Perikli ZAHARIA

THE POST –  1989 CONSTITUTIONAL COURSE OF SOUTH EAST EUROPE

Albania achieved its Independence on November 28, 1912. Prior to this time Albania was part of the Ottoman Empire. The first constitutional acts by which the new state was created were the decisions of the National Convention (Kuvendi Kombetar) of Vlore, which established the composition of the first government.

The existence of Albanian Independence was recognized after the first Balkan War, which ended with the Treaty of May 30, 1913. As it was decided at the London Conference of Ambassadors, the sovereignty of Albania was under the protection of the six great powers: Austria, England, France, Germany, Italy and Russia. At the same time, an International Control Commission was created.
A Constitution (Statuti Organik) for the new State, consisting of 216 articles, was elaborated in 1914 by the International Commission. Albania was designated as a hereditary constitutional monarchy. The power of legislation was entrusted to a National Assembly, while the executive power was vested in the Council of Ministers, who were to be appointed by the Prince and accountable to him only. The Ottoman administrative organization , with few exceptions, remained basically unchanged.

A new Constitution was drawn in 1920 by a National Congress (Kongresi i Lushnjes), which established the High Council of State (Keshilli i Nalte), as a collective head of State composed of four members. It also established a Senate and as to the form of regime, it left it unchanged, a Constitutional Monarchy.

An expanded Statute of Lushnja (Zgjerimi i Statutit te Lushnjes) consisting of 129 articles was approved and passed in 1922 by the National Council (Keshilli Kombetar), the first Parliament of Albanian State to come out of the first general elections.
The Special Law on the Organization of the Judicial System was enacted in 1923. General Elections were held for a Constitutional Assembly (Kuvendi Kushtetues). On January 21, 1925 the Assembly proclaimed Albania a Republic and on January 31st, Ahmet Zog was elected by the Assembly, to be its first President.
The assembly then set out to draft the Fundamental Statute (Statuti Themeltar) of the Albanian Republic promulgated on March 7. The new Constitution consisted of 142 articles.
The bicameral Legislature was disbanded and new general elections were held on August 17, 1928 for a new Constitutional Assembly to revise the Constitution. The newly elected Assembly met on August 25, and it came up with a new Fundamental Statute of the Kingdom of Albania (Statuti Themeltar i Mbretnis Shqiptare) which proclaimed Albania to be a “Hereditary, Democratic, Parliamentary Monarchy,” and Ahmet Zogu as “King of the Albanians.”

On April 7, 1939 Albania was invaded by Italian Armed Forces and Ahmet Zog fled the country. On April 12, 1939 a puppet Constituent Assembly offered Albania’s “throne” to King Vittorio Emmanuele III. Albania was declared to be a “Constitutional Monarchy, hereditary in the House of Savoy.” On June 3, 1939 King Vittorio Emmanuele “gave” Albania a new Constitution : the Fundamental Statute of the Kingdom of Albania.

After Fascist Italy’s collapse in September 1943, German troops moved in and took over the country. Nominally the independence was restored and the Constitution of the Kingdom of 1928 was reestablished. The State was headed by a Council of Regency.

On November 29, 1944 Albania was officially liberated. Enver Hoxha was declared the Premier of the Communist “provisional government”. The Communists had come to power under as “representatives of the National Liberation Front.” In August 1945, at its first Congress, the name of the Organization was changed to the Democratic Front. The Constituent Assembly elected in the post-war special general elections held on December 2, 1945, decreed the abolition of the Monarchy and proclaimed Albania as a “People’s Republic” on January 11th, 1946.
On March 14, 1946 the Constituent Assembly adopted the text of the Constitution. A new-elected People’s Assembly replaced this Constitution with a new, revised text on June 29, 1950. The changes made were so extensive that people have even referred to it as a new Constitution.
In November 1971, Enver Hoxha, The First Secretary of the Communist Party declared that the Constitution no longer reflected the social reality of Albania and should to be completely revised.
However, decisive action was not taken until four years later, when a committee was established (in November 1975) by the People’s Assembly in order to prepare a new draft Constitution, which was published on January 21, 1976. The new Constitution of Albania consisted of 112 articles was approved by the People’s Assembly on December 28, 1976. The overthrow of hard line communist rule across Eastern and Central Europe in November-December 1989 influenced Albanian authorities to approve through the People’s Assembly a package of reforms in the legal, judicial and economic fields. Among these were the freedom of practice religion, the freedom to travel abroad, the re-establishment of both the Ministry of Justice and the Institute of Defense Lawyers, and the approval of foreign loans and joint investment.

Albania emerged from a totalitarian dictatorship in 1991. Its last Communist Constitution, that of the year 1976, was repealed on April 29, 1991, less than a month after pluralist parliamentary elections took place for the first time in over half a century. As the other countries of East and Central Europe, Albania tried to establish a new Constitution, which should reflect the change of political system. However, a new Constitution was not immediately adopted, because of the political situation existing in that time. Instead, a constitutional law "On the Main Constitutional Provisions" was approved. This law provided political pluralism, the separation of powers, the fundamental human rights and freedoms as recognized by international documents. It was also declared that Albania would be based on the Rule of Law.

It was thought that a complete new Constitution would be prepared and adopted in a relatively short time. The People's Assembly appointed for this reason a parliamentary Commission. The working group composed of specialists included in that Commission and the successor one appointed by the People's Assembly elected in March, 1992, prepared some drafts of the new Constitution.
Meanwhile, the Law "On the Main Constitutional Provisions" was amended concerning parliamentary elections, the powers of the President of the Republic, the organization of the judicial system and establishment of the Constitutional Court for the first time, the local government, the State Control (Audit) Commission and that concerning the fundamental human rights and freedoms.
The draft Constitution approved by the parliamentary Commission was not presented to the People's Assembly. It was submitted to popular referendum, where it was defeated (November 6, 1994). Therefore, Albania continued to be governed by the Law "On the Main Constitutional Provisions", as amended.

The civil unrest in 1997 led to new parliamentary elections in Albania, which were held in June of that year. After this time Albania turned again to the question of adopting a new Constitution.
Several of the drafts that had been prepared were collected, those of January 1993, "the referendum draft" of November 1994 and the draft of February 1995. The latter one which was prepared after the defeat of the referendum draft by a group of experts appointed outside of Parliament by different political forces.

All those drafts were used by the new Parliamentary Commission appointed by the legislator, which was elected by general elections in June 1998.
Different experiences of the western, liberal democracies were taken into consideration during drafting of the new Constitution.
Thus, the draft presented to the Assembly was based on the particularism and universality or in other words, on one hand on Albania’s own history, traditions, politics and cultures and on the other one on the experience of other countries. So, the Constitution’s drafters looked both within and beyond their country’s borders and believed in Constitutionalism, that is the government power should be limited so as to protect human rights.
The constitutional process was terminated in the approval of the new Constitution of Albania by the Assembly, which submitted it to a popular referendum, where it was approved too. On November 28, 1998, the new Constitution was promulgated by the President of the Republic.
Since that day and on Albania is governed by the new Constitution, which is not yet amended.
The new Constitution is consisted of 183 articles and constitutes Albania as a Parliamentary Republic (although it has been accepted since April 1991, when the law "On the Main Constitutional Provisions" was adopted.
It is declared in the preamble to the Constitution that, “We, the people of Albania ... with faith in God ...with determination to build a social and democratic state based on the rule of law, and to guarantee the fundamental human rights and freedoms ...”

The separation of powers and checks and balances are provided under this Constitution in an effective way, so as to work really in a parliamentary republic and to guarantee the independence and impartiality of the Judiciary.

The new Constitution has established a superior status of the European Convention on Human Rights comparing with itself.
Under article 17 of the Constitution, “limitation of the rights and freedoms provided for in this Constitution may be established only by law, in the public interest or for the protection of the rights of others. A limitation shall be in proportion to the situation that has dictated it. This limitations may not infringe the essence of the rights and freedoms and in no case may exceed the limitations provided for in the European Convention on Human Rights.
There are specific constitutional provisions for the protection of persons who belong to national minorities. It is provided for that these persons exercise the human rights and freedoms in full equality before the law. They have the right freely to express, without prohibition or compulsion, their ethnic, cultural, religious and linguistic belonging. They have the right to preserve and develop them, to study and to be taught in their mother tongue, and to unite in organizations and associations for the protection of their interests and identity.
The Ombudsman’ Office called People’s Advocate is established for the first time under the new Constitution to defend the rights, freedoms and legitimate interests of individuals from unlawful or improper action or failure of act of public administration.

Under the new Constitution the dualist system of law was replaced with the monist one. The priority is given to international law. Article 122 of the Constitution provides for: “Any ratified international agreement constitutes part of the internal legal system after it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of a law. An international agreement ratified by law has priority over the laws of the country that are incompatible with it.
The norms issued by an international organization have priority, in case of conflict, over the law of the country when the direct application of the norms issued by the organization is expressly contemplated in the agreement ratified by the Republic of Albania for participation therein.”

Under article 123 of the Constitution the Republic of Albania delegates to international organizations state powers for specific issues on the basis of international agreements. The new Constitution established again a unicameral legislator called “Assembly”, which consists of 140 deputies.
Parliamentary elections system was provided in order to guarantee always a stable situation, without favoring a political party in power. Thus, one hundred deputies are elected directly in single member electoral zones with an approximately equal number of voters. Forty deputies are elected from multi-name list of parties or party coalitions according to their ranking.
The total number of deputies of a party or a party coalition shall be, to the closest possible extent, proportional to the valid votes won by them on the national scale in the first round of elections. Parties that receive less than 2.5 per cent, and party coalitions that receive less than 4 per cent of the valid votes on the national scale in the first round of elections do not benefit from the respective multi-name list.

President of the Republic is the Head of State and is elected by the Assembly for 5 years, with the right to be reelected only once. He is the Commander-in-Chief of the Armed Forces. In time of peace the President of the Republic exercises command of the Armed Forces through the Prime Minister and the Minister of Defense. In time of war he appoints and dismisses the Commander of the Armed Forces on the proposal of the Prime Minister.
He is the chairman of the High Council of Justice. He nominates the justices of the Constitutional Court and the High One and then the Assembly gives its consent.

The Prime Minister is appointed by the President of the Republic on the proposal of the party or coalition of parties that has the majority of seats in the Assembly. The new Constitution provides the delegation of legislative power from the Assembly to the Executive in case of necessity and emergency, where a normative act having the force of law may be issued by the Council of Ministers, under its own responsibility, for taking temporary measures. But these normative acts are immediately submitted to the Assembly, which is convened within 5 days if it is not in session. These acts lose force retroactively if they are not approved by the Assembly within 45 days.

When the assembly cannot convene during a state of war, the President of the Republic, on the proposal of the Council of Ministers, may issue acts having the force of law, which shall be approved by the Assembly at its firs meeting.
Some more guaranties are provided for the independence of the Judiciary by the new Constitution.
 
A justice of the Constitutional or High Court can be impeached by the Assembly by two-thirds of all its members, but the decision of the Assembly is reviewed by the Constitutional Court.

A judge may be removed by the High Council of Justice, which belongs to the Judiciary (at least two thirds of its members are judges), but the judge has the right to appeal this decision to the High Court, which decides in the joint colleges.

The control of constitutionality of laws is also considered by different courts, but if judges have the opinion that a law is unconstitutional, they suspend the proceedings and send the question to the Constitutional Court. Decisions of the Constitutional Court are binding on all courts.

This is what I thought to mention on the Constitutional Course of Albania expressing my appreciation of the hard work done by Albanian and foreign experts on all the drafts prepared over the course of the years in the struggle to establish a real democracy in Albania.
 

Perikli ZAHARIA
Justice of the High Court of Albania
 
 

Athens, March 24th 2003