From: Vincent W.J. van Gerven Oei
Socialist Party Argues the Election Commission Can Ignore President’s Decree

In a document that has been circulated among the corps diplomatique in Tirana, the Socialist Party has argued that the Central Election Commission (KQZ) rightfully ignored the President’s decree to withdraw his earlier decree to hold local elections on June 30.

During the KQZ meeting, chairman Klement Zguri stated:

“I think the KQZ must comply with such a document, a decree. I do not want to adjudicate on the power of the President. I am not the Constitutional Court which could rule whether or not the decree of the President is lawful.”

Whereas deputy chairman Denar Biba argued:

“The president consciously refuses to comply with a constitutional obligation. The absolutely invalid administrative act [President’s decree to cancel the election] is to be considered non-existent.”

According to the legal argument circulated by the PS, the Constitutional Court does not rule over the lawfulness of the Presidential decree, because it does not fall under its jurisdiction. Recent jurisprudence may seem to substantiate this claim.

In 2017, in the aftermath of the McAllister+ agreement, President Bujar Nishani issued a decree to move the parliamentary election date. The Youth Force Party filed a lawsuit at the Constitutional Court, claiming that the President’s decree was anti-constitutional.

In Decision no. 150 from June 16, 2017, the Constitutional concluded that

“the compliance of the President of the Republic decree with the provisions of the Electoral Code is not under the jurisdiction of this Court, but under the jurisdiction of the administrative courts, or, as the case may be, of the Electoral College, and as such cannot be examined by the Court.”

In other words, it is up to the Electoral College to adjudicate whether the decision taken today by the KQZ to consider President Meta’s decree an “absolutely invalid administrative act” has been justified.

The “absolute invalidity” of an act is defined in the Administrative Procedures Code art. 108 as an administrative act (such as a Presidential Decree) that is “in flagrant contradiction with […] legislation in force with regard to the competence of the public organ.”

According to art. 110(2) of the same law, “The absolute invalidity of the act may be declared at any time, either ex officio or upon request of any interested person, by […] the organ which is competent to review the administrative legal remedies and by the competent court for administrative issues, in accordance with the law.”

Following the jurisprudence of the Constitutional Court, the competent organ in this case is not the Constitutional Court, but the Electoral College. So by qualifying President Meta’s decree as “absolutely invalid administrative act,” KQZ deputy chairman Biba has set up a possible appeal at the Electoral College, which will then have to adjudicate the issue.

The case will therefore revolve around whether President Meta’s decree can indeed be considered “absolutely invalid administrative act.” The Socialist Party (and KQZ) no doubt will argue it is, because the President has only the power to set the election date, not cancel it. By effectively canceling the elections, President Meta has overstepped his Constitutional powers and therefore committed an “absolutely invalid administrative act,” the rationale would be.

The President has presented his arguments this morning: fulfilling his role as custodian of democracy and rule of law by safeguarding elections in which all Albanians can feel represented. Presidents have in the past indeed issued decrees changing the election date, and such acts were not considered “absolutely invalid.” Furthermore, Meta’s decree is not exactly the same as Nishani’s in 2017 (as I pointed out before), since Nishani moved the elections; Meta has effectively canceled them.

It will now most probably be up to the Electoral College to issue a final decision on the matter, unless, of course, a political “solution” is pulled out of some hat.