Volume 9 Numbers 1/2

Winter/Spring 2000

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

Albania - Though some progress has been made toward reestablishing order, political tension and instability persist in Albania, hindering efforts to curb the country's legendary corruption, to improve its economy, and to shore up its weak state administration.

The ruling Socialist Party (SP) has endured both dissatisfaction within its ranks and some reshuffling in its higher echelons. After he failed to win the SP party chairmanship, then-prime minister Pandeli Majko resigned on October 26 and was replaced by Ilir Meta. (See Albania Update, EECR, Vol. 8, No. 4, Fall 1999.) Makbule Ceco, formerly prefect of Tirana, replaced Meta as vice prime minister. In addition, Bashkim Fino, a close confederate of Fatos Nano (Majko's opponent within SP), entered the government as minister of local government, an important post in the run-up to local elections, which should occur later this year.

By and large, Meta held on to Majko's team. But he replaced Minister of Public Economy and Privatization Ylli Bufi (SP) with an independent economist, Zef Preci. And, in an effort to preserve the balance in the ruling coalition, Prec Zogaj, from the Democratic Alliance (DA), was then brought into the government as the minister of state, charged with over-seeing relations with NGOs and civil-society issues. But less than three months later, in mid-January, both of the new ministers were discharged.

Preci was dismissed because of a controversy over the licensing of oil importers. After years of essentially unregulated imports, in early 1999, parliament (the Kuvend Popullore) adopted a law requiring importers of oil, gas, and their by-products to obtain licenses. Only two state companies and one private one had sufficient storage capacity and capital to meet the law's requirements, but about a dozen other firms received provisional licenses, set to expire at the end of 1999. Preci argued strongly that the law's requirements should be eased to allow more companies to obtain permanent licenses. Meanwhile, the provisional licenses had expired, and the year 2000 was greeted by a severe oil shortage. When the prime minister discovered that Preci had approved permanent licenses for two compa-nies in late November under somewhat irregular circumstances, Preci was fired. It is unclear whether Preci drew any direct benefit from granting the licenses, and no criminal action is expected against him. Preci was replaced by Mustafa Muci, one of Meta's closest associates and his legal adviser.

Prec Zogaj, too, was replaced. Zogaj had defended Preci and declared he would resign if Preci were fired. The underlying reason for Zogaj's discharge, however, seems to have been a personality conflict. Unsatisfied with the limited duties assigned him, Zogaj sought to expand them, butting heads with the prime minister. He was replaced by Ilir Zela, a young Socialist deputy. After Zogaj was replaced by a Socialist, the coalition lost its previous balance: DA now has only one minister. But DA did not withdraw from the coalition, although that possibility still exists.

Within the opposition Democratic Party (DP), meanwhile, the situation was equally problematic. Sali Berisha's reelection as party chairman left conflicts within the party unresolved. (See Albania Update, EECR, Vol. 8, No. 4, Fall 1999.) Indeed, he repeatedly attacked Genc Pollo (once his close ally) and members of a small like-minded group who styled themselves a "democratic alternative" or "reformers." Four members of this group, including Pollo, were expelled from the DP parliamentary group. More recently, the ever-energetic Berisha has been touring the country, calling for early parliamentary elections.

While it is unlikely that elections will be held early (the end of the regular term is only a little over a year away), local government elections must take place some-time this year, and some important issues remain unresolved. For instance, the new Constitution requires a new electoral law (although not necessarily a comprehen-sive code) because it includes provisions for, among other things, the creation of a Central Electoral Commission (CEC). In addition, there have been substantial population movements during the past ten years; thus drives to register both the population and the electorate are essential. A project developed under the auspices of the UN Development Program (UNDP) to achieve this has been stalled by internal political turmoil, although a national commission headed by the vice prime minister has been created finally to complete these tasks.

State institutions have struggled with organizing the local elections. The problems began with the CEC, which, under Art. 153 of the Constitution, is a "perma-nent organ that prepares, supervises, directs, and verifies all aspects that have to do with elections and referenda and announces their results." The Constitution describes not only the body's composi-tion- it consists of seven members, elected for seven-year terms-but also the bodies which appoint its members: two are elected by parliament, two by the president, and three by the High Council of Justice. Although the law that would regulate the CEC has yet to be adopted, the president has already named his two candidates, the High Council of Justice has named its three, and the governing coalition in parliament has named one of its two members, presumably leaving the other to be chosen by the parliamentary opposition.

DP, as well as other opposition parties, were angered by this process, claiming that CEC members should be chosen by a consensus within parliament. They threatened to boycott the local elections if they were denied representation on the CEC. However, any changes to the CEC's composition, since it is fixed in the Constitution, would require a constitutional amendment. The OSCE, present in Albania since 1997, has sought to mediate a resolution of the situa-tion, but it remains tense and uncertain. SP chairman Fatos Nano issued a call for the new CEC members to resign, breaking the logjam and allowing negotiations to start from a more neutral point.

Meanwhile, another institution called for by the new Constitution has finally been established: the ombudsman, or "people's advocate," as it is termed in the Constitution. Interparty controversy dogged this process, too, but, after four rounds of voting held on February 15 and 16, the position was filled. Lawyer Ermir Dobjani was elected by 104 votes (11 votes more than the three-fifths required). Dobjani had been an investigator, prosecutor, and professor of administrative law until he was fired in 1992 from the law faculty in the sweeping reforms undertaken by DP. He has been in private practice since leaving teaching. A total of 15 candidates were nominated by nongovernmental organizations, members of parlia-ment, and, in a few cases, by the individuals themselves. A surprise winner, Dobjani was one of these self-nominated candidates. .

Three recent decisions of the Constitutional Court deserve mention. On December 10, 1999, the Court unanimously declared the death penalty unconstitu-tional. The case was referred to the Constitutional Court by the High Court, which had received an appeal on the sentencing of a defendant to death for willful felony murder. Under Art. 145.2 of the Constitution, judges may suspend the adjudication of a case when they believe that applicable laws violate the Constitution.

Although Albania has not signed Protocol 6 of the European Convention on Human Rights, the Constitutional Court noted that Albania committed itself to abolishing the death penalty when it joined the Council of Europe in 1995. Albania has not actually carried out a death sentence since joining the Council of Europe, although several persons have received capital sentences. Albania's previous Constitution had stipu-lated that the death penalty could be applied for serious crimes; but the new Constitution, in Art. 21, reads that the "life of the person is protected by law." According to Art. 17, moreover, "limitations of the rights and free-doms provided for in this Constitution may be established only by law, in the public interest, or for the protection of the rights of others. . . . These limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights." Invoking these provisions, the Court concluded that the death penalty had indeed been abolished when the new Constitution was enacted and thereby struck it from 16 articles of the Criminal Code and two articles of the Military Criminal Code. (In line with the European Convention, however, the Court found that the death penalty was permissible in time of war.)

On November 22, 1999-after several hearings that included a parliamentary challenge to the Constitutional Court's right to inspect parliament's records-the Court rejected the prime minister's attempt to have amendments to the law on the National Information Service (NIS)-the secret service-struck down as unconstitutional. (For background on this controversy, see Albania Update, EECR, Vol. 8, No. 4, Fall 1999.) The prime minister had argued that because the NIS was an institution "contemplated by the Constitution," in the words of Art. 81.2a of the Constitution, passage of the amendments concerning the NIS required a three-fifths majority, which parlia-ment had failed to muster. While rejecting the prime minister's appeal, the Court also ruled, most strangely, that the Constitution's use of the phrase "state infor-mation service" (SIS), although not capitalized, dictated that the NIS be referred to only as the SIS in the future. Two justices dissented on this point and voted to dismiss the prime minister's complaint in its entirety. One of them noted that if the Court was right in finding against the prime minister, that the NIS/SIS was not "contemplated by the Constitution," then the name by which it was designated in the Constitution did not have constitutional status either. Many legal analysts were disappointed that the decision did not discuss and clarify the important issue of what it is that makes an institution "contemplated by the Constitution," rather than simply asserting peremptorily that the NIS/SIS was not such an institution.

In another decision, on November 5, 1999, the Court ruled unconstitutional the third sentence of Art. 48 of the Law on the Organization of the Judicial Power in the Republic of Albania of December 1998. Article 48 requires the testing of all district-court judges with less than ten years of experience as part of an overall effort to upgrade and professionalize Albania's judiciary. Those who failed the test were to be dismissed by the High Council of Justice. In its deci-sion, the Court found that "professional insufficiency," as a constitutional ground for dismissal of a judge, was a "broader concept than failing or refusing to take a test," and that the latter could not constitute sole grounds for dismissal. It was not completely clear whether the decision was referring to the four judges who failed the May 1999 examination or primarily to the 49 who refused to take it and were also discharged. In any event, the decision found that since the law on judicial competency lists a number of factors-quality and quantity of work, speed of adjudication, reputa-tion, publication of articles-judges must be evaluated in light of all these factors taken together. The High Court promptly reevaluated each individual file, but stood by all of its earlier dismissals.

Many believe that this is a positive step, given the public perception that one cannot win a lawsuit without bribing the judge and the widely shared conviction that the judiciary needs to be cleaned up and supervised. The Constitution, in fact, provides for a body to do this-the Judicial Inspectorate, which functions within the High Council of Justice and is designed to assist the Council in its role of disciplining district- and appeals-court judges. Set up even before the new Constitution, the inspectorate is staffed by a number of experienced lawyers. Their principal duty is to evaluate and scrutinize, on the basis of complaints, or on their own initiative, the work of judges. When they uncover an illegality, they propose an appropriate disciplinary measure-which at its most severe can include dismissal-to the High Council of Justice. Nevertheless, since the Judicial Inspectorate began functioning, the executive has not supplied it with necessary funds and facilities, not even office space. The press and some analysts see this flagrant neglect as tantamount to direct interfer-ence by the executive in judicial affairs.

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