From: Vincent W.J. van Gerven Oei
The Precedents for President’s Meta Decision to Cancel Elections – Exit Explains Ilir Meta. Photo: LSA.

Faced with increasing opposition protests, an incomplete Parliament, and a dysfunctional Constitutional Court, President Ilir Meta decided yesterday to cancel the local elections of June 30.

The response of Prime Minister Edi Rama was swift, claiming that the elections would continue despite the Presidential decree. In absence of a Constitutional Court, however, there is no recourse for any of the parties involved to challenge President Meta’s decision, and the Central Election Commission (KQZ) will have little choice but to implement Meta’s decree.

This is not the first time that the absence of a Constitutional Court, the direct result of an ill-informed justice reform that has increasingly destabilized the Albanian rule of law, has led to a conflict between the Prime Minister and the President. Previously, President Meta refused to nominate Gent Cakaj as Minister for Europe and Foreign Affairs, after which Prime Minister Rama found a workaround, by nominating himself as minister and then delegating the actual work to Cakaj, who remains “Acting” Minister – a function with a rather vague legal definition and fully at the mercy of the Prime Minister. This time there is no workaround for the Prime Minister. He has no power over the election date.

The legal basis on which the President will base his decree will be known on Monday, but in a Facebook post former Minister of Justice Ylli Manjani stated that the decision of President Ilir Meta to cancel the elections would be based on the same legal bases as similar decisions by President Alfred Moisiu in 2007 and President Bujar Nishani in 2017, after the McAllister+ agreement.

Decree 5194 of President Moisiu was published in Fletorja Zyrtare 2 from January 14, 2007. The decree canceled a previous decree regarding the date of the local elections, and determined a new one. Moisiu based himself on art. 92(gj) and 93 of the Constitution and art 181/1 of the Electoral Code of 2003, which has been replaced in 2008 and later amended in 2012. Constitution art. 92(gj) gives the President the power to “set the date of the elections for the Assembly, local government bodies and the conduct of referendums,” while art. 93 allows them to issue decrees. As far as we know now, President Meta has not set a new date for the elections. He rather has canceled his previous decree 10928 from November 6, 2018 that they should be held on June 30.

Decree 10351 from May 21, 2017 of President Nishani was published in Fletorja Zyrtare 113 from May 22, 2017. This was a decree issued under the same legal framework as Meta’s, after the Constitutional amendments of 2016. Nishani did not cancel his previous decree on the election date and issue a new one, as Moisiu did, but rather amended his previous decree to reflect the new date. Nishani based himself on the same Constitution articles as Moisiu, but also on Electoral Code art. 9(1) and 9(2), which regulates the timeframe in which elections can be held. Nishani’s new date conformed to the stipulations of those articles, because the Rama government refused a new election date that would violate the Electoral Code.

Like Moisiu, Nishani issued his decree only after the opposition and government made a deal to resolve a political crisis. Their decision had the support of both parties. In the case of Meta’s decree the situation is very different. While the opposition applauds his decision, the government has rejected it. Meta’s decree does not come as the result of a compromise, but tries to force government and opposition to reach a compromise.

Furthermore, by canceling the June 30 election date, President Meta will violate the terms set by the Electoral Code. According to art. 10(2), “the mandate of local government bodies shall end on the same date of the same month of the fourth year after the [KQZ] declares its decision on the election results nationwide for local government bodies.” The KQZ announced the final results of the 2015 local elections with Decision 965 on August 10, 2015. This means the mandate of local government bodies will end on August 10, 2019.

According to art. 10(1), art. 9(1) is to be followed for setting the local elections date. According to art. 9(1),

Elections […] are to be conducted on one of the last two Sundays within the electoral period determined in article 8 of this Code, and in any case no later than 30 days before the expiry date of the […] mandate.

Art. 8 determines the electoral period to last from March 15 to June 30. In other words, the date canceled by President Meta, June 30, was already the last possible date according to art. 8. By canceling this date, any later date that government and opposition might agree upon will violate the Electoral Code, unless it is amended. So with his decree, it appears that President Meta therefore not only wants to force a compromise, but also Electoral Code reform at the same time.

In other words, the precedents cited by former Minister Manjani give us very little to work with. President Meta’s decree appears to be both of a different nature (a cancellation without new date) and with a different aim (forcing opposition and government to negotiate). Tomorrow we will see the legal basis for these actions, which appear to reassert precisely the executive powers of the President that the constitutional reform of 2016 tried to fully remove.