LET THE COURT DECIDE! THE JUDICIAL REVIEW AND POLITICAL CRISIS: IS THERE A LINK BETWEEN THE TWO? THE CASE OF THE ALBANIAN CONSTITUTIONAL COURT (1991-2010)

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.

1. 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]

1. 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.

1. 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 29^th 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 29^th 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.

1. 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.

1. 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.

1. 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 11^th, 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.

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14. Kramer, Larry (2004), The People Themselves: Popular Constitutionalism and Judicial Review, Oxford-New York: Oxford University Press.
15. Landfried, Christine (1994), “The Judicialization of Politics in Germany“ in International Political Science Review, no. 2 (15), 113-124.
16. 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.
17. Ishiyama, Smithey S.; Ishiyama, John (2002), “Judicial Activism in Post-Communist Politics“ in Law and Society Review, 4 (36), 719-734.
18. Morel, Laurence (2012), “Referendum“, in Rosenfeld, Michel; Sajo, Andras (eds.), Comparative Constitutional Law, The Oxford Handbook of Comparative Constitutional Law, Oxford: Oxford University Press.
19. Morlino, Leonardo (2000), “Architectures constitutionnelles et politiques démocratiques en Europe de l’Est“ in Revue Française de Science Politique, no. 4 (50), 679-712.
20. OECD (1997), “Administrative Procedures and the Supervision of Administration in Hungary, Poland, Bulgaria, Estonia and Albania“, Sigma Papers, no. 17, OECD Publishing.
21. Official Gazette (1925), “The Fundamental Statute of the Republic of Albania“ Tirana, no. 7 (8).
22. Schwartz, Herman (2000), The struggle for constitutional justice in post-communist Europe, London: University of Chicago Press.
23. Shapiro, Martin; Stone, Sweet Alex (2002), On Law Politics and Judicialization. United Kingdom: Oxford University Press.

24. 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.
25. Thatcher, Mark; Sweet, Stone Alec (2002), “Theory and Practice of Delegation to Non-Majoritarian Institutions“ in West European Politics, no. 1 (25), 1-22.
26. The Constitutional Court decisions, [http://www.gjk.gov.al/].
27. The Constitution of the Republic of Albania: [http://www.km.gov.al/skedaret/1231927768Constitution%20of%20the%20Republic%20of%20Albania.pdf].
28. Vallinder, Tate (1994), “The Judicialization of Politics. A World-Wide Phenomenon: Introduction“ in International Political Science Review, no. 2 (15), 91-99.
29. 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.

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A Comparative Perspective on the Balkan Constitutions and the space provided for the citizens

Teuta Vodo and Eleni Stathopoulou

One of the major developments in the Balkan region after the ‘90s was the adoption of constitutions, which brought the expansion of the constitutionalization of rights having in this way a relevant impact on the citizens to exercise their rights. Even though the constitutions in the Balkan region were adopted according to the western model, the space provided for citizens’ rights may vary from one country to another. Therefore, our research question may be formulated as follows: what kinds of constitutions exist in the Balkan region? Which is the space for political activity provided for citizens in the Balkan constitutions? Is there a relation between the space provided in the Balkan constitutions for their citizens and the extent to which these latter exercise their rights? Furthermore, are civil rights stronger in terms of citizens’ political engagement based on the constitutions’ political character? Our main argument is that the space provided for political activism in these constitutions is that there is no direct relationship between the constitutions and the way people exercise their rights. We put forward a comparative study of two countries, Albania and Serbia, as two cases with distinct constitutional and historical backgrounds.

 

Key words: Balkans; civil rights; constitutions; social movements.

1 Introduction

The Balkan region is known for wars and nationalist extremist leaders but little is known about what is called “history from below”, the human side of history and citizens’ influence of governments’ policy-making. As Krastev puts it, democracy is marked not only by free and fair elections but also by the fact that citizens can also influence public policy. Democracy, in this view, is less a matter of institutional settings than of the relations between governments and citizens (Krastev 2002, 45). What citizens think and their actions matters at least as much as what governments do.

Making a clean break with the communist past is complicated by the fact that the region’s previous communist regimes were to a large extent ‘home grown’ (Batt 2007, 61). The end of Communist Party hegemony and post-war international order weakened the state (Bunce 1997, 352–353). A number of Balkan countries were classified as weak states because they were unable to implement development policies and to provide for all their citizens with human, financial and social security. Similarly Krastev (2002, 45) defines as “weak” a state that is unable to deliver the rule of law or protect human and property rights. Another source of weakness lies in the lack of state tradition, which does not go back very far. The Balkan states, for the aforementioned reasons, remained economically and politically weak (Danopoulos and Messas 1997, 8).

Assessing also legitimacy proved to be a serious challenge, which stemmed from profound social, political and cultural divisions linked to ethnic and national minorities, established within the boundaries of these states (Diamandouros and Larrabee 2000, 25). Arrogance and disregard for the rules of the game, and in particular for the opposition, was persistently displayed from the government side (Vejvoda 2000, 233). The current movement for citizen participation has its origins in the ’60s. In the politics of affluence and optimism, which it spawned, the belief was widespread that policy could and should be both more responsive to the people and more rational (Kweit and Kweit 1987, 34).

After the ‘90s, an unprecedented pattern of deindustrialization has taken hold parts of the region. As large-scale industry collapses and individual workers turn back to the countryside for survival, supplemented by ad hoc unregistered earning in the ‘grey’ economy (Batt 2007, 63). In the Balkans during the first decade, the demands of state building, national identity and ethnicity have to a significant degree distracted from the priorities of democracy- building and economic reform (Pridham 2000, 1).

A source of legitimacy of the state comes from its success in fulfilling its obligations towards its citizens. (Rakipi 2007, 265–266). Citizens’ influence may range from a position of policy dominance (value decisions) to one of minimal or non-involvement (technical decisions) (De Sario and Langton 1987, 216).

Therefore, in order to study the citizens’ role in the public policy and their dissatisfaction towards the state, we will focus in two countries, Serbia and Albania in the last two decades. The first part of the paper proposes a theoretical distinction of the constitutions, by describing the different categories of constitutions and in the second part we will go through the empirical examination by identifying the category where these two constitutions fall, the space provided for its people and the extent to which these latter exercise their rights. The empirical evidence will be analyzed through the referendums and the mass protests since the early ’90s until now.

 

2 Theoretical considerations on the constitutionalization of rights 

Constitutions are codes of norms which aspire to regulate the relationship between the government and the public by handling serious internal ethnic, linguistic, and religious differences, while others are written for a homogeneous population (Finer, Bogdanor and Rudden 1995, 1–6). Nevertheless, the constitutionalist doctrine that goes back to Benjamin Constant indicates that people’s sovereign power was never full and did not include the destruction of the very fundamentals of its existence by authorizing despotism. Fundamental human rights cannot be disposed of; even by people (Klein and Sajo 2012, 440). Some of the present texts say that constitutions were made into a constitution by ‘the people’, but this is not so (Finer, Bogdanor and Rudden 1995, 8). Most constitutions contain fictive or decorative passages as well as omitting many of the powers and processes met with in real life (Finer, Bogdanor and Rudden 1995, 3).

Constitutions are legal documents which contain ‘the rules of the political game’ (Hodder-Williams 1988) and manifestations of power where there are winners and losers (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010). They result from power struggles among elite groups in a nation; the resulting constitution may be similar to other constitutions, containing familiar restraints on government and providing the usual protection of rights; but instead of its being an expression of agreed ideas and ideals, the constitution is an instrument for securing positions of power. Constitutions are, first and above all, instruments of government, which limit restrain and allow the exercise of political power (Sartori 1994, 198).

They serve the perceived interests of the best-organized and therefore most powerful social forces (Holmes 2012). Thus, constitutions are manifestations of power (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010) and result from power struggles among elite groups in a nation; the resulting constitution may be similar to other constitutions but instead of being an expression of agreed ideas and ideals, the constitution is an instrument for securing positions of power (Contiades 2013). Constitutions are never impartial and never treat the powerful and the powerless at the same way. They serve the perceived interests of the best-organized and therefore most powerful social forces (Holmes 2012). Constitutions are examined from the point of view of the actors who write them and their strategic consideration, which builds on a line of contemporary research in political science (Hirschl 2004; Ginsburg 2003; Finkel 2004; Erdos 2010). The ruling elites accept constitutional constraints when it is in their interest to do so. Thus, constitutions emerge and their contents are determined by strategic considerations of ruling elites (Hirschl 2004).

Almost every state in the world today possesses a codified constitution. Yet the vast majority of them are either suspended, or brazenly dishonoured, or – if neither of these – are constantly and continually torn up to make new ones (Finer, Bogdanor and Rudden 1995). Constitutions channel and constrain the scope and direction of the power of government in general and the various organs of government in particular (Finer, Bogdanor and Rudden 1995). Their conception depends on ‘the relationship between the contents of constitutional documents and the fundamental character or form of the polity it is designed to serve (Elazar 1986).

The main and most general way for the people to exercise their sovereignty is through referendums. Among the numerous modalities of the referendum that can be found in constitutional texts or practices, the initiative is considered to be the most important. Most typologies of referendums are indeed based on this criterion and distinguish between ‘mandatory’ referendums, on one side, and ‘optional’ (or facultative) referendums, on the other side, with a distinction within the latter category between referendums initiated by institutional actors such as the executive, the legislative branch, or a parliamentary minority, and popular initiatives.

A good typology should focus on three basic variables, which measure the extent to which legislative power is shared with the people and/or the opposition. The first variable is the initiative, which applies only to optional referendums. But the fundamental divide is between government and non-government initiative. Government-initiated referendums are decided either by the executive alone, by the legislative alone, or, more frequently, by a common decision of the executive and the legislative. Non-government-initiated referendums are in the hands either of the opposition, or of a popular minority. The second variable is the author of legislation, which refers to the capacity of the initiator of the referendum to put a proposal of his own to the vote.

The third variable regards the scope of the referendum. Here a first distinction must be between referendums on constitutional revisions, which deal essentially with institutional issues, and referendums on ordinary legislation. Within the latter category, one should then differentiate according to the subject: institutional, international, territorial or other (Morel 2012, 508–509).

2.1 Albania

For good or for bad, the lack of strong historical roots and the heavy abuse of the nationalist ideology by the communists, strongly posed Albanians to have different experience from other Balkan countries. While these latter filled the post-communist vacuum with a collective identity based on nationalist myths, Albanians somehow fell back to where they had started their history of the formation of the nation: into a scattered array of clans trying to survive (Lubonja 2002, 101). The old elites pinned their hopes on a new combination of communism and nationalism (Schwimmer 2007, 116). Additionally, the post-communist Albania was affected both by the institutionalization of political democracy and the transition to a market economy (Schwimmer 2007, 116). Poorly institutionalized parties, their lack of strong social bases or effective governing programmes, a legacy of authoritarian power structures (Pettifer 2000, 247) and the weakness of civil society are characteristics of Albania in the ‘90s. The encouragement of civil society was a highly partial process, with strong state support for business and religious institutions but undermining of basic rights in many fields (Pettifer 2000, 242).

There was a special need to adopt all the legal provisions since the regime collapse. Nonetheless, it is only in 1998 that the Constitution of Albania was adopted. In the Albanian constitution, the concept of ‘people’ is explicitly mentioned in the following statement of the preamble: ‘the sovereignty in the Republic of Albania belongs to the people.’ No notion such as ‘citizens’ is mentioned, as Albania is a homogenous country that does not deal with minority rights issues such as other Balkan countries.

Furthermore, in the preamble is stated that the exercise of sovereignty is formulated as follows: ‘the people exercise sovereignty through their representatives or directly’. As it is shown from the formulation of the aforementioned preamble of the Albanian constitution, there is not an expressed and explicit explanation of how this sovereignty should be exercised directly. In comparison with many other written constitutions, the formulation of how the sovereignty should be exercised, is limited and does not offer a mean to guide the citizens into exercising their rights. This is relevant in a fragile and new democracy because as Rakipi (2007, 272–273) argues the institution-building in Albania is a top-down approach and broadly speaking, the institutions have an important role in shaping the development of individuals within their role (Bell 2006, 350).

As mentioned in the introduction, the empirical evidence will be shown through the referendums and the mass protests. Concerning the referendum, in the Albanian constitution, it is referred as follows: “The people, through 50.000 citizens who enjoy the right to vote have the right to a referendum for the abrogation of a law, as well as to request the President of the Republic to hold a referendum on issues of special importance” (Article 150). In such way, in two decades, the Albanian citizens have been appealed three times to vote in a referendum.

The first referendum was held on 6 November 1994 on the approval of a new constitution It was on October 10^th 1994 when the National Assembly approved the draft constitution to be passed by referendum. According to the polls, 84.43% of the population participated in the referendum where 41.70% voted in favour and 53.89% against. The referendum rejected the new constitution as the proposed draft conferred too much power to the president.

The second referendum was held on 29 June 1997 on restoring the monarchy. In 1997, Leka Zogu came back to Albania and the government agreed to organize a popular referendum on restoring monarchy. The referendum paradoxically was held together with the parliamentary elections of 29 June 1997. As Albanians voted for new deputies they were also asked at the same time to vote for or against monarchy. Each vote, for or against the monarchy, counted contra monarchy. However a referendum was held and central Election Commission announced that monarchy won a 20% share of the vote.

Leka Zogu decided to appeal and the court judged the result equal to 37% in favour of the monarchy. Despite the fact that the result was figured as being higher, nevertheless it did not reach the necessary quota and was considered a failure (NOA 2011). Years later Berisha stated that the results of the referendum held in 1997 were manipulated, while the Albanian citizens voted for their king (Shqiptarja 2011). It was argued that one-third of the voters were in favour of the restoration of the monarchy but 23% of the votes were declared invalid (Investigim Lajmi 2012).

The third referendum was held for the approval of the Constitution, which passed in 22 November 1998. After the 1997 turmoil, the newly elected Albanian government was encouraged by national and international actors to prepare the constitution draft as an urgent need for the state of right in Albania and put it to a popular referendum.

The Constitution enshrines the basic principles of the state and the sovereignty of the Republic of Albania, which belongs to the people, who exercise it through their representatives elected by direct vote; it guarantees the independence, integrity of the Albanian state, respect for basic rights and freedoms, religion. The Constitution is the supreme law of the Albanian democracy whose provisions are directly applicable.

A fourth referendum was presumed to be held in 2013. The aim was to hold a popular referendum against the importation and waste recycling from EU countries. The civic movement “Alliance against Import of Fertilizers” managed to collect sixty thousand signatures. The referendum has historical significance because it is the first in post-communist politics outside the influence of political parties. But it also has another value: the Albanian citizens which were generally characterized by apathy reacted for the first time in the name of a communitarian issue without taking into account their political affiliations. In the end, the referendum was not held because the elections took place and, as promised during the electoral campaign, the new elected government nullified the law for the importation of waste recycling.

 

2.1.1 The role of mass protests in political life and public policy

Since the late December 1989, demonstrations of students took place in Shkoder area (northern Albania) (Champseix and Champseix 1990, 310; Keesing 1990, 37618–37619). They were the first timid attempts against food shortages and democratic reforms, which kept on going in January 11th 1990 (Vickers 1995, 20). Consequently, as early as January 1990, the First Secretary of the Party and Head of State announced modest changes such as more popular election of officials, more reliance and less central planning, free sale of agricultural surpluses and on February 1990 he declared presidential rule by naming a provisional government and a small presidential council (Clunies and Sudar 1998, 56–58).

When the apparatus of state socialism began to be dismantled in 1991, one major and immediate impact of exposure to global processes was Albanians’ realization of the impoverishment and inadequacies of their country in comparison to its neighbours (Hall 1999, 167–168). On 1^st July 1990, there were ‘unprecedented anti-government street demonstrations’ (Keesing 1990, 37618-37619). On December 1990, mass protests spread all over the main cities; the demands were an end to one-party rule, multiparty elections, and changes in the economic structure (Keesing 1990, 37924). Condition worsened in 1991 through arrests and resignation of government leaders and the production-supply system very largely broke down. There was a wave of destruction of public property and ‘spontaneous privatizations’ of land (Clunies and Sudar 1998, 61).

A second period of democratic transition goes from the legalization of independent parties during the demonstrations of December 1990 until the election at the end of March 1991, a time of emerging hardship and serious uncertainty. From the election of March 1991 and the election of March 1992, the unrest continued. In 1991, the Prime Minister Fatos Nano resigned after protests at economic conditions and killing of opposition demonstrators.

In the following parliamentarian election, the Party of Labour of Albania won with about two-thirds of the vote but demonstrations, riots and strikes continued reaching a pitch in November (Clunies and Sudar 1998, 58–60). The time frame 1992–1996 represented the time of most intense reforms (Lubonja 1993, 1).

In 1997, the fraudulent pyramid investment schemes collapse, costing thousands of Albanians their savings and triggering anti-government caused mass protests known also as the Lottery Uprising.[1] The pyramid schemes started to grow in 1996 marking an artificial economic development. As a result, a nationwide turmoil followed for several months. The weapon depots were opened, which was followed by the spread of anarchy chaos and, breakdown of state apparatus (police, prosecutors, judges etc.). The popular riots took place in the whole country. The unrest in most of the Albanian regions and the refusal of the government to resign had a strong impact in terms of trust in the institutions. Thus, the collapse of the financial pyramids scheme made the state to lose credibility.

In 1998, violent anti-government street protests aimed at the resignation of the prime minister. The protests took place following the murder of the historic opposition leader Hajdari who was shot dead by an unidentified gunman.

In 2004, the Albanian opposition stages angry demonstration in the capital in order to demand the resignation of the prime minister and protest against government failure to improve living standards.

In 2008, a mass protest led by the opposition asked the resignation of the government after the explosion of an ex-military ammunition depot occurred in the village of Gërdec with 26 deaths and 300 injured.[2] The Government was accused of corruption in this affair of arm trafficking of Chinese artillery sold to US army in Afghanistan.

In 2009, the opposition party began a series of demonstrations in the capital in protest against alleged vote rigging in the 2009 elections. In 2010, tens of thousands of people marched through Albania’s capital to demand the reopening ballot boxes from last year’s election, amid claims of vote rigging.

From the above analysis is evident that throughout two decades, the total of referendums and mass protests taking place in Albania were mainly of political character. In such manner, they are animated by the opposition asking resignation of the party in power. Very little rights are attributed to the citizens so they can freely exercise them with the result to be heard by their governments. All the protests animated by the opposition were propagated as political from the part of the government. The point of views and requests of the citizens were not been taken into account. One differentiation has been noticed only in 2013 whereas mass protests took place concerning environmental issues and many citizens chose to protest without being affiliated to a political party.

 

2.2 Serbia

In 1990, after the breakdown of communism in Europe and in the course of disintegration of the Socialist Federal Republic of Yugoslavia, the first Serbian Constitution was adopted. The institutional system that resulted from the Constitution, in the first phase of the constitutional period (1990–2000), was clearly dominated by the manipulative and authoritarian presidency rule of Milosevic, whose substantial power was stemming from his direct popular election and the strong constitutional authorities he enjoyed (Miller 1997, 179). Although in 1997 he was elected president of the Yugoslav Federation, he continued to influence strongly the Serbian political life in the position of the President of the Republic of Serbia.

Furthermore, one has to take into account also that war left an indelible mark in the ‘90s. The social and economic devastation, the sanctions, the failure of the regime and its supporters to satisfy the nationalist feelings that had cultivated in the first years – ethnificating every aspect of the political life (Offe 1993, 6) – posed enormous obstacles to the democratization process of the country, although the democratic institutions were already there. During the demonstrations in the years 1996–1997 oppositional leaders described the regime as a dictatorship and totalitarian as opposed to authoritarian, while others have surmised that it is somewhere between a democracy and a dictatorship, clearly depicting a distinction between formal democratic rules and the lack of a substantive democratic regime (Klador and Vejvoda 1997, 62-63).

After Milosevic was overthrown in 2000 and the democratic opposition took over, the two parties went into an ongoing political infighting concerning whether or not there was a need for a new Constitution. According to Kostunica, leader of the Democratic Party of Serbia (DSS), no radical institutional changes were needed since the Constitution and laws during the Milosevic regime were not anti-democratic per se, but were highly misused by him. Djindjic, leader of the Democratic Opposition of Serbia (DOS) and winner of the 2001 elections, on the other hand, supported that the existing then Constitution and institutions of the system were unacceptable and that they had to be either replaced or ignored. The 5^th of October 2000 was not only a mere change of regimes, as Kostunica believed, but a revolution that manifested the need for the Milosevic Constitution to be replaced and demonstrate a clear distance of the old and deeply autocratic and corrupted system (Pribicevic 2008, 60).

The Serbian Parliament after an ongoing debate for years (Pajvancic 2010, 44–45) voted in 2007 a new Constitution, which was approved in a constitutional referendum held on 28-29 October 2006. The 2006 Constitution Preamble defines the basic principles of the Serbian Constitution, among others the principle of popular sovereignty (Serbian Constitution 2006, Art. 2), which can be exercised with free election of representative bodies and the direct exercise of power, in a referendum or a popular initiative. Serbia is the creation of the Serbian people, where all its citizens as well as the ethnic communities are equal. Also it is emphasized that the Autonomous Province of Kosovo and Metohia have a status of substantial autonomy within the sovereign state of Serbia.

The citizens have the right in referendum to determine the proposal and decide on establishing, abolishing and joining of autonomous provinces (Serbian Constitution 2006, Art. 182 § 3) as well as on the territory of the autonomous province (Serbian Constitution 2006, Art. 182 § 4). The National Assembly can also call for a referendum concerning issues that fall within its competence (Serbian Constitution 2006, Art. 99 § 1 Item 2). The subject matter of a referendum may not include the obligations from international contracts, laws pertaining to human rights, financial laws, budget and financial statement, proclamation of the state of emergency, amnesty, and other issues pertaining to the electoral competencies of the National Assembly (Serbian Constitution 2006, Art. 108 § 2). Moreover the constitutional referendum is recognized. This referendum is mandatory if the revision of the Constitution relates to the Constitution Preamble; the Constitution principles; human and minority rights and liberties; governance system; proclaiming the states of war and of emergency, as well as derogation from human and minority rights in states of war and of emergency; procedure for amending the Constitution (Serbian Constitution 2006, Art. 203 §7). Concerning the revision of other parts of the Constitution, these may be scheduled by an optional referendum (Serbian Constitution 2006, Art. 203 §6). Popular sovereignty is directly exercised by the popular initiative. The Constitution also particularly defines the right of the citizens to propose legislation (legal initiative) (Serbian Constitution 2006, Art. 107 §7) provided that the proposal is corroborated by at least 30,000 voters, the right to propose revision of the Constitution (Constitutional initiative) (Serbian Constitution 2006, Art. 203 § 1) if the proposal is corroborated by 150,000 voters, and the right to call for a republic referendum (Serbian Constitution 2006, Art. 108 § 1) upon the request of the majority of all deputies or at least 100,000 voters.

Although the institution of the referendum pre-existed in the 1990 Constitution and although the 2006 Constitution provides all concrete principal guarantees for citizens to participate and propose a referendum (Serbian Constitution 1990, Art. 2; Serbian Constitution 2006, Art. 56), however in the Serbian political history, the institution has been used only on a minor scale. The first time to be implemented was in 1990 in order to adopt the new constitution, which also gave an end to Kosovo´s autonomous status and abandoned the one-party communist system, providing however the basis for the one-man rule of Milosevic (Hayden 1992, 660). A referendum on Serbia’s state symbols was held on May 31, 1992 in Serbia to decide the republic’s flag, coat of arms and the anthem, which was initiated by the political party in opposition. In 1998, Serbian President Slobodan Milosevic proposed a referendum, where voters were asked “Do you approve the participation of foreign representatives in solving the problems in Kosovo and Metohija?”. The last time the Serbian people had an opportunity to exercise direct democracy through referendum process was in 2006, within the constitutional procedure for adoption of the new constitution. Due to lack of public debate Jovanovic, the President of the Liberal Democratic Party (LDP), Canak, the President of the League of Social Democrats of Vojvodina (LSDV), and Kandić, the Director of the Humanitarian Law Centre (HLC) were among others the ones that protested against (Belgrade Centre for Human Rights 2007, 253–255). Almost in all referendums the electoral response was insufficient.

On the other hand, according to Pavlovic, the right to popular initiative is used more frequently, although it is hard to claim that it has much effect. Illustrative of the ineffectiveness of the popular initiative is the case of the coalition of civil society organizations and their effort to amend the Law on Access to Information of Public Importance and propose a Law on Classification of Information to the Serbian Parliament. They gathered 70.000 signatures delivered it to the Parliament on December 7^th 2007, creating obligation for the President of the Parliament to forward the proposed initiatives to all the deputies, appropriate committees and the Government, in accordance with Articles 137 and 138 of the Rules of Procedure of the National Assembly. Although it was mandatory that a valid popular initiative finds its place on the agenda of the next sitting, there were no developments in this process before the interventions of the Civil Defender (the Ombudsman) and the Commissioner for Free Access to Information of Public Importance (Pavlovic 2010, 117).

 

2.2.1 The role of mass protests in political life and public policy

In the years 1991, 1992 and 1993 mass anti-war and anti-regime protest took place in Serbia however brutal police interventions swept the demonstrators off the streets and plunged the country into a rollercoaster of war, nationalist euphoria, and socio-economic disaster. In terms of opposition, the resulting war-tiredness, disillusion with political initiative, preoccupation with everyday life survival and massive outmigration by the young and educated, hardly provided a fertile soil for action (Pribicevic 2008, 54).

In 1996 things were different. The post-Yugoslav wars were over and lost, and the corrupted regime provoked a wave of discontent and anger, by committing electoral fraud. Hundreds of thousands of people were demonstrating for almost three months (Jansen 2000, 395). In 1996– 1997 hundreds of thousands were again on the streets against their own government and it had become clear that the street protest in Serbia was not simply an ephemeral upsurge. The regime manipulating the media continued to ignore the demonstrations in its news and this fired up the protesters and the popular energy. The demonstrations brought together a diverse array of people bound together by anti-Milosevic feelings, which conveyed an unspecified anti-regime discourse (Mimica 1997, 11). In order to quell mass protests the government was forced to make concessions and recognize the opposition’s electoral victories in 14 of Serbia’s 19 biggest cities. Although the demonstrations achieved to redress the election fraud, the opposition coalition Zajedno (Together), fell apart shortly after this (Jansen 2001, 37).

Additional cracks in the political regime emerged on the eve of the 2000 elections for the federal Yugoslav presidency, the federal assembly, and city councils. Milosevic, who was still in power and whose term was set to expire in July 2001, called early presidential election for September 2000. The student movement Otpor recognized the early presidential elections as an opportunity for ousting Milosevic from office. Also several substantive political changes increased the odds of mass mobilization against the regime (Nikolayenko 2012, 142–143). At the same time, there were also widespread concerns that Milosevic would manipulate electoral procedures to stay in power. Indeed, after Milosevic losing the elections, the Federal Constitutional Court declared the results of the election invalid and that new ones did not have to be called until the end of Milocevics term in office (July 2001). During the course of the 5^th October hundreds of thousands descended on the capital. They joined the half-million Belgraders who had already gathered in front of the federal parliament and other government-controlled buildings, storming altogether later in the buildings (Krnjevic-Miskovic 2001, 103). By the end of the day the opposition was in control.

On February 2011 popular dissatisfaction with the government, urges about 70.000 people in Belgrade, to take to the streets in an anti-government protest a major rally by the opposition Serbian Progressive Party (SNS). The SNS, Serbia’s main opposition party, is calling for early elections because of the “poor state of the country”, explained party president Nikolic (The Economist 2011). The same happened in April, when 50.000 of supporters of Serbia’s main opposition Progressive Party rallied, demanding that the government call early elections this year. Nikolic, the leader of the Serbian Progressive Party, SNS, announced to go on a hunger strike until President Boris Tadic announces the date of early parliamentary elections (Voice of America 2011). The Progressives asked that the government call early elections for December.

Our overview above has shown that, even if the referendum as well the popular initiative are considered to be instruments of a so-called direct, bottom-down democracy, as it is obvious from the aforementioned this is not the case in Serbia. The authoritarian rule and regime of Milosevic in the 1990s did not allow any free space for initiatives to develop, even when the party in government or in opposition would initiate the referendum, there was no room for public debate, since the media were directed by Milosevic and his supporters.

A country with a troubled history, with Kosovo casting a long shadow over the political life and a drained economy was difficult to grow an active civil society that would take initiatives. Even if the constitutional and legal preconditions pre-existed in order to empower citizens and civil society, in the form of a referendum and popular initiative, without a political culture that would include civil society organizations playing a central role, the practice would fail the expectations.

 

 

3 Conclusion

The aim of this paper was to confront the space provided in the constitutions of Albania and Serbia and the effective rights exercised by the citizens. For what concerns Albania, whereas there is an effective space provided for the citizens in the Albanian constitutions we have found that these latter have not been exercised neither by the referendums nor by the mass protests. In all respects, in the first decade (1991–2000), only few protests took place and even those were mainly animated by the opposition by asking the party in power to resign. No protests on the life conditions have taken place with the initiative of the citizens. Even in the second decade, we see a weak civil society and a weak opposition yet. This is demonstrated not only by the fact that all the protests in the second decade were animated by the opposition but the nature of requests by the protesters were focused on the government resignation instead of pointing to their own aims and interests. Serbia proves to be quite a similar case and confirms our initial argument. Although the constitutions adopted in the post-communist era, indicated an attempt to break with the past, and in the relevant texts all the prerequisites are provided and guaranteed in order to fulfil citizen empowerment and party competition, the space provided in the constitution is mostly used by the political parties in opposition. It is true though that historically speaking, referendums around the world have been used mainly by opposition parties and only over time the institution starts to shift into the hands of civil society (Serdült and Welp 2012). In newly established democracies, as Serbia and Albania, it is common referendums on sovereignty or independence to be used in times of crises, in societies in transition.

 

 

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* Teuta Vodo is a senior PhD Candidate as well as a Teaching and Research Assistant at the Department of Political Science in the Free University of Brussels since 2010. Her research interests lie in the fields of constitutional studies, law and courts, and judicial systems. E-mail: teutvodo@ulb.ac.be. Eleni Stathopoulou is a senior PhD Candidate at the Department of Political Science and History at Panteion University in Athens. She specializes in the areas of political sociology (trust, participation, and public opinion), political institutions and democratic theory. E-mail: eleni.stathopoulou@gmail.com.

[1] A Ponzi scheme is a fraudulent investment operation that pays returns to its investors from their own money or the money paid by subsequent investors, rather than from any actual profit earned by the individual or organization running the operation.

[2] The sources are provided by national newspapers describing a detailed historical background and the practices encountered.