This is a translated and slightly adapted version of an article originally published in Romanian on August 19.

Hey Moldova, do we saw the bars off or do we paint them a different color?

Vlad Plahotniuc and his Democrats pulled off the feat of pushing the pro-Europe ACUM and pro-Russia Socialists into an unlikely alliance. After several years of deploring Moldova as a captured state, the former opposition took power, rolling its sleeves up to get the country free of oligarchy and out of captivity. The start was promising – a Declaration by Parliament on June 8 acknowledged the capture of state institutions. Two months on, the Declaration seems to have changed nothing essentially in Moldova’s institutional fabric.

What does the Declaration say?

Adopting the Declaration was one of the terms put up by the political bloc ACUM for an alliance with the Socialists. It was passed on June 8, as the MPs came together in a dimly lit assembly hall, a chiaroscuro reminder of who was still controlling the switches across the country. The Declaration officially recognized that Moldova was in deep crisis, and that democratic institutions were faltering and serving the narrow interests of an oligarchic group “of totalitarian expression.” So Parliament pledged to change things “urgently and fundamentally.” These should be the key words – urgently and fundamentally.

Admittedly, the PSRM-ACUM alliance has fulfilled some of the measures laid out in its provisional agreement.[1] There have been a number of dismissals (but more resignations), some inquiry committees have been set up, the controversial mixed electoral system has been reversed, the date of local elections has been set, and the President has got some basic powers back. But are these steps proportional to the severity of the situation depicted in the Declaration?

What does a captured state mean?

Freeing a “captured state”[2] doesn’t only mean tearing down the pillars of the old regime. Per Wikipedia, the term was first used by the World Bank, around the year 2000, to describe the situation in certain central Asian countries making the transition from Soviet communism. That period saw the emergence of small corrupt groups whose members used their influence over government officials to appropriate government decision-making in order to strengthen their own economic positions.

In a captured state, the entire government process, from lawmaking to small bureaucratic decisions, is manipulated by private individuals and firms to their own political and economic advantage. State capture involves more than a series of isolated acts of corruption. Rather, it’s when all the corrupt schemes are monopolized.

What are the results so far?

So far, the process of “freeing public institutions from capture” has failed to impress. The High Council of the Judiciary is still largely composed of people appointed under the so-called “small reform of justice,” which was declared completed in 2016 and which has clearly failed. Although the Council relieved Victor Micu of his chairman duties, he retained his Council membership. Ion Druță, the president of the Supreme Court of Justice, was briefly suspended before being restored by an appellate court.[3] The only new members sitting on the Council are Dumitru Robu, the acting prosecutor general, and justice minister Olesea Stamate.

Read also: Is Acting Good Enough? Waiting for the Prosecutor General

The High Council of Prosecutors, too, remained almost unchanged, with the same Robu and Stamate being its only new blood.

At the National Bank’s helm, we see the same Octavian Armașu, whose prior job was finance minister in the Filip Cabinet. The Broadcasting Council is still headed by Dragoș Vicol and continues to have three members appointed by the previous government in December, including the former Democratic lawmaker Corneliu Mihalache. The energy regulator ANRE has the same four directors appointed by the previous government. Marcel Răducan, also a former PD deputy, still heads the Competition Council. The Fiscal Service is headed by Sergiu Pușcuța, appointed in 2016 during the PD rule, and the Court of Audits is run by none other than the ex-PD president Marian Lupu.

Although resignations (and to a less extent dismissals) started pouring in from the first days of the new government, the selection process to designate both proper and acting replacements has hardly been satisfactory. One telling example is Lidia Bulgac’s election as acting president of the Chisinau Court of Appeals. Ms Bulgac was one of the judges[4] who authorized a shady privatization deal for a firm of Plahotniuc that almost had a landmark café in Chisinau’s central park replaced with an office building (this gave rise to a fairly small, yet vocal protest movement called OccupyGuguță, named after the café). Another illustration of the state remains captured is the surprise decision[5] by the prosecutors’ self-governing body to start the process of selecting a Prosecutor General before a proposed reform of the institution and modification of relevant laws.

All in all, plus the justice minister’s opinion that the judiciary is capable of “self-cleansing,”[6] give us the feeling that the Justice Reform has started off on the wrong foot and could fail. The Declaration on the Captured State, a document which was supposed to become a carte blanche for urgent and vigorous action against the oligarchic regime, seems to have been replaced by much pettier tasks. While having an act of such political and legal magnitude at its disposal, the current government keeps occupying itself with merely cosmetic changes.

According to a World Economic Forum survey,[7] Moldova ranks 132nd out of 137 countries in terms of judicial independence. To hope that the current agencies will reform from the inside, and to limit yourself to making small adjustments to laws and procedures, is to not see the forest for the trees. To count on the good faith of the people who until just recently took orders from GBC tower (believed to be Plahotniuc’s command center) is naïve. When a government claims to be with its hands tied because the law says so or because the judiciary is a branch that is immune to interventions from the outside, it risks mistaking the rule of law for a formal observance of laws. The principle of the separation of powers presumes that all three powers serve the public interest and are not captured. But this is yet to be achieved.

What did others do?

The Jasmine Revolution

The Tunisian Revolution of 2011[8] was a response to 23 years of dictatorial rule by Ben Ali, who suppressed the opposition and concentrated the country’s wealth into the hands of his cronies. Following a spontaneous popular uprising, Ben Ali fled the country on 14 January 2011.

Under pressure from a highly mobilized civil society, the caretaker authorities started to deliver a fully-fledged democratic transition. Ben Ali’s party was disbanded and a Higher Commission for the Revolution was set up. The security services and political police were disbanded, jettisoning the last institutional strongholds of the old regime. The Higher Commission decided to fully revise the constitution and tackle the inequalities of power which had led to a dictatorship. Senior officials of Ben Ali’s regime, including the minister of the interior Rafiq Belhaj Kacem, were arrested and accused of corruption and blackmail. An independent electoral body was established, and a number of laws standardizing party funding and electioneering rules were adopted. Lustration in Tunisia[9] was mainly achieved through electoral laws, which banned people affiliated in the last 10 years with the old regime from running in elections.

The governing coalition peacefully gave up power following legislative elections three years later. Tunisia’s democratic transition is considered a success story that helped trigger the Arab Spring in neighboring countries.

The Carnation Revolution

In 1974, military and popular civil resistance forces put an end to 48 years of authoritarian rule in Portugal through a coup that became known as the Carnation Revolution.[10] One of the first measures taken by the military junta, which acted as a caretaker government until the adoption of a new constitution, was to purge the system by removing all the visible members of the dictatorial political elite, conservative military officers and government officials, and even some members of the lower ranks of bureaucracy.

One key popular demand was that agents of the political police and other repressive bodies be brought to justice. Among the agencies that were dissolved were the National Assembly, the Popular National Action (Portugal’s sole party at the time), the Political Police, the Riot Police, the Censorship Board and the Plenary Court (which tried political cases). In one year alone, some 12,000 people were removed from offices, over 300 military officers were removed from active duty, and 42 judges were removed from the bench. Deans and directors of faculties were also fired.

After a tumultuous period of purging the system, a process of democratic consolidation and moderate reform followed. In 1976, Portugal adopted a new constitution,[11] which established a multi-party parliamentary democracy, with a parliament and a prime minister, and which enshrined the principle of the separation of powers and guaranteed fundamental human rights. In 1986, Portugal joined the European Union. Although the measures taken in 1974-1976 were generally recognized as harsh, a 2004 poll showed that some 60% of the Portuguese saw them as a good thing.[12]

What is Transitional Justice?

After an authoritarian regime collapses and until a democratic one is established, the state goes through a period of reform, called “transitional justice.” It involves "a series of trials, purges, and reparations,”[13] a thorough reconfiguration of a political regime and institutions such as the police, the army and the judiciary, which had been transformed by the previous regime into a repression machine. Performing transitional justice means punishing those responsible, as well as deactivating the agencies that enabled the abuse. Institutional reform may include several measures [14], such as:

  • Vetting – examining personnel backgrounds during restructuring or recruitment to eliminate from public service or otherwise sanction abusive and corrupt officials. By the way, the current EU ambassador to Moldova Peter Michalko has recently proposed this solution.[15]
  • Structural reform – restructuring institutions based on principles of integrity, legitimacy and functionality.
  • Oversight – creating publicly visible oversight bodies within state institutions to ensure accountability to civilian governance.
  • Transforming legal framework – reforming or adopting legislation, modifying the constitution or adopting international treaties to ensure protection and promotion of human rights.

The main purpose of a transitional justice is to put an end to the culture of impunity (when state agents are convinced that abuses will remain unpunished) and to establish the rule of law in a context of democratic governance. In other words, transitional justice aims at: ceasing ongoing human rights abuses, investigating past crimes, identifying and sanctioning people responsible for human rights violations, compensating victims, preventing future abuses and reforming the security structures.

Purge or political revanchism?

Democratic transitions give green light to measures that may seem radical, but which are essential for tearing down the old system.[16] In Tunisia’s case, bringing members of the old regime to justice was instrumental for achieving transitional justice and restoring the rule of law.[17]

This is true not just for Tunisia or Portugal. In post-war France, the De Gaulle government instituted the offense of “national unworthiness.”[18] Vichy Cabinet collaborationists faced a harsh penalty that included confiscation of assets. Moreover, they were deprived of election rights, banned from government service, trade unions, mass media, and executive appointments in semi-public companies. The disqualifications could be imposed for a period of five years or for life, on a case-by-case basis.

A number of countries from the former communist bloc imposed various forms of lustration.[19] Essentially, secret police agents and informants, or officials responsible for serious human rights violations, are disqualified from participating in political life, from holding public offices, and in some cases even from acquiring post-independence citizenship. Moldova is one of the few European countries from this bloc that hasn’t implemented any form of lustration.

What should we do?

While the latest change of government in Moldova isn’t quite flower-worthy, the goal declared by the new government calls for measures that should be as radical as in Tunisia or Portugal: purging, criminal punishment, institutional reform. One idea proposed by the lawyer and public policy expert Ștefan Gligor[20] is to dissolve the National Anticorruption Center, the Special Cases Prosecutor’s Office and the Anticorruption Prosecutor’s Office, and rebuild them from scratch; also, a Commission should be set up to evaluate judges and other members of the judiciary across the system. According to the expert, this could be achieved by passing an organic law.

There is no alternative

The current ruling coalition won its seats following an election with the lowest turnout in independent Moldova’s history.[21] Such a level of disillusionment didn’t exist even after eight years of Vladimir Voronin’s rule. Moldovans seem more dischanted in democracy than ever.

Acting in line with the Declaration on the Captured State could be a chance to restore the confidence of Moldovans in democracy and the rule of law. To say that the state is captured means to recognize that there is a system that allowed someone to seize public agencies and milk the country. If the system is not dismantled, there is a fair chance the previous oligarch could be replaced by a new one.

De-oligarchization requires first all fixing the justice system, and the current coalition won their mandate precisely on this promise. Appeals to morals,[22] legal sharp practice and ridiculous reasons for dismissals[23] don’t live up to the standard set by the Declaration: urgent and fundamental change.

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  1. ACUM-PSRM Provisional Agreement (RO), ↩︎

  2. State capture, ↩︎

  3. Maia Sandu on Druță's reinstatement as CSJ president (RO), ↩︎

  4. Court authorizes construction of 13-floor building in Cafe Guguță's place (RO), ↩︎

  5. Maia Sandu reacts to CSP decision to start process of selecting a new Prosecutor General (RO), ↩︎

  6. The Justice Reform: The Opposition of the System and Minister Stamate's Vision (RO), ↩︎

  7. World Economic Forum, Executive Opinion Survey. Judicial Independence, ↩︎

  8. The Democratic Transition in Tunisia, ↩︎

  9. Transitional Justice and the Politics of Lustration in Tunisia, ↩︎

  10. Authoritarian Legacies, Transitional Justice and State Crisis in Portugal's Democratization, ↩︎

  11. Constitution of the Republic of Portugal, 1976, ↩︎

  12. Portuguese Catholic University Opinion Poll, Commission for the Commemoration of the Thirtieth Anniversary of 25 April 1974. ↩︎

  13. John Elster (ed); Retribution and Reparation in the Transition to Democracy, Cambridge University Press, Cambridge, New York, 2006 ↩︎

  14. Institutional Reform, ↩︎

  15. EU Ambassador: The Judiciary needs a radical reform (RO), ↩︎

  16. Jon Elster, Closing the Books: Transitional Justice in Historical Perspective ↩︎

  17. dressing the Past, Building the Future: Justice in Time of Transition Conference Report, ↩︎

  18. Indignité nationale, ↩︎

  19. Lustration, ↩︎

  20. Ștefan Gligor on how the system can be purged (RO), ↩︎

  21. 2019 Legislative Election Results (RO), ↩︎

  22. Maia Sandu addresses prosecutors (RO), ↩︎

  23. Victor Micu fired as CSM president (RO), ↩︎

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