From: Vincent W.J. van Gerven Oei
Chaos Engulfs ‘Reformed’ Constitutional Court

After President Ilir Meta’s appointment of Marsida Xhaferllari yesterday, it appears that the establishment of the Constitutional Court has degraded into a full-blown constitutional crisis, in which the Justice Appointments Council (KED), President, and Parliament accuse each other of unconstitutional and illegitimate actions.

This is an overview of the recent events:

On September 22, the KED published four candidate lists for current vacancies at the Constitutional Court.

On October 8, the KED sent two candidate lists to President Meta for two vacancies at the Constitutional Court. On October 13, the KED sent two other candidate lists to Parliament.

On October 15, President Meta appointed the first member of the Constitutional Court, Besnik Muçi. This appointment received no public support from the internationals, possibly because Muçi has not yet passed the vetting with a final verdict. That it is nevertheless possible to appoint an unvetted judge to the Constitutional Court is the result of the regulations adopted by the KED in order to speed up the process.

According to the Constitution art. 179(2), Parliament should have subsequently elected the second member, which by November 7 it still hadn’t done. President Meta wrote a letter to the KED, Parliament, and the National Ombudsman stating that he could not appoint a second member until Parliament had done so, even if that meant that he would violate the 30-day deadline that was widely assumed to be mandated by the Constitution. One of the reasons was that because the number of candidates was limited, election by one institution influenced the others.

On November 8, the KED responded with a rather cryptic message, which failed to explicitly confirm that in absence of the President’s actions, the highest ranked candidate on his second list, Arta Vorpsi, was elected. This was however assumed by Parliament, when it on November 11 elected Elsa Toska and Fiona Papajorgji, in violation of the rotation demanded by the Constitution. It should further be noted that Toska and Papajorgji were at that moment basically the only choices left to Parliament – and therefore not much of a choice.

During the OraNews program Tempora on November 12, Socialist MP Vasilika Hysi defended Parliament’s actions by stating that the rotation mentioned in art. 179(2) did not apply to the current situation, because the dismissal of the entire Constitutional Court had been “unforeseen” when the vetting legislation was drafted and passed. She also claimed that because the 30-day deadline had passed for the President, Arta Vorpsi was automatically elected.

Nevertheless, on November 13 President Meta appointed Marsida Xhaferllari to the Constitutional Court, with the new argument that the 30-day deadline only holds for Parliament, as per Constitution art. 125(2). Indeed, the Constitution does not explicitly prescribe a deadline for the President. However, Constitutional Court Law art. 7/b(4) states quite clearly that the 30-day period does apply to the President. Whether the Constitutional Court Law is constitutional on this point as yet another issue.

Originally, Xhaferllari was ranked fourth on the original list sent by the KED on October 8, and therefore not eligible according to Constitution art. 125(1), which states that “the members shall be selected among the three first ranked candidates by the Justice Appointments Council.” However, the President argued that because of the election of Toska and Papajorgji by Parliament on Monday, she had moved up to second position, underneath Vorpsi.

In a press conference on the evening following Xhaferllari’s appointment, President Meta accused Ardian Dvorani, Chair of the KED, of being a “blind soldier” of the Socialist Party and having engineered the chaos in which the current election process had descended. Today, KED Chair Dvorani responded that President Meta had violated the 30-day deadline and that Arta Vorpsi had been elected folllowing Constitutional Court Law art. 7/b(4). He further echoed MP Hysi in claiming the rotation did not apply in the way the President interpreted it.

At the same time, Socialist Party MP Taulant Balla frontally attacked Xhaferllari, who passed the vetting and qualification by the KED, declaring that “President Meta might as well decree also Enkelejd Alibeaj today, because that would be as invalid as the decreeing of the partner of Alibeaj [i.e., Xhaferllari].” Balla also repeated that the President had violated the 30-day deadline, even though he did not point out where in the Constitution this was prescribed.

Meanwhile, above all of this is now hanging the question of the oath. According to Constitution art. 129, all new members of the Constitutional Court need to take an oath before the President, and there is Constitutional Court jurisprudence that without such an oath members are not allowed to exercise their duty.

It seems highly unlikely that President Ilir Meta will call Arta Vorpsi to be taking the oath instead of Marsida Xhaferllari. In a preemptive move, Arta Vorpsi took the unusual step of taking an oath in front of a notary today, the legal value of which is – again – up for debate. It is uncertain whether the President will swear in the other two members elected by Parliament.

A further complication is the Official Gazette. So far, only the decree of President Meta for the appointment of Besnik Muçi has been published. The four other appointments and elections have not yet been published. One question will be: Will the Center for Official Publications once again violate the law and refuse to publish President Meta’s decree to appoint Marsida Xhaferllari?

What has become clear through all of this is that the interpretation of the Constitution and legislation by the President has become increasingly incommensurable with the interpretation offered by KED, Parliament (and the internationals), while the arbiter in the discussion – the Constitutional Court – is absent. Furthermore, there is a complete breakdown in any trust between these institutions, which has already severely damaged the standing and credibility of the Constitutional Court and its foundations, potentially opening the way to future cases at the European Court of Human Rights.

No little blame should placed at the feet of those who designed the legislation that is currently subject of debate. The overly complex system of responsibilities and deadlines, fundamental distrust, a desire for manipulation on all sides, combined with the incessant international pressure to produce “results,” has sunk the government of Albania into one its deepest crises to date.