Volume 10 Numbers 2/3

Spring/Summer 2001

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Albania - Relatively free of violence, Albania's parliamentary elections, held on June 24, seemed generally successful. In all, they received a more or less clean bill of health from the pantheon of international organizations: the OSCE parliamentary assembly, the Office for Democratic Institutions and Human Rights, the Council of Europe, and the European Parliament. On June 25, members of the opposition coalition complained of voting irregularities; however, in a statement issued the following day-after realizing they had a chance for a decent showing-they allowed that the vote had taken place in "an acceptable way." Still, in the next few days, Sali Berisha, of the opposition Democratic Party (DP), changed his rhetoric once again, hinting that he might not recognize the results. Berisha, who was ousted from power in 1997, has boycotted many of the formal structures of governance until recently.

On the whole, the elections were an improvement over previous ones, and something of a victory for procedural normalcy. The 1997 ballot was held during a state of emergency, and the elections before that, in 1996, when Berisha's DP won a resounding victory, were widely considered rigged. Since the EU has made it clear that satisfactorily conducted elections were an absolute precondition for negotiations on accession, it was especially important that they go off well.

In preliminary results, the ruling Socialist Party (SP) appeared likely to retain power, although the opposition coalition-the Union for Victory-which is spearheaded by Berisha's DP, made gains. On June 30, the Central Election Commission (CEC) announced that, out of Albania's 100 electoral zones, SP had won 30 of the directly elected parliamentary seats, and the Union for Victory, 16. (For the division of the country into 100 zones, down from 115, see Albania Update, EECR, Vol. 10, No. 1, Winter 2001.) There were runoffs, on July 8, in 44 zones; three were still under discussion; and seven new elections took place on July 8. (In one case, these were for the whole zone; in the other six, only in isolated voting centers where there appear to have been irregularities.) According to unofficial results, in the second round on July 8, SP won another 37 seats and Berisha's coalition, 5. The recently formed Democrat Party (DeP), led by Genc Pollo, formerly a close aide to Sali Berisha, did better than expected, with a little over 5 percent. The name of Pollo's party is confusingly similar to Berisha's Democratic Party. As may be imagined, this caused consternation. Nonetheless, neither DeP nor any other party-apart from SP and the opposition coalition- has won seats. Other than the Social Democratic Party (SDP), currently at around 3.5 percent, no other party has reached the 2.5 percent threshold for participating in the allocation of compensatory seats (for an explanation of this system, see below).

Although some members of the former governing coalition-the Alliance for the State, which had included the Democratic Alliance Party (DAP), the Human Rights Union (HRUP), and the Agrarian Party (AP)-ran separately, it is possible that the coalition will be reconstituted. However, one former member, HRUP, which positions itself as the party of ethnic minorities, especially Greeks, has always been somewhat independent and has recently been courted by Berisha's DP.

DP has also been courting DAP, which includes many of DP's early leaders from the days when it was a broad anticommunist front in the early '90s. Given residual enmities, it is unlikely that DAP would join any DP coalition. During the campaign, DAP executive chairman and minister of justice, Arben Imami, took the highly controversial position of championing a "greater Albania," calling for union with Kosovo. Given the turbulence in neighboring Macedonia, this topic had been taboo for Albanian politicians, most of whom have gone to great lengths to repudiate any such national aspirations and to denounce the ethnic Albanian rebels in Macedonia as extremists. DAP subsequently softened its stance. The likelihood of either DAP or HRUP joining any coalitions will depend largely on the final results of the elections, which, at this point, seem likely to favor SP. Needless to say, both SP and DP are also courting the new third force, DeP, but so far there is no final decision on any possible coalition. Since most of its members are those who have broken bitterly with the Berisha-led DP over the years, an alliance would seem unlikely though not impossible.

The Union for Victory opposition coalition, mostly led by DP, also includes the Republican Party (RP), the National Front Party (NFP), the monarchist Legality Movement Party (LMP), and the Liberal Party (LP). The only opposition parties of note that did not join this coalition are the Christian Democrats, which has never been a major force, and Pollo's DeP. Prior to the latter's entry into the race, DP had been considering boycotting the elections; however, it seems the entry of Pollo's party provoked it into participation.

The mixed proportional electoral system in Albania, similar to that of Germany, involves a double ballot: one is local, for candidates running in a particular electoral zone; the other national, for parties and coalitions registered nationwide. Article 64 of the 1998 Constitution states that the Assembly (the Kuvend) consists of 140 deputies, 100 elected in single-member zones, each with an approximately equal number of voters, and the remaining 40-called "compensatory seats"-distributed among the registered parties and coalitions proportionally, according to their showing in the nationwide vote. The total number of parliamentary seats allotted to any party or coalition (surpassing the 2.5 percent and 4 percent thresholds respectively), ideally would be commensurate with the percentage of the national vote they received. The 40 compensatory seats are allocated, after the distribution of the directly elected seats is determined, so as to establish the closest possible relationship between this percentage and the total number of seats held by a party or coalition. For instance, if SP won 50 percent of the national vote, but only 40 directly elected seats, they would receive an additional 30 compensatory seats, bringing their total number of seats to 70, or 50 percent of parliament's 140 seats. If, however, they won 70 directly elected seats, and 50 percent of the national vote, they would not receive any compensatory seats, because their total number of seats would already correspond to their percentage of the national vote.

As the elections approached, it became clear that this system was open to manipulation and abuse. If a party was able to reduce, if only ostensibly, the number of its candidates who won in single-member zones while not reducing its actual influence over the parliamentary deputies thus elected, it could increase the number of compensatory seats it was awarded and thus its overall influence in parliament. So, for instance, it became clear that some candidates were registering as independents, even though in many cases they had well-known and long-standing associations with certain parties, in order to reduce the number of seats that nominally would be assigned to their party, should they be elected under the aegis of their true affiliation. Such schemes obviously involved a distortion of the constitutional purpose of the mixed proportional system, and SDP, DAP, and HRUP brought a complaint to the Constitutional Court. In a decision handed down a few weeks before the elections, the Court ruled against the complainants on two points (involving independent candidates and the formula for distribution of the mandates) but for them on one point, which involved a tricky technical issue that can be resolved by CEC regulations.

In an attempt to prevent manipulation of the system by means of fictitious independent candidates, the CEC issued regulations detailing the kinds of indirect ties that would disqualify a candidate as an independent-so far as this pertains to the allocation of the 40 compensatory seats. Immediately before election day, based on evidence presented to it, the CEC announced that 109 of 114 independent candidates would be treated as party-affiliated. A last-minute challenge in the Tirana Court of Appeals by SP was defeated, and the issue has been defused.

Prior to the elections, a number of procedures were put in place to ensure fair and transparent voting and to prevent voter disenfranchisement. First, on February 28, the major parties entered into a preelectoral agreement that resulted in a special parliamentary commission headed by Ylli Bufi (SP). This commission, consisting of three members each from the opposition and the government, brokered an agreement establishing bipartisan teams to oversee the verification of voters' lists. Second, the CEC, which is functioning much better than it had in last fall's local government elections, undertook a massive publicity campaign calling on voters to check their own registrations during a 40-day period preceding elections when registrations may be altered. It was even possible to do so via the Internet, although few Albanians actually have access. Finally, an amendment to the Electoral Code provided a further safeguard for proper voter registration: voters who still had not registered could go to a district court up to one day before the elections, give proof of their place of residence and absence from the voter lists, and then receive a court order to vote.

Another significant issue in the run-up to the ballot was determining when parliament should adjourn. Because many incumbent deputies were running for reelection, they were anxious to get out and campaign. Under the previous constitutional scheme, the president dissolved parliament when new elections were decreed; the new Constitution, however, has no equivalent provision. Article 96 does allow the president to dissolve parliament, but that is in cases where the legislature fails to elect a prime minister after three attempts. There is one situation where parliament dissolves itself, namely, under Art. 87, when it fails to elect a president after five attempts. But these circumstances were not pertinent to the issue of the impending elections. Article 65.2 of the Constitution specifies that elections for the new Assembly must be held "no later than 45 days after its dissolution," which would appear to relate only to the cases of Arts. 87 and 96. Thus, in the final analysis, parliament could stay in session until the date of the elections, and indeed, under Art. 65.3, its four-year mandate continues until the new parliament's first meeting. But during this interval it cannot issue laws or take decisions, except for declaring a state of emergency or war. Parliament finally decided to go into recess on May 18, a few days before the start of the formal electoral campaign, which, according to the Electoral Code, is 30 days long.

In a triumph of constitutional procedure, on May 10, a motion for the dismissal of three High Court judges by parliament, at the instigation of Justice Minister Imami, failed to meet the required two-thirds threshold. The removal of the three judges was being sought for their involvement in a legal imbroglio that led to the release of a suspected drug dealer in Fier, a small city 60 miles south of Tirana. The affair had already resulted in the dismissal of one Fier district-court judge and the censuring of another. While there were many suspicious circumstances in the case, the government did not present sufficient evidence to justify targeting the High Court judges. At issue was the delicate balance between executive oversight and judicial independence, an equilibrium necessary for the preservation of a competent and effective judiciary.

In an attempt to achieve an appropriate balance, the new Constitution established a stricter standard for the removal of High Court judges than had existed before 1998. Article 140 of the new Constitution provides for the discharge of members of the High Court for violations of the Constitution, the commission of a crime, mental or physical incapacity, or acts and conduct that seriously discredit the position and figure of a judge. However, a two-thirds vote in parliament and a review of this vote by the Constitutional Court are required for this dismissal to succeed, and, in this case, such was not accomplished.

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