From: Megi Ndregjoni
Few months ago the European Commission (EC) asked the Albanian government for clarifications regarding the law for the demolition of the National Theater building. One of the main points the EC wanted clarifications about was the status of the Constitutional Court – one of the main points of those opposing this special law is the claim that it is unconstitutional.
The Constitutional Court is the constitutional institution responsible for judging and ruling on the compatibility of laws with the Constitution.
Exit.al has obtained and analyzed the correspondence on the matter between the Albanian government and the EC.
These documents show that the government has stated the following:
a) Albania has a functioning Constitutional Court;
b) The Constitutional Court can accept requests (for filing a case) for consideration;
c) The Constitutional Court cannot rule on such requests.
In support of these statements the government has informed the EC that, out of nine judges, the Constitutional Court currently has three judges on duty, who could assemble to consider requests filed and rule on whether to accept them or not.
Based on the fact of three remaining judges, the government has claimed that the Constitutional Court operates normally “in the preliminary phases”.
However, this statement of the government is factually untrue, legally ungrounded and logically absurd.
The Constitutional Court has only two members on duty; not three, as the government has informed the EC. Of nine members of the judicial body: two judges resigned – Sokol Berberi and Besnik Imeri; the term in office for another judge ended and he also resigned – Vladimir Kristo; four others were dismissed by the Independent Qualification Commission (KPK)- Fatos Lulo, Altina Xhoxhaj, Fatmir Hoxha, Gani Dizdari.
Currently on duty are only the Chairman of the Constitutional Court Bashkim Dedja and judge Vitore Tusha, both reconfirmed in duty by KPK. However Dedja has yet to go through the decision of the Special Appeal Chamber, as his qualification was opposed by the Public Commissioner.
With only two members on duty, the Constitutional Court is unable to exercise any function, including secondary ones. It cannot consider the acceptance of any filed request because a minimum of three members is required for this to happen. Article 133/1 of the Constitution states that requests filed to the Constitutional Court are to be considered by a predefined number of judges. The law on the functioning of the Constitutional Court states that any request should either be accepted or rejected preliminary by a quorum of three judges (art. 31/1). Given that the Constitutional Court currently has only two judges, it is unable to accept any requests from subjects who have the right to file requests.
This should be enough to dismiss the claim made by the government about the functioning of the Constitutional Court. However, even if the Court was actually able to accept requests, it still cannot rule on them, because judging a case and ruling on it requires a quorum of six judges.
This means that, even if the Court had the three judges necessary for accepting requests – as the government has lied about – the statement that the Court is functioning would still be absurd: the goal of the Constitutional Court is to judge the compatibility of laws with the Constitution, so as long as the Court does not exercise this function, it means that the Court does not function.
Coming back to the context of this issue, the absence of Constitutional Court has removed all chances to challenge the constitutional compatibility of the special law on the National Theater, thus giving the government an unlimited and unchecked power that can stand even above the Constitution.