Watchdog and cooperation partner

Civil-society actors are no substitute for governments’ reform policies, but they do stimulate debate and can trigger corrective action. A precondition, however, is trust and respectful cooperation between the government and non-governmental organisations. Neither can be achieved fast in countries with a totalitarian or authoritarian past.

Civil-society organisations must find the right balance between acting as watchdogs as well as cooperation partners for state agencies. This balance may prove difficult, as is evident in the two latest member countries of the European Union (EU) – Bulgaria and Romania. Both countries joined on 1 January 2007 and, in both countries, civil-society organisations led by lawyers are fighting for the rule of law.

The state’s view of itself

In both countries, the excessive sense of authority that prevails in many state institutions is a major hurdle to civil society having a positive impact on the judiciary. In Romania, for example, a group of reform-oriented Romanian lawyers founded the Society for Justice (SoJust) in 2005. This non-governmental organisation emerged from an Internet discussion group of Romanian judges, public prosecutors, members of the official self-governing body of the judiciary, the minister of justice at the time, lawyers, journalists, political scientists and students.

The most active members of this group started SoJust. They were convinced that the Romanian judicial system was in crisis. From their point of view, the delay of necessary reforms led to the formation of a self-serving judicial oligarchy that is stuck in the past and shirks its societal duties.

SoJust’s goal is to contribute to a true and comprehensive reform of the Romanian judicial system. In autumn 2006, the organisation published a 200-pages report on the state of the Romanian judiciary, assessing in detail the performance of institutions and legal professionals, including law schools.

The report provoked fierce criticism at Romania’s Superior Council of Magistracy (CSM). The Council is the judiciary’s self-governing body and has the constitutional mandate to guarantee judicial independence. Almost all transition countries in Central, East and Southeast Europe countries have introduced some kind of monitoring body like this, and some have given them additional authorities to protect the independence of the judiciary – especially from the government.

The Romanian CSM reacted immediately to the publication of the SoJust report by issuing a communiqué. It accused SoJust of having written and published the report without authorisation or permission by the magistracy. The CSM maintained that SoJust wanted to destabilise the CSM which was the only guardian of judicial independence and the jurisdiction of which had recently been expanded on initiative of the EU.

This criticism illustrates how the CSM understood its own authority. It believed it had a monopoly on analysing and evaluating judicial issues. In this view, only CSM members – certain judges and lawyers, in other words – might assess these issues. This kind of absolutist attitude is typical of government bodies in communist states, and it has survived even after the fall of the Iron Curtain. For the self-perception of state agencies to change, it is most important to replace their staff.

SoJust’s report on the judiciary was widely acknowledged, nonetheless, and regarded highly even in legal circles. It was awarded the “Civil Society Prize” by the Romanian initiative “Gala Societatii Civile”, for instance. Ultimately, after studying the report in detail, the CSM stated in early December 2006 that there was indeed a need for “closer cooperation through dialogue with all NGOs active in the field of judicial reform”.

For such dialogue to actually happen, however, there is a long way to go. Distrust on both sides has stood in the way of any true “cooperation through dialogue” so far. The instinctive need of the CMS and other state institutions to control all matters at all times is not helpful either, of course. But at least the CSM did formally acknowledge that cooperation between governmental and non-governmental actors is essential, and there have in fact been positive developments since.

At the end of 2008, for instance, the CSM invited NGOs that engage in legal matters to a round table to discuss the main problems in the judicial system, especially with regard to personnel. A little earlier, Romania’s justice minister had met with non-governmental activists in his Ministry.

Formalism

Another obstacle to lasting judicial reform is legal formalism. It is manifest in reforms that often make only little or no real difference. All too often, they fizzle out into mere changes of language along with action plans and do not bring about any real change.

Formalism is also manifest in disturbing decisions on personnel. Without any ethical or moral consideration, judges are appointed chief justices of important courts merely because they meet formal criteria. “The constitutional state is replaced by all-triumphant legal formalism,” is the assessment of a young Bulgarian lawyer who works for the non-governmental Bulgarian Institute for Legal Initiatives (BiLI).

Many NGOs active in the field of the rule of law and judicial reform in Bulgaria and Romania want matters to change. One example of related activism is an initiative by a group of reform-oriented NGOs, including Transparency International, the Open Society Institute-Sofia, the Centre for Liberal Strategies, BiLI and the Centre for the Study of Democracy. In November, they sent an open letter to several high-ranking persons. The title was “20 years after 10 November 1989 – 20 years of failed attempts to make judicial reform happen”. The letter was addressed to the prime minister, the president of the National Assembly, the minister of justice and members of Bulgaria’s Supreme Judicial Council. The authors called for open and structured dialogue between representatives of state institutions and civil society on the reform of the Bulgarian judiciary.

As priorities for debate, they mentioned judicial independence, responsible administration of the judicial system and the effectiveness of the Supreme Judicial Council. These issues are among the criteria that the European Commission defined for post-accession monitoring of Bulgaria.

Only once Bulgaria meets these criteria will the European Commission discontinue the special control procedures that apply to its cooperation with this Black Sea country. When Romania and Bulgaria joined the EU, some deficits, including in the justice field, were still evident. Therefore, the European Commission set up a special regulation in order to keep a check on these countries and observe the progress they make in fighting corruption and organised crime.

The open letter provoked fierce criticism. It was not so much content-based as formal. To an extent, the critics had a point, not least, as they largely agreed with the letter. Open letters normally serve to confront state institutions or persons in public life with shortcomings, broken promises or missed opportunities, or to press addressees to take action as the author deems necessary. Open letters are never pleasant for the recipients, and therefore the question always arises whether an open letter is conducive to constructive dialogue. On the other hand, civil-society actors in transition countries have a tendency towards using this instrument, which corresponds to the fundamental right to freedom of speech.

In Bulgaria, the NGOs actually achieved their goal, in spite of the fierce criticism. Soon after publishing the open letter, the NGOs invited representatives of the most important legal institutions in Bulgaria and its Parliament to discuss the topics raised. A round table was held in Sofia in December, and some consider it “the most important event in the field of judicial reform for the whole of 2009”.

The participants included the presidents of the Supreme Court, the Higher Administrative Court and the Bar Association, speakers and members of the Supreme Judicial Council, the vice president of the National Assembly, the chairman of the political party “Order, Lawfulness, Justice”, representatives from the Ministry of Justice, the media and NGOs. The event resulted in several reform pledges. One example was the proposal to change the way members of the Supreme Judicial Council are chosen. According to this proposal, Parliament would hold public hearings to assess candidates, involving experts and civil-society activists. Moreover, the ombudsman, the Bar Association and other institutions would be authorised to propose candidates for the Supreme Judicial Council.

On top of this, a member of the Bulgarian Parliament suggested constitutional changes in regard to the judiciary. That, however, would require the overruling of a judgment passed by the Constitutional Court, according to which only the Grand National Assembly may change rules relating to the judiciary. The Grand National Assembly is an enlarged Special Parliament that is only convened to deal with constitutional changes and is dissolved immediately after.

It remains to be seen, of course, what impact these initiatives will have on real life in Bulgaria. It is obvious, however, that the civil-society activists managed their balancing act well, serving simultaneously as watchdogs and cooperation partners. What took place in Sofia in December was a serious dialogue between the state and civil society. The NGOs’ role was about more than merely acting as a counterweight to state power. Indeed, this was a small milestone for civil society in its fight for the rule of law.