Thursday, August 13, 2009

Doing Justice

One of the thorniest issues Moldova now has to face is how to deal with the (alleged) crimes of eight years of communist government. Under Voronin's leadership, the courts have tended to be used to dispense political discipline, rather than justice, meaning that those in the President's inner circle have had a very easy ride indeed.

Now the time of reckoning has come; a new non-communist administration is forming. How should it best ensure that justice is dispensed? On the one hand, it would be a crime in itself if the misdeeds of the last eight years were not brought to justice. On the other hand, as Louis O'Neill has pointed out, there should be no place for revenge in this process.

Personally I do not believe that the Moldovan justice system can be made truly independent of politics without a great deal of intervention from outside the country. The people of Moldova are just too polarised, and their competing versions of history and decades-old mistrust of the other side mean that judicial decisions will always be coloured by personal prejudices.

So what are the answers? Here's some I would like to explore:

1. An amplified and clearer constitution. This would remove a lot of the scope for interpretation that currently exists, e.g. it would become clear, for example, that all people holding state functions should step aside from their posts during an electoral campaign, to prevent the misuse of administrative resources.

2. A stronger tradition of precedent, such as exists in English common law. Judges should not be able to rule differently given the same set of facts. This would give higher degrees fo certainty and facilitate un-biased decision making.

3. The development of a judicial review body, with a high level of EU involvement. This institution would have the role of reviewing judicial decisions against the constitution, law and precedent, issuing reports on the performance of judges and making appointments to vacant judicial positions based on experience, qualifications, integrity and past performance.

4. Establishing (at least for 10 years or so) an international court as Moldova's court of final instance, with the power to overrule Supreme Court and Constitutional Court judgements.

The final proposal is perhaps the most controversial, as it subtracts to some extent from Moldova's sovereignty. But consider the benefits:

a. The local judiciary will be kept on its toes and will be anxious to issue decisions that will not be overturned.

b. The final say on an issue will come from a group of highly experienced, disinterested judges who are deeply familiar with how things should work in a democracy.

In one respect Moldova already has a court which partially fills this role. the European Court of Human Rights is able to find against the Moldovan government whenever it is proved that the Moldovan court system has not upheld the rights of a citizen.

This power is too limited for our purposes, however, as it only deals with rights violations, and the only possible defendant is the Moldovan government. We need to find a court capable of dealing with a wide range of criminal and civil actions in which individuals, companies, NGOs, media organisations and political parties can be held to account.

The United Kingdom's Privy Council acts as the final court of appeal for a number of Commonwealth countries, and so could be suited to the role. On the other hand, Moldova has a continental style legal system (i.e. not common law) and is not a member of the Commonwealth. Maybe la Francophonie has a similar institution that would fit Moldova better? Maybe the European Court of Justice could fill this role?

I'd love to hear your comments.

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