When WCC-DB entered the unholy alliance with what used to be their nemesis in the shape of GERB, they justified it by citing the need for urgent reform in six main areas. What is more, they acquiesced to allow MRF's toxic support to push them through.
Two of these six priorities already seem closed - and, to a large extent, compromised - the new anti-corruption institution was approved two weeks ago by Parliament, largely replicating the problems of previous similar agencies. Then, the same day, the security services' reform got put on the backburner indefinitely because GERB and MRF changed their mind.
The time has now come to see how the tripartite non-coalition (as GERB leader Boyko Borissov insists on calling the current majority, mocking the reluctance of WCC to call it for what it is - a coalition) will tackle the most substantive - and difficult - reform they agreed to. We talk of the constitutional changes that are supposed to fix some of the persistent problems of the judiciary - its domination by the prosecution and its head and the cadre policy in the courts.
What does the reform envisage?
The draft amendments envisage the division of the Supreme Judicial Council (SJC) into a judicial and prosecutorial section that will have no shared plenum, as it is presently. The main changes tabled in parliament are in the composition of the two councils. The proposal is that the SJC should be for judges only and should consist of 15 members, including the presidents of the Supreme Court of Cassation (SCC) and the Supreme Administrative Court (SAC); eight of the remaining 13 members should be elected directly by the judges, and only five should be elected by the National Assembly, and they should not be sitting judges.
If these proposals are passed, the majority of the members of the Judicial Council will be directly elected by the judges. Another significant change is that the members of the professional quota will continue to serve as magistrates with a reduced workload.
The Prosecutorial Council, on the other hand, will consist of 10 members, including the Prosecutor General. A majority of six of them would be elected by the parliament, two would be directly elected by prosecutors and one by investigators, the amendments stipulate. "The parliamentary quota is so large that the prosecutor's office cannot elect its leaders without the approval of the public representatives," Justice Minister Atanas Slavov said. He added that the requirement that there be no sitting prosecutors and investigators in the parliamentary quota would remain. The justice minister will chair the prosecutorial council without voting rights.
The proposals are also expected to include changes to the powers of the Prosecutor General. The main point is to remove his right to supervise legality and provide methodological guidance. According to Mr Slavov, he or she will only be "head of the Supreme Prosecutor's Office."
Criticism from all directions
The three formations claim that before the second reading of the bill, some parts of it will be changed to "reflect the recommendations of the Venice Commission." The rule of law watchdog of the Parliamentary Assembly of the EU is expected to send its recommendations soon. These do not seem to be the only proposals for amendments to be expected, especially after the criticism that judges and prosecutors have addressed to the draft.
Surprisingly, a few days ago, judges, prosecutors and investigators expressed almost identical critical opinions on the draft constitutional amendments during a discussion organized by the Bulgarian Union for Legal Initiatives. The Union of Jurists in Bulgaria (UJB), through its president Vladislav Slavov, went further and demanded the withdrawal of the draft. All professional organizations plead that the structure of the SJC remains as it is and instead have the plenum's authority restricted.
The magistrates consider the idea of abolishing the plenum of the SJC and to divide it into two councils unconstitutional. "If such a thing is done we need a Grand National Assembly; the ordinary one cannot change this structure," they claim.
Changes between first and second reading
It is expected that the three non-coalition members will think in two main directions between the first and the second reading. The first is to bring back the plenary of the SCC into the texts. However, this raises the question of what the joint body of prosecutors and judges would be doing. According to the WCC-DB and the judicial community, the most logical conclusion is that the plenum and not the prosecutors' chamber alone ought to elect the Prosecutor General. The reason is that judges have always been the guarantor of the rule of law.
However, it is expected that the MRF representatives will object to such an idea and insist that if the Prosecutor General is elected by the plenum, he should be "on an equal footing with the two chief justices of the supreme courts". There can be no such equivalence because the prosecutor's office does not have the same status as the courts. There are advocates for this both in GERB and in MRF who hope it would help them subordinate the two supreme courts.
The other topic that will arise between the first and second reading of the constitutional texts will be whether to somehow preserve one of the most problematic powers of the Prosecutor General - his role to "supervise the legality" of any case. It has been removed in the draft, but there is a view that it may be retained, with its scope to be defined in law.
The unlikely guarantor of reform
For now, it seems that the changes are well on the way to getting approved by the end of the year. That is, if GERB and MRF do not repeat their actions from the Borissov II cabinet, when the two parties rejected the previously agreed "historic compromise" in 2015. The unlikely guarantor of the constitutional changes - and the main spokesperson of the non-coalition on the topic appears to be MRF MP Delyan Peevski, sanctioned for corruption under the global Magnitsky Act.
On 26 September, he outlined the timetable for constitutional amendments. In his words, on 6 October they will be adopted at the first reading. Since the stated support for the texts so far is for no more than 168 people, this means that the changes will not go on the so-called "fast track", which requires a majority of 180 votes.
In this situation, if the first reading in October does not garner 180 votes, "the actual first reading will be on 6 December in the plenary, then on 13 December there will be a meeting of the constitutional affairs committee, on 14 December there will be a vote on the second reading, and on 15 December - on the third reading," Mr Peevski said.
In any case, the nature of the final draft constitution, and whether it will be adopted, will become clear by the year's end. If the amendments are voted on as proposed, they will most likely end up in the Constitutional Court - because of the planned abolition of the SJC plenum. If the plenum is brought back and if GERB and MRF prevail in favor of equating the Prosecutor General with the presidents of the supreme courts, the basic idea of constitutional reform will practically be rendered obsolete.
When WCC-DB entered the unholy alliance with what used to be their nemesis in the shape of GERB, they justified it by citing the need for urgent reform in six main areas. What is more, they acquiesced to allow MRF's toxic support to push them through.
Two of these six priorities already seem closed - and, to a large extent, compromised - the new anti-corruption institution was approved two weeks ago by Parliament, largely replicating the problems of previous similar agencies. Then, the same day, the security services' reform got put on the backburner indefinitely because GERB and MRF changed their mind.
