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President's of the Republic role in ensuring the rule of law
Section 5. Administrative law
Bano Elona, Phd Candidate in Law Marin Barleti University, Tirane Phd Candidate in Law, Faculty of Law E-mail: [email protected], [email protected]
President's of the Republic role in ensuring the rule of law
Abstract: usually in ex-communistic countries the issues as rule of law and democracy are frequently used by lawyers and not only. One of the most important point in these discussions is the democratic reformations of institutions, and the Institution of the President of Republic in Albania is one of those who had and will have after the judiciary reform a new dimension and new competences. On the European way of improvement it's state Albania is making a lot of reforms and the most important one seems to be the complete decentralization, even the abolition of all the essential competences of the President of Republic dimensioning it more as an symbolic institution than as a guarantee of Constitution and balance between all the three powers.
Keywords: President of Republic, Rule of law, Constitution, Albania.
A historical overwiew of the role of the president in various state forms Since the creation of Albanian state on 28 Novemver 1912, Albania has witnessed different governing models, including the international protectorate, monarchy, party regime — state (communism) and parliamentary republic. During this period the function of the President and the Head of State is exercised in different forms.
In 1912 was estabilished the first government by Ismail Qemali at the top of the state, which had the powers of the Head of State. On February 6, 1914 the Conference of Ambassadors appointed Prince Wilhem Wied as Chairman of the Albanian State. In the period September 1914 January 1920, Albania became a battlefield by changing several governments, where the duty of the Head of State was covered by various government — appointed units. At that time in Albania the principle of balanced powers and independence between them was not applied usually by the Albanian legislation. On January 8, 1920 the Congress of Lushnja elected the High Council of 4 people, who will perform the functions of Head of State by restoring parliamentarism. In 1924, Fan Noli was elected head
of government, exercising the functions of Head of State. After frequent changes in government, on January 31, 1925 the National Assembly approved the republican form of regime and voted Ahmet Zogu as the President of the Republic.
President of the Republic in the years 19251928 had very broad prerogatives, being recognized as the only executive power and at the same time President of the Republic [1]. In this period, we have a monopoly of power in the hands of a single individual, regardless of Article 1 of the Basic Statute defined the political form of the Albanian state and appointment as “parliamentary republic directed by a President”. However, we are inclined to believe after a whole analysis of the Basic Statute of the powers of the head of state of turning the country into a “presidential parliamentary republic” after the Albanian government for three years worked like a presidential republic rather than a parliamentary republic. This presendencial mood evidenced the fact that unless the fact that the President was the head of state, he was both head of government, all these characteristics of presidential republics.
On September 1, 1928 Albania was proclaimed Monarchy and Ahmet Zog the King of Albanians.
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After the occupation of Albania by Italy in April 1939 and the merger of the two countries, Victor Emmanuel III became King of Albania. 1943’44 under German occupation the governance — regency returned [2].
End of World War II and the liberation of Albania in 1944 were associated with the first parliamentary elections in December 1945 and the function of Head of State was given to collegial body with the name the Presidium of the National Assembly.
The Presidium of the National Assembly was a collegial body, on loan from the Soviet Union with a purely formal significance for the practical exercise of power, although the sight de jure powers constitutionally recognized as the exercise of legislative power between the two sessions of the National Assembly, appointment and dismissal of ministers, control over government. This type of chairing the state was in the collegial form to ensure as much participation and democracy on the one side, but on the other hand only hide political commands and directives of the Party which come from a single individual, the dictator E. Hoxha. So even though the former collegial body, the decisions were taken by a dictatorship ego. Characteristic ofthis period was the principle of the unity of power upon which the entire state organization has concentrate the power in the hands of representative bodies such as the National Assembly and People’s Councils. But in everyday practice, especially executive function performed under the administrative and technical bodies which implement laws passed by the National Assembly and the acts of government was rarely based on people’s decisions.
The Constitution of 1976 proclaimed the principle of unity of power, instead of division of state powers and balance between them. The role of the state party was an essential one, and it’s not only the executive and legislative control, but with the abolition of the Ministry ofJustice in 1966 with the decision of the Political Bureau, made the judiciary power to totally depend on politics. The role of the First Secretary of the Central Committee of the Labour Party was greatly strengthened, having already passed the powers of any head of state, whether president or king. Given the fact that
the army was strengthed by one side, and by the other existed the desire to centralize everything in the hands of a single individual, the Constitution of 1976 stipulated that “First Secretary of the Party Committee of Labor of Albania is General Commander of the Armed Forces and Chairman of the Defence Council” [3].
Albanian Constitution in its Article 1 paragraph 1 states that Albania is a parliamentary republic. This stipulation agrees that the head of state will be just the president of the republic and in accordance with the coming article 86, section IV, dedicated to the President of the Republic where the sovereign (populations) confirmes that the President of the Republic is the Head of State and represents the unity of the people. So unless a constitutional role of president of the republic has a symbolic significance in terms of a country’s population, since the notion of people in international public law includes not only the citizens of a particular state but Residents, migrants, asylum seekers, not just nationals Albanians but also minorities.
Beginning from a comparative analysis the Albanian constitution is much more concise in presenting the basic principle of national unity by connecting it automatically with the institution of the president, while other constitutions like that of Romania (Romanian Constitution, art 4, parag.1 stipulates: “the nation unit, the equality between citizens: state is based on Romanian people's unity and solidarity between Romanian Citizens") [4], Moldova (Moldavian Constitution, Art 10, paragraph 1 stipulates: „People’s unit and right to identity: state is based on peoples of Moldavia Republic unit. The Republic of Moldavia is the common and impartial fatherland of all its citizens") [5], Hungary do not necessarily tie institution of the president with people's unity, this may be because of their problems with minorities and they are obliged to stipulate imediatly on their constitutions the principle of national unity as the main principle of the existence of these countries.
President of Albania is a factor in the life of the country balance by standing upon the three powers and at the same time not become involved in any of them. Article 69 paragraph 1, of the Albanian Constitution prohibits to run or to be elected as
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President's of the Republic role in ensuring the rule of law
deputy without renouncing to the mandate, also in Article 89 is providet that: the President of the Republic may not hold any other public function, can not be a member of a party or carry out other private activity.
All these restrictions are intended to ensure the independence and to inaccurate largely peaceful exercise of his duty. So as a mediator between institutions, the President of the Republic, forms a neutral power, which does not participate in any of the three classical powers but is placed upon them. On the other hand must be very careful in respecting the principle of balance of powers and non-interference, thus would notice different styles of presidents, some less and some more active reserved but always within the limits prescribed by the legal framework of its constitutional powers. However, we conclude that although the constitutional provisions about the role and powers of the President are clear no presidential mandate can not be likened to another by way of exercise, as it depends on how the personality of each presidentis, and also depends of the political circumstances
Basic functions of head of state in Albania
1) Symbolic function. Apparently, this function does not represent any particular importance, but in fact constitutes one of the essential elements of the head of state, being primarily a symbol of the unity of the nation, this function based on Article 86 of the Albanian Constitution.
2) The guarantor ofthe Constitution. The main role of the President is precisely the guarantee of the constitution, other laws and the rights and freedoms of citizens. President exercises this function not only as a constitutional competence de jure but also de facto it has been awarded a 5-year term, which lasts more than that of other institutions, including the parliament. The longest term of the President of the state is intended to represent the continuity of the state and facilitating the transition of changing situations or politic powers.
3) The function of the arbitrator. Not being part of any of the three major powers as well as being chosen after a process mainly by consensus, the role of arbiter of the president takes a very special significance. The president is the main authority which has all legal and constitutional entitlements
to operate between political forces and to seek real cooperation between them, determining them to arrive at a political consensus [6].
Cases of guaranteeing the rule of law by the President
President of the Republic in January 2005 addressed to the Constitutional Court for interpretation of Articles 124 and 134 of the Constitution of Albania, regarding the procedure that should apply Albanian Parliament to review the decrees on the appointment of members of the Constitutional Court and the Supreme Court, and that body has the right to withhold consent to these appointments, beyond the criteria defined in the Constitution and relevant laws. The representative of the Institution of the President has claimed, that: “The Role of Parliament in this process is to verify whether the appointment is made based on criteria defined by the Constitution and the law, because the body can’t connect consent other criteria. The Constitution has left to the President of the Republic the competence of candidate selection. Consequently, the receipt of this attribute by Parliament is beyond the powers and rights conferred by the Constitution” [7].
Then the Assembly of Albania with Decision No. 138, dated 15.07.2004, decided not giving consent to the appointment of a member of the Constitutional Court which was selected by the President of the Republic. In these circumstances, the President of the Republic has requested the interpretation of Articles 125/1 and 136/1 of the Constitution of the Republic ofAlbania.
This way the consent given by the Assembly on the decrees of president on appointments of judges in Higher or Supreme Constitutional Court aren't just formal but first of all are substantial. This way the parliamentary commissions which are competent to investigate on the candidatures appointed by the President have the possibility to not consent to these candidates. However, we believe that this is an improper practice because in way to implementation of constitutional principles like the principle of mutual control on balancing between constitutional bodies, parliamentary control on the Decrees of the President for the appointment of judges of the Constitutional Court and those of the Supreme Court, differently by the
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case of the appointment of ministers, has strictly formal character.
Conclusions
Referring to the role of President in Albania, after a totalitarian regime for more than 60 years, and being thirsty for a democratic republic is very interesting, because Albanian judiciary system passed already in many grades: the Constitutional laws of 1991-1993, the Constitution of 1998, constitutional amendments of 2008 when was unfortunately decided that the president of republic can be elected not exclusively by 2/3 of the votes of Parliament, but after 3 unfortunate rounds can be elected on the fourth or fifth round only with У votes of Parliament, otherwise after the 5-th unfortunate round Albanian Parliament may go in new elections [8]. The Albanian Constitution of 1998 is the only one that was a result of a referendum, and this because the main question in this Constitution was: Must Albania be a Monarchy or a Republican State? This was very important after the return of the prince of Albania Leka Zogu I-st. The result of the referendum was the maintenance of the republic form of state.
Another big issue for the Institution of President of Republic is the Fact that he actually in Albania is not only the symbol of the unity of the state but also the head of the High Council ofJustice being responsibility for the independence of the judiciary. Nowadays in Albania is running a very important reform in judiciary, where one of the main points is the Institution of President of Republic. In 2014 by implementing new laws regarding the Army and Authorities on Military Bodies, Law on International Service, and Law on Public Servant Service the competences of the President where limited a lot, and this new reform in judiciary foresees that the competences of the President will be limited in continuity.
In conclusion ofall above the Albanian Institution of President of Republic is under a new legislative reform, but this time Albanians may be very carefully this time in understanding that this Institutions is not only a symbolic one but is a guarantee on the implementation of constitutional principles and rule of law.
References:
1. Art 2 of Basic Statute of the State: the executive power was a prerogative of the Head of the Republic, which exercises this power through ministries.
2. [Electronic source]. — available from http: http://president.al/?p=281
3. Constitution ofAlbanian Popular and Socialist Republic, Tiranä 1976.
4. Romanian Constitution
5. Moldavian Constitution
6. Omari L., Anastasi A. Constitutional Right, ABC Edition, Tirane 2010, pg. 134.
7. Decision of Constitutional Court V-2/05 dt 19.01.2005.
8. Omari L., Principles and Institutions of Public Law, Editions Elena Gjika, Tirane, 2007. Constitution of Albanian Popular and Socialist Republic, Tirane 1976, pg. 116.
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