The question above is prompted by the current state of affairs in the implementation of the judicial reforms, and by the widespread misconception that rule of law is dependent only by an effective and predictable judiciary. At the same time it is my major concern the neglect of the importance of the quality of the state institutions in the reforms agenda, which is tied inextricably with the constitutional duty to implement the laws adopted under the justice reform process.
It has traditionally been held that law is the source of its own normative, it has an autonomous casual efficacy, hence law rules when the government’s actions follow and obey to anterior legal rules, established before the government action takes place.Thus far we are witnessing not just an unjustifiable delay in every step of the implementation of the laws adopted under the justice reform process, deriving from the impediments produced by the strategic choices of relevant actors, but at the same time it seems that the public becomes disaffected to the reforms as the officials who administer the reforms package of laws are not conducting it in accordance with its tenor.
Regardless of the motivations for not compliance, this has the practical effect of putting at risk the institutional equilibrium of organization and functioning of the principal justice institutions, such as the Supreme Court and the Constitutional Court, forced to work with a very reduced number of justices, consequently facing an workload of indigestible mass of cases, meanwhile the term in office of the general Public Prosecutor has expired and the High Council of the Prosecution has not yet been constituted, in order to go ahead with the proposal to the Parliament, to elect the new one.Thus, the “rule of law”, conceived by Thomas Carothers to be the panecae of the social ills of countries in transition from dictatorships or statist economies, is proving difficult to fulfill.
Charting the fragile path to progress, it’s an illusion to expect the attainment of the ‘rule of law” only through the reforms in the judicial sector, without effective improvements in the institutional governance. This difficulties invites us to think and reflect on the interaction and the distribution of power between the political authority, legal structures and state institutions, and guards us towards the imminent risk that the reforms might change the political rhetoric and not the political practices of intrusion into the legal system, in other words they might change the appearance of the legal system rather than its substance.The public perception of the latter is that politicians, as much as magistrates are corrupt, ineffective and self-interested.
The bureaucratic arrangements contained in the legal framework, foreseeing for the first time a new institutional setting of the justice system such as the High Council of the Prosecution for the organization of the public prosecution, and the true mutations introduced within the High Council of Judiciary, coupled with a prominent role played by the executive branch in pushing forward with the agenda of reforms, entail uncertainties in the implementation stage. Moreover the amatoresque handling by the Prosecution and the Parliament of the “Tahiri affair”, whereby the parliament had to consider the prosecutor’s request to divest the former interior minister from the immunity to go under arrest under allegations that he had close links with a gangs family trafficking cannabis to the neighboring Italy, unsubstantiated by cogent evidence, has once again brought the focus of attention to the ruling state elite, to its genuine will and capability to produce and implement good policies.The effectiveness and predictability of the judiciary is only one element to restore the confidence of the citizens to the authority of law.Regulatory quality is also a major concern to make headway with the country’s problems as the Bank of Albania is still grappling with its serious deficiencies of internal governance, and showed signs of weakness raising serious doubts on its capability to perform adequate supervision when it comes to one major regulatory objective-the prevention of the financial crime. It seems that the poor performance of state institutions reinforces the claim made by me that we have to rethink the rule of law reform strategies, adding an institutional approach to it that will extend the scope of the reforms beyond the justice sector, and infusing a normative basis of what should be done to achieve the effective implementation of the reforms.So far the incumbent government has not correctly identified the set of institutions which constitute essential elements of the rule of law, and the baseline institutional structure of reforms that needs to be implemented, a decisive factor for the success or failure of the reforms.