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Section 8. Science of law
DOI: http://dx.doi.org/10.20534/AJH-16-9.10-78-85
Gerti Shella,
Center for Public Information Issues of Albania, Director PhD candidate in Public and Constitutional Law European University Of Tirana E-mail: gshella@infocip.org
Right to information in Albania, from creation to evolution
Abstract: The Right to Information is considered fundamental human rights, expressed and guaranteed by numerous international treaties. In addition to adopting all relevant international conventions, Albania is one of those countries having both constitutional and legal guarantees on the Right to Information. The sanctioning of the right to information in Article 23 of the 98' Constitution distinguishes Albania from many countries where the right to information is provided only simple by law. In its early beginnings RTI was introduced to the inner corpus of legislation from the top-down, by the political elite, in reflection to numerous international conventions and to the new adopted constitution. The first Albanian RTI law of '99, failed though to produce the intended effects. A new law "On the right to Information" was enacted in 2014, this time as "bottom-up" process advocated entirely from the local civil society.
Keywords: Right to Information, Albania, civil society, Constitution of Albania.
1. Introduction the member states of the Council of Europe, in its
The Right to Information is widely considered as Paragraph 1 of Article 10 gives a reformulation and one of the fundamental human rights, expressed and emphasis of the provision of article 19 of the Univer-guaranteed by numerous international documents. sal Declaration of Human Rights: "Everyone has the In its very first session in 1946, the UN General right to freedom of expression. This right shall include Assembly adopted the Resolution 59 (I), stating: freedom to hold opinions and to receive and impart in" Freedom of information is a fundamental human right formation and ideas without interference by public and ... the touchstone of all the freedoms to which the authority and regardless of frontiers [3-11]. Interna-United Nations is consecrated [1, 1]". The UN Special tional Covenant on Civil and Political Rights also Rapporteur on Freedom of Opinion and Expression, recognizes and guarantees the right to informa-Abid Hussain, stated in his 1995 Report to the UN tion in its article 19 [4, 178]. Commission on Human Rights that: Freedom will The Council of Europe Declaration on Freedom be bereft of all effectiveness if the people have no access of Expression and Information, 1982, states acto information. Access to information is basic to the cess to information as a priority in the activity of democratic way of life [2, 10]. the Council of Europe. This statement sets forth the
In many international documents enacted and main principles regarding the right to information
adopted since then, RTI appears the inalienable and the role that this right plays in the society "as a
right, calling for few restrictions as possible. Euro- necessary condition for the development of society". The
pean Convention of Human Rights, compiled by main objectives of members states, in the framework
of principles envisaged in this declaration are: lack of censure/control on the participants in the process of information, pursuit of an open policy in the public sector, including access to information, existence of a variety of independent and autonomous media, access to information and implementation in a national level [5, 1-2]. The International Covenant on Civil and Political Rights (ICCPR) guarantees the right to freedom of opinion and expression also at Article 19 [6, 178], in terms very similar to the UDHR.
The Aarhus Convention [7, 1], firmly established in its very title the commitment and obligation that arises for signatories to respect the right of the public to information on environmental issues. The "European Charter on Human Rights" [8, 403-404] adopted at the Nice Summit in December 2000, is the first official text in the world in the field of human rights, which officially sanctioned the right to good administration as a fundamental human right. The provision in this Charter of the right of good administration (Article 41), the right of access to official documents (Article 42), of the Institution of Ombudsman (Article 43), are a new and significant development in the development of human rights within the European Community. Other international conventions and protocols also have referred to the RTI as right in solidarity with other important rights.
The Recommendation 2002 (2) of the Council of Europe on Access to Official Documents [9, 1-20] specifies the right to information, with a focus on the right to access official documents. The general principle of this recommendation is that member states must guarantee the right of all to access, pursuant to the request, official documents which are held by public authorities. The Council of Europe Convention "On access to official documents" [10, 1-8], established informative obligations for subjects, such as legislative bodies, judicial authorities, as well as natural or legal persons, to the extent of their public functions, or when operating on public funds, pursuant to the domestic legislation.
All conventions are mentioned above are adopted, ratified or adhered to by the Albanian Parliament. As a matter of fact, adopting of as many as
possible international treaties and conventions was considered of imperative importance during the transition period in Albania. Once adopted by the parliament, according to Albanian legislation such treaties and conventions were integral part of the inner corpus of legislation. Such acts had the upper hand over the laws. Since the Albanian state inherited many laws from the former communist regime, the international conventions were seen and perceived as a guaranty that stick to the new democratic course the country had just entered after the '90-s.
In addition to adopting the above mention international conventions, Albania is one of those countries having both constitutional and legal guarantees on the right to information. The sanctioning of the right to information in Article 23 of the Constitution distinguishes Albania from many countries where the right to information is sanctioned only by law. The process of drafting the Constitution anticipated and preceded the process of drafting and adopting the RTI legal framework in Albania. For this specific reason, the position and influence of stakeholders shall be analyzed in this article not only within the frame of drafting the RTI legislation, but starting with the process of drafting the Albanian Constitution.
The current Constitution, approved by referendum, entered into force in November 1998, and only 7 months later the Assembly (parliament) approved the Law No. 8503, dated 30.6.1999 "On the Right to Information to Official Documents". In this regard, the discussion and approval ofLaw No. 8503 was an echo of the Constitutional enacting process.
2. The Constitutional framework on RTI
The first efforts to establishing a new constitutional and legal framework which included the right to information in Albania date back to the fall of the totalitarian communist regime, in 1990. Albania ratified the International Covenant on Civil and Political Rights (ICCPR) in 1991. The ICCPR a formally binding legal treaty guarantees the right to freedom of opinion and expression also at Article 19, in terms very similar to the UDHR. By ratifying the ICCPR, State Parties agree to refrain from interfering with the rights protected there in, including the right to freedom of expression. However, the ICCPR also
places an obligation on State Parties to take positive steps to ensure that rights, including freedom of expression and information, are respected. Pursuant to Article 2 of the ICCPR, States must "adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant." This means that States must create an environment in which a diverse, vigorous and independent media can flourish, and provide effective guarantees for freedom of information, thereby satisfying the public's right to know.
Law No. 7491, dated 29.04.1991 "On the main constitutional provisions" abrogated the communist Constitution of 1976. The right to information was sanctioned for the first time ever in Albania by Law no. 7692, dated 31.03.1993 "On an appendix to Law No. 7491, dated 29.04.1991 "On the main constitutional provisions". This Law produced a number of amendments to the Main Constitutional Provisions; a separate Chapter was added, titled The fundamental human rights and freedoms [11,145]. Article 2 of this chapter, in the section "Right to freedom of expression' stated and provided that: "The right to information shall not be prohibited to anyone".
Thus, the starting point of introducing the right to information in the Albanian legislation dates back to 1993. At the time when the new political class in Albania adapted these changes of great importance, the civil society in post — communist Albania was in an embryonic stage; it was not developed yet to the extent that could play an influential role on the adoption of this particular right in the inner corpus of legislation. It needs to be pointed out that, during that period, the freedom of information itself had only just started to be identified separately from the freedom of expressions even in countries with a well-developed democracy. In the earlier international human rights instruments, freedom of information was not set out separately but was instead included as part of the fundamental right to freedom of expression. For this reason, it can be affirmed that RTI in Albania, in its early beginnings was introduced into the inner judicial system by the new political elite. Though it was not very well refined or fully understood, the political will to adopt as many western principles, as embodied in the
Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) was unquestionable. The adoption therefore was made from the top-down (or even from the outside-in), instead of being the role or pressure of the civil society (from the bottom — up). This a strong characteristic to be pointed put when assessing RTI evolution process in Albania. In India for example, the passage of the RTI law was rooted in a strong grassroots movement that gained national momentum in the early 2000 s, it was consequently embraced as a key platform by a major political party. The Indian Parliament enacted the Right to Information Act 2005 (RTI Act) on May 10, 2005 [12, 55].
Despite strong political will to adopt such fundamental principle in the new emerging domestic legislation, the first draft of the post — communist Albanian Constitution, developed by the majority in power at the time (Democratic Party) did not manage to get parliamentary support nor public consent in the referendum organized for this purpose in 1994. The current Constitution of the Republic of Albania was enacted and adopted by referendum only 4 years later, in 1998.
This Constitution makes a clear distinction from the right to expression and the right to information. Article 22 of the Albanian Constitution guarantees freedom of expression as follows: 1) Freedom of expression is guaranteed; 2) Freedom of the press, radio and television is guaranteed; 3) Prior censorship of means of communication is prohibited; 4) The law may require authorization to be granted for the operation of radio or television stations. On the other hand, it provides for a specific guarantee for freedom of information in Article 23: 1) The right to information is guaranteed; 2) Everyone has the right, in compliance with law to get information about the activity of state organs, as well as of persons who exercise state functions; 3) Everybody is given the possibility to follow meetings of collectively elected organs.
The article 17 provides for limitations of RTI, but only in accordance with the standards articulated in the European Convention of Human Rights, ECHR: 1 ) Limitations 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; 2) These 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.
In addition to the above, through Articles 5 and 122 of the Albanian Constitution, the rights guaranteed in international treaties adopted by Albania "take precedence (priority) over Albanian inner laws or practices that are incompatible with that treaty". This may be considered an added guaranty with regard to RTI in Albania, given the specific circumstances that adoption of international conventions preceded the adoption of the constitution itself in the now-democratic Republic of Albania.
When Albania was in the process of drafting its Constitution in 1998, many European countries among which the UK and Germany passed laws on the right of access to official documents (about 35 out of the total of 45 countries). In November 1999, the three special mandates on freedom of expression — the UN Special Rapporteur on Freedom of opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression -came together for the first time under the auspices of ARTICLE 19. They adopted a Joint Declaration which included the following statement: "Implicit in freedom of expression is the public's right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people's participation in government would remain fragmented".
The historical moment when the Albanian constitution was drafted (following the 1997 upraise), and the previous failure experiences with a number of draft — constitutions from 1991 to1995, favored the incorporation of most of the universally accepted principles, in many cases with the exact same wording that they are sanctioned in the most important international conventions. The fact that the Albanian Constitution has raised the European Convention on Human Rights at the level of a constitutional norm (Article 17 of the Constitution) is mere evidence. The whole process of drafting the
Constitution in 1998 was observed by the Venice Commission, an important Council of Europe's Advisory Board.
As said earlier, the civil society, due to its embryonic stage of development could not make any influence to the 1994 attempt to adopt a new Constitution, but it did manage to become part in the second try in 1998. Some NGOs, thanks to OSCE, managed to ensure participation in the process of drafting the Constitution. Official records suggest that they even offered concrete suggestions on the right to information. According to track-records of the meeting held on 21 April 1998 by the Parliamentary Commission on the preparation of the draft — Constitution, there were some proposals by NGOs on the "right to information discussion", which were taken into account by the technical staff [13-85]. Proposals aimed at inserting a new article (No. 9) following the article (No.8) on "the freedom of expressions", to sanction the right of information. At the beginning, the paragraph on "the right to information is guaranteed" was attached to article (No.8) on the "freedom of expression', but with the drafting of a separate article (No. 9) on the right to information, this paragraph became integral part of the later. Nevertheless, it is to be pointed out that, even this rudimentary involvement of non — government organizations in the process came as result of the international factor, in our case OSCE, rather than in response to a real pressing need already identified in the Albanian reality of political transition. This detail leads to thinking that the role of the civil society in sanctioning the right to information in the Constitution was more of a formal than substantial nature.
3. The legal framework on RTI
Albania was the first country in the Balkan region to adopt a law on free access to information. This is a significant indicator that speaks in favor of Albanian for willingness to adopting modern legislation, though the "open-government" performance of the country has remained poor compared to both expectances and legal requirement during all these years. With regard to RTI laws, there are many countries, perhaps more democratic than Albanian is, which has not adopted yet RTI legislation till nowadays. According to (www.fredominfo.
org) there were 100 countries listed till September 2014 who have in place or adopted a FOI regime [14, 1].
The first Law on the Right to Information on the Official Documents (Law no. 8503) in Albanian was adopted on 30 June 1999. The law itself consisted of 19 articles, aiming at transposing the constitutional provision contained in art 23. The draft-law "on the Right to Information" was prepared and proposed by the Minister of State for Legislative Reform, Mr. Arben Imami, in the same time, in the meantime former co — chair of the Committee on Constitution Drafting. The civil society was represented in this Committee through a key legal expert, Mr. Genti Brahimi from the Institute for Political and Legal Studies IPLS, a think tank civil society organization, who offered an important contribution. It results that though that only one consulting meeting with civil society stakeholders was organized in the process of drafting the Law No. 8503 which suggest that not just the right to information as separate freedom, but the entire constitution was drafted in politically driven approach from the top-down.
The right to information was often confused with the freedom of expression by the participants in this limited consultation process. This lack of understanding and confusion did not favor a more diverse representation of civil society stakeholders. The know-how of civil society organization was yet to be developed at the necessary levels to first understand and then offer substantial contribution in term of expertise, lobbying and advocacy in the RTI field. On the other hand, the swift drafting of this law in terms of time, did not enable consultations either. Apart from that, at that time Albania also lacked a legal regulatory framework for undertaking consultation processes on separate normative acts.
Another reason for the quick progress in such a short time was the dynamic commitment of the governing coalition (led by Socialist Party). They were motivated by a double need: first, to quickly reform the internal judicial system after the unrest of 1997; second, to demonstrate to the international partners that the Socialist Party itself had undertaken a deep transformation from a communist authoritarian party to an open and democratic political force properly
able to addressing the democratic transition challenges. This "democratic complex" may explain why the laws that were enacted by the Parliament after 1998 guaranteed the freedom of thought, expression and information much better that those adopted immediately after the collapse of the communist regime, by the just founded- Democratic Party.
4. Defects of the Law No. 8503 and failure attempts to amend it
The law did not seem to work satisfactorily since its very beginning. Though it was received especially by the free media (in consolidation by that time), it remained not so-much-known by the broader population. The culture of secrecy in public administration inherited from the communist past is believed to have negatively influence the satisfactory implementation and enforcement of the law since its early stages. Litigations were never abundant, not even by journalists. The law was rarely used -not to say at all- by ordinary citizens. Some civil society representatives argued at that time that the legal framework on RTI was imported "en-block" from outside, thus not reflecting the domestic (inner) needs. Even the first critic reviews regarding implementation of the RTI law in Albania came from abroad. In September 2004, "Article 19", in London, released a MEMORANDUM on The Albanian Law On the Right to Information on Official Documents. The study was commissioned by the Representative on Freedom of the Media of the Organisation for Security and Cooperation in Europe [15, 9-17]. Several recommendations were made to amend the law 8503, as follow:
The Albanian law should apply to a broadly defined group of "public bodies" that should include private bodies which carry out public functions; The law should state that the public has a right to access all records held by public bodies, regardless of the form in which they are stored, their source or the date of production; Article 4 should be completely redrafted to provide for a comprehensive regime of exceptions in accordance with the standards set out by the law. Exceptions should be drafted in clear and narrow terms and protect only legitimate interests; Access should not be refused where disclosure would not pose a serious likelihood of substantial harm to a legitimate interest set out in the Law;
Information should in any case be subject to disclosure unless the harm to the protected interest outweighs the public interest in disclosure; The reasons for any refusal should be required to include substantive grounds for the refusal, as well as information about any rights of appeal; The time limit within which public authorities must respond to requests for information should be shortened; Provision should be made for the appointment of information officers to serve as the focal point for requests in each public authority. These officers should, among other things, ensure access to information for those who cannot read or write, do not speak the language of the record or suffer from disabilities such as blindness;
In addition, the Law should make it clear that requesters have a right to specify the form of access to the information they prefer, and to be given access in that form; Appeals from a refusal to disclose information should go to an independent administrative body with the power to enforce its decisions and, in particular, to compel public authorities to release information where non-disclosure is unjustified; A strict time-limit of 30 days should be imposed for deciding any appeals from a refusal to provide information; The Law should criminalise obstruction of access to, and the wilful destruction of records; The Law should also put in place a system to establish minimum standards for the maintenance of records by public bodies; The Law should be more specific about the types of information public bodies are obliged to publish. In particular, public bodies should be required to ensure that the public are aware of the processes through which they can contribute to the discourse surrounding policy or legislative proposals made by public bodies; The Law should include put in place systems to ensure that the public are aware of their rights; The Law should put in place mechanisms to address the culture of secrecy in government; The Law should be amended to provide protection for whistle-blowers; Protection should also be extended to those individuals who release restricted information as the result of innocent error having acted in good faith.
Based on these first set of recommendations, in 2007, the civil society operators in Albania saw an opportunity to take a more active role in advocating the need for legal changes. Centre for Development and Democratization of Institutions received sup-
port from Justice Initiative, New York (Soros Foundation) for a lobbing process for improving the law 8503. Amendments were made public in March, 6th, 2007, during a meeting of Civil Society Forum, held in Tirana. Even as a result of the civil society lobbying and advocacy, on July 8, 2010 the Parliamentary Committee on Education and Public Information Devices opened a legislative discussion on two draft-proposals. The first one "On same changes and additions to law nr. 8503, date 30.06.1999 "On access to official documents", was submitted by 7 MPs (from both Socialist Party and Democratic Party), namely Mrs.Valentina Leskaj, Mr. Preg Zogaj, Mr. Aldo Bumgi, Mr. Musa Ulqini, Mr. Pellumb Xhufi, Mr. Marko Bello and Mr. Besnik Mustafaj. The second draft (bill), titled "On some additions to law nr. 8503, date 30.06.1999 'On access to official documents: was proposed and submitted by another MP, Mrs. Rajmonda Stefa form the Socialist Party.
The first draft aimed at achieving the RTI for a broader audience by enriching the sources and ways of access to information. The proposal focused also on making shorter the timelines and in the same time provided for broader involvement of the People's Advocate as an oversight authority/body. The second draft aimed at adding specific obligations on the right to access court trials documents. The Committee approved/adopted both draft proposals, however leaving a final decision to the Assembly vote. The Assembly, for unknown reasons, never discussed nor voted the proposed amendments till 2013. The majority of the Assembly from 2015 till 2013 was held by a right wing coalition having, leaded by Democratic Party.
5. Re-evolution-Adopting a brand new law on RTI
Civil society specialised operators had to wait till 2013 before the need for a new law on RTI was to be considered by the legislator. By that time, a new political coalition came to power in Albania (left wing coalition). Amongst the first legislative initiatives was drafting the new law on the right to information. This time, the pressure to develop the new framework on RTI, unlike 20 or 15 years ago, would come from inside, addressed from the now-matured civil society operators. The initial draft of the new law on RTI was prepared by well-
known Albanian experts, supported by Open Society Foundation for Albania, OSFA. The drafting process was credited officially to the Open Society Foundation and the Ministry of Justice [16, 1]. The bill entered legislative process in the newly composed Albanian parliament on February 2014 (6 months after it was constituted after the general elections of 2013). After a serious process of consultation with stakeholders, the parliament adopted the bill on September 18th, 2014.
Some of the far-reaching changes introduced by the new Albanian law on RTI are the setting up a new body, charged with supervising and monitoring compliance with the new law: the existing Commissioner for the Protection of Personal Data is vested with extensive competences and disciplinary powers and is renamed to Commissioner for the Right to Information and Protection of Personal Data. The deadlines for responding to requests for Information are shortened to 10 days. In addition to that, proactive dissemination of information is provided; under the new legal provisions all public authorities are obliged to make certain categories of information available proactively. The supporters of this law called "groundbreaking" also the introduction of a more extensive definition of the term public information; under the new law, public information is defined as any data reg-
istered in any form and format, maintained by a public authority.
Under the law 119/2014, the term "public authority" is extended and encompasses commercial companies where the state holds the majority of shares, as well as any physical or legal entity that exercises public functions in areas such as education, health, energy, and telecommunications. The new law tends to ensure a more effective response to information requests. Under the new law, every public authority is obliged to designate a Coordinator for the Right to Information whose task is to supervise the authority's responses to information requests. The new law also provides for dissuasive sanctions for failure to respect the right to information. Unlike the old law, the new one provides for heavy administrative sanctions, in the form of monetary fines, for officials violating the provisions of the law.
It is obvious that most of the amendments prepared and intended for the old law 8503, dated 30.06.1999 found broadest reflection to the brand new law enacted by the Albanian parliament on 2014. This time, the change come from the bottom up, advocated from civil society actors, based on identified needs, as opposed to the old law practice which was produced as formal reflection of the international conventions which took the shape of a "from the top-down" legislative process.
References:
1. UN Resolution 59 (I), source link: https://documents-dds-ny.un.org/doc/RESOLU-TION/GEN/NR0/033/10/IMG/NR003310.pdf?OpenElement
2. UN Doc. E/CN.4/1995/32, UN Doc. E/CN.4/1995/32, page 10, paragraph 35. Sours link: https://doc-uments-dds-ny.un.org/doc/UND0C/GEN/G94/750/76/PDF/G9475076.pdf?0penElement
3. European Convention of Human Rights, Page 11, article 10, first paragraph. Source link: http://www. echr.coe.int/Documents/Convention_ENG.pdf
4. International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, - Vol. 999, - P. 171. Sours link: http://www.refworld.org/docid/3ae6b3aa0.html
5. The Council of Europe Declaration on Freedom of Expression and Information, - 1982. Source link: http://www.right2info.org/resources/publications/instruments-and-standards/coe_decl-on-foe-and-foi_1982
6. The International Covenant on Civil and Political Rights, Page 178, United Nations, Treaty Series 1976 https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf
7. "Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters signed at the Conference of the Ministers of Environment", held on June 25, - 1998 Aarhus, Denmark. Source: http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
8. The "European Charter on Human Rights". Source: OfficialJournal ofthe European Union, page. C 326/404, date 26.10.2012. Linkhtteur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012P /TXT&from=EN
9. The Recommendation 2002 (2) of the Council of Europe on Access to Official Documents. Source link: http://www.right2info.org/resources/publications/instruments-and-standards/coe_rec_ati_en_2002
10. The Council of Europe Convention "On access to official documents" Tromso, adopted in the meeting of the Committee of Ministers of Council of Europe, on 27. 11. 2008. Sours link: https://rm.coe.int/Co-ERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680084826
11. Law No.7491, dated 29.04.1991, source: Official Bulletin - No, 4, - P. 145.
12. Victoria Lemieux and Robert P. Beschel Disclaimer - Implementing Right to Information A Case Study of India, "Right to Information case studies on implementation", World Bank © 2014 The World Bank, Pg. 55. Link sours: http://siteresources.worldbank.org/PUBLICSECTORANDGOVERNANCE/Re-sources/285741-1343934891414/8787489-1344020463266/8788935 1399321576201/RTI_Case_ Studies_Implementation_WEBfinal.pdf
13. Krenar Loloci, "Constitutional Debate, discussion at the parliamentary commission on the drafting of the Constitution", - volume 1, - P. 85. OSCE publication, Tirane - 2006, Printing Hause P. S. H. -2015 shpk, Rr "Siri Kodra", Tiranë.
14. URL: http://www.freedominfo.org/regions/global/foi-regimes
15. Memorandum on the Albanian Law On the Right to Information on Official Documents, London, September - 2004, P. 9-17. Link sours: https://www.article19.org/data/files/pdfs/analysis/albania-foi.pdf
16. "The narrative legislative motivation of the project law "On the right to information" Page 1. Paragraph 2. Link sours: https://www.parlament.al/wp-content/uploads/sites/4/2015/11/relacioni_e_drejta_e_ informimit_17767_1.pdf
DOI: http://dx.doi.org/10.20534/AJH-16-9.10-85-88
Gupi Marsidi, Europian University of Tirana, PhD (c) in Law, the Faculty of Law E-mail: marsid_gupi@hotmail.com
Liberal Constitutionalism
Abstract: Constitutionalism is the modern philosophy of constitutive democracy and the reason for this conclusion has been analysed in this article taking in to account that it is the philosophy that protect the minority in the system of political constitutional democracy. It has been described constitutionalism and the importance of this concept in state formation. As the state is built upon a large social deal, the social contract is treated widely considering that is the main state forming thesis.
Keywords: Constitutionalism, Constitution, Political Liberalism, Economic Liberalism, Philosophy, Constitutional Justice, Social Contract, Democracy.
Generally it is accepted that there are two ba- or the other. Depending on the criteria which are
sic models of constitutional justice; the American taken in to account, classification can vary to the
and European models. In reality the classification is point that doubts the binome of these models, ac-
somehow difficult because of the different combina- cepting a third model called mix. No classification is
tion of features of the different systems in one model able to completely find the real distinctions that exist
