The Albanian President, Bamir Topi, assesses that the Albanian
Parliament has taken from him the Constitutional competence to decree
the Constitutional Court Judges. On 23 June 2011, the Parliament
realized this by taking a decision that suspends the review of decrees
for new judges.
Sources at the Constitutional Court confirm that the President’s request has arrived this Monday and it demands the repeal of this Parliament decision.
To understand why the Parliament has taken this decision, let us see first what happened. On April 2011, the Constitutional Court, as the Constitution provides, announced the end of the mandate for four of their members.
The President, biding to his Constitutional obligation, sent the four new names to the Parliament. The Constitution says that the mandate of a Constitutional Judge is nine years long, but 13rd of the members must change every three years.
Due to calendar reasons, this change has never occurred. A group of Democratic Party MPs asked the Court to give an opinion about the change of this 13rd.
On June 9th of this year, the Constitutional Court answered that it is up to the lawmakers to find the mechanisms for changing the Constitutional Court judges.
The mechanism that the Parliament found was to approve only one of the four names sent by the President, Fatmir Hoxha, and reject the three others.
This way, the Parliament suspended the reviewing procedure for the three other names until 2013. The President has had a correspondence with the Parliament about this issue in the beginning of August.
The President declared that this was a wrong mechanism, since both institutions are holding very different positions. For this reason, the President decided to demand the Constitutional Court to repeal the Parliament decision.
The President’s request has four arguments: First, the Constitutional Court members whose nine-year mandate has expired but they are still in power, will have their mandate prolonged to 13 years.
The Constitution says that the Constitutional Court members will stay on duty until the new members will be chosen, but this is related with the procedure duration, not their suspension.
Secondly, the mandate extension is not made through a law amend, but through a decision.
The President argues that the decisions have an interior character and cannot set the rules for a general behavior, neither for individuals and nor for subjects.
Thirdly, by suspending the reviewing procedure for the Presidential decrees, the Parliament tells the President to send no more names.
The President assesses that in this way, the Parliament takes from him a competence granted by the Constitution, right after a Constitutional Judge’s mandate is expired.
Finally, the Parliament decision that extends the mandate of the three Constitutional Court members without a legal basis puts in question the function of the Court itself.
Sources from the Constitutional Court say that this request will be reviewed in the days to come.
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