Abstract
When are constitutional judges most likely to be invoked to decide on political issues? Why do political actors opt for the intervention of the Constitutional Court, rather than using other means? The case of the Albanian Constitutional Court, the principal organ invoked to decide over political issues, is used to show that political crisis facilitates the intervention of Constitutional Court through judicial review. Judicial review in Albania has traditionally had a marginal role in political life, still during political crisis, the Court was more active in promoting judicial review by deciding on political and public issues.
Using the tools from delegation theory to non-majoritarian institutions, this study takes into account two key elements of institutional design, the institutional form selected and the decision to delegate, assuming that access to judicial review will be greater firstly, where political forces are diffused and secondly, when the function of the court is regulated by constitutional provisions rather than by legal provisions.
This paper aims at identifying political crisis as a required indicator for the increase of judicial review. The aim is to connect the case of the Albanian Constitutional Court with more general governance challenges and systemic deficiencies.
Keywords: judicial review, constitutional court, political crisis, delegation theory to non-majoritarian institution.
Introduction
Only a few years ago, Albania was ranked among countries such as Belarus and Kazakhstan where the Constitutional Courts have been dissolved, effectively neutered, abolished or packed with government supporters who merely rubber-stamped the actions of the government.[1] In fact, in the early ‘90s, the Constitutional Court in Albania was one of the most powerless bodies in judicial branch and the least contemplated when it came to make public and political decisions.
When are constitutional judges most likely to gain power in the Albanian context? The paper explains the reason why from political crisis and diffusion derives greater judicial review. Why do political parties opt for the intervention of the court, rather than using other means?
The main argument is based on the delegation theory to non-majoritarian institution according to which explicit access to judicial review will be greater where political forces are diffused than where a single dominant party exists.[2]
The test of the hypothesis is structured in two key elements of institutional design: 1. the institutional form selected; 2. the interests of decision-makers to delegate.[3]
The Albanian case is chosen as a typical case of emergent democracies in Eastern Europe. Additionally, its setting makes this study important to understand the role of judicial power during the democratization process of a post-communist country. Albania has been making efforts by going through a difficult democratization process of the whole political system in general and of the judiciary in particular. Among other post-communist countries, Albania has testified to have major difficulties to put up with democracy. Despite the fact that it has not suffered from ethnic, religious and other minority issues such as the rest of the Balkan countries, it has encountered a very hard process of democratization.
In order to proceed with the analysis, the core of the evidence is mainly based on the actors most likely to be interested in judicial power, the analysis of judgments, the outcomes of judicial decisions and, the tendency of the court to go against or in favor of the government preferences.
The paper illustrates some of the findings in the literature surrounding the influence of courts and judicial review by including under what circumstances actors will go to court. Throughout the analysis of this paper, I discuss that during political crisis, the political leaders tend to bring more relevant issues in the political agenda to the Constitutional Court, making this latter act as a decision-maker for cases of public interest. Thus, the political crisis between political actors (the government and the opposition) facilitates judicial review.
The tools provided to assess the set of causal and institutional mechanisms that would underlie the patterns that political crisis may lead to increased levels of judicial review are based on the analysis of the cases reviewed by the court.
Thus, several representative and implicative decisions of the Court are selected in a time period from 1992 to 2011. The criteria used to select the cases are based on the arguments made by the opposition parties and the most representative cases involving national, international, judicial and political matters brought to the court. Thus, the data is based on key cases of political and public interest. Additionally, the analysis permits to show the extent to which the judiciary is able to declare law and dispositions proposed and/or approved by the legislator, unconstitutional.[4]
On this basis, the first part illustrates the context of political crisis during the Albanian transition. In the second part, the institutional form selected is explained. This part analyzes the legal and constitutional provisions on the functions of the court. In the third part, the decision to delegate to the court is explained. More concretely, a full demonstration of the delegation to the courts and the interests of the key actors involved in the decision to delegate is provided. So, some key cases, for which the Albanian Constitutional Court was solicited, are described.
Generally speaking, the study may be used to analyze the extent to which the judiciary is able to declare law and actions unconstitutional in the new democracies[5] and the kinds of political backgrounds which create the potential for such political exercises that leave the constitutional court as the only option for the parties.
- Theoretical considerations on judicial review
Judicial review can surely be counted as being one of the most important, if not the most important instrument in ensuring a constitutional‘s efficacy.[6] Authorities exercising judicial review are sometimes political bodies, but more often courts.[7] In particular way, the courts play an essential role in the solution of political disputes when different actors are in conflict on a matter concerning the game rules.[8] Every not-insubstantial parliamentary faction that loses a fight on a controversial bill turns promptly to the constitutional court to try to win constitutionally what it lost politically
Thus, rulers must believe that their interests are better served by delegating to a non-majoritarian institution, relative to an existing situation or an alternative institutional arrangement.[9] Consequently, as Tate and others support, constitutional courts can increase their policy influence when other branches of government are weakened by partisan or lower levels of public support.[10]
In light of the legality and necessity of building a tradition of guarantees of individual rights in a democracy on an undergoing consolidation, the Constitutional Court is noted as the ‘third actor’.[11] As Trevor, Brown and Wise put it, courts should be added to the list of potential important factors among political parties that condition stability.[12] In this way, courts can be arenas for pressure group activity, via constitutional and legal challenges to governments, public interest litigation and test-case strategies.[13] Constitutional courts, as non-majoritarian institutions, are defined as those governmental entities that (a) possess and exercise some grant of specialized public authority, separate from that of other institutions, but (b) are neither directly elected by the people, nor directly managed by elected officials.[14] There must always be, and so far there has been the possibility for judges to interpret the Constitution, independently of the political mainstream, in accordance with convincing arguments derived from the Constitution.[15] Because decisions of the constitutional courts are final and formally binding, the court is a parametric actor in this sequence to the extent that it need not hinge its decisions on its beliefs about preferences and likely actions of the governments; it can place policy wherever it sees fit.[16] In this way, courts are public decision-makers.
The expansion of the province the courts or the judges at the expense of the politicians and/or the administrators, that is the transfer of decision-making rights from the legislature, the cabinet, or the civil service to the courts; 2. the spread of judicial decision-making methods outside the judicial province proper[17] have been called judicialisation of politics.
An important modality of judicial review is the moment a priori (ex-ante) or a posteriori (ex-post). When it is exercised ex-post has an important political dimension.[18] Ex-ante judicial review (or preventive norm control) is abstract in nature. On the level of legal theory, ex-ante review can also be understood as respecting the supremacy of parliamentary law: review is not applied to already binding law but to a draft only. Ex-ante judicial review can contribute significantly to constitutional efficacy, mainly because it is able to stop unconstitutional legislation before any infringement can occur.[19] The delegation theory to non-majoritarian institution of judicial review explains variation in the design of systems of review with reference to the extent to which political authority (or the party system) is fragmented at the ex-ante moment.[20] An ante review is such when, before the international agreement is signed and/or ratified, certain specific state organs can request an ante review to the court that it may assess its conformity with the constitution.[21]
Concerning the form of judicial review in countries with centralized legal review, in form of a constitutional court, is the ex-post control of computability of primary legislation with the constitution.[22] Ex-post review is the essential nature of courts to assess the legality of measures after they have been taken. As Thatcher and Sweet put it, when officials delegate in order to increase technical efficiency, reduce their workload, or improve their information, extensive ex-post controls are often more compatible with their objectives.[23]
Therefore, while a priori control seems logical, and is actually the rule for checking the formal regularity of referendums, things are not so clear regarding the material control of the issue, which is sometimes perceived as conflicting too much with popular sovereignty if a posteriori.[24]
There are mainly three approaches to constitutional review which are the abstract review, the concrete review and, in some countries, the individual constitutional complaint.[25] On the one hand, concrete judicial review is applied with regard to actual legal cases that raise constitutional questions in the context of ordinary litigation. On the other hand, abstract review typically entails specific procedures in a constitutional court and is also called ’preventive review’ where the parties are allowed to challenge the constitutionality of statutes and decrees prior to their application.[26] In general, such abstract review provides the courts with real power to affect policy by providing them with the ability to set policy agendas and as a method of defusing constitutional disputes.[27] Usually, such litigation can only be initiated by privileged actors, for example parliamentary minorities or regions in federal systems.[28] The procedure of judicial review is abstract in cases where political institutions question the constitutionality of a given law and ask the constitutional court to assess its conformity with the constitution without the need of any actual case or specific infringement being present. In abstract review cases, the condition that a plaintiff is directly and individually concerned does not apply. Additionally, the extent of judicial review mainly depends on two dimensions: the institutions/persons able to initiate such judicial review procedure and the degree of judicial self-restraint.[29] The first hypothesis states that explicit access to judicial review will be greater where political forces are diffused. The political context is relevant while observing the judicial review. As Smithey and Ishiyama state, it is the political context that provides insight into the process of judicial activism.[30] More concretely, a first sub-hypothesis is that political parties will turn to prosecution in court in order to eliminate their political opponents. The phenomenon of ‘politicization of judging’,[31] as a tendency of political parties or factions to turn to prosecution in court as a way of eliminating political opponents by showing them to be guilty of corrupt practices,[32] is used to explain the tendency of policy-makers to solicit the court. A second sub-hypothesis is that, constitutional courts are rendered powerful when they are in systems requiring them to separate the power boundaries.[33]
For what concern the second hypothesis on institutional design, the more a constitution allows political actors to launch a judicial review procedure, or the easier the modalities, the more judicial review can be exercised by a constitutional court.[34] Additionally, it is assumed that the more acute are the problems of imperfect commitment and incomplete contracting, the more authority – or discretion, the framers must delegate to the court.[35] But as Thatcher and Sweet put it, constitutional courts have provided a response to the dilemma of political parties who agreed on the benefits of constitutional ‘rules of the game’, but disagreed, sometimes fundamentally, on the precise content of those rules.[36] There is not a clear cut on the competencies of the court on the cases to review until where their authority is extended.[37]
As a result, there is a wide range of possibilities, and it is important to know considerable institutional details to understand how much coordination is possible among and within the political branches to hold the judiciary in check.[38]
- Institutional Form selected of Delegation to Constitutional Court of Albania
There are at least two phenomena analyzing the court’s jurisdiction in Albania, that is, the political context into which the opinion of the court is solicited, and the kind of actors involved in this process of judicial review.
- The Albanian Constitutional Court institution
When constitutions are broken down and are completely rewritten, powerful opportunities exist for delegation – for instance – by creating new constitutional courts or agencies.[39] This was the case for Albania where the establishment of the Constitutional Court aimed to ensure the constitutional order. There have been three main moments where the main legal provisions provided the competencies of the court that is, in 1991 with the Law No. 7491, on 29th April 1991 ‘On the main provisions of the Constitution, 1998 with the entry into force of the Law No. 8373 dated 15.07.1998 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’ and 2000 with the Law No. 8577 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’. The Constitutional Court was instituted and has functioned according to the Law No. 7491, on 29th April 1991 ‘On the main provisions of the Constitution’, to be followed by Law no. 7561, dated 29 April 1992, ‘On several changes and additions to Law No. 7491,” and since 1998, according to the Law No. 8373 dated 15.07.1998 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’, which established a legal basis for issues regarding the activity of the Constitutional Court. The entry into force of the constitution on 28 November 1998 sanctioned again the role of the court by allowing changes on the appointment of its members. On 10.02.2000, the Assembly adopted the Law No. 8577 ‘On the organization and functioning of the Constitutional Court of the Republic of Albania’, which has been laid down with the support of the Commission of Venice. This law has regulated issues such as the submission of the applications for judicial review, the preliminary review, the adjudicating procedures, the status and terms of office of constitutional judges.
The Albanian Court has only the right to invalidate the acts that it reviews (Art 132 Const.). It is mainly concerned with constitutional issues, but it will entertain actions against administrative institutions where the claim is that ‘the institution has made subordinate legislation or performed administrative actions which are in breach the law’.[40] In this way, in the following graphic, there is the number of cases judged by the constitutional court ever since it was founded to 2013. The following data corroborate this:
Table 1. Total cases and the final decisions adjudicated by the Albanian Constitutional Court (1992 – 2013).[41]
The Constitutional Court is composed of nine members, nominated by the President of the Republic with the consent of the Assembly (Art 124 Const.).[42] It exercises a general jurisdiction over the legality and constitutionality of administrative norms and actions. Some of the criteria for the appointment as a judge to the Constitutional Court are the following: a) members of political parties are not allowed to become members (Art 130 Const.); b) most courts surveyed reserve at least partial immunity from prosecution of their members; c) there is a general preference for lawyers. The judges are appointed by the President of the Republic upon the consent of the Assembly. The Chairman of the Constitutional Court is appointed from the ranks of its members by the President of the Republic with the consent of the Parliament for a three-year term (Art. 125/4 Const.). There have been polemics as to the issues concerning the renewal of the membership of the Constitutional Court. The main constitutional provisions required the issuance of some other acts in order to regulate its activity.
- Who brings the requests to the Court?
One of the crucial criterions in order to assess the extent of judicial review is who may lodge an appeal. There is much variation in this respect.[43] In Albania, the review by the Constitutional Court may be initiated by: a) the President of the Republic; b) the Prime Minister; c) one-fifth of the deputies; d) the Chairman of High State Control; e) every court according to Article 145/2 Const.; f) the People’s Advocate; g) local government organs; h) organs of religious communities; i) political parties and other organizations; j) individuals (Art. 134/1 Const.). For a graphic representation of total number of cases with final decision, solicited by political and judicial actors, see Table 2.
Table 2. Total number of cases solicited by political and judicial actors
Despite the abovementioned wide range of actors enabled by the constitution to make appeal to the court, there are a quite restricted number of actors applying for judicial review. For example, in the early ‘90s, parliamentary groups were the most active in asking the court its opinion on political issues. This latter has included mainly a clear cut with the communist past. Furthermore, requests were made by judicial actors such as the Forum of Lawyers for Justice, district and appellate courts (thirty requests), the Union of Judges, the Ministry of Justice, the Prosecutor General and political actors such as political party and MPs (thirty-one requests). Additionally, few cases have been brought up to the courts by enterprises and none by citizens. Thus, from 1993 to 1995, no case was sent to the court by political parties and still very few from the citizens. The most active groups to bring cases to the court were the parliamentary groups.
Yet right after 1997, the main actors soliciting the court were mostly institutional actors such as the opposition parties, the President of the Republic, parliamentary groups, councils of city communities, the Bank of Albania, the Council of Ministers, parliamentary groups, Expropriation Association (two requests), district courts, ombudsman and only few citizens.
Immediately, following 2001, the citizens were more active in asking the revision by the court[44] and solely after 2009, with the political crisis and a general mistrust in other institutions, political actors were more willing to bring their cases to the court. The court was able to consider citizen complaints, where the bulk of the work consists of property rights issues raised by individual citizens, national and international issues as well.
- The nature of the cases brought to the court
Since its institution in 1992, the court was asked the review of the constitutionality of cases of different types. The Constitutional Court decides on: a) compatibility of the law with the Constitution or with international agreements as provided in Article 122 Const.; b) compatibility of international agreements with the Constitution, prior to their ratification; c) compatibility of normative acts of the central and local organs with the Constitution and international agreements; d) conflicts of competencies between powers, as well as between central government and local government; e) constitutionality of the parties and other political organizations, as well as their activity, according to Article 9 of the Constitution; f) dismissal from duty of the President of the Republic and verification of the impossibility for him to exercise his functions; g) issues related with the election and incompatibility in exercising the functions of the President of the Republic and of the deputies, as well as the verification of their election; h) constitutionality of the referendum and verification of its results; i) final adjudication of the individual complaints for the violation of their constitutional rights to due process of law, after all legal means for the protection of those rights have been exhausted (Article 131 Const.).
In the first decade, the court dealt with the country‘s past issues such as the criteria for the treatment of disabled people against fascist invaders during the Second World War, the candidacy of the Communist Party in the elections, the mandate of Prosecutor General, the files of the former State Security, the Veterans Status Pensions, the legitimacy of officials serving during the communist era, the genocide and crimes against humanity committed during the communist rule. Nevertheless, this was not the end of regulating communist practices as far as many issues were raised alongwith the two decades of Albanian transition. The first decade was affected by the 1997 turmoil. Thus, in 1997, because of a nationwide turmoil which affected the malfunctioning of state institutions, the constitutional court had very few cases in its agenda. The cases of juridical type included the renewal of the composition of the court, the dismissal of the President and the civil panel of the Court of Cassation etc.
In the second decade, Additional cases were brought to the court in order to draw the line between political and juridical compatibility of mandates of MPs and other political and juridical actors. The cases submitted to the court, concerned mostly the cases the Central Election Commission and Electoral Code. Some examples regarded the mandate of the MPs, the mandate of the member of the High Council of Justice, the mandate of the member of the Supreme Court, the profession of the lawyers etc.
III. The judicial review of the court in the context of political crisis
During different political crisis, major political controversies were brought to the court and reviewed by constitutional judges, rather than by elected legislators. The result was obvious and inevitable: every not-insubstantial parliamentary faction that lost a fight on a controversial bill turns promptly to the Constitutional Court to try to win constitutionally what it was lost politically. As a result, the political crisis brought the Constitutional Court to the attention of the public by considering it the only actor able to interfere and resolve the political disputes. Thus, the political crisis as an independent variable is used to explain whether it would impact the judicial review.
There have been significant political crisis in Albania during the two decades. One of them is the 2009 political crisis. Noticeably after 2009, the Albanian political institutions claim the intervention of the Court to give the final verdict to their conflicts. In 2009, the most implicative political crisis took place. The ballot papers parliamentary elections saw a close race between the governing Democratic Party and the leftist Socialist Party with 68 and 65 seats in the Parliament respectively. The leftist ‘Socialist Movement for Integration Party’ who had four seats from the elections formed an alliance with the right-wing Democratic Party, helping the latter to win the elections. This brought the longest political crisis ever in Albania. The leftist opposition refused the electoral result claiming that fraud was committed and boycotted the Parliament. A whole procedure of investigative commissions, voted by the Parliament began. The elections of 2009, held in the absence of legal authority of the state, were deemed by international actors as an acceptable choice for the moment, but, in fact, they served as a long-term solution. The opposition initially recognized the elections but refused to participate in the plenary session in the Parliament for a long time and several months later described them as a useless political solution and radicalized the struggle for new elections.
Even though tendencies to use the Constitutional Court against the political adversary existed, before 2009 elections, the court gained another kind of relevance within the context of the crisis. There has been an ongoing demand of political actors to ask the intervention of the court for clarifying the electoral issues during and after the elections, mainly concerning the parliamentary elections.
- The decision to delegate to the Court
There are at least four different conditions under which there is an interest in soliciting the court. Firstly, when the government wants to avoid the least popular decision; secondly, when the political parties or factions tend to eliminate the political opponents; thirdly, when the court is the only actor able to give a resolution; fourthly, when there is a need for an institutional isophormism for which the government wants to skip the legal and/or juridical polemics. In the following paragraphs, there is an analysis and illustration of each condition with a typical political case revised by the constitutional court.
The first condition is therefore, when the government wants to avoid the least popular decision. A clamorous example of a case where the government avoided a less popular decision was when the court voted, through an ex ante and concrete review, against the government decision related to the agreement on ‘territorial waters’ agreement with Greece. Upon the request of the Albanian social groupings and six opposition parties, the court was solicited to decide on the draft agreement signed by Albania and Greece. The agreement was on ‘The delimitation of the respective continental shelf areas in the Ionian Sea and other maritime areas’. On 26. 01. 2010, based on Article 131/b of the Constitution, the court decided unanimously to declare the decision unconstitutional, annulled the agreement, and suspended the ratification made by the Albanian Parliament. The government declared that it was not oppose to the arguments of the Court. In this way, the court’s actions of striking down the agreement deflect the responsibility from the government in front of the neighboring country. Thus, the awareness of the government on the public discontent on the international agreement on the one hand, and the intention not to aggravate the relations with the neighboring country on the other, made the Albanian government to accept willingly the decisions on this matter. The decision of the court to declare unconstitutional the government decision on the maritime agreement shows that whenever there is a pressure from civil society and public opinion, and where the decision of the government is strongly unpopular, the court is most willing to declare a law or agreement, unconstitutional.
The second condition is when the political parties or factions tend to eliminate the political opponents.[45] A typical example is offered by an ex-post abstract review of the court. An attempt was made by the government to propose the Lustration Law only a few months before the parliamentarian elections.[46] One of the instruments used in this framework is the legislation on the cleanliness of the figure (lustration). A group of deputies, the National Association of Prosecutors (NAP) and the Albanian Helsinki Committee (AHC) addressed to the Constitutional Court with complaints, on the declaration of Law No. 10034, dated 22 December 2008 “On the cleanliness of the figure of high functionaries of the public administration and elected persons” as incompatible with the Constitution. They asked the suspension of implementation of the law until the announcement of the final decision of the Court. The law was approved in the Assembly by a simple majority of the deputies entitled to vote. The object of this law was the definition of the high state functions and subjects as incompatible with the public activity of the post as officials because of the past status as a member, director and/or collaborator in the policy-making and implementing structures of the dictatorship of the Proletariat and/or the former State Security, for the period 29 November 1944 up to 8 December 1990 (Article 2 Const.). In an open judicial session on 07.05.2009, the court took under examination the case and unanimously decided the incompatibility of the law with the Constitution. The Court set out that the law did not meet the criteria of public interest, and it were not indispensable for the democratization of the country, and the restrictions imposed by it were not justified in a reasonable and objective way claiming that several parts of the law violated the lawful rights, the interests of prosecutors and a series of constitutional rights, taking the Constitution as the legal basis. In March 2010, the Constitutional Court repealed unanimously the already suspended ‘Law on Cleanliness of Public Figures (lustration law) and asked the Venice Commission for an amicus curiae opinion. Both the Venice Commission and the Constitutional Court argued that many provisions of the law violated the Albanian Constitution. Although the lustration law has not been officially implemented in Albania due to the constitutional concerns it raised, the spirit of the law served as the basis for the parliament’s rejection of one of the candidates. In this case, it was clear the tendency of the party in power, the rightist Democratic Party to fight its principal political opponent just before the elections.
The third condition is when the court is the only actor able to give a resolution. An illustrative example is when in April 2009, two months before the parliamentary elections, the Parliament approved in April 2009 the Parliament approved an Inquiry Committee to review the request of a group of deputies to investigate the practices and procedures of granting building permits by the Municipality of Tirana, whose major was the leader of the opposition (Socialist Party). The Municipality of Tirana asked to the Constitutional Court the resolution of the jurisdictional dispute claiming that this decision contrasted with the Albanian Constitution and the European Charter of Local Autonomy. It also claimed that the scope of activity of the inquiry commission was exceeding the functions of the Parliament by intervening in the powers of the local government. On 08.05.2010, the Constitutional Court declared unconstitutional the investigation on the Mayor of Tirana from the Inquiry Committee. In this way, the intention of the government which, through the parliamentarian groups, attempted to eliminate beforehand the political opponent was clear. In such manner, the court was the only legal organ to which Tirana Municipality could ask a resolution.
Another example concerns the ‘Anti-Mafia Law’. In 2010, the court was asked to judge the constitutionality of this law which provides ‘the prevention and combating organized crime and trafficking’ through preventive measures against property. According to the government, its purpose is to ‘smash organized crime, particularly the asset forfeiture to all those individuals living in conditions of unjustified living.’ The opposition responded that ‘this was an operation against the entrepreneurs who financed the leftist media which was active in criticizing the government activities.’ The Constitutional Court ended the debates rejecting the request of the Albanian Helsinki Committee and legitimizing the law with seven members in favor of it’. The “Anti-Mafia” law is considered by many as the most relevant case reviewed by the court. The decision of the court to judge as constitutional this case, which goes hand in hand with the interest of the government, does not tell a dependency from the preferences of the government. On the contrary, keeping in mind that other decisions were not according to the government trend, shows a certain level of neutrality from the probable politicization that may have involved the court that showed no political preferences for any of the factions.
The fourth condition under which there is an interest in soliciting the court is when there is a need for an institutional isophormism for which the government wants to skip the legal and/or juridical polemics. One typical example of institutional isomorphism is the abolition of death penalty. This was considered as ‘one of the most remarkable ex-post and abstract judicial review of the Constitutional Court provided by the Criminal Code.’[47] On November 11th, 1999, it was declared incompatible with the Article 21 of the Constitution.[48] An argument of the Constitutional Court was that Albania was oriented to implement the rules of the international law. Additionally, the concept of life is a value from which all other fundamental rights follow and that to negate it, means to eliminate all other rights. Thus, human life, as a value, takes precedence over all other constitutionally protected rights.[49] Its view based on the fact that Albania should observe the protocol to the European Convention even though it had not signed it yet. In 2007, Albania ratified the Protocol No. 13 to the ECHR, abolishing the death penalty under all circumstances. There were polemics from many political and legal actors as that the capital punishment should not be abolished in such a critical criminal context such as Albania. It was argued that the abolition of death penalty would increase the rates of crime especially after a previous turmoil in 1997. In such manner, the government preferred to solicit the constitutional court as a neutral organ to express itself in this regard.
The court, in different cases, has had different stands support the government decisions. As a judge would state, ‘in some cases, the court may have shown signs of denigration because the decisions did not correspond best to the interests of one political side but, it has argued its decisions very professionally such as the decision on territorial waters, or the law on the organization of the judiciary and so on’.[50]
In such manner, the difference of court decisions between 1994 and 2009 shows how the Court may be in favor of one or other governments’ preferences of cases of high level public and political interests.
Conclusion
The Constitutional Courts of Eastern Europe were designed to assist the parliament and the president in doing their jobs: many courts were required, or at least permitted, to render advisory opinions on pending legislation at the request of legislators or of the president becoming the flagships of the rule of law and constitutional faith in the emergent East European democracies.[51] The Albanian Constitutional Court was created in parallel to other democratic institutions and was based on a western model.[52] In a first period, the performance of the Constitutional Court was regulated by the main provisions of the Constitution, and in a second period, by the new Constitution of the Republic of Albania and the law on the Constitutional Court after they became effective. It has been very active in deciding constitutional disputes and has handed down a large variety of judgments.
It has delivered decisions of different characters on the constitutionality or unconstitutionality of normative acts of local and central government bodies, making the interpretation of the Constitution. In the course of its decisions, it was drawn deeply into many of the political and social conflicts overturning two dozens of legal initiatives passed by the Parliament in the last four years. In some cases, different actors have asked to reduce its powers. For example, in April 2002, the former President of the Republic asked to the Assembly to review the law concerning the Constitutional Court with the aim of reducing its powers.
The 2009 political crisis in Albania, contributed even more to a major active role of the court which was solicited by the opposition and the citizens whose request in 2009 and 2010 represented respectively 83 % and 84 % of the requests received by the court. The Constitutional Court became a relevant actor in the democratic arena and this fact increased its role in the democratization process of the country.
The hypothesis of political interest is complex and implies multidimensional explanations. Some of the decisions of the Albanian Constitutional Court showed clearly the detachment of the court from the political will of the government. This shows that the increasing interest of the media and the pressure of the public opinion and civil society, especially when it concerns the overall nationwide interest, are determining factors. On the other hand, other decisions of the court showed clearly its concern to please the political class.
My initial theoretical argument that explicit constitutional power and access to judicial review will be greater where political forces are diffused was supported in all cases which dated the post-2009 period.
Therefore, the article’s major finding is that judicial review is both based on political and contextual behavior and institutional design but the former has more significance than the latter. The paper supported the argument that divided governments such as the extent to which the party system is fragmented and the extent to which the court enjoys popular trust rather than, the formal powers entrusted to the court by the constitution, contribute the most to the degree of review by Constitutional Courts.
References
- Bertrand, Mathieu (2006), The right to life in European constitutional and international case-law, Strasbourg-France: Council of Europe.
- Brown, Trevor L.; Wise, Charles Ragin (2004), “Constitutional Courts and Legislative-Executive Relations: The Case of Ukraine“ in Political Science Quarterly, no. 1 (119), 143-169.
- Council of Europe (1997), The composition of Constitutional Courts, European Commission for Democracy through Law, Collection Science and technique of democracy, no. 20. Germany: Council of Europe Publishing.
- Epstein Lee; Knight J.; Shvetsova O. (2001), “The role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government“ in Law and Society Review, no. 1 (35), 117-164.
- Ferejohn, John; Rosenbliuth, Frances; Shipan, Charles (2007), “Comparative Judicial Politics“, in Boix, Carles; Stokes C. Susan (eds.), The Oxford Handbook Comparative Politics, Oxford: Oxford University Press.
- Gibson James; Caldeira A. Gregory, (2003) Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court, Journal of Politics, no. 1 (65), 1–30.
- Ginsburg, Tom (2003), Judicial review in New Democracies, Constitutional Courts in Asian cases, United Kingdom: Cambridge University Press.
- Goldstein, F. Leslie (2004), “From democracy to juristocracy“ in Law Social Review, no. 3 (38), 611-629.
- Guarnieri,Carlo; Pederzoli, Patrizia (2002), The Power of Judges; A Comparative Study of Courts and Democracy, Oxford: A. Thomas Editor.
- Harlow Carol, Rawlings Richard (1992), Pressure through Law, London-New York: Routledge.
- Hirschl, Ran (2000), “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions“ in Law and Society Inquiry, no. 1 (25), 91-149.
- Hirschl, Ran (2004), Towards juristocracy: the origins and consequences of the new constitutionalism, Harvard: Harvard University Press.
- Kokott, Juliane; Kaspar, Martin (2012), “Ensuring Constitutional Efficacy“, in Rosenfeld, Michel; Sajo, Andras (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press.
- Kramer, Larry (2004), The People Themselves: Popular Constitutionalism and Judicial Review, Oxford-New York: Oxford University Press.
- Landfried, Christine (1994), “The Judicialization of Politics in Germany“ in International Political Science Review, no. 2 (15), 113-124.
- Ishiyama, Smithey S.; Ishiyama, John (2000), “Judicious choices: designing courts in post-communist politics“ in Communist and Post-Communist Studies, no. 2 (33), 163-182.
- Ishiyama, Smithey S.; Ishiyama, John (2002), “Judicial Activism in Post-Communist Politics“ in Law and Society Review, 4 (36), 719-734.
- Morel, Laurence (2012), “Referendum“, in Rosenfeld, Michel; Sajo, Andras (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press.
- Morlino, Leonardo (2000), “Architectures constitutionnelles et politiques démocratiques en Europe de l’Est“ in Revue Française de Science Politique, no. 4 (50), 679-712.
- OECD (1997), “Administrative Procedures and the Supervision of Administration in Hungary, Poland, Bulgaria, Estonia and Albania“, Sigma Papers, no. 17, OECD Publishing.
- Official Gazette (1925), “The Fundamental Statute of the Republic of Albania“ Tirana, no. 7 (8).
- Schwartz, Herman (2000), The struggle for constitutional justice in post-communist Europe, London: University of Chicago Press.
- Shapiro, Martin; Stone, Sweet Alex (2002), On Law Politics and Judicialization. United Kingdom: Oxford University Press.
- Sweet, Alec Stone (2012), “Constitutional Courts“, in Rosenfeld, Michel; Sajo Andras (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press.
- Thatcher, Mark; Sweet, Stone Alec (2002), “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22.
- The Constitutional Court decisions, [http://www.gjk.gov.al/].
- The Constitution of the Republic of Albania: [http://www.km.gov.al/skedaret/1231927768Constitution%20of%20the%20Republic%20of%20Albania.pdf].
- Vallinder, Tate (1994), “The Judicialization of Politics. A World-Wide Phenomenon: Introduction“ in International Political Science Review, no. 2 (15), 91-99.
- Weingast, Barry (1996), “Political Institutions: Rational choice Perspectives“ in Goodin, Robert. E.; Klingemann, Hans-Dieter (eds.), A New Handbook of Political Science, Oxford-New York: Oxford University Press.
[1] Herman Schwartz, The struggle for constitutional justice in post-communist Europe, London: University of Chicago Press, 2000, p. 221.
[2] Tom Ginsburg, Judicial review in New Democracies, Constitutional Courts in Asian cases, United Kingdom: Cambridge University Press, 2003, p. 25.
[3] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, p. 11.
[4] The judiciary in communist countries was neither independent nor active. Their status was considered nevertheless constantly at risk, for many if not most of these courts operate in civil peril. Even the most stable have had precious little time to establish securely their role as constitutional guardians (Schwartz 2000).
[5] Herman Schwartz, The struggle for constitutional justice in post-communist Europe, London: University of Chicago Press, 2000.
[6] Ran Hirschl, “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions“ in Law and Society Inquiry, no. 1 (25), 2000, 91-149; Ran Hirschl, Towards juristocracy: the origins and consequences of the new constitutionalism, Harvard: Harvard University Press, 2004; Barry R. Weingast, “Political Institutions: Rational choice Perspectives“ in Robert E Goodin, Hans-Dieter Klingemann, (eds.), A New Handbook of Political Science, Oxford-New York: Oxford University Press, 1996; Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, Oxford-New York: Oxford University Press, 2004; James L. Gibson, Gregory A. Caldeira, Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court, Journal of Politics, no. 1 (65), 2003, 1–30; Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012.
[7] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 797.
[8] Leonardo Morlino, “Architectures constitutionnelles et politiques démocratiques en Europe de l’Est“ in Revue Française de Science Politique, no. 4 (50), 679-712, 2000, p. 683.
[9] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, p. 9.
[10] Tate Vallinder, “The Judicialization of Politics. A World-Wide Phenomenon: Introduction“ in International Political Science Review, no. 2 (15), 91-99, 1994, p. 738.
[11] Leonardo Morlino, “Architectures constitutionnelles et politiques démocratiques en Europe de l’Est“ in Revue Française de Science Politique, no. 4 (50), 679-712, 2000, pp. 706-07.
[12] Trevor L. Brown, Charles Wise Ragin, “Constitutional Courts and Legislative-Executive Relations: The Case of Ukraine“ in Political Science Quarterly, no. 1 (119), 143-169, 2004, p. 148.
[13] Carol Harlow, Richard Rawlings, Pressure through Law, London-New York: Routledge, 1992, p. 192.
[14] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, p. 2.
[15] Christine Landfried, “The Judicialization of Politics in Germany“ in International Political Science Review, no. 2 (15), 113-124, 1994, pp. 113-24.
[16] Lee Epstein, Jana Knight, Olga Shvetsova, “The role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government“ in Law and Society Review, no. 1 (35), 117-164, 2001, p. 124.
[17] Neal C. Tate, Torbjorn Vallinder, The global expansion of Judicial Power, New York-London: New York University Press, 1995, p. 13.
[18] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 808.
[19] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 806.
[20] Alec Stone Sweet, “Constitutional Courts“, in Michel Rosenfeld, Andras Sajo (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 820.
[21] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 807.
[22] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 807.
[23] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, p. 15.
[24] Laurence Morel, “Referendum“, in Michel Rosenfeld, Andras Sajo, (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, pp. 522-23.
[25] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 807.
[26] In contrast, in a system limited to incidental review, parties are limited to challenging government actions once they have been implemented.
[27] Smithey S. Ishiyama; John Ishiyama, “Judicial Activism in Post-Communist Politics“ in Law and Society Review, no. 4 (36), 2002, 719-734.
[28] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 805.
[29] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 807.
[30] Smithey S. Ishiyama, John Ishiyama, “Judicial Activism in Post-Communist Politics“ in Law and Society Review, no. 4 (36), 719-734, 2002, p . 738.
[31] Carlo Guarnieri, Patrizia Pederzoli, The Power of Judges; A Comparative Study of Courts and Democracy, Oxford: C. A. Thomas Editor, 2002.
[32] Leslie F. Goldstein, “From democracy to juristocracy“ in Law Social Review, no. 3 (38), 611-629, 2004, p. 614.
[33] Martin Shapiro; Alex Stone Sweet, On Law Politics and Judicialization. United Kingdom: Oxford University Press, 2002.
[34] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 808.
[35] Alec Stone Sweet, “Constitutional Courts“, in Michel Rosenfeld, Andras Sajo (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 822.
[36] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, p. 9.
[37] John Ferejohn, Frances Rosenbliuth, Charles Shipan, “Comparative Judicial Politics“, in Carles Boix, Susan C. Stokes (eds.), The Oxford Handbook Comparative Politics, Oxford: Oxford University Press, 2007, p. 734.
[38] John Ferejohn, Frances Rosenbliuth, Charles Shipan, “Comparative Judicial Politics“, in Carles Boix, Susan C. Stokes (eds.), The Oxford Handbook Comparative Politics, Oxford: Oxford University Press, 2007, p. 734.
[39] Mark Thatcher, Alec Sweet Stone, “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22, 2002, pp. 11-13.
[40] OECD, “Administrative Procedures and the Supervision of Administration in Hungary, Poland, Bulgaria, Estonia and Albania“, Sigma Papers, no. 17, OECD Publishing, 1997.
[41] The Constitutional Court decisions, [http://www.gjk.gov.al/].
[42] There have been controversies regarding the issue of renewal of the composition of the Constitutional Court. The reason for these controversies was the different interpretation done to the provisions of the constitutional laws regulating the functioning of this institution.
[43] Juliane Kokott, Martin Kaspar, “Ensuring Constitutional Efficacy“, in Michel Rosenfeldn, Andras Sajo (eds.), Comparative Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press, 2012, p. 797.
[44] The court was able to consider citizen complaints, where the bulk of the work consists of property rights issues raised by individual citizens, national and international issues as well.
[45] A relevant decision dates back in 1994, when the court was asked by the parliamentary group of the Socialist Party ‘to interpret whether it was constitutional, the call of the Attorney General from the National Assembly in order to ‘answer questions from MPs’. The court, by majority vote, decided that the call of the Attorney General to Parliament to answer questions from MPs was in accordance with the basic constitutional provisions’.[45] In 2009, that is 15 years later, there was another attempt from the part of the Assembly to call the Attorney General. The court declared it unconstitutional by arguing that ‘political interest was involved and judicial independence was violated’.
[46] After the fall of Communist regime attempts were made in Albania to break from the totalitarian past. Those attempts were expressed in a series of legal, institutional and financial measures.
[47] Interview by the author with a constitutional judge and current Head of the Constitutional Court of Albania, Sokol Sadushi, April 2011, Tirana, Albania.
[48]Alb-1999-008 – a) Albania b) Constitutional Court c) /d) 10-12-1999 / e) 65 / f) / g) Fletorja Zyrtare (Official Gazette), 33, 1301 / h) Codices (English, French).
[49] Mathieu Bertrand, The right to life in European constitutional and international case-law, Strasbourg-France: Council of Europe, 2006, p. 56.
[50] Interview by the author with a judge of the Court of Appeal, April 2011, Tirana, Albania.
[51] Herman Schwartz, The struggle for constitutional justice in post-communist Europe, London: University of Chicago Press, 2000, p. X.
[52] To be noted that most West European countries had a democratic culture ex-ante the adoption of Constitutional Courts.
Teuta Vodo 