The ruling Socialist majority in Albania passed changes to the Law on Constitutional Court that make it unnecessary for court members to swearing in, in person, before the President of the Republic. As Exit News has explained two months ago, these changes violate the Constitution and the basic principles of the rule of law.
Government-proposed changes approved last night stipulate that: “if a member of the Constitutional Court is not called upon to take an oath by the President within 10 days, […] he shall take the oath in writing and forward it to the President of the Republic, the designated body and Constitutional Court.”
The new law will have retroactive effect; it will apply to Constitutional Court members who have been elected but have not sworn in before the president. With the entry into force of this law, “they shall swear by the rules of this law”.
Justice Minister Etilda Gjonaj defended the changes, claiming they were not in violation of the Constitution.
The way Constitutional Court members take their oaths is laid down in the Constitution, therefore 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. Any such law passed 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.”
The latest changes appear to be primarily aimed at creating an unconstitutional legal remedy to impose Arta Vorpsi as Constitutional Court member, as it takes retroactive effect that makes 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.