carrots?!? In my opinion, we were offered a nice bowl of (originally Chinese) sweet and sour pork, and encouraged to add some domestic rice to eat it--preferably with locally-made chopsticks!

It's sweet, because the Report found it appropriate to praise Romania's progress on a number of issues and directions. For instance, while I'm not very happy with the pace, (lack of) procedures and even direction at the Integrity Agency, the Report applauds the birth and rapid development of the institution, awaiting, just like every one of us, the results of the first investigations (about 90 cases being opened, reportedly). For a second, the Report sees the consolidation of the Anti-corruption Prosecution in a favorable light, although it notes some deficiencies regarding the success rate of convictions in court. For a third, the Report acknowledges the adoption of a sectoral strategy regarding the fight against corruption in the administrative system, in spite of not properly wording the concern that Romania failed to adopt the third National Anti-corruption Strategy. Not in the least, it's sweet by contrast to the wrath bestowed on our neighbors to the South--golyamo sazhelenye! Why sour, then, will you ask? Simply because such a Report exists, mirroring Romania's incapacity to fulfill a set of requirements, obligations or duties that would make her fully compatible/fit within the European Union. Sour, as well, because our leaders and decision-makers (including the Superior Council of Magistracy, Parliament, Cabinet and Presidency) are incapable of presenting even an estimate date for ending their bickering and getting the job done :(

And I guess you must be curious as to why I pictured pork, why a(n originally) Chinese dish? You may well know the story with the Chinese curse, "may you live in interesting times!" It's quite interesting how the Report (just as others, before) warns Romanian leaders to refrain from turning anti-corruption into a political tool or too hot of a political debate. I couldn't agree more! Instead, losing sight of the importance of good governance (meaning inclusive!), Romanian politicians debated over the findings and the recommendations of the Report in an exclusively political key: The socialists proclaimed the ultimate failure of the right-wing regime, the liberals focused on their success in avoiding tougher sanctions (as seen with the Bulgarian counterparts), while the populars scorned at every criticism regarding the Anti-corruption Prosecution, as if that were their exclusive prodigy... Interesting times, wouldn't you agree? Adding to the domestic injury, an EU official expressed the opinion that institutions may be personalized, that specific persons (rather than good structures, proper procedures and appropriate human resources) offer guarantees for institutional performance, and that institutional stability may prove a good guise for success :( Facing such mixed, even conflicting, messages, Romanian politics exploded on the TV screens smearing the Report recommendations in the mud. And that's exactly where you find the pigs that should be carved and served for dinner, praying that this porky spectacle should stop!

Assume that we manage, somehow, in the upcoming elections, to slaughter the pigs, depoliticize the anti-corruption effort, and put an end to these interesting times--and make them normal... What next?!? Of course, we need to add a side of rice to the pork: The Parliament still needs to finalize the Codes, and it better gets it right from the first cooking! The judges and prosecutors still need to clean up their own backyard (and I don't mean just the CSM), and make sure culprits not only are convicted, but also serve their time, for we are quite fed up with suspended sentences! The Cabinet still needs to get its act together in adopting an Anti-corruption Strategy for 2009-2012, as well as find a way to finance all of the anti-corruption efforts properly! And I guess the President should be able to provide the chopsticks in all of this arrangement, if he were more concerned with grand policies of vision, depth or breadth, with mobilization or concertation, rather than small-scale politicking in favor of tic-tac-toe... But, hey!, if all of these things would happen, the dish wouldn't then be á la Roumaine... N'est-ce pas?!?

Goat and Cabbage--Ancient Wisdom in Current Politics (EN)

An old Romanian proverb claims that a sign of ultimate wisdom lies with the ability of accommodating both a goat and the cabbage it craves... It would be a sign of genius and great skill to also accommodate the wolf that craves the goat, but I'm not sure we can get that far... While Justice should be shielded from Politics, in the true vein of separation of powers, Romanians have been taught, since the adoption of the 1991 Constitution, that's not always the case, not always desirable, not always possible :( You'd think that the selection and appointment of a chief anti-corruption prosecutor should be a prerogative exclusive to the Justice system?!? Well, it depends...

Is a prosecutor rather an agent of the Executive branch, called to uphold public order and public values, to the benefit of the people? Or rather an independent magistrate, within the Judicary, called to qualify the facts, assess the applicable norms, and enforce the law? Romanian prosecutors prefer (and I do, too) that their profession evolves in the second direction, but most of the constitutional and legal framework keeps them within the first. Thus, since 2005, when the procedure established in 2004 was amended, a Chief Prosecutor in Romania is being appointed by presidential decree, upon nomination by the minister of justice, while the Supreme Council of Magistracy, interposed, is reduced to offering just a simple assessment of the nominee, non-binding for the Presidency. Enters stage Mr. Morar's problem:

Better said, the problem of the Romanian politicians with Mr. Morar and his DNA--the anti-corruption prosecution. Today, Mr. Morar's 3-year mandate as head of DNA came to an end. His mandate could be extended, only once, for another 3-year term. His supporters point to Mr. Morar's will and determination in fighting corruption, opening investigations, biting at, and chasing after, the big fish. They do agree not all is rosy, but emphasize the hurdles that Parliament erected in protecting some high officials targeted by DNA investigations, and the incompetence or malevolence identified with some of the judges. Some NGOs, some politicians (mostly Populars), some media (including the Economist), and the European Commission (Mark Gray and the Report of July 23) openly supported the extension of Mr. Morar's mandate, while President Băsescu may have uttered that he wouldn't sign an appointment decree on any other name.

The opponents of Mr. Morar's extension may be differentiated into those who really oppose him, and those who see no point in hanging on a name, a providential person... Other NGOs, other politicians (mostly Socialists), and other media (somewhat affiliated with the Socialists' junior coalition partner) openly accused Mr. Morar of manipulating corruption investigations to the benefit of President Băsescu's political aspirations and/or clientele. [The Socialists apparently went as far as to threaten a parliamentary motion to dismiss minister Predoiu, if he were to recommend an extension of Mr. Morar's mandate.] Others, yet, question the criteria used for assessing Mr. Morar's performance--at least against his predecessor's (Mr. Amarie), if not against specific benchmarks--and counterpoise their disappointment vis-á-vis no substantial results in a plethora of cases that never encountered parliamentary hurdles and/or never got to see the inside of a courtroom.

[Personally, I don't think I have enough information to make up my mind whether Mr. Morar should be kept in or kicked out. I wish I could've seen an assessment report (probably from the CSM) focused on the internal management at DNA, rather than on technical, legal or procedural matters. One argument in his favor, coming from a colleague within TI-Romania, relates to allowing Mr. Morar's managerial team to complete the investigation cycle on the big fish cases, from A to Z, namely from opening the investigations to concluding the trial procedures. The immediate downside of this argument, however, is that investigations should last 6-12 months, rather than 2-3 years, but I'm ready to concede that high-level, "octopus" corruption cases are hard to handle, evidence and indict. On the other hand, if Romania is really incapable of identifying another prosecutor to fill this job--professionally qualified, morally impeccable, resiliently determined to fight corruption, and fearlessly resolute to catch the big fish--then I think we're in deeper trouble than anybody ever fathomed :( ]

To my mind, part of the problem owes to the system of appointment. Since the minister of justice and the President are political posts, and they "own" more than two-thirds of the current appointment procedure, it's only natural that the entire process would be open to political debate. Especially if they come from competing political veins [President Băsescu has close ties with the Populars], the seed of political conflict is already sown--and moderation or restraint in politics is not a well-known feature in the Balkans--or is it?!? Another part of the problem owes to over-exposure in the media--not necessarily of this particular instance/topic, but of the entire DNA activity: too many leaks to the press; too many talk-shows trying people on the TV screens; too little concern for protecting investigations, evidence, witnesses; complete disregard over the presumption of innocence... But these are the ways of the media competing for ratings and market shares :(

The net result is a rift down the middle of Romanian society, and a very uncomfortable position for minister Predoiu. Under these circumstances, Mr. Predoiu yesterday tried (kinda awkward, including the PR perspective) to pull the old goat and cabbage trick on everybody: Would it be possible to

1. observe the current procedure, but also buy some time?,
2. appease domestic politicians, but also dance to the tune being played in Brussels?, as well as
3. increase the importance of the CSM assessment, but also pass the buck in the decision-making process all the way up to the President?

I thought his best way out of this predicament would've been to send out a list of three alternative nominees, Mr. Morar included. Then, the CSM could've recommended that some nominees would not be fit for the job, while the President would've made the final call. But Mr. Predoiu simply avoided the risks incumbent with such course of action, and made a different move, altogether:

Mr. Predoiu yesterday nominated Ms. Monica Şerbănescu for the position of Chief Anti-corruption Prosecutor (head of DNA), thus alleviating the Socialists' threat. [By the way, Mr. Predoiu is not a member of any political party, though he is a libertarian, with an affinity for the Liberals that now lead a minority Cabinet in coalition with the Hungarian minority.] At the same time, Mr. Predoiu announced the creation of a new position for Mr. Morar, to be promoted (or otherwise kept in the loop) as Romania's High Representative in Brussels, charged with the coordination of the Cooperation and Verification Mechanism on matters related to justice reform and anti-corruption. Thus, minister Predoiu may alleviate the domestic concerns of the Populars, and maintain a favorable opinion in Brussels. Reportedly, before making this bold decision, Mr. Predoiu consulted only with the President and the Prosecutor General. [Of course, my analysis starts from the assumption that a proper solution is being sought, but one may also see it as cynical entrapment...]

Will it work?!? To begin with, Ms. Codruţa Kövesi, Romania's Prosecutor General, extended Mr. Morar's post for 90 days, by administrative decision, in order to prevent a situation whereby DNA would've remained hands-tied until the entire procedure is completed. Then, Mr. Morar is reported to have refused the Hi-Rep position on CVM [though that's a job even I would like ;) ]. Ms. Şerbănescu will have to face not only a skeptical and divided public, but also the CSM assessment--if she fails, minister Predoiu may have bought some time before making another nomination [and with elections knocking on the door, that could be really wise of him]. If President Băsescu really agrees with this arrangement, Mr. Morar accepts the Hi-Rep post, and DNA gets a new chief prosecutor only after the elections, I'd say that, ultimately, Mr. Predoiu may have managed to check all three dilemmas, at the same time--except, perhaps, the attempt to increase the CSM's role in the process :(

Oh, but the Hungarians, Socialists, Liberals and Conservatives plan to submit a Bill to Parliament, to the effect of reverting to the 2004 procedure for appointing the Attorney General and the Chief Prosecutors (anti-corruption and anti-terrorism). That Bill would most probably eliminate the role of the justice minister, and place with CSM the entire responsibility of nominating and assessing candidates for these posts, while the President would maintain the appoinment decree. Of course, it would be nice if CSM could be reformed, in the process, but that would be too much to hope for... Then, we also have to find solutions regarding the Codes, the Integrity Agency's budget, the third Anti-corruption Strategy, and put an end to the CVM and the safeguard clause... Provided that my assumptions hold water, I really think it could work, I hope it will work, and I urge all stakeholders to act in concertation, leaving political bickering aside...

Back in 2004, I thought that business associations and trade unions should join this effort, and I'm glad to see that more people now converge with this opinion: Success in justice reform and anti-corruption is paramount to Romania's development and sustainability, simply because poor justice means poor business!, and if justice is poor, jobs are insecure! Indeed, more goats, more cabbages, more need for more wisdom... But, hey, if there is a will, there's always a way!