Tirana, March 7 – The Venice Commission has prepared a preliminary opinion on clashes between the Assembly and the office of the president over the appointment of members of the Constitutional Court.
A document was submitted to the parties in conflict in Albania. The document is a draft and does not constitute the final opinion of the Venice Commission.
The Venice’s legal experts say the issue of appointing members of the Constitutional Court is a very complicated process, for which there are different interpretations. According to the Venice Commission, the way it has been acted on has created “a situation in which all appointments, except for Mr. Muçi’s appointment, were potentially made in an unconstitutional way”.
The Commission’s interpretation of the Justice Appointments Council (JAC), which plays a key role in the candidates’ selection process, has had a number of shortcomings, from delays, malfunctioning in 2017 and 2018 to decisions that the Venice Commission calls “controversial ”in 2019.
The first two years (2017-2018) the JAC “wasted valuable time to avoid the current constitutional crisis”. In 2017, the government complained that the High Council of Justice (HCJ) members had not passed the vetting process, some members of the JAC resigned, others were sacked after the vetting process, and consequently the JAC in 2017 never had a meeting. In 2018, the JAC met only once, as a representative of parliament demanded that the JAC limit itself to administrative decisions only and not rank the candidates.
According to the Venice Commission, “the 2017 and 2018 requests for JAC not to rank the candidates weren’t based on the law. It was not provided either in the Constitution or in the law for JAC members that they should have passed the vetting process,” reads the preliminary opinion.
The Venice Commission adds that one of the most important elements of the JAC is transparency, in order to have public confidence in the appointment process. But with the adoption of an internal directive, the JAC excluded the Ombudsman from participating in the candidates’ evaluation process. According to the Commission, an article of the directive should be amended. The Venice Commission also finds violations, even for failing to publish the official report of the JAC meetings, required by law.
After compiling the lists from the JAC for two Constitutional Court appointments, at a time the president had to appoint two others- enabled by the parliament, “it is clear that the date of submission of the lists would have significant consequences due to the 30-day deadline for the selection of candidates.”
President Ilir Meta nominated one of the three candidates on his first list and decided to suspend the nomination of his second candidate. The President explained that the Constitution states in Article 179/2 that “the first member to be replaced in the Constitutional Court shall be appointed by the President of the Republic, the second shall be elected by the Assembly and the third shall be appointed by the High Court. This order is followed for all appointments to be made after the entry into force of this law.”
Consequently, according to the president, parliament would have to choose the next candidate from the first list. For its part, the majority insisted that the constitutional provision was related to the fact that the Court is renewed every three years with three members, and that this provision, more than the order of appointments, sets out the sequence of the right to nominate.
The Venice Commission itself makes another interpretation, according to which “the constitutional rule is based on the assumption that there are always three positions to be filled at a time and the order therefore applies only within this round of appointments. As a result, the inability to elect a member from the Supreme Court, who comes last in each round and does not block the appointments for another round.”
The experts specify that “the Venice Commission’s clear preference for this interpretation does not mean that other interpretations would be unreasonable. In any event, when the president nominates only one candidate, Mr. Muçi, and then suspended the procedure of nominating a second candidate, he pursued an interpretation that is not unreasonable. “In light of the Venice Commission’s interpretation,” the suspension of the second appointment was valid and blocked the start of the 30-day period for the second appointment, so that the automatic appointment would not go through.”
The president’s obligation to make the nomination within 30 days is set out in the law on the Constitutional Court, unlike the deadline for the parliament, which is provided by the constitution. The president’s failure to comply with this deadline was seen by the majority, led by PM Edi Rama, as the moment the unblocking mechanism came into effect, and the top-ranked candidate, Arta Vorpsi, was considered automatically elected. But for the Venice Commission “the article of the law on the Constitutional Court does not appear to be applicable in a situation where it is unclear when and if the 30-day period begins.” The Venice Commission recommends that, “If the appointments by the president would be considered necessary, this rule should have been raised to the constitutional level, as is the case for parliament.”
While Mr. Meta did not consider what the Socialist Party called an automatic nomination for Mrs. Vorpsi’s candidacy, he selected Marsida Xhaferllari, from his second list, shortly after the parliament appointed two members of the Court from its two lists, although there was no option to choose between three names, as described in the Constitution.
In this context, according to the Venice Commission, the submission by the JAC to the President of two lists simultaneously, the submission of lists to Parliament, 6 days later, and the limited number of candidates, only 6 for four vacancies “created a situation in which all appointments, except Mr. Muçi’s, were potentially unconstitutional.
In February, the majority passed legislative changes designed to avoid the sworn-in of the members of the Constitutional Court in front of the president. According to the majority’s proposal “…. if a member of the Constitutional Court is not called to take an oath, [within the timeframe set by the president], he or she shall take the oath in writing and forward it to the President of the Republic, the nomination body and the Constitutional Court. The date of the sworn-in ceremony or the date of the oath in writing shall be considered as the day of the oath and the commencement of office of a judge of the Constitutional Court. But the Venice Commission, clearly states in its opinion that under the Constitution, a member of the Constitutional Court begins his mandate only after taking an oath to the President. After quoting the constitution, the Venice experts say that “this means that the member [of the Constitutional Court] cannot start the job without taking the oath in front of the President. The sworn in procedure in front of the President is a precondition for starting the job.”
Even in their conclusions, the Venice experts are determined at this point, stating that “provisions recently adopted, but not yet in force … should be set aside, as they appear to be unconstitutional.”
President Ilir Meta send back the legal amendment to the Assembly, describing them as “a coup” a few days ago, accompanied by a public warning, during a protest against the government that “unless the coup participants and the mafia organization playing with sovereignty do not takes this decree seriously, I promise, in the name of this flag, that after March 15th, when the electoral reform is over, if they do not take it seriously, I Ilir Meta I swear he will sign that decree in the parliament, in the midst of crime, and will call all the Albanian people. Me first and all the people red and black after,” Meta stated.
The president’s impeachment process is underway in the parliament. The Venice Commission, referring to its earlier opinion, emphasized that “the sacking process itself contains two elements, legal and political. While the work of the Special Investigation parliamentary Committee is largely of a legal nature, in contrast, when parliament convenes in plenary sessions to decide on dismissal, it can, and even should, consider the political consequences of such a decision.”
The Venice Commission says it cannot advise parliament on how to vote, but says it “is up to the parliament to decide whether the sacking would reduce or increase tensions and ultimately serve or harm the intent, maintain or not the balance and control, in a situation where the parliament and local government are dominated by the same party (Socialist Party). The question Parliament must ask itself is: ‘would going on with the sacking procedures help the unity of the people?’
The Venice Commission states that “the president’s actions regarding the appointment of members of the Constitutional Court are generally consistent, with a reasonable interpretation of the Constitution. The actions taken by the president in response to the manner in which the JAC operates are justified. For this reason, there is no basis for the dismissal of the president,” says the Venice Commission.
The deadlocked process of appointing members of the Constitutional Court highlights major difficulties in implementing the Constitution and the laws in general, according to the Venice Commission. “This is due to institutional conflicts, as a result of the lack of mutual trust between state institutions and their tendency to de-legitimize each other. The institutional system in Albania risks a paralysis that goes beyond the issue of appointing members of the Constitutional Court.”
The Venice Commission emphasizes how it cannot replace the Constitutional Court of Albania, nor is it capable of replacing the lack of readiness and culture of cooperation between Albania’s institutions.
Setting aside the technical analysis of laws, the Venice Commission, urges the authorities to “avoid aggressive rhetoric and let each institution recognize the legitimacy of other institutions for the appointment of three other members of the Constitutional Court.”
