Yesterday, Parliament published a list with candidates for the seat in the Constitutional Court vacated by Fatos Lulo after he was dismissed by the Independent Qualification Commission (KPK) and lost his appeal at the Special Appeals Chamber (KPA). The announcement on the Parliament’s website raises several serious legal and constitutional issues.
As a result of the vetting, there are currently only 2 of the 9 Constitutional Court judges are left, Vitore Tusha and Bashkim Dedja, while the International Monitoring Mission has advised the Public Commissioner to appeal the confirmation of Dedja at the Special Appeals Chamber. It is as yet unclear whether the Public Commissioner has followed this recommendation. Appeals filed by Altina Xhoxhaj and Fatmir Hoxha at the KPA are also pending.
According to the Constitution art. 125(1), the 9 members of the Constitutional Court are elected by the President (3), Parliament (3), and the High Court (3). In all cases, the Justice Appointments Council (KED) verifies and ranks the candidates. This is precisely where the issues appear.
Law 115/2016 on Governance Institutions of the Justice System, art. 234(2) stipulates that the Speaker of Parliament is expected to send a list of candidates for a vacant seat to the KED immediately after the list has been published on the website, as happened yesterday. Following the submission of the candidate list and accompanying documentation, the KED verifies all candidates and ranks them on a list that is returned to Parliament. This verification process follows a strict and detailed sequence of deadlines.
Once the KED returns the ranked list to Parliament, Constitution art. 125(2) stipulates that Parliament needs a 3/5 majority to appoint any of the candidates as Constitutional Judge, and if it fails to appoint one within 30 days, the candidate ranked highest will be automatically appointed.
The publication of the candidate list by Parliament yesterday will now inevitably lead to the following two issues:
1) There currently is no functional KED, as so far only 2 of its 9 members have been able to pass the vetting. When all KED members and their substitutes have been vetted, a maximum of only 5 out of 9 members will remain. As long as the KED is not completely vetted and comprises 9 members, it will not be able to rank the candidate list sent by Parliament. It will therefore indubitably violate several if not all deadlines determined in Law 115/2016, which would make the entire appointment invalid.
2) The Constitutional Court is currently already vetting several candidates for the Constitutional Court, whose dossiers were opened on May 15. These candidates partially overlap with the list published by Parliament, which includes:
- Elsa Toska
- Fiona Papajorgji
- Ilir Panda
- Sinan Tafaj
- Theodhori Sollaku
- Valbona Bala
- Vasil Bendo
Of these seven candidates, only Toska, Papajorgji, and Bala are currently being vetted as candidates for the Constitutional Court. This means that the 4 other candidates still need to be vetted before they can be ranked by the KED. Again, this will most certainly lead to violations of the deadlines determined in Law 115/2016.
On top of that, the quality of the candidate list published by Parliament is questionable. Toska, Papajorgji, and Bala are councillors without hands-on experience in the court system, while Ilir Panda immortalized himself, when during a public interview with Parliament for his candidacy for the High Judicial Council he claimed that the most expensive item owned was a $70 fountain pen. None of the other candidates currently holds the position of judge or prosecutor – at any level of the judiciary.
The steps taken by Parliament may be justified by pointing out that it simply follows procedure: there is an officially vacant seat in the Constitutional Court, and Parliament starts the procedure to fill it. But in these uncertain times, where government and judiciary violate law after law in desperate attempts to mitigate the havoc wreaked by the Justice Reform, this is yet another action that will lead to a cascade of legal issues that can only be settled by – the Constitutional Court.