„Why is the criticism against the PAS (Party of Action and Solidarity) on the way it conducts the justice reform premature and even likely dangerous, since it could undermine all political change it promised? This analysis will argue on the necessity to avoid focusing on the shape of reforms, and instead focus on their substance. A substantive reform demands the understanding of the causal mechanism behind the social problem it is targeting. From the outset, I acknowledge that this comment may seem provocative, and I anticipate various criticism. But I encourage readers to first pay attention to the suggested arguments. As a caveat, I have previously criticized quite frequently and harshly the policies and actions of both the PAS and President Maia Sandu. And I may likely continue doing so in the future. Therefore, I cannot be accused of favouring the governing party…”
The errors of criticism
There are some dimensions of the problem, in which the criticism is simply inappropriate. Let's start with the fact that the PAS, by winning the parliamentary elections with an overwhelming majority, has acquired a very strong mandate and an enormous political legitimacy. The majority of the voters tasked the party to do what it considers necessary in order to fulfil its election promises. And reforming the justice system is one of its most important promises, even though also one of the most difficult. Therefore, the PAS is able to change laws as it sees fit, because in this process the laws are nothing but the tools to implement reforms.
The PAS is like a sculptor, who modifies the stone of politics to bring it the desired shape. On this backdrop, its critics from the civil society - and they matter the most - must understand that they, in fact, challenge the political legitimacy offered to the PAS by the majority of the population. The splash of popular anger and frustration on the social media, directed at some civil society actors, after they criticized the PAS measures, was the evidence to that. Many PAS voters perceive this criticism as an artificial impediment and obstacle in the way of the speedy reform of the justice system and the eradication of corruption. And these voters will also not hesitate to penalize the party they voted for, if their expectations are deceived.
The criticism coming from those targeted by PAS intended reforms, such as the Prosecutor’s Office, is ironic. Because they are trying to maintain the status quo that they benefit from and that the voters want to change. However, the fact that the voices of some civil society actors coincide with the voices of those who want to maintain the justice system unchanged must probably worry the former. There must be something they are doing wrong, if they ended up with a message similar to that of corrupt actors they have been opposing.
Another aspect of concern is the legal one. It is my understanding that no law was broken, technically, by the PAS parliamentary fraction’s emergency voting on 13 August. One of the valid objections, however, was that there were no reasonable justifications for such an urgent procedure. But reasonability is a subjective category. In the eyes of those critics from the civil society, the reasonable justifications did not exist; in the eyes of the PAS reformers these were present, or otherwise they would not have accepted the audience costs related to their voting. I believe that the PAS was right, and its approach was justified at that specific time and context. This opinion is explained by the strategy of change guiding the reform process – which has little alternative – and the causal mechanism guiding the logic of reforms, which I will explain below.
On decision-making transparency
Any reform efforts need to account for transparency as its essential criterion and the particularities of building democratic institutions. The first one aims to prevent abuses in the legislative process. But it is too early to claim that the PAS would have any intention to commit abuses. The criterion for judging the risk of abuses should be the observation that certain members or affiliates of the PAS may benefit financially from legislative changes. And the watchdog role of the civil society is very important at this stage. But we have to be technically astute to make the necessary distinctions among cases and contexts, understanding their separate logic and ramifications. For instance, a police car may break the law if it drives at red light in some cases, but not in others.
Another valid point is the concern voiced by some experts regarding the creation of poor precedents. But this argument is neither relevant nor applicable to the situation under discussion. Is precedent valid or justified in the realm of politics? Political actions are judged by different principles. No government will be able to convincingly justify abuses by invoking precedents. And applying a reverse logic, has the existing law that ensures decision-making transparency prevented the abuses of former governments, in practice?
Similarly, the consultation with the civil society did not change the actions of previous governments, at least not in substance. Therefore, in a transition country like the Republic of Moldova, it is the nature of the ruling regime that matters. An authoritarian and corrupt one will imitate reforms and conduct phony consultations with the civil society, so that in the end it can do what it wants – collecting rents from the country's economy. A political regime that acts in good faith, will be more serious about implementing the reforms. This is why the public consultations were a sham in the previous governments, which mimicked both the reforms and the cooperation with the civil society, in order to build legitimacy in the eyes of their European partners. Therefore, if abuses are to happen, invoking precedent is not a critical addition to the manipulation toolkit that corrupt governments tend to use.
Another criticism against PAS is about their approach to justice sector reform, involving "shock" measures. But this approach has its merits. The fact that the previously used strategies - considered effective and done "by the book" – have repeatedly failed, speaks in favour of seeking different approaches. The past measures proved incapable of fixing the problems of the Moldova’s justice system. If the promoters of those strategies operated in the business realm, which is harshly judged by the delivered results, then many of them would have gone bankrupt. Thus, the main question that civil society should examine is why did the past reforms they supported and carried out were unable to achieve their goals? Taking the argument to the extreme, the PAS reform team has - in addition to the strong popular mandate - the moral right to point out that they should be allowed to test the strategies they had developed, considering that most of the objections they were faced with were based on past strategies that failed. Importantly, the PAS team attracted diverse expertise in the field of justice reform, including from the civil society, and cannot be accused of incompetence in this area.
I believe that those select civil society actors, who dislike the PAS strategy to reforming the justice system should review their own approaches. They should try to avoid the conditioned reflexes, acquired due to their past experience and built to prevent the abuses of regimes that were clearly known as corrupt. Instead, a very good practice would be to focus on a deeper understanding of the justice system problems, the causal mechanism guiding them, as well as any intervening processes that affect this mechanism and which are constantly changing. The shortcomings of the criticism against the PAS justice reform are in ignoring the causal mechanism driving the corrupt justice problem, which the PAS is trying to solve. Let us have a more thorough look at this causal mechanism.
The problem’s mechanism and the solution strategy
The objections to the way the PAS voted on the laws on 13 August were also related to the argument that politics should not influence justice. And this approach is an absolutely correct one. However, this demand describes an end in itself. And the PAS is still in the process of conducting reforms. The current legal framework, which is aimed to protect the justice system from political interference has failed to do so in the past, repeatedly. This implies that some of its provisions or conditions are not functional and need to be revised. The question is what exactly needs to be fixed?
Let's imagine that a park administration placed a warning for visitors to not step on the grass, so that it remains green and fresh all the time, to the delight of people's eyes. But if the cultivated grass is invaded by weeds, the park no longer will please the eyes, and someone will have to step on the grass to uproot the weeds. Following this example, it is only after we build a judiciary that is free from corruption, objective and impartial, that we have to also set up provisions preventing the political interference in its work.
But if the judiciary is affected by "weeds", metaphorically speaking, the political class needs to fix the situation. And in the Republic of Moldova the justice system has become a corporation of interests, linked to a kleptocratic system, which manipulates the law in favour of the highest bidder. We have seen many examples exposing the justice system’s nature of a clan or guild, in which one member of the system will do "justice" to another, fearing that tomorrow these members could change places; this is plausible given that there are enough objective reasons to sanction many members of that justice guild. And this situation describes accurately the two elements of the earlier referred causal mechanism of the problem.
Once the problem is defined, what could be the solution? Obviously, appealing in this situation to the non-interference of politics in the reform the justice system is – and I insist on this – totally absurd. It would mean not touching a rotten justice system, overwhelmed with corruption. Because it is only the political class, with the ability to change the laws and mechanisms making the justice system dysfunctional, that can fix this problem. It is for these reasons that the majority of the Moldovan population elected the PAS with an overwhelming vote; and any obstacle that prevents the demands behind that vote to be implemented is anti-democratic (against the decision of the majority). It is also illogical. I do not believe that this opposition is conscious – the gist of the problem is that the mechanism of the corrupt justice problem that the PAS is trying to solve is not fully grasped by the critics. It is not well understood that someone has to step on the grass to uproot the weeds that have plagued the justice system in the Republic of Moldova. After this cleansing of the justice system, the civil society should intervene firmly and support the PAS in adopting a new legislation that effectively prevents political interference into that newly minted neutral and impartial justice system. And this process will have to also create effective mechanisms to prevent the rollback of the justice system to its current state.
The Herculean task of PAS
There is no other effective solution than the drastic measures that the PAS has initiated. I would really like that the critics provide a better alternative, thoroughly explaining how it can solve the problem, instead of superficial ideas. An alternative, which should also consider the important factors that have an impact on the operation of the malfunctioning current justice system. The speed of reforms is such a factor. A major hope of the corrupt actors in the justice system and of the kleptocrats they serve, is that they can manipulate the public opinion and legislation in order to gain time; time is the precious currency they need to protect themselves, to be able to develop solutions that will allow them to keep their positions or preserve their corrupt interests and avoid or minimize the penalties. Time is of essence indeed – for instance, one can drag a judicial process for years, as the trial of Ilan Șor has shown. The PAS task is therefore a Herculean one: not only it has to clean up the judiciary of corrupt elements, but it also must quickly deliver the necessary sanctions, meant to teach a lesson and discourage the members of the justice system from using corrupt practices in the future. Without the last element, the change will not be a lasting one. As long as such systemic offenses are not sanctioned, similar cases will not be discouraged in the future and the reforms will not be sustainable. The sceptics should note the lack of sanctions for the policemen who committed crimes against the protesters in April 2009 and how that has impacted the face of Moldovan police until today.
This is why the criticism from some civil society organizations against the PAS reform strategy on the justice system is also dangerous. Because this criticism could reduce the implementation speed of that reform, which even without such impediments is going to be difficult and complex. And, while recognizing in principle the importance of respecting decision-making transparency and public consultation, speed is a critical element of the reform strategy, in order to ensure its success. It is true that, despite the urgency of the case, the public monitoring and oversight of reform actions should not be overlooked. Because this sends a credible and clear signal to the corrupt actors in the justice system that they cannot escape sanctions. And it also gives additional motivation to the honest members of the justice system to contribute to the reform from within. At the same time, we must not forget that if the process of cleaning and resetting the justice system is delayed, this will affect the image of the PAS. It will be partly because the population will lose confidence that this political force is capable of making such a change and is able to ultimately honour its major electoral commitment. In fact, creating and exploiting voters doubt in the PAS ability to fulfil its electoral promises is a major stake of the corrupt actors who benefit from the malfunctioning justice system. Moreover, with the current state of the justice system, it will be hardly possible to carry out reforms quickly and efficiently in any other area. Just imagine the terrible scenario when hundreds of lawsuits are initiated by corrupt officials against their dismissal by the PAS, which will be then tried by corrupt judges. With the current disastrous nature of the Moldovan justice, it will be impossible for the PAS to advance any reforms or changes it has promised to its voters.
I believe that the PAS deserves to be given an initial credit of confidence related to the implementation of its main electoral promises. This makes sense in particular in these areas, where they have solid expertise, and the justice system is such an area. PAS actions aimed to change legislation, with the aim to create the tools necessary to advance the reforms should be seen as necessary transitional processes, and not as the ultimate goal of reforms. Avoiding political interference into an impartial justice system is an end goal that can be achieved only by political interference into a corrupt justice system. And, if we take into account the mechanism of the problem described above, this approach is the most realistic for the justice reform. It is also understood that the PAS, as a political force genuinely advancing reforms, must be consistent and make every effort to ensure the necessary transparency in the reform process, including in urgencies.
Obviously, it is difficult for the civil society to give such a credit of trust to any party, in particular in the light of previous bad experience it had with the self-proclaimed democratic parties that came to power in 2009. However, by applying expertise and technical knowledge one can differentiate between benign and corrupt actions. We have already mentioned a criterion for assessing abuse, based on the observation of the financial benefit from legislative changes. Such observations will represent that alarm bell or red line that should trigger the mobilization of the civil society to counter possible abuses.
No less important is that the civil society rethinks and reviews now the approaches that it had to apply during previous corrupt governments, which a priori did not inspire confidence. Instead, non-governmental experts need to focus on technical nuances and issues, view the reform actions not as separate instances but as a unified strategic process and have an in-depth understanding of what actions are in support of this strategy and which are debatable. One tendency that I frequently notice in Moldova is that the civil society frequently operates abstractly with by-the-book algorithms, which are descriptive of final states in democratic regimes; these are less functionally suitable to the hybrid or transitioning regimes which better describe the Republic of Moldova, and which first need to design strategies to travel across corrupt and undemocratic obstacles and hurdles, in order to reach that desired end states.
This omission is partly due to inertia, and partly due to reduced expertise. Few experts have advanced knowledge - mainly acquired via education in the West – but also the practical experience in the public sector. It is this combination that allows a better understanding of how this advanced knowledge can be optimally adapted to the constraints and realities of the Republic of Moldova or can effectively consider the transaction costs arising when implementing public policies.
The basic assumption of this analysis is that the PAS has not yet provided reasons for distrust in the area of justice reform. As long as we have no justification to suspect the PAS of malign or corrupt reasons, or we do not notice obvious errors, preventive criticism is much less useful than a thorough technical assessment of their reforms. It is that technical analysis that can critically assess the PAS approaches for specific errors, and then design concrete alternatives of reform fixing them, which the civil society still needs to produce.
Therefore, it would be very useful to have a more thorough, nuanced and relevant assessment by the civil society experts on the effectiveness of reforms, which must first take into account the causal mechanism driving the problem. In our case, this is a justice system that has lost its role of a public good and has instead been captured by private interests that consequently exploit democratic principles to protect and maintain this capture state.
Dumitru Mînzărari Ph.D. is an associate policy analyst with the Institute for European Policies and Reforms and a research associate at the German Institute for International and Security Affairs.
This Commentary is prepared within the project "We and Europe - Analysis of EU-Moldovan relations through innovative media and analytical products", implemented by the Institute for European Policies and Reforms (IPRE), in partnership with IPN, Radio Chisinau, Zugo.md and with the support of Konrad Foundation Adenauer. The opinions presented in this comment belong to the author only and do not necessarily reflect the position of KAS or IPRE.