Volume 8 Number 3

Summer 1999

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

Albania - As elsewhere in the Balkans, Albanian political life has been dominated by events in Kosovo. Most of the refugees who poured out of the province, during the 78 days of NATO bombing, fled to Albania. While many predicted that this mass influx would destabilize the country, it did not. Indeed, the Albanian government and especially its people responded with remarkable calm. With the end of the war, a somewhat unrealistic optimism has suddenly emerged in Tirana, as elsewhere in Albania. It is widely believed or hoped that the rebuilding of the region will solve some of Albania's own long-term problems: an underdeveloped and decaying infrastructure, high unemployment, and the absence of foreign investment. And there is the additional stress of a half million refugees who must be housed, clothed, and fed. Many of the refugees seem to be rushing back into Kosovo to begin rebuilding their lives. But, as the Bosnian situation has shown us, resettlement is a tedious and time-consuming process. For those who remain in Albania winter will come, and tent cities will not suffice.

Despite the dramatic dislocations caused by the Kosovar refugees, NATO's presence, and the hordes of relief workers and journalists, daily life in Albania including political and legal developments continued. These included various problems in implementing the new Constitution, approved by referendum on November 22, 1998. The new Constitution increased the terms of Supreme Court justices (known as the Court of Cassation under the previous basic law) from seven to nine years, but the longer term applies only to judges elected after the new Constitution entered into force (Art. 179.1). Judges already on the bench will remain until the end of their seven-year terms.

In May 1999, four judges who had been elected in 1992, including the chairman, completed their seven-year terms and stepped down. (The Constitution does not permit reelection.) Replacing three of the judges was routine, but replacement of the fourth, the chairman, acquired a special wrinkle. Avni Shehu was elected to the Court of Cassation, in 1992, and, in September 1995, he was promoted to the chairmanship, replacing Zef Brozi, who was removed under questionable circumstances. (See Albania Update, EECR, Vol. 4, No. 4, Fall 1995.) Shehu was elected by Sali Berisha's Democratic Party (DP) government, now in the opposition. Both he and DP claimed that his removal, now, smacked of political interference in the judiciary, arguing that, although his seven-year term as a Court member had expired, he had begun a new, seven-year term when he became chairman in 1995. At issue is whether the mandate of the Supreme Court chairman is different from that of the other members. Does the chairman's term of membership have priority over the regular justices terms?

The chairman argued that his term as chairman had priority. Under previous constitutional provisions, Court members and the chairman were elected by parliament and not, for example, by the members of the Court. Thus, argued Shehu, the chairmans mandate began anew when he was elected by parliament, despite the fact that, by definition, he can be elected only from the ranks of judges currently sitting on the Court. The current parliamentary majority which consists of the Socialist Party (SP) and several other smaller parties offered the interpretation that eventually prevailed, that a member's term was seven years (or, under the new Constitution, nine years). There was no reason to extend this term for the chairman. While there may be certain distinctions between the chairman and an ordinary Court member regarding functions, they do not entail a difference in lengths of service. The chairman does not begin a new term when he is appointed to head the Court.

Another important issue involved the onetime testing of district-court judges under the new Law on the Organization of Justice, adopted at the end of 1997 (Nr. 8265/December 18, 1997). It was modified by a second law ratified at the end of 1998 (Nr. 8436/ December 28, 1998). (See Albania Update, EECR, Vol. 8, Nos. 1/2, Winter/Spring 1999.) Like most issues concerning governance in Albania, the competency of judges could not help but fall prey to politics. Several investigations have revealed that many judges are corrupt and professionally incompetent; the World Bank, for example, identified the judicial system's weakness as a major cause of the anarchy that engulfed Albania in 1997. But efforts to address the judiciary's competence have met with countless obstacles.

One problem plaguing the judiciary centered on judges who had obtained their legal degrees after taking a six-month-long crash course, in 1993. More than 400 people were admitted to such courses, based primarily on their connections with DP, in power at the time. The DP government claimed initially that these individuals would fill only administrative positions in the judicial system. But after finishing the courses, many were appointed judges and prosecutors. At one point, those who had obtained their law degrees through the crash course constituted 40 percent of the district-court judges in Tirana. The new appointments were accompanied by the discharge of virtually all the judges appointed during the socialist regime, regardless of the latters' qualifications. Thus Albania was not in the situation facing some postcommunist states, where the judiciary was a conservative drag on a new democratic society; rather, the opposite the presence of new, perhaps unqualified judges was actually the problem.

Understandably, the SP government that took office in 1997 set out to rectify this situation not by reinstating the old judges but at least by ousting those judges who had no legal education except the six-month program. This proved to be quite difficult. DP, obviously, defended the judges whom they had installed. Additionally, substantial misinformation was reported in the international press for example, that the government had fired all the judges, when, in fact, no firings had occurred, except for one or two judges removed for severe violations that had nothing at all to do with the 1997 law. The international communityÑin particular, the Council of EuropeÑraised objections to any interference in the judiciary's independence.

How could Albania improve the quality of a judiciary that was so extraordinarily weak and whose reputation had been so deeply tarnished? The first law (Nr. 8265) on the administration of justice required the performance of regular legal studies by judges. No one was actually removed by the High Council of Justice when the law became effective. But, after international criticism and a dubious hunger strike by a number of the six-month crash-course judges, a compromise was reached. The law would be amended to require a onetime test, and the diplomas of the students of the six-month programs would not be invalidated unilaterally. Those who had to take the test would be notified six months before the date of the examination. As it turned out, this notice was given before the law was amended.

The idea of a general test had many advantages. It was not only the students of the six-month program who were incompetent or corrupt; legal education, in general, is very weak in Albania, and the correspondence-school system has been much abused. Further, having been judges since 1994, at least some of the six-month judges had profited from on-the-job training. While the new law was ready for some time, its passage was delayed until after promulgation of the new Constitution, in November 1998. The law provided that all district-court judges with less than ten years experience (nearly all of them) would take the test, and it set June 1 as the latest date for the exam. Since the law did not become effective until some time in January 1999, the provision promising six months notice before the examination was impossible to meet. The government and Ministry of Justice argued that, because judges actually had been notified before the law was passed, the requirement had, in effect, been met. In any event, another notice was also given, setting May 8, 1999, as the date for the test and May 15 for those who were unable to attend the first date. Despite all the turmoil of the war in Kosovo and the refugees flooding Albania, the examinations were given.

A number of judges objected vociferously to the examination. The law was silent about how the test would be organized, and some feared that grading would be subjective. The Council of Europe was especially concerned about fairness and reviewed the exam beforehand; it found the questions generally good, if a bit theoretical. Two groups filed complaints with the Constitutional Court before May 8: a society of jurists called Dura Lex, sed Lex (the organizer of the hunger strike) and the judges of the Tirana District Court. The first complaint was filed in late April, heard on May 6, and decided the same day; the second was filed May 5, heard on May 7, and decided on May 10. Both complaints requested that the Court review the constitutionality of requiring judges to take the examination. The complaint of the Tirana judges questioned several other articles in the Law on the Organization of Justice, pointing to inconsistencies between the law and the new Constitution. For example, Art. 42 of the law permits reduction in pay as a disciplinary measure, even though Art. 138 of the Constitution specifically forbids any pay reductions for judges.

Both complaints were turned down. In the case of the district-court judges, the complaint was rejected with the reasoning that individuals are entitled to appeal to the Constitutional Court for the violation of their constitutional rights to due process but only after all other juridical means for the protection of these rights have been exhausted. The other complaint was rejected because of a procedural irregularity. Under the associations charter, the complaint should have been presented either as one made by a general meeting of its members or by the organizations management council, not by the chairman alone. Thus, the Court never delved into the laws substance.

Several observers criticized these decisions, arguing, for example, that there was no proof that the
organizations chairman had not been authorized to bring the complaint. In fact, it is very likely that he had indeed been so authorized. Most feel that the Constitutional Court must investigate and protect the rights of individuals, regardless of minor irregularities in the form of their complaints.

The test took place as scheduled. Of 250 eligible judges, 191 took the test; four failed, and one was disqualified for violating examination rules. Of the 59 judges who refused to take the test, 53 were discharged by the High Council of Justice, and six were considered by the council to have had good reasons for nonattendance and will take the test later. It might be noted that several of the six-month judges performed quite well on the test. Since many of those who refused to take the test were also the least qualified, it can be said that the Albanian judiciary has taken a step toward improving its competency and professionalism. Perhaps most importantly, a threshold has been crossed, and the judiciary can go forward on a new footing.

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At the beginning of the year, when events in Kosovo were clearly taking a turn for the worse, it seemed that political forces from across the spectrum would come together in the face of the difficult situation that was at hand. But unity was short-lived. DPs boycott of parliament and of other constitutional bodies continued. Prime Minister Pandeli Majkos previously reported efforts to extend an olive branch to Berisha were not reciprocated or followed up with positive steps. (See Albania Update, EECR, Vol. 8, Nos. 1/2, Winter/ Spring 1999.) Some DP members (though not Berisha himself) have recently spoken in favor of returning to parliament, and it may be that their boycott will soon end. Article 71.2.d of the Constitution states that a deputyÕs mandate ends when he or she is absent from parliament without reason for more than six consecutive months. As the Constitution was passed in November 1998, a six-month period has now transpired. Some members of the ruling coalition have hinted at the possibility of applying this provision, although they have yet to push the issue.

With the Kosovo crisis, SP decided to postpone its party congress, scheduled for June. Fatos Nano, who had headed SP since its formation, resigned from the premiership and party chairmanship in September 1998. Since then, the party has been without a chairman. (One might note, however, that SP is accustomed to functioning without a chairman; Nano had been in prison from mid-1993 until he was released during the chaos of March 1997.)

Despite his earlier resignation, Nano has an-nounced that he will seek the party chairmanship again, thus provoking turmoil within SP. But the crisis in Kosovo, which by most accounts was handled well by the Albanian government, strengthened Majkos position. Another principal rival of Majkos, Vice Prime Minister Ilir Meta, recently announced that he would support the premier in his run for party chairman, and thus Majkos election seems assured. The congress is scheduled for the fall. This is not to deny that conflicts exist inside the government. Recently, friction erupted between the prime minister and the minister of the interior, Petro Koci. Civil disorder continues to plague the country, and, after a spate of armed robberies had occurred in southern Albania, between Gjirokaster and Kakavije (a Greek border point), Majko harshly criticized the minister of interior, who then resigned his portfolio. Because a resignation at the height of the refugee problem could have plunged the government into crisis, he was persuaded to withdraw his resignation. A few weeks later, on May 20, after the situation in Kosovo had calmed down, his resignation was accepted, and he was replaced by Spartak Poci.

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