From: Vincent W.J. van Gerven Oei
President Refuses to Elect Second Constitutional Court Judge

In a letter sent to the Justice Nominations Council, President Ilir Meta has stated that he refuses to nominate another judge at the Constitutional Court, because the Constitution dictates that after Parliament, the High Court should nominate the third candidate.

As we (and the US Embassy) have explained before, Constitutional Court judges are appointed by rotation, following the transitory dispositions in the Constitution, art 179(2):

The first member to be replaced in the Constitutional Court shall be appointed by the President of the Republic, the second shall be elected by the Assembly and the third shall be appointed by the High Court. This shall be the order for all future appointments after the entry into force of this law.

This is again affirmed in the Constitutional Court Law art. 7(2):

The composition of the Constitutional Court shall be renewed every 3 years, by one third of its composition. The new members shall be appointed on rotation basis, respectively by the President of the Republic, the Assembly, and the High Court. This rule shall be followed even in the event of early termination of the mandate of the Constitutional Court member.

On October 8, the KED sent President Meta the candidate lists for respectively the first and fourth vacancies at the Constitutional Court, and a week later those for the second and fifth vacancies to Parliament, if this rotation scheme were respected. Both institutions have 30 days to elect judges to the Court.

President Meta elected Besnik Muçi to the Constitutional Court last month. Parliament is currently poised to elect a second judge before the deadline of November 13. The procedure for the third vacancy, to be filled by the High Court, has not yet started.

In his letter, President Meta states that sending the four lists at the same time to President and the Parliament

creates the conditions of legal problem, not to say that upon prima facie inspection it makes it impossible for the President of the Republic and the Parliament […] to respect the constitutional provisions that dictate the order and alternation of the selection for nomination/election of new constitutional judges within 30 days. […]

The President of the Republic cannot nominate two judges at once or two judges one after another, but only the first member, while the second member of the Constitutional Court should be nominated by the Parliament and the third by the High Court. […]

President Meta declares that even if he were to disregard the dysfunctionality of the High Court and accept to “skip” it – even though that would be strictly speaking unconstitutional – he would still only be able to nominate another judge after Parliament had done so:

In the current conditions of filling the vacancies in fulfillment of the constitutional definitions the President of Republic cannot nominate another judge of the Constitutional Court, at least without Parliament having expressed itself on the election of the second judge.

A complicating factor is that because many candidates have qualified for more than one vacancy, the choices of President and Parliament (and the High Court) affect each other, and could render a nomination process invalid.

The vacancies for the first 6 seats of the Constitutional Court, with the candidates proposed by the KED. The High Court is dysfunctional.

Because the President has nominated Besnik Muçi to the Constitutional Court, the available candidates for one of the two vacancies currently in the hands of  Parliament has been reduced from three to two, thus invalidating the procedure. (It should be noted that it is unclear how Parliament will deal with this situation.)

If President Meta were to elect a candidate for the fourth vacancy before Parliament elects one – in fact, any candidate except Marsida Xhaferllari – he would also invalidate the other parliamentary procedure to elect a candidate for the Constitutional Court.

This is a very real possibility, because the KED sent the candidate lists to President Meta one week before it sent them to Parliament, which means that the legal deadline for the President on nominating both judges is tomorrow, whereas Parliament has another week:

This administrative act of the KED respects neither the moment of the compilation of the lists (the lists are approved on the same day), nor the order of their approval (the first by the President, the second by Parliament, the third by the President, the fourth by the Parliament), nor the obligatory chronological order determined by the Constitution and law for the fulfillment of the vacant seats.

Furthermore, the President points out that if the KED hadn’t sent out the final lists to President and Parliament out off the original order in which the vacancies were announced, “the paradoxical procedural situation would have been avoided.”

As a result, President Meta has decided to suspend the election procedure for the vacancy at the Constitutional Court until after Parliament has elected its judge at the Court.

The KED may very ignore President Meta’s argument, and conclude that the President has failed to nominate a judge to the Constitutional Court within the legal deadline of 30 days, after which Arta Vorpsi, who is ranked highest, will be chosen automatically. This will not only violate the Constitution, but moreover, both elections in Parliament will fail because of a lack of candidates. For one vacancy only Elsa Toska and Fiona Papajorgji would be left, while for the other only Elsa Toska. As a result, the vacancies will have to be reannounced and the entire procedure restarted from the beginning.

It is incomprehensible how the KED has allowed the election process of the Constitutional Court to become such a complete mess, and one wonders what “opinions” and “suggestions” of EURALIUS underlie these obscure moves, but here we are: every single possible outcome is a bad one; every single possible outcome is an unconstitutional one.