From: Ilmi Rehova
The National Theater Project Is Legally Sanctioned Theft

Prime Minister Edi Rama has decided to follow through with the plan to demolish the National Theater building, making way for the largest construction project in the center of Tirana.

Having reached a personal agreement with the private company Fusha shpk, Rama has now made all the arrangements: the expropriation of public land, the new National Theater building project, and the projects for the skyscrapers that will be built around it. However, in order to mask the fact that everything has been decided and arranged by Rama, he himself, as well as Tirana mayor Erion Veliaj, Minister of Culture Mirela Kumbaro, and several other ministers and high officials of the administration are pretending to be in the process of reviewing a project presented to them by a private investor.

In order to legitimize these informal decisions, Rama has decided to sanction them via a special draft law, which, besides the obvious damage it will do to the National Theater, will also serve to set a dangerous legal precedent with regards to public vs. private interests.

Rama’s aim to set precisely such a precedent is clear, as can be witnessed by the fact that the current draft law itself is based on three equally problematic and failed precedents from the Rama government.

A paralyzed Constitutional Court

At a time when the Constitutional Court has been rendered paralyzed, Rama’s pet law will be institutionally uncontestable, and, as a result, final. The draft law has been sent to the Parliament via an expedited procedure, with the obvious purpose to be passed and enforced before the Constitutional Court becomes functional again, which would potentially hinder Rama’s plans.

In fact, the hurried manner in which the law is being pushed in Parliament in order to be passed it goes on break at the end of July, is a clear indicator of Rama’s intention to tear down the building in August, during the peak of the vacation season, when a large part of Tirana citizens will be out of town.

When it comes to its contents, Rama’s draft law does not abide by any legal writing standards and ignores any and all existing legal basis and public policy, including policies passed by Parliament itself.

In essence, the law is nothing but a procurement decision, awarding a no-competition, direct negotiation contract to a predetermined, private company. The contract includes, among other things, the expropriation of public land, while sidestepping all the legal provisions that would normally accompany such an action.

Three dubious precedents

The draft law proposes a procurement and contracting method that has no legal basis. The current legal framework provides definitions for all kinds of procurements and contracts, as well as their respective procedures, that the public administration may use in order to procure services, goods, and investments. Both the legislation regarding concessions and public-private partnerships, as well as the legislation regarding public procurement, alongside several other laws, including those regulating the sale and expropriation of public property, make these contracts possible.

However, all existing legislation dictates that public and fair competition must be the basis of public procurement. It is precisely this competition process that the government is now looking to circumvent. This is why the government has chosen to ignore all existing legislation and seeks to pass a special law to legitimate Rama’s personal agreements, reached outside any legal or institutional framework.

This is why the only way the government has been able to justify the draft law is by referring to previous precedent, more specifically three suspect and problematic instances of the Rama government’s own rulings. First is the case of the contract for the construction of the Rruga e Arbrit highway, signed by the government and a Chinese company, but never carried out. Second is a suspect project for the construction of a port that would be even larger than the Port of Durrës, in Karpen, Kavaja. The contract was signed three years ago by an English shell company whose capital totalled €150, and was seemingly aimed more at expropriating public land, than any tangible investment. Third is the contract for the construction of the Vlora port, signed by a Turkish consortium. Nothing else is known about this particular contract.

Bypassing local government

However, the main problem with the government’s draft law is the fact that it not only ignores existing legislation, but, more importantly, is in conflict with the Constitution, as it violates the decentralization principle and the autonomy of local government, usurping the local government’s Constitutional competences.

The draft law dictates the expropriation of the public land owned by the Tirana municipality and grants that land to Fusha shpk. However, art. 13 of the Constitution determines that the local government is founded “upon the basis of the principle of decentralization of power and is exercised according to the principle of local autonomy.” Meanwhile, Constitution art. 113 clearly dictates that the communal, municipal, and regional councils “exercise property rights, administer their income independently, and are entitled to exercise economic activity.”

These Constitutional principles are further elaborated on in Law no. 139/2015 “On local self-government,” art. 54 of which clearly dictates that the expropriation or usage of public property to the favor of third parties, falls within the jurisdiction of the municipal council, and can only be approved if 3/5 of the council vote for it. This is an organic law, passed by a two-thirds vote in Parliament, and overrides any simple-majority approved law like the National Theater’s draft law. What this means is that the Parliament cannot pass any law that contradicts the above via a simple majority.

The unconstitutionality of this draft law may be challenged at the Constitutional Court, but the latter has been paralyzed for months and isn’t likely to change before next summer. This is precisely what Rama is trying to take advantage of in his attempts to legally rob Tirana’s public assets.