From: Vincent W.J. van Gerven Oei
How Rama Bribed the Internationals with the Constitutional Court

Yesterday, the European Union released a public statement that appears to fully support Prime Minister Edi Rama in his attempts to hold one-party elections on June 30. Also, the US Embassy released a public statement with similar content.

The question is: why would they so strongly support a single party which clearly has shown to have utter disregard for the rule of law and whose fraud during the previous elections has been all over the news? The reason is simple. Rama has promised the internationals a way out of the conundrum of the Justice Reform: a Constitutional Court.

The absence of the Constitutional Court, as I have repeated many times before on these pages, is one of the key reasons for the current political crisis. Its absence, due to the “unexpected” outcomes of the vetting process, has given the government the opportunity to pass a number of nominations and laws through Parliament that, in spite of their clear unconstitutionality, could not be canceled in absence of the highest court of the country.

The same absence has led in recent weeks to the battle surrounding the constitutional status of President Ilir Meta’s decree to cancel his decree to hold local elections on June 30.

At the same time, the persistent absence of a Constitutional Court has been the clearest sign of the failure of Justice Reform to create an “independent and competent system of justice free from corruption.”

Because its legal framework was flawed from the beginning, its implementation insufficiently monitored, and its outcomes undefined, installing a Constitutional Court by all costs has become the prime objective of the EU Delegation led by Luigi Soreca and the US State Department, represented by Deputy Assistant Secretary Matthew Palmer.

On June 11, Socialist Parliamentary Group leader Taulant Balla promised the creation of the Constitutional Court by the end of July. He made this statement in the context of presenting a legal argument proposing to ignore President Meta’s decree.

On June 24, EU Ambassador Luigi Soreca tweeted “It is fundamental that the Constitutional Court is functional in the shortest time possible.”

And on June 28, DAS Palmer gave an interview stating:

After the elections there’ll be an opportunity for the Constitutional Court to be formed, and we hope that any disputes about the timing of elections can be worked out through Albanian institutions. […] After the election, there will be an opportunity to form the Constitutional Court.

On the surface of things, the local elections appear irrelevant to the formation of the Constitutional Court, so why does Palmer stress that “after the elections, there’ll be an opportunity” to form it. What is this “opportunity”?

In order to understand Palmer’s (and Soreca’s, and Rama’s) opportunity, we first need to understand how precisely the Constitutional Court is elected. According to the Constitution (Art. 125):

(1) The Constitutional Court shall consist of 9 (nine) members. Three members shall be appointed by the President of the Republic, three members shall be elected by the Assembly and three members shall be elected by the High Court. The members shall be selected among the three first ranked candidates by the Justice Appointments Council, in accordance with the law.

(2) The Assembly shall elect the Constitutional Court judges by no less than three-fifth majority of its members. If the Assembly fails to elect the judge within 30 days of the submission of the list of candidates by the Justice Appointment Council, the first ranked candidate in the list shall be deemed appointed.

Last April, Justice Appointments Council (KED) started the nomination and ranking of candidates for the Constitutional Court the judges to be elected by the parliament and the President. In order to speed up the process, the KED already allowed the nomination of candidates who did not yet receive a final verdict from the vetting institutions, which is a clear violation of the Constitution.

In other words, the KED will allow unvetted judges to take a seat in the highest court of Albania, thus allowing for a potential politicization and criminalization of the Constitutional Court.

This procedural trick was most probably suggested by EURALIUS, which advised similar slights-of-hand for the High Court candidates.

However, even this procedural unconstitutional trick is not enough to get a functional Court by the end of July. The transitory provisions of the Constitution determine that, during the vetting, new judges in the Constitutional Court are appointed by rotation:

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.

The High Court currently has no quorum, and can therefore not elect its candidates to the Constitutional Court. Therefore, the maximum amount of judges the KED will be able to nominate under a scenario (there are other options, equally without legal merit) without the High Court is 2: one confirmed by President Ilir Meta, and one confirmed by Parliament.

This would bring the total judges at the Constitutional Court to 2, which is below the quorum of the 5 necessary to review President Meta’s decree, as well as a possible parliamentary resolution to fire him.

The only way to get to a Constitutional Court before the end of July is, therefore, by violating the Constitution, thus by nominating 6 judges – 3 to be confirmed by President Meta, and 3 by Parliament. President Meta will most certainly resist this move, rightfully calling it unconstitutional. He will most likely resist confirming more than one candidate, basing himself to Constitution art. 179(2).

However, Law 8577/2000 “On the Organization and Functioning of the Constitutional Court of the Republic of Albania,” states:

Art. 7/b(4) The President shall, within 30 days of receiving the list from the Justice Appointments Council, appoint the member of the Constitutional Court from the candidates ranked on the three first positions of the list. The appointment decree shall be announced associated with the reasons for the selection of the candidate. Where the President does not appoint a judge within 30 days of the list being submitted by the Justice Appointments Council, the candidate ranked first shall be considered as appointed.

The KED, Albanian government, the European Commission, and the US will, therefore, wait 30 days and subsequently consider the other two presidential candidates confirmed as per the above article. At the same time, Parliament will have no doubt confirmed the other three candidates proposed by the KED with a 3/5 majority, which brings the Constitutional Court to a quorum of 6.

This new Constitutional Court will subsequently validate the elections and, if Rama is lucky, fire President Meta. The EU and US bureaucrats will have solved the greatest issue with their botched reform and thus saved their careers and face, while Rama can present the Constitutional Court as a grand accomplishment worthy of opening accession negotiations.

Meanwhile, he will fill the Presidency with a Socialist puppet, at which point he will have captured the Constitutional Court, Presidency, Parliament, local government, and electoral institutions.

This is Palmer’s “opportunity” to create a Constitutional Court before the end of July. Because Rama couldn’t care less about violating the Constitution, he promised to the international bureaucrats this:

you give me the elections, I will get you your Court; you “tolerate” the illegality of holding local elections in violation of a Presidential decree, and I will “tolerate” the creation of a Constitutional Court in violation of the Constitution.

In this scenario, everyone except the Albanian people and the rule of law will win.

This will need to be prevented at all costs.