“To be a relevant external partner in the pursuit of sustainable democratic reforms, the EU needs a more objective understanding of local political realities, beyond the generally altered version of events that national governments are trying to project abroad…”
The ruling political class generates the main obstacles in the reform processes in the countries with the most pro-European agendas of the Eastern Partnership – Georgia and Moldova (including Ukraine). The political will, the style of government and the degree of resistance of rivals in the pre-existing state system are the main considerations that influence the way in which reforms are carried out. At the same time, the interaction between governments and the reforms that are on their table is the criterion by which, as a general rule, the European Union (EU) rewards progress in meeting commitments by providing financial aid, as well as political support. However, not all reforms adopted by a government with declared pro-European aspirations conform to European standards of good governance and the rule of law. The latter are indispensable elements of the political condition, enshrined in the conditionality mechanism of the EU financial assistance, together with the conditions/ requirements for sectoral reforms. In recent months, there have been worrying trends in the attitudes of the rulers of the two Eastern European states towards reform processes, including in relation to the opposition, the media and/or civil society.
The most serious problems are in Georgia, where the government has abandoned the platforms on which the EU coordinated efforts to promote justice reforms: the “political agreement to overcome the political crisis” of April 2021 and the final stage in the implementation of the 2020 macroeconomic agreement, comprising judicial reforms. The situation in Moldova also causes some unease to supporters of good governance in the civil sector, challenging the new government’s attempts to re-politicize the institutions of the justice sector (Prosecutor General’s Office, National Anti-Corruption Center). The high level of corruption among Moldovan prosecutors and judges allows the government to justify conducting “shock therapy”, which in the case of the prosecution reform resulted in non-compliance with transparency procedures. There are important conceptual differences between judicial reform actions in these countries. The Georgian government wants to maintain the status quo, which was established by the oligarch Bidzina Ivanishvili. On the contrary, the forces in power in Moldova seek quick and easy ways to break the state of affairs, reminiscent of previous governments, influenced by oligarchic networks with direct access to the decision-making process (Moldova – Vlad Filat, Vladimir Plahotniuc).
The violations and/or abuses in relation to the principles of the rule of law are taking place, regardless of the motivational substrate of the actions of the governments of the two Eastern European countries. Obviously, the deviations contradict the principles of good governance reflected in the Association Agreements with the EU (2014) and even more prominently in the macro-assistance agreements (political conditionality). The EU’s response to the reform processes varies. Thus, in recent months, European actors have shown strong criticism of Georgia and, on the contrary, a kind of credulity about the Moldovan political processes (based on an acute lack of objective information on the quality of the reform process). In both cases, governments tend to link reforms aimed at the integrity of the judiciary with anti-corruption discourse. In fact, justice reform is a precondition for relations both with the EU and with other international actors, so it counts for other reforms. Therefore, in addition to supporting the main objectives related to the cleansing of the judiciary (Moldova), the EU must prevent the (re-) politicization of the institutions. Regardless of whether political forces with questionable pro-European aspirations (Georgia) carry out politicization or whether this goal is an emanation of new political forces, with robust integrity (Moldova), politicization has corrosive effects on independence and efficiency of state institutions, in the medium and long term.
Decoupling of the Georgian leadership from its commitments to the EU
In recent weeks, members of the ruling party, the “Georgian Dream” (90 out of 150 seats in parliament), have made various moves that affect their pro-European image. The abandonment of the “political conflict resolution agreement“, signed with the facilitation of the European negotiators led by the President of the European Council, Charles Michel, was the first break in the political dialogue with Brussels. The next step backwards was the unilateral exit from the EU macro-financial assistance agreement, which provided for € 75 million in exchange for qualitative changes in the justice sector, along with other reforms. Prime Minister Irakli Garibashvili described both documents as unnecessary because the political agreement (of April 19) was used “for political innuendo” and EU financial assistance would increase Georgia’s foreign debt (Civil.ge, August 2021). Several important arguments may have led the government to make decisions that had an unfavorable impact on its image in the West. First, the government has prioritized the elimination of external pressure factors, which could be utilized by the opposition before the local elections on October 2. The second reasoning lies in the positive announcements that the Georgian economy is regenerating, despite the surge of COVID-19 infections, while GDP growth in 2021 could exceed 7% (Agenda.ge, July 2021). In such a favorable information context, the relevance of European financial support could have been more easily offset, being at the same time projected as loans and future public debt. Moreover, another third consideration was probably the assistance provided by the Georgian authorities for the emergency evacuation of Afghanistan, in late August (Rustavi2, August 2021), operated by the NATO air force. Consequently, the international prestige gained through the partnership with NATO has served as a buffer against discontent with the renunciation of EU macro-financial support (EU, August 2021).
The stagnation of Georgia’s reforms coincides with the increase in hostile discourse towards European actors. The government is concerned that the EU is trying to restore the reform framework agreed in the April 2021 agreement, using the recent adherence to that document by the main opposition party, the United National Movement (UNM). After failing to prevent the appointment of independent political judges to the Supreme Court on the basis of old rules (Civil.ge, July 2021), the EU shifted its focus to another important goal: the appointment of a prosecutor general. In the opinion of the European side, the amendments to the impeachment law voted in the first reading do not coincide with the objective of the short-lived “agreement of April 19”, which provided for the vote on the prosecutor’s candidacy by a qualified majority. Such an appointment of the Prosecutor General would require a broad consensus between the government and the opposition and would mean selecting a politically neutral person. In the absence of active EU conditionality mechanisms (such as the “April 19 agreement” or macro-financial assistance), the Georgian government speaks from positions of superiority over European diplomats. Otherwise, it would have been impossible for the ruling party to question the professionalism of the EU embassy, on which bilateral relations with Brussels depend in all areas, including monitoring the situation in the breakaway regions (Abkhazia and Ossetia del South).
Since the EU does not use other levers, such as the initiation of a procedure to suspend the Association Agreement under Article 422 (3) on the violation of “essential elements” (democratic principles, human rights and fundamental freedoms), the government does not feel serious constraints, with high political costs attached. For this reason, exponents of power are actively involved in discourses that discredit the image of critical media institutions and that of representatives of civil society, who are the natural allies of the EU. The sense of impunity in relation to foreign actors encouraged the ruling party to resort to abusive actions of illegal interception of journalists, civic activists and even European diplomats (Transparency.ge, August 2021). The lack of an adequate EU response could exacerbate the process of degradation of democratic principles of governance in Georgia under the current power.
The “unknown” flaws of the new Moldovan government
The parliamentary majority controlled by the Action and Solidarity Party (PAS) pursues the objective of reforming the state. However, the overall manner in which the PAS carries out some reforms is not exactly fitting with the principles of good governance, since it is done with deviations from the transparency and integrity procedures (appointment on a competitive basis). The hasty with which the PAS implements some reforms (the law of the prosecution) puts the government’s intentions in a negative light. In the case of the reform of the prosecutor general’s office (which would allow the removal of the public prosecutor and the appointment of a new one on political criteria), government officials justified the urgency of the reform because of the EU conditionality linked to the macro-financial assistance. A careful examination of this agreement shows that there are no conditions to reform the prosecutor’s office.
Although the PAS dominates the parliament (with 63 out of 101 seats) and controls 8 of the 11 permanent parliamentary commissions, the PAS insists on establishing mechanisms that allow appointing according to political criteria, either from within the party or from civil society (but not based on competition). The government argues that the contests are not viable because they have failed in the past and there is an acute shortage of relevant people. Unlike the coalition governments of previous years, the PAS does not share power with others and has the necessary political tools to ensure the maximum integrity of the powers. On the other hand, without the organization of competencies, non-supporters of the PAS or non-political professionals have no possibility of entering the public sector, since they are omitted from the pool of relevant cadres. By ignoring these aspects, the government actually contributes to the re-politicization of institutions, one way or another. The government values both integrity and professionalism, but also appreciates unconditional sympathy or tolerance for the policy followed by President Maia Sandu and the PAS. That is to say, at least for the moment, the government’s recruiting policy has not attracted critical voices, unless it expressly requires legislation on parliamentary opposition.
In the context of a hasty legislative process, mistakes are practically inevitable. This observation does not only refer to the law on prosecution, which is being challenged in the Constitutional Court and runs the risk of being declared unconstitutional, as it violated the transparency procedures. The hasty modification of the legislation to sanction the heads of regulatory institutions (financial market, competition sector, energy sector) is another void in the current legislative process of the ruling party. Unlike the approach towards the Prosecutor General’s office, the PAS cannot remove the leadership of the energy regulator (ANRE) without violating the commitments with the Energy Community, the provisions of which are mandatory according to the Association Agreement with the EU. The Secretariat of the Energy Community has warned that the law envisaged by PAS-led majority conflicts with the energy legislation of 2017, which provides for the independence of the regulator and corresponds to Energy Package III (Moldstreet, September 2021). Despite the governance style of PAS, with deviations from good governance and even some international commitments (in the case of the energy regulator), the EU has announced that it is offering € 36 million in financial support under the Economic Recovery Program (600 million euros). Furthermore, the EU intends to allocate the second tranche of macro-financial assistance, amounting to € 50 million, in the near future. The EU’s leniency towards the PAS could be due to credulity, but also due to a lack of objective information. Weakened by intense co-optation in the act of government, civil society’s objections to government are extremely rare and have extremely weak media coverage. For example, the website of the National Civil Society Platform omits the critical position of the NGOs for the violation of the transparency procedures by the PAS when adopting the prosecution law. As part of the Eastern Partnership Civil Society Forum, the Moldovan Platform has always been publishing critical statements with governments. Nor can the critical letter from the Secretariat of the Energy Community be consulted directly on the organization’s website. These cases indicate that the EU needs active and objective information on the political processes in Chisinau, which can be provided by the new EU ambassador, Janis Mazeiks. Open objections from the EU would force the government to pay more attention not only to the speed of adoption of the reforms, but also to the quality of the procedures and their compliance with good governance. This type of EU positioning will also discourage PAS exponents, from the country’s president to individual parliamentarians, from the frequent attempts to undermine the credibility of the critical voices in civil society and the media that point to government mistakes.
In lieu of conclusions…
The EU has the opportunity to take charge of the reform process in Georgia and Moldova, both on its own and in coordination with other pan-European organizations such as the Council of Europe, the Energy Community and others. This commitment on the part of the EU would form part of the responsibilities derived from the Association Agreement with the two countries. More specifically, in the case of Georgia, new levers are needed to restore confidence in decision-making processes, while Moldova could benefit from a more rigorous application of existing conditionality mechanisms.
In addition to local alliances with other pro-reform forces in Georgia and Moldova, European actors must support a pluralistic information environment and media sources that support reforms in accordance with the highest standards of good governance and the rule of law. The same applies to civil society, where protection against abuses by the government (Georgia) or a more robust positioning in relation to power (Moldova) must be guaranteed. In all cases, the EU must be intolerant towards deviations from transparency in decision-making and respond to government actions aimed at excluding other actors (opposition, associations, unions, etc.) from the governing act or that attempt to cancel previous advances. To be a relevant external partner in the pursuit of sustainable democratic reforms, the EU always needs an objective understanding of local political realities, beyond the generally altered version of events that national governments are trying to project abroad.
This analysis is signed for the IPN News Agency. FOMOSO got permission to publish it as well.