Ambassador Christopher Dell: “Rule of Law and Kosovo”

It is a pleasure to see the representatives of Kosovo institutions and professional associations gathered together to support and promote the rule of law.

In 1958, President Dwight D. Eisenhower established Law Day by Presidential Proclamation.  He wanted Americans to reflect on our legal heritage, the role of the law, and the rights and duties that are the foundation of peace and prosperity for all people.  The Law Day concept spread to other nations, and the first World Law Day was celebrated in 1965.  Last year, a newly independent Kosovo celebrated its first Law Day.  I am pleased that you are doing so again this year, and that you have asked me to join you in celebrating Kosovo’s second annual Law Day. 

As Law Day and the activities associated with it suggest, the rule of law is essential for Kosovo’s stability, security, and development.  Without it, your multiethnic democracy cannot flourish, and your economy cannot prosper.  Without it your country’s integration into Euro-Atlantic structures will be impossible.

I am also pleased that here, as in the U.S., students take part in Law Day.  Kosovo has the youngest population in Europe; 50% of your 2.1 million citizens are under the age of 25.  When unleashed and constructively channeled, the power of youth can be a significant force in shaping the development of Kosovo.  I want to encourage young people participating in today’s events to remain engaged and active on rule of law-related issues.

Democracy and the Rule of Law

What do we mean when we talk about the rule of law?  Ultimately, of course, we are talking about justice, but a particular kind of justice.  All human societies are concerned with justice, and over thousands of years many different systems, from theocracies to democracies, have experimented with both the meaning of justice and various ways of providing it.

The United States Constitution famously begins with the phrase “We the people;” words that are echoed at the beginning of Kosovo’s constitution as well.  The world’s first modern democracy and its newest both declare their belief that the ultimate authority of government flows from the governed.  These two Constitutions are bookends in the history of the modern world, and the history that has been written in between them is the history of the growing acceptance of democracy as the only legitimate form of government.  

But beyond declaring that the authority of the state flows from its People and that the People have a duty to protect their government, my country’s founding documents – the Declaration of Independence and the United States Constitution – established a second, radically new concept for its time – the notion that such a system would be a government not of men, but of laws.  The very founding of our nation – of our heritage, of our destiny – breathed life into a simple idea that a democracy must be grounded on the rule of law; that without justice there can be no true democracy; that these two concepts go hand in hand to create and safeguard the freedoms which we all believe the modern state is supposed to provide its citizens.  This concept is also embraced by Kosovo’s constitution, and in this respect, too, we see that the history of the last two centuries is an affirmation of the belief that in a democracy justice can only be provided through the rule of law.

We are all born with an innate sense of justice.  We all know, although we may not always respect, the difference between right and wrong; between fair and unfair; between just and unjust.  But what exactly do we mean by the “rule of law?”  Very simply, the rule of law is a means of providing justice on the basis of one set of rules that are codified, made known to all and – this is the key – applied equally to all.  The institutions of government are established, in part, to ensure the development and promulgation of rules – laws and regulations.  However, in a democratic system both the institutions themselves as well as those empowered to run those institutions are held to be equally bound by the very laws they create and implement on our behalf.  This is what makes a justice system based on the rule of law different from every other system: there is no elite class, no monarchy, aristocracy or priesthood that creates laws and dispenses justice but which holds itself to be above the law.  In other words, no one is above the law and no one is denied its protection.  All have equal access to justice, and all are equally compelled to respect the law. 

For access to justice to exist, Kosovo requires, first and foremost, a governance framework rooted in the Enlightenment principles that gave birth to modern democracy.  Your Constitution, like mine, reflects these principles, but it, alone, is not enough to ensure access to justice and the rule of law.  You must create strong, capable, and independent law enforcement and judicial institutions that are accessible to and serve the general public. The mere existence of police forces, prosecutors and courts does not mean that the rule of law exists.  Both their behavior and the rules and procedures that govern their work must make it clear that they, like all other citizens, are subject to and must respect the law.  At the same time, the government in its day-to-day decisions and activities must demonstrate that laws are applied impartially and consistently throughout the system, most importantly to the government itself.  In other words, without respect for justice, without the application of laws to those who make and enforce them, there is no rule of law. 

I would argue, however, that these two components, access and respect, are not sufficient to sustain a rule-based justice system absent a third element, an element that harks back directly to those three words which begin our Constitutions:  “We the People.”  For if the People do not hold their leaders and their institutions accountable under the law, inevitably the rule of law – and democracy itself – begin to deteriorate and the privileged few begin to believe that they are above the law.

Gandhi once said that, “Justice does not help those who slumber but helps only those who are vigilant”.   Though he did not put it this way, what Gandhi was referring to is the demand for justice.  In others words, rule of law only exists when an empowered and informed public demands a justice system that is fair, impartial and efficient and then hold their elected representatives accountable for providing that justice.  I’d like to discuss this concept in more detail and then turn to the role government must play in ensuring access to and respect for justice. 

Civil Society, Citizens and Demand for Justice

I would argue that there are three critical components to creating a demand for justice within society: knowledge, engagement, and confidence.

Knowledge: For citizens to demand justice, they must have information about their rights and ability to act upon them.  They must also have a clear understanding of how rule of law institutions are supposed to work.  Civil society groups and non-governmental organizations must play a role in disseminating this information to the public.  With this in mind, my government will soon launch a program to provide NGOs here with small grants for rule of law-related projects.  Getting informed is an individual responsibility as well, and I encourage all Kosovo’s citizens to do so.  Visit a court and see how it works, if you have not done that.  Know what rights and protections exist for you, so you can demand them.

Engagement: Civil society groups, NGOs, and citizens must also engage government at all levels and across all branches.  By getting involved, citizens can shape, and where appropriate, challenge the actions and decisions of leaders.  They can hold the system and its officials accountable.  My government is supporting the creation of Community Safety Action Teams (CSAT) for this very reason.  CSATs will provide citizens with a forum for engaging municipal government and rule of law institutions on issues of crime, safety, and livability in their communities. 

Confidence: Finally, citizens and communities must trust national and local rule of law bodies and leaders, and through experience, they must believe that the system works in a fair and impartial manner.  Citizens’ rights must be established through fair and understandable laws and regulations, but beyond that confidence can only grow with demonstrated and consistent application of law.  If citizens trust and have confidence in the justice system, then they will turn to it to report crimes or resolve disputes rather than seek to address them through extrajudicial means.   

Access to and Respect for Justice and the Role of Government

“Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”

That quotation is from Plato in the year 350 BC, but it is as true today as it was in Ancient Greece.  Whenever power is unchecked and unaccountable it inevitably leads to mistakes and abuses.  In the absence of rigorous accountability, incompetence flourishes.  Dishonesty is encouraged and even rewarded.  And the very foundation of democracy weakens, and the prospects for prosperity decline.

At the most basic level, governments are established to protect our fundamental rights and to promote the well being of societies in which we live.  The state and its government actors must be guided by these responsibilities, but they accept that they may not do everything they have the power to do.  They can do only that which the law authorizes them to do. 

It is not encouraging when the Assembly ignores laws governing the budget of the Constitutional Court, for example.  What does that say about the sincerity of political parties’ expressed commitments to the independence of the judiciary?  Do not misinterpret me.  I am not suggesting that the Assembly has no right to raise questions about the Constitutional Court’s budget: it does.  But it must obey the law and follow the rules when doing so.   

The people of this country listen to what the leaders of this country say, and they watch what their leaders and their government do.  The people notice when the government fails to act on its commitment to build strong, accessible law enforcement and judicial institutions and fails to ensure that police, prosecutors, and judges are professional, well-trained and effective.  They experience the real-life consequences when the police lack the information technology systems they require to improve the kind of intelligence-led policing required to put organized criminal figure behind bars.  The people experience the real-life consequences when inadequate courtrooms and poorly maintained court files result in delays and backlogs in civil and criminal cases that affect their communities.           

The people notice when words are used to mask inaction or hide corruption.  It is not enough for the government and political leaders to make a commitment to combat corruption.  They must also respect the law themselves.  At the same time, the government, with the opposition’s support, must draft, adopt, and vigorously implement an anti-corruption strategy and action plan.  There are real consequences to the citizens of Kosovo if the government doesn’t do so.  Let me give you an example.  Corruption and cigarette smuggling costs Kosovo approximately 11 million Euros annually in lost excise tax revenues.  That’s 11 million Euros that are not available to invest in the schools that educate your children or to build the infrastructure Kosovo’s businesses need to thrive. 

And, it is not just the people of Kosovo who notice these problems.  Foreign investors notice as well.  Foreign investors rely on the rule of law to protect and safeguard their investments.  They expect the government to ensure that law enforcement and judicial institutions are accessible and the officials they deal with respect the laws they adopt and administer.  If these things do not happen, foreign investors take their money elsewhere.  In 2008, foreign companies invested in Kosovo only half of what they invested in Montenegro.  685 Million Euro in Montenegro as compared to only 360 Million Euro in Kosovo.  That cost the people of this country jobs, something Kosovo can ill afford when its unemployment rate is 45%.  
 
A Legislative Reform Agenda for 2010

The people of this country know what the rule of law looks like even if they are not in the habit of quoting Plato to describe it.  They know, as Kosova Sot observed in its January 13 editorial, that “the system of justice in Kosovo needs deep reform.”  The beginning of a year is a time to reflect on events of the last 12 months, but it is also a good time to make resolutions about the coming year.  It should come as no surprise that I think that strengthening the rule of law must be a priority for Kosovo in 2010. 

Kosovo has certainly made important progress since independence passing legislation and establishing institutions that are critical to the rule of law, but, as the government’s own agenda makes clear, there is much work to be done.  For example, the ongoing vetting and appointing of prosecutors and judges needs to be completed.  There is also much critical legislation that must be drafted, adopted by your Assembly, and implemented.  Here is some legislation, an agenda, if you will, which if passed this year, would help Kosovo make important strides towards establishing the rule of law.  It will also advance Kosovo’s prospects for Euro-Atlantic integration, a goal my government strongly supports.

The Law on Courts: The Law on Courts has lingered far too long.  I appreciate Minister Kelmendi’s constant push to move this legislation forward, and the time has come to do so. The Law on Courts will fundamentally restructure Kosovo’s judicial system.  The changes it envisions will improve access to justice and will add new efficiencies to court operations.  The critical bottom line is that Kosovo’s courts will be more transparent and responsive to the needs of citizens. 

The Laws on the Kosovo Judicial Council and Kosovo Prosecutorial Council: The Kosovo Judicial Council and Kosovo Prosecutorial Council are constitutionally-mandated bodies charged with, among other things, recruiting, promoting, and disciplining judges and prosecutors.  Well-crafted legislation that gives life to these independent institutions will help ensure that Kosovo has competent and trusted prosecutors and judges without which people lack sufficient confidence in the system to demand justice.  

The Criminal Code and Criminal Procedure Code:  Kosovo’s Criminal Code is outdated and problematic.  Some provisions are drafted too vaguely while others are drafted too narrowly and fail to adequately support criminal prosecution in today’s Kosovo.  The Criminal Code must be a well-reasoned and written document, and its provisions must be clear and enforceable to be effective.  Likewise, the current Criminal Procedure Code (CPC) is cumbersome and ineffective.  It often ties the hands of investigators and prosecutors, and this is a major factor in the low rate of convictions in Kosovo’s courts.  The CPC must provide the foundation for prosecutors to act and the teeth for judges to rule and ensure the rule of law is respected.  I applaud the Ministry of Justice’s initiative to begin redrafting both codes, and with Minister Kelmendi’s support, my government will provide technical assistance for this important project. 

Other Laws: These laws are all essential, but there are others that are required for Kosovo to strengthen the rule of law, particularly to tackle complex crime, such as trafficking in persons, narcotics trafficking, organized crime, and corruption. 

-- The safety and care of victims and witnesses is an issue in every criminal justice system.  It is particularly critical in Kosovo where there is a very high level of fear and a general lack of confidence that government authorities can protect these individuals.  This means making victim-witness protection a priority, and passing the Law Witness Protection.  If these issues are not addressed, there is little hope of getting individuals, innocent bystanders, or low-level criminals to cooperate with investigators and prosecutors.  This situation only benefits criminal bosses, who benefit from staying behind the scenes and intimidating those who work for them or those who are the victims of their criminal activity.   In short, it erodes confidence in the system and thereby undermines the demand for justice.

-- Just as importantly, the new Asset Forfeiture Agency needs to be properly funded, so it can be launched and staffed so it can begin supporting complex criminal investigations.  Organized crime figures and corrupt politicians should not be allowed to keep their ill-gotten gains.  In addition, asset forfeiture laws should provide some stream of revenue to law enforcement so that investigations can be funded and so that law enforcement officers have access to proper state of the art equipment for conducting investigations. 

-- Finally, the Law on Prevention of Money Laundering and Terrorist Financing must be a priority.  This law is critical to a realistic, effective attack on organized crime and corruption, and it must contain stiff punishments.

That’s a big, ambitious agenda, but it is doable provide that Kosovo’s political leaders make adopting these laws their priority.       

Conclusion:

The rule of law is the lifeblood of democracy.  It ensures that those who govern operate within the constitutional structure, allowing the people to play their indispensable role of shaping policy and ultimately determining the course of a country

As I said earlier, all persons and authorities within the state, whether public or private, should be equally bound by and equally entitled to the benefit of laws publicly enacted and uniformly enforced in the courts.  To do so, we must start from the principle that no one is above the law and no one should be denied its protection. 

Some of you may have heard me say: rule of law is not only what happens in the courtrooms, it is what happens in the streets.  But too often it remains elusive.  Corruption, violence and abuse go without redress.  The vulnerable lack effective recourse, while the powerful manipulate laws and people to retain power and accumulate wealth.   Access to, respect for, and demand for justice – these are the three pillars on which the rule of law in Kosovo has to be built. 

My government is committed to helping Kosovo take its rightful place in the Trans-Atlantic family of nations.  We know that the People share the values and aspirations that help make the Trans-Atlantic community the most prosperous and peaceful that history has ever known.  We know the People expect their government and leaders to build a rule of law-based justice system, and we are committed to helping provide the resources and, as needed, the technical expertise to help Kosovo realize that ambition.  But the People of Kosovo can help us to help them by raising their voices and demanding justice for themselves from their own authorities.

As we begin the New Year, I challenge Kosovo’s political leaders, its government, and its Assembly to make the rule of law a priority.  I challenge them to listen to the voices of their constituents, who are demanding the rule of law, and to adopt and faithfully implement the laws that are necessary to secure Kosovo’s long-term future as a multiethnic, democratic, and prosperous country inside the Trans-Atlantic community of nations. 

Throughout this country, the victims of violence, crimes and injustice are waiting, waiting for Kosovo to keep its word – to fulfill its Constitutional promise of being “a dignified member of the family of peace-loving states in the world.”

Thank you. 

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