The ABA: Promoting The Rule Of Law In Kosovo

Wednesday, October 1, 2008 - 01:00

Editor: You have recently returned from Kosovo, where you addressed lawyers, judges and government officials on the role of the legal profession in preventing corruption. For starters, what prompted your trip to Kosovo?

Greco: My latest trip to Kosovo, in June of this year, was the third since 2004. The first two were as President-Elect and President of the American Bar Association. On those trips, and on this one, I met with leaders of the Kosovo government, judges and bar leaders, and addressed judicial and bar associations as a director of the ABA Rule of Law Initiative board. This trip was at the invitation of the Kosovo Chamber of Advocates (the national bar association), and the Kosovo Judicial Institute (the national judges association). I addressed issues of legal education reform and corruption in the Kosovo justice system. I have a long standing personal interest in helping developing democracies advance the rule of law to create stable, transparent and corruption-free justice systems.

Editor: Prior to the breakup of Yugoslavia, Kosovo was a region of Serbia. Was there Albanian representation on the bench and at the bar, or were they predominately Serbian?

Greco: Until 1989 Kosovo functioned as an autonomous province of Yugoslavia. There was Albanian representation in the bar and on the bench. Kosovo did not have a law school until 1969, however. Prior to 1969 persons obtained their legal education in other states of Yugoslavia, and the language of instruction was not Albanian.

The situation worsened after 1989. Kosovo's autonomy was severely restricted by Serbian President Slobodan Milosevic. The central government controlled the police, courts and civil defense, and Kosovar Albanian judges and prosecutors were dismissed. Ethnic Albanian lawyers already registered with the bar were permitted to continue to practice, but those of Albanian origin were banned from the "official" new law school in Pristina, and those who had graduated and were qualified to take the bar examination were prohibited from doing so.

Editor: It's been almost ten years since Kosovo achieved de facto if not de jure independence. What has occurred with respect to the legal profession over this period?

Greco: When the conflict ended in 1999 the United Nations Mission in Kosovo - UNMIK - inherited a barely functioning legal system, due to lack of competent professionals. With the help of the ABA and other international organizations, bar examinations resumed and, in 2001, the Kosovo Judicial Institute, which serves as a judicial training center, was established. In 2003 new criminal codes were enacted and in 2006 a major step forward was taken with the adoption of a new Judicial Ethical Code.

I admire the role that the ABA - through its volunteer lawyer, judge and academic members - has taken in helping to advance the rule of law in Kosovo. The ABA Rule of Law Initiative, of which the Kosovo effort is a significant part, is grounded in the belief that rule of law promotion is the most effective long-term antidote to the most pressing problems facing the world community today, including economic instability, poverty, conflict, endemic corruption and disregard for human rights.

The ABA Rule of Law Initiative currently implements legal reform programs in over 40 countries across the world. Its local partners include lawyers, judges, bar associations, law schools, court administrators, legislators, ministries of justice and human rights organizations. The Initiative offers technical assistance across a wide range of substantive areas, including:

Anti-corruption , which includes drafting and implementing public integrity standards (ethical codes) and freedom-of-information laws, developing national anti-corruption action plans, conducting public education campaigns on the corrosive impact of corruption, and encouraging the public to fight corruption through mechanisms such an anonymous anti-corruption hotlines.

Criminal law reform and human trafficking, which includes training criminal justice professionals, with particular reference to human trafficking, money laundering and cyber crime, and helping to reform criminal law legislation.

Gender issues , which involve assisting governments and NGOs in addressing a variety of women's rights issues, such as domestic violence, sexual harassment in the workplace and widespread gender-based violence in post-conflict environments.

Human rights and conflict mitigation , which is meant to increase awareness of international human rights standards and to promote the training of legal professionals to seek redress for rights violations in forums such as the European Court of Human Rights.

Judicial reform , which promotes greater independence, accountability and transparency in judicial affairs, the adoption of codes of judicial ethics, the use of judicial education and training on an ongoing basis, and the need for efficient administration in the courtroom.

Legal education reform, which promotes a rule of law culture through civic education campaigns on the rights and responsibilities of citizenship and the role that judges and lawyers play in a society governed by the rule of law.

Legal profession reform , which concerns the development and administration of law school curricula, bar examinations, codes of legal ethics, independent bar associations and the institutionalization of CLE programs for the profession.

Editor: And the role you have played in this undertaking during your various ABA leadership positions?

Greco: I have taken a strong interest in the advancement of the rule of law at home and abroad and in unifying the legal profession in nations throughout the world for that purpose. To that end I have traveled to many countries - many of them emerging democracies - where the ABA Rule of Law Initiative has technical assistance programs underway.

With respect to Kosovo, my message to the assembled lawyers, judges and educators was direct: "Now that you have declared independence (which occurred formally in February of 2008) and have adopted a new constitution (three days before my arrival in June), you have the Kosovo justice system and its future, and the trust of all Kosovo citizens, in your hands. You must take this opportunity to instill the rule of law in Kosovo, and the first step is to eradicate corruption at every level of the justice system."

Editor: How did this message resonate with the profession in Kosovo?

Greco: Ethical codes have been adopted for judges and lawyers, and they are excellent codes. The real question, for Kosovo and for other similarly situated countries, is whether enforcement of these codes of conduct will be accepted by the judiciary, bar and public. It is now a work in progress in Kosovo, the major challenge being a culture - both in the justice system and the country - that for generations was infected with corruption. Respected bar leaders and judges with whom I met informed me that historically bribes were commonplace and that such behavior became engrained over a long period of time. The situation is much improved. It will take time to change that culture. But I am optimistic because I sense a great resolve on the part of leaders of the judiciary and bar of Kosovo to make it happen.

At the Kosovo Bench-Bar Roundtable that I addressed I was taken with the outpouring of gratitude from the Kosovo judges and lawyers for the efforts their American colleagues are making to help them address this critically important issue. We agreed that adopting codes of ethics was an essential first step, but only a first step; and that enforcement of such codes, in a fair but firm and transparent way, was the only way that judges and lawyers, academics and law students and, ultimately, the citizenship as a whole would come to understand that a new culture - a rule of law culture - is replacing the culture of corruption. After I spoke Kosovo Chief Justice Rexhep Haxhimusa stood and endorsed my remarks about the enforcement of the codes of conduct already in place, personally vowing to their active enforcement. When you hear that kind of commitment from leaders of the bench and bar - and directly from the Chief Justice - you feel that a fair start has been made.

I believe we are seeing a dramatic shift in the way Kosovars think about their justice system and the role that judges and lawyers play in Kosovo society. In Pristina I also met with the Minister of Justice (comparable to the U.S. Attorney General), and then with the dean of the law school, and after a lengthy discussion about legal education reforms I met with about 20 law students and several professors who patiently had been waiting for more than an hour for me (I had not been told of the meeting), and who were anxious to hear me speak about the responsibilities that accompany the privilege of being a lawyer. After speaking I asked whether there were questions. A young woman law student inquired how I, as a trial lawyer, would react to a client requesting that I do something prohibited by the ethical code in order to win a case of dire importance to the client. Should the lawyer, she asked, whose responsibility is to represent the client with utmost loyalty and to the best of his or her ability, accede to the client's fervent request or comply with the dictates of the code? I responded, "Do you have any doubt what my answer is?" I noted that nothing is more important to a lawyer than his or her personal and professional integrity, that once surrendered for some momentary or other advantage, no one - colleagues at the bar, the judiciary, potential clients - would ever again trust him or her. Worse, such corrupt conduct spreads disease in the justice system, and to the people's confidence in a fair and honest system of justice. The positive response that I received to my remarks from these Kosovo students and their professors, and leaders of the bar and bench, makes me think that the legal profession is on a sure path that will lead to a fully functioning, mature and transparent rule of law system in Kosovo.

Editor: That is a very encouraging story. How are we doing elsewhere in the world in the rule of law discussion?

Greco: Not every undertaking of the ABA's Rule of Law Initiative results so quickly in such a success story. Reform and change by their nature require time, patience, and persistence before acceptance follows. Advancement of the rule of law is a complex, long term process. Nevertheless, substantial progress is being made in Kosovo and in other developing democracies throughout the world, and I am confident that such progress will continue. The ABA will continue to do its part. At its August Annual Meeting in New York, the ABA presented its Rule of Law Award to the lawyers and judges of Pakistan who literally risked their lives to defend the rule of law in their country. Having taken coercive steps against the Pakistani judiciary and, in a shocking and unconstitutional act, dismissing the Chief Justice, President Pervez Musharraf raised such a storm among his country's legal community that he now finds himself forced from office. This is the rule of law in action. When it occurs - this tangible evidence that people do believe in the rule of law and will risk their lives to protect it in order to achieve a just legal system, economic stability and respect for human dignity - the efforts of all who advance the rule of law are validated. There is every reason for America's legal and business communities to support the ABA's efforts to advance the rule of law. It is a worthy undertaking.