The Albanian government appears to have drafted two special laws that will change the way the members of the Constitutional Court and Special Anti-corruption Prosecution Office (SPAK) are sworn in before taking office. The changes appear to aim at making the swearing in before the President of the Republic unnecessary.
According to a document published by Balkanweb, the government proposes the following regarding the swearing in of Constitutional Court members:
“If a member of the Constitutional Court is not called to take the oath, […] he shall take the oath in writing and forward it to the President of the Republic, the body of the denomination and the Constitutional Court.”
An article of the law appears to give it a retroactive effect:
“Judges who have been elected, appointed or proclaimed appointed but who have not taken the oath, shall take their oaths under the rules of this law upon its entry into force.”
If this draft law is to be officially proposed to parliament, it will be an open violation of the Constitution and the basic principles of the rule of law.
The way Constitutional Court members take their oaths is laid down in the Constitution, and it cannot be changed by a law but only by an amendment to the Constitution.
Article 129 of the Constitution states that the “judge of the Constitutional Court starts the duty after he makes an oath in front of the President of the Republic.” Not only does it designate the President as the sole authority for their oath, but it also specifies that the oath is taken by physically appearing “in front of” the President.
No law can specify any other authority or way for members of the Constitutional Court to take their oaths. Even if the Socialist majority passed such a law, it would be unconstitutional and absolutely invalid.
Moreover, the procedure stipulated in the Constitution would again be dominant, as it is prescribed in its Article 4: “The Constitution is the highest law in the Republic of Albania” and its “provisions […] are directly applicable.”
This bill, if confirmed, appears to be primarily aimed at creating an unconstitutional legal remedy to impose Arta Vorpsi as Constitutional Court member, as it seeks to take retroactive effect that would make it applicable in her case.
Vorpsi, who was controversially nominated by the Justice Appointments Council (KED), while the president nominated for the same seat Marsida Xhaferllari, took the unusual step of taking an oath in front of a notary without waiting if the President would swear her in. In fact, few days later the president swore Xhaferllari in, despite the Socialist majority attempts to undermine the process.
As such, this legislative proposal runs counter to one of the basic principles of the rule of law: the law must be of a general character and applicable from the moment it enters into force.
This principles mean that a law cannot be made for an individual or a particular case but it must be general in character, and that laws cannot have effects on actions or events that occurred before the said law existed.
