Volume 9 Number 4

Fall 2000

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

Albania - Albania’s local elections in October were generally free and fair, although they were marred by confusion and a boycott. The Socialist Party (SP), with over 40 percent of the vote nationwide, was considered the victor, winning mayoralties in most major cities, including Tirana. Sali Berisha’s opposition Democratic Party (DP), which had controlled most localities since the last elections in 1996, gained only one-third of the total vote. DP won mayoralties in only a few major cities, the largest being Shkoder. In all, 36 political parties and 7 coalitions participated; only SP and DP had a significant showing. Still, this is the first time that no party received over 50 percent of the votes, an outcome that could lead—or so many hope—to more compromise and genuine coalition building in the years to come.

DP’s poor showing was the result of its confused policy and internal dissension. After threatening to boycott the elections, the party participated in the first round on October 1. Its participation can be credited to the international community’s firm stand that complaints should be dealt with through legal channels and not by a boycott. Still smarting from its overwhelming defeat in the 1997 parliamentary elections (which were held during a state of emergency), DP had boycotted the constitution-making process of 1997–98 as well as parliament (the Kuvend) for a substantial period during 1998–99. DP has also refused to involve itself in many of the country’s institutions, including the National Council on Radio and Television and the Civil Service Commission.

But DP’s return to normal politics proved temporary. Just before the second round, scheduled for October 15, DP did a volte-face and announced a boycott, instructing its candidates and electoral-commission members to withdraw. Some, but far from all, complied. Yet this was sufficient to prevent DP from winning mayoralties in major cities such as Korce, where they were in a runoff. DP’s reform wing, led by Genc Pollo, disagreed with the boycott decision and called on the electorate to vote. In any case, it was too late to take the DP candidates off the second-round ballots, and they received a number of votes, further clouding the situation.

After the second round, Berisha’s wing of the party announced that it would recognize the elections only in the places where it won a majority on the council, claiming that the races in the other localities were manipulated. The party’s reform wing did not join in this accusation. But a number of victorious DP candidates (not all from the reform wing) have recognized the elections tacitly by assuming their new positions. In municipality after municipality, village after village, council after council, the situation is confused. Under the new local-government law (effective August 23, 2000), if a council does not reach a quorum for three months or fails to hold regular meetings, new elections must be held. DP does not have a sufficient number of members on most councils to block council operations, and it is too early to tell whether it can force new elections in areas where it holds a minority of seats.

The local elections were the first to be held under the new Electoral Code passed in May 2000. They were also the first to occur under the auspices of the Central Election Commission (CEC)—a seven-member body that has been a source of controversy over the past year—which was created by the 1998 Constitution. All in all, the code held up well; a few amendments are under consideration in anticipation of parliamentary elections to be held in late spring 2001, but most of the problems could be dealt with by CEC regulations or instructions. The biggest problem the CEC faced occurred where DP candidates withdrew from the runoffs at the last minute after the ballots had already been printed. The CEC said that the Electoral Code was silent on such a scenario, but the majority decided nevertheless to allow the runoffs to proceed. Provisions regarding the revision of voter lists may also need to be amended to increase clarity.

Berisha’s preelection complaints centered on the voter lists. His wing of DP asserted that hundreds of thousands of voters—all DP supporters—had been purged at the local level and thus were disenfranchised. Earlier this year, a major Electoral Assistance Project coordinated by the international community attempted to establish the first national voter registry in Albania. (See Albania Update, EECR, Vol. 9, No. 3, Fall 2000.) This summer, three-person teams (consisting of one SP nominee, one DP nominee, and one from the local government, which means, in most cases, another DP nominee) went door-to-door to determine the current location of all citizens and to issue temporary voter cards to be exchanged for permanent ones with a photograph and an identification number. This data was then checked against Civil Registry records showing the citizen’s last permanent residence. Because of major population movements in the last ten years, discrepancies with the Civil Registry were enormous. To avoid cases of valid but unregistered voters showing up at polling stations, and under pressure from the international community, the CEC issued a decision on the eve of the elections. According to this decision, a supplemental list of citizens—shown in the Civil Registry as living in a locality but who had not been not found at home by the door-to-door teams—was issued for each polling station. To prevent voters from voting in two places (in the locality in which they were, according to the Civil Registry list, and where the door-to-door teams had found them), a procedure for stamping thumbs with indelible ink was established.

At local levels, the campaign was generally peaceful, and most individual campaigns were managed professionally. For the first time, debates were organized in several localities and televised widely. The level of discourse was high. The same cannot be said for the national campaign, where the familiar mudslinging attacks between the two major parties continued. Berisha’s rhetoric was particularly harsh; he also threatened to jail all SP members as soon as his party took over.

One election scuffle that deserves mention involved the small municipality (population 5,000) of Himara, a seaside region just south of Vlora that has been neglected by Tirana. Himara’s major trade relations have been with Corfu, and, because of its location, state television does not reach the town, nor are there any telephones except for mobile phones linked to the Greek system. Many of Himara’s residents work in Greece and, because of trading and television, the Greek language is often heard there, even though it is not one of those areas of southern Albania with a significant Greek minority.

On October 1, no candidate garnered 50 percent of the Himara mayoral vote, so a runoff was scheduled between SP’s candidate and the candidate of the Human Rights Union Party (HRUP); in the first round, the two parties had received 1,059 and 1,271 votes respectively (out of a total of 3,440). A part of the governing coalition at the national level, HRUP is also considered the representative of Albania’s ethnic Greeks and other minorities. Its candidates won mayoralties in several villages scattered around Albania, not all of which were ethnic Greek villages. But when the runoff loomed, some inflammatory statements were made by members or supporters of Omonia, the Albanian-Greek organization that is HRUP’s backbone, as well as by some Greeks, evoking old fears that Greece was encroaching on southern Albania. This perception was underlined by the busloads of young Albanians working in Greece who had been paid to go back to Himara to vote.

Astonishingly, all of the Albanian political parties that fielded mayoral candidates in the first round—including DP—joined the "Alliance for the Nation" to support SP’s candidate against the HRUP candidate in the runoff. The two archenemies have never cooperated before. In the second round, the SP candidate won handily, with 3,397 votes; the HRUP candidate won 1,237 votes, just a few less than in the first round. But tensions ran high and a number of irregularities were reported. Allegations that Greek parliamentarians—present as self-proclaimed electoral observers (they had not been authorized by the Albanian CEC)—had entered polling stations illegally or had threatened voters have not been substantiated. Other claims that HRUP commission members were intimidated or mistreated also have not been verified. Observers from the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) reported evidence of fraud at three polling stations (a stuffed ballot box and voter lists with pages of identical signatures).

However, apart from the incidents in Himara, no serious electoral violations were reported. In addition to fielding a long-term Election Observation Mission, ODIHR supervised around 200 international observers in the first round and a somewhat smaller number in the second round. The Council of Europe sent 20 observers to the first round and a smaller number to the second. However, ODIHR did criticize the handling of complaints by the CEC, the intermediate-level electoral commissions, and by the courts, and its criticisms appear justified.

Both the CEC and the local commissions, according to ODIHR, had rejected the vast majority of complaints in a summary fashion and without argumentation. Unfortunately, the courts often did, too. A particularly egregious case occurred with the Republican Party (RP). According to the complaint, a number of RP candidates were not listed on the ballots in various villages. After appealing to the commission, RP turned to the High Court, which twice dismissed the complaint on minor technicalities. When all technicalities were complied with and the complaint was finally heard, it was rejected except in the case of one village. Because of the difficulty of obtaining copies of judicial decisions, the grounds on which the complaint was denied are still unknown. Yet it seemed that the High Court was annoyed to be dealing with election-law cases. In 1996 (under the previous Constitution), the Constitutional Court ruled that its competency extended only to parliamentary elections and referenda—not local-election law. The new Constitution does not significantly change the language dealing with the Court’s competency in electoral areas (see Art. 131.e and ë of the Constitution); however, the new Electoral Code made the High Court the court of last resort for local elections. v On the legislative front, a number of important new laws have been approved by parliament. On July 31, the day it adjourned for the summer and election recess, parliament approved three bills concerning local government. The most significant one was a comprehensive law on the organization and functioning of local government, designed—among other things—to conform the system of local government to the principles of the European Charter of Local Self-Government that Albania ratified on November 11, 1999. A second law created 12 regions (replicating the existing prefectures) as the second level of local-government units required by the 1998 Constitution. Article 110.1 of the Constitution defines regions as consisting of "several basic units of local government with traditional, economic, and social ties and joint interests," and, under Art. 110.2, are the level at which regional policies are developed, implemented, and harmonized with state policy. Regional councils will now automatically come into being with their members being the newly elected mayors of the constituent villages and municipalities and a number of the local-council members.

The third law divided Tirana into 11 mini-municipalities or boroughs (njesite bashkiake). The boroughs are coextensive with existing administrative divisions. While Tirana’s vastly increased population certainly justifies its division into smaller units, there was a practical as well as a legal reason against doing it so quickly and just before the elections. Since each borough has its own mayor and council, voters in Tirana had four separate ballots to fill out—as a result, the lines at the polls were extremely long, and electoral-commission members were up all night tabulating votes. The Electoral Code, passed just three months before, had not contemplated this sort of procedure and might have been drafted differently to accommodate it. In addition, Art. 108.2 of the Constitution states that administrative-territorial boundaries of local-government units may not be changed without "first taking [into account] the opinion of the population [that] resides there." DP stated that this should have been done, but, since it does not recognize the Constitutional Court, it did not ask for its interpretation, and the elections went ahead in accordance with the new law.v On November 2, parliament passed a long-awaited law on the judicial police and a law relating to the Ministry of Justice. On the same day, the Council of Ministers passed a law on the Office of the Procurator, which will now go to parliament for consideration. From 1967 to 1990, Albania had no Ministry of Justice; it was reestablished in May 1990 on the basis of a short and sketchy law that continued to govern its operations throughout the stormy decade of the 1990s. While the Office of the Procurator existed throughout the communist era, it was not strong. The powerful apparatus of the Ministry of the Interior and its feared "investigators" were ascendant in that era. Attempts to restructure these bodies began with the downfall of communism. Amendments to the transitional constitution in 1992 gave the procurator general and his deputies special protection against unwarranted dismissal.

The investigators were renamed "judicial police" under the Criminal Procedure Code of 1995, which was modeled after the 1992 Italian code. The Ministry of the Interior has been known as the Ministry of Public Order since 1998, and the Law on the State Police of November 1999 attempted to create a modern, nonmilitary structure for the police. Still, coordination among these three institutions has not worked well, and the perception—or reality—that criminal investigations are not handled properly has been a constant problem.

The judicial-police law supplements the 1995 Criminal Procedure Code, strengthening the arm of the procurator in criminal investigations and clarifying the expectation that all police officers and agents, even if they do not work as judicial police attached to a procurator’s office, are required to communicate information about any criminal activity they become aware of to that office. It remains to be spelled out in other laws what independent investigative powers various members of the police may possess. The law on the Ministry of Justice attempts to bring together many legal and other functions that have been located in different parts of the government. For example, the department for harmonizing legislation with European Union standards, formerly in the Council of Ministers itself, has now been moved to the Ministry of Justice. One of the law’s more controversial provisions, which was added at the last minute, permits the minister of justice to supervise or investigate the operations of lower courts and the procurator’s office (which has a quasi-independent status under the Constitution).

The law on the Office of the Procurator, also long-awaited, is an attempt to define the operations of this office and conform it to the new Constitution. For example, the deputy general procurators, who had constitutional status and protection under the transitional Constitution, are no longer mentioned in the new constitution, and they do not form part of the structure set out in this law, although the general procurator presumably would still have the right to name deputies. The law also addresses a number of sensitive issues concerning the relations of the various bodies and the rights of dismissed procurators, and thus may generate some controversy when discussed in parliament. One controversial clause would permit the president to discharge the general procurator with parliament’s consent if the president deems that the procurator is not "fulfilling his duty." This cause for dismissal is in addition to other causes listed in Art. 149.2 of the Constitution. The Constitution does not expressly say whether the causes are exclusive but when the law reaches parliament some deputies may remember the case of the first general procurator under the DP government of 1992. There would seem to be some good reasons to make sure the general procurator has a degree of protection from arbitrary dismissals. vThe pending Constitutional Court case on the issue of whether the Council of Ministers was entitled to replace the existing mayor of Lushnja with its own nominee, three days before the Electoral Code became effective, was dismissed by a screening panel of the Court, just as a panel had dismissed the earlier complaint on the same issue by the Association of Municipal Mayors. (See Albania Update, EECR, Vol. 9, No. 3, Summer 2000.) This second dismissal also relied on Art. 115 of the Constitution and gave no additional reasoning. Article 115 deals only with the right of appeal of the discharged mayor himself and does not seem to cover this case. Be that as it may, the SP candidate was elected mayor of Lushnja on October 1, and the question of his temporary predecessor is now moot.

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