2 August 2019 President Meta responds to the letter of the Assembly of Albania
REPUBLIC OF ALBANIA
PRESIDENT OF THE REPUBLIC
No. 2490/1 Prot. Tirana, on 01.08.2019
Subject: Response to letter nr. 2502/13, dated 19.07.2019.
To: PARLIAMENT OF ALBANIA
H. E. GRAMOZ RUÇI
Honorable Mr. Speaker,
Addressed to the Institution of the President of the Republic has arrived a document of request from the Parliament of the Republic of Albania no. 2502/13, dated 19.07.2019.
In continuation, the President of the Republic, restates once again that the position of the President of the Republic on the activity initiated by Parliament on the decrees of the Head of State, has been forwarded by our document no. 1956/1, Dated 19.06.2019.
The President of the Republic estimates in reminding the Parliament of Albania that regarding the 2019 local government elections, the President of the Republic, as the only constitutional authority with exclusive competence to appoint the date, has issued the following decrees:
Decree No. 10928, dated 05.11.2018 “On the appointment of June 30, 2019 as the day for the election of local government bodies”.
Decree no.11199, dated 10.06.2019 “On the repealing of decree no.10928, dated 05.11.2018“ On the date of elections for the local government bodies”.
Decree no.11211, dated 27.06.2019 “On the appointment of October 13, 2019, as the day for the election of local government bodies”.
These decrees were immediately forwarded to the relevant authority for enforcement according to law.
The Parliament of Albania, but not only, is welcome to find all the information of interest to it, including the institutional tradition of the President of the Republic, meetings, legal acts, declarations, activities, visits, consultations, the positions held by the Head of State or that of the Institution of the President of the Republic, published on the official website of the Institution of the President of the Republic, at: http://president.al/. They are public and anyone can read, be acquainted and use them.
However, it is important and very necessary recalling together that the date of June 30, 2019, as the day of elections for the local government, is appointed by Decree no. 10928, dated 05.11.2018, by the President of the Republic, in the conditions of a normal political climate in the country and after consultations with the representatives of the three parliamentary groups, a practice consolidated over the years by the heads of the Albanian state.
Whereas, the annulment of June 30th, 2019, as the day of elections for the local government bodies and postponing it to be held on Sunday, October 13, 2019 was carried out respectively by Decree no. 11199, dated 10.06.2019 “On repealing Decree no.10928, dated 05.11.2018” and Decree no. 11211, dated 27.06.2019 “On the appointment of October 13, 2019 as day of elections for local government bodies”, in the conditions of a severe political, constitutional, institutional and representation crisis, where after assessing the situation in which the country was going through, referring to the hatred speech by the political parties and their actions, and expressing their willingness not to explore the possibilities of reaching a political compromise, there was a risk that Albania could head towards an unpredictable escalation of social tension, which could cause uncontrollable consequences with serious risk to public security, democratic stability, safety and social peace in the country.
It was for these, as well as for many other reasons, that the President estimated and decided that the intervention of the Head of State in postponing the date of elections was necessary to guarantee the unity of the people; to defend the democratic values and principles provided in the Constitution of the Republic of Albania; to reduce the social tension; to guarantee constitutional order and democracy in the country; and to give the political parties time for a comprehensive dialogue and solving the severe political crisis, which are fundamental parts to the duties and role of the President of the Republic in a Parliamentary Republic, especially in times of crisis.
Honorable Speaker of Parliament,
You and I have a long political experience and we both have experienced the political developments in the country from the 1990s until today.
It is necessary to bring to attention that the development of the electoral processes in the Republic of Albania, both for the Parliament and for the local government bodies, has created its own history, in which exist previous precedents of postponing the elections date by the President of the Republic, always depending on the circumstances and to fulfilling a legitimate aim and consolidating the fragile Albanian democracy.
The first precedent of the postponement of the electoral process in Albania began precisely in the first steps of the fundamental changes of the governing system in 1990-1991, this being the first moment that paved the way for pluralistic democracy and market economy in our country.
Former Chair of the Presidium of the People’s Assembly, Ramiz Alia by Decree No. 7433, dated 01.12.1990, determined that “the elections of the members of the People’s Assembly for the 12th Legislature shall be held on 10 February 1991, on Sunday”. This decree is published in the Official Gazette No.8, dated 20.12.1990.
Former President Ramiz Alia, who was also the last leader of the Communist system in Albania, reflected with a highly state responsibility in coherence with the major political changes taking place throughout Eastern Europe and, on 17 January 1991, took the decision to postpone the date of the general elections scheduled for February 10, 1991, postponing them to be held on March 31, 1991. This was followed by his decision by decree no. 7468, dated 22.02.1991, for the creation of the Presidential Council, this being another step towards the opening of a new and democratic social order.
This decision, to postpone the election date, was made precisely to enable the opposition political forcës, that were already created, to take part in the general elections, even though they demanded the changing and the overthrowing of the Communist leadership in Albania.
These elections, postponed in time, and held on March 31, 1991, produced the first pluralistic parliament.
This act undertaken by former President Alia must be reassessed even more today for his accountability, because currently there is an apparent degradation of the ruling class in the country in the perception of democracy, elections and political pluralism which are the foundations of the entire constitutional and legal system in the country.
Restoring the concept of the majority rule and the legitimizing of this concept in the public discourse of the Prime Minister or other majority figures is unacceptable for a country like ours, which experienced the most tragic isolation from the one-party system that had as its foundation the majority rule over minority.
The fundamental distinction between the majority state and the rule of law is that in the latter it is paramount the guaranteeing of the rights of minorities and the opposition in particular, as well as the respecting the fundamental human rights and liberties, where the right to elect and not to vote is vital to democracy and the rule of law.
It is therefore important that we all commit ourselves only to the rule of law in the country and respecting the state of justice.
It is precisely the grave and the unacceptable misunderstanding between the rule of majority and the rule of law that has brought us to where we are today, in the deepest and most serious constitutional, institutional, and representation crisis in the country.
Another case of postponement of elections is identified in 2006, when the President of the Republic by Decree no. 5131, dated 02.12.2006, decided that elections for local government bodies should be held on Saturday, January 20, 2007.
Due to claims by political forces and an assessment of the impossibility of holding those elections on the due date (20 January 2007) arising out of a political conflict, resolved by a delayed agreement on 12 January 2007, the President of the Republic approved again a new act, Decree no. 5194, dated 14.01.2007, by which it decided that:
“Decree no. 5131, dated 02.12.2006,” On the appointment of the election date for local government bodies “, is repealed and elections for local government bodies are held on Sunday, February 18, 2007″.
Meanwhile in 2017, just two years ago, the Constitutional Court by Decision no. 24, dated 23.03.2017, decided: “The dismissal of the request by Mr. Elvis Roshi, former Mayor of Kavaja” dismissed by the Council of Ministers due to the termination of his mandate in accordance with the law on decriminalization. This decision by the Constitutional Court was notified to the President of the Republic by letter no. 4 act, dated 23.03.2017.
The President of the Republic, by Decree no. 10098, dated 24.03.2017, decided: “The appointment of May 7, 2017, as the day for the holding of partial elections for Mayor of the Municipality of Kavaja”.
Due to the political crisis of 2017, the opposition did not register as a candidate in these elections and the two registered candidates withdrew from the elections.
On May 20, 2017, Mr. Edi Rama, Head of the majority and Mr. Lulzim Basha, Head of the opposition, addressed a letter to the President of the Republic, informing him that on May 18, 2017, they had reached a political agreement enabling the opposition to be included in the general parliamentary elections as well as in the partial local elections for Mayor of Municipality of Kavaja.
According to them, part of the political agreement between the majority and the opposition is also the request to the President to change the date of the general parliamentary elections to guarantee the opposition’s participation in them.
Under these conditions, the President of the Republic by Decree of the President of the Republic no.10352, dated 21.05.2017, decided that the date of elections for this unit of local government be postponed and set to be held on June 25, 2017, a date which coincided with the same day for the general elections for the Albanian Parliament.
This new date, that is June 25, 2017, was a date beyond the deadlines provided in point 3 of Article 10 of the Electoral Code, which provided that elections should be held to a maximum within a legal deadline corresponding to May 7, 2017.
Meanwhile by Decree no. 9883, dated 05.12.2016, the President of the Republic, appointed June 18, 2017, as the day of elections for the Albanian Parliament. Due to the political crisis of 2017 and the opposition’s non-participation and registration in this election process, conducting elections on June 18, 2017, became impossible.
In this way, after the political parties held dialogues and reached an understanding expressed in
in writing, the President of the Republic issued Decree no. 10 351, dated 21.05.2017, by which Article 1 of Decree No. 9883, dated 05.12.2016 “On the appointment of the parliamentary election date”, was amended and it was decided that the parliamentary elections be postponed and held on Sunday, June 25, 2017.
In conclusion, after examining these previous precedents over the years, the postponement of general or local electoral processes in the Republic of Albania, dictated by particular political circumstances, a climate of distrust between the parties, political conflict, and tense social situations, which in all cases have necessitated the intervention of the only constitutional authority that is the President of the Republic, to issue a new Decree, for the postponement of the election date.
Meanwhile, in the current situation, the lack of political agreement between the parties could not limit the powers of the President of the Republic to intervene with the authority and with his exclusive constitutional powers, to appoint a new date for the local government elections, thus guaranteeing all citizens of the Republic of Albania to vote in an fair, secret, free and democratic manner, in a calm and non-conflicting situation and safe of any possible danger of a social conflict.
In a normal situation, overcoming the crisis by agreement would also result in possible changes of the Electoral Code, but in a crisis situation where the parliamentary majority is owned by the Socialist Party, which through its leadership not only showed no sign of solving the crisis, but on the contrary, was aggressive towards the opposition, but also against the President of the Republic because he undertook an initiative to solve the crisis, and necessitated the intervention of the Head of State to create a time opportunity to resolve this paradoxical situation which above all is not treated by law under the Electoral Code.
The President of the Republic brings again to the attention of the Parliament of Albania that the decree no.11199, dated 10.06.2019 “On the repeal of the decree of the President no.10928, dated 05.11.2018 “On the appointment of the date of elections for local government bodies”, thus annulling June 30, 2019, as the day of elections for local government bodies in the Republic of Albania “, is an act entirely taken and based on the provisions of the Constitution, based entirely on constitutional arguments and in defense of constitutional principles and democracy in the country.
Specifically, this important act of the Head of State aimed at disrupting a fictitious electoral process which was contrary to democratic principles, practically transformed into a voting process, without competition and without alternatives, contrary to the Constitution of the Republic of Albania, Article 3 of the Protocol no. 1 of the European Convention on Human Rights, and the obligations Albania has undertaken with the signing of the Stabilization and Association Agreement Albania-European Union, with the entry into force on 29 August 2006.
The President’s Decree No.11199, dated 10.06.2019, for the annulment of the elections date on June 30 and Decree no. 11211, dated 27.06.2019 for the appointment of October 13, 2019 as the day of the local government elections, have been taken in full support of the Constitution and the fundamental principles protected by it.
Referring to the constitutional provisions, on which the issuing of the decrees of the President of the Republic are based upon, the totally constitutional activity of the Head of State, the constitutional principles, the fundamental rights and liberties to which these acts are issued, the legal and social relations that these acts regulate, as well as referring to the completely constitutional arguments on the basis of which these acts are taken, makes them (the decrees) acts of a completely specific legal-constitutional nature, and as such, no one other than the Constitutional Court of the Republic of Albania can examine their validity and constitutionality.
Even Ambassador Audrey Glover, Head of the OSCE / ODIHR Observation Mission to the 2019 Local Elections, also noted in her preliminary findings report published by her on July 1, 2019 that:
“…. Things became even more complex due to the lack of a Constitutional Court and the lack of a functioning High Court, with the former (the Constitutional Court) being the only body mandated to rule on the constitutionality of President’s decrees.”
The above mentioned decrees of the President, as important acts of a constitutional nature, have also been taken in respect of the obligations of the Republic of Albania stemming from its adherence to international acts and the engagement in the European Union integration process.
The decrees for the annulment of June 30, 2019 as election day for local government bodies, and for the appointment of October 13, 2019 as the new day of elections, until now have not been opposed by any political force or other entity, political or non-political, before any court in the Republic of Albania, including the Electoral College, and have not been amended, annulled, or repealed by any other court in the Republic of Albania, nor by the Electoral College.
For these reasons, in accordance to the Constitution of the Republic of Albania, these acts are in force and binding for implementation by all, including the Albanian Parliament.
Consequently, the entire voting process, held on June 30, 2019, is an unconstitutional, fictitious and undemocratic process that creates no legal consequence, since among other things, June 30, 2019 does not legally exist as an election date for local government bodies in the Republic of Albania.
The President’s assessments also coincided with the clearly expressed position of the preliminary report of July 1, 2019 of the OSCE / ODIHR observer mission headed by Ambassador Audrey Glover, as well as with the Council of Europe Congress of Local Authorities that decided to reject the observation of the elections in Albania.
Meanwhile, the Resolution of the Parliament of Albania on June 13, 2019, and the initiation of a process to set up a Parliamentary Inquiry Committee, have in fact offered the Parliament’s support to the Central Elections Commission in pursuing an unconstitutional voting process, thus choosing a wrong path, which does not help at all in solving the political crisis and the grave situation created, especially after the party voting of June 30, 2019.
This entire process initiated by Parliament is fictitious, illegitimate, wrong and moreover, without any concrete object of its activity.
The President of the Republic is convinced that the final interpretation of the Constitutional provisions or the role of the President in times of severe political crisis related to electoral processes, just as our country has been undergoing for a long time, cannot ever be accomplished through investigative commissions, raised by Parliament, but only by the Constitutional Court of the Republic of Albania, which for almost a year and a half (17 months) has not been functional.
If the Constitutional Court were functional throughout 2018 and after, then any party would have the opportunity to address to this court which then would express its position on any possible constitutional claim.
Only the Constitutional Court can speak on the decrees of the President and their compatibility with the Constitution.
I would like to point out to You personally, but also to the Albanian Parliament, that whatever be the decision of the Constitutional Court, it will be effective only for the future and may influence the behavior of the President in similar situations, but never can this decision have any retroactive effect to legitimize the process of non official voting, with only one candidate as it has already done on June 30, 2019, because the Decree of the President of the Republic no.11199, dated 10.06.2019 for the annulment of the election date on June 30 and Decree no. 11211, dated 27.06.2019 for the appointment of October 13, 2019, as the day of the local government elections, are in force and already June 30 as a calendar date for elections has been disqualified, at least for this year.
In addition, if we had in place a functional Constitutional Court, this Court could have considered some of the laws passed by Parliament, which in the President’s estimation are in flagrant violation with the Constitution and seriously damage the public interest of the country.
The President of the Republic, with regards to these laws, estimates by expressing to You as Speaker of the Parliament that it is necessary to verify and investigate how the will of the Government and the bodies of parliament were proposed or formalized in the passing of Law no. 94/2018 “On some amendments and additions to the law no. 8438, dated 28.12.1998, “On Income Tax” as amended (The Dividend).
In a flagrant violation of Article 155 of the Constitution, which prohibits preferential fiscal relief with retroactive effect, Parliament passed Law no. 94/2018, giving retroactive effect to the fiscal relief on retained dividend for certain categories of entities and with unrestricted retroactive effect in time.
Specifically with law no. 94/2018, Parliament determined that the tax rate on dividend would be reduced from 15% to 8%, and this tax rate will apply not only for the future after the entry into force of this law, but also for profits retained earnings in 2018 and earlier, with no time limit, including capitalized reserves and earnings.
It is precisely the retroactive effect of this law that violates Article 155 of the Constitution, which explicitly states that:
“National and local rates, taxes and financial obligations, the relief or exemption of certain categories of payers, as well as the manner of their collection shall be determined by law. In these cases the law cannot be given a retroactive effect. ”
The President of the Republic by Decree no. 11015, dated 20.12.2018, found the unconstitutionality of this law and returned the law for reconsideration, in order for the Parliament to improve its provisions whereby the real beneficiaries under this law must be the Albanian citizens, without distinction and by a equal treatment, in accordance with the constitutional provisions and without damaging the state budget.
The President of the Republic found that this law, in particular Article 9 thereof, favors certain categories of business in a flagrantly unconstitutional way; contravened the constitutional principle of “equality before the law”; created considerable legal uncertainty about its application in practice; had a retroactive effect, in the form of an abusive “fiscal amnesty”; it created fiscal inequality between businesses and a major avenue for abuse by overturning the fiscal system and equity.
Parliament abrogated the decree of the President of the Republic immediately and inexplicably within the same day 20.12.2018. While the Parliament was holding its plenary session at 6.00 pm, the Parliamentary Committee on Economy and Finance examined the Presidential Decree in total secrecy, without the presence of the opposition, only with the participation of the Minister of Finance and without inviting the representatives of the institution of the President of the Republic to be present to give institutional explanations in accordance with the solid parliamentary practice up to date. Contrary to the regulations, within the same day, on 20.12.2018, the Committee on Economy and Finance urgently forwarded it the plenary session, which immediately included it in the agenda, thus voting Decision no. “Repeal of Decree No. 11015, dated 20.12.2018”.
The way this law and the Presidential Decree were dealt with under such conditions is inexplicable, and especially when it comes to a law that the President has claimed as unconstitutional, brings selective and discriminatory treatment of subjects in the market and great losses for the state budget.
The President of the Republic considers that, in the history of Albania’s political pluralism, this behavior of Parliament is the most flagrant case of the violation, not only of the procedure and the Regulations of Parliament, adopted by consensus, but also of the open display of a dangerous arrogance and an irrefutable expression of a deep parliamentary, constitutional, institutional and inter-institutional crisis.
I am certain this has occurred without Your knowledge, therefore I ask for your commitment as Speaker of Parliament to verify and restore normality to the parliamentary activity and to its structures.
The impossibility of estimation on time by the Constitutional Court of this law makes it impossible the suspension of the execution of this law up to these moments and this situation is likely to continue until this court becomes functional to make decisions of such nature. Thus, in this way, even if the Constitutional Court reaches a decision later, it is impossible to fully recover the negative financial consequences that its implementation has brought to the state budget and to our citizens.
This has been in continuation of the Prime Minister’s attempt to remove the constitutional control from the government and Parliament, but also to guarantee the control over the Constitutional Court through the pressure of the vetting process which is done through information provided by instruments and institutions controlled by the government and the current majority.
I would like to remind you of the responsibility of Parliament, and especially some representatives of the majority, for blocking the Council of Appointments in Justice for 2 (two) consecutive years (2017-2018) and for not responding to my attempt as President for the accomplishment of the legal changes in law no.115 / 2016 “On the governing bodies in the justice system”, to enable the CAJ to function well, changes which were approved by Parliament only on 18.07.2019 and two days earlier on 30.07.2019 were decreed by announcement also from myself, as the President of the Republic.
No one should forget that above the Constitutional Court there are the European and International Courts which have decisive jurisdiction over our country.
Therefore, any act of haste for the short-term purpose of blackmail, capture, or outrage will inevitably have the near possibility of an objective and independent international judgment.
I express my estimation that this Parliament has sufficient problematic records so far concerning the Constitution and that it does not need any further excesses that would indefinitely block our country’s European path.
In the meantime, the President of the Republic is convinced that the only way to solving the deep and serious crisis that the country is facing, in order to restore the functioning of the rule of law and restore it to its constitutional ranks, remains only the genuine political dialogue, abiding the law by all, by holding free, fair and democratic elections on October 13, 2019, in accordance with Decree No.11211, dated 27.06.2019 “On the Appointment of October 13, 2019, as Election Day for Local Government Bodies”.
The President of the Republic, inviting everyone to leave the path of lawlessness, selfishness and conflict, is convinced that October 13th is not only an excellent opportunity to guarantee inclusive and democratic local elections, but also a clear test of the political will for Albania’s European future, before the Council of the European Union decides to open accession negotiations on 17-18 October 2019.
It is time to restore the sovereignty to all the citizens of Albania, therefore, everyone must engage sincerely and away from their short-term political goals.
Honorable Mr. Speaker of Parliament,
For 45 years our country has experienced a regime of majority rule, unprecedented in our continent and comparable only to that of North Korea.
It is not good that today, while the world is eagerly awaiting North Korea to open its doors and change, parliamentary majority representatives here in Albania are deifying the majority rule regime and making every effort to annihilate the real and democratic opposition in the country and to target and capture the only independent institution such as, at the present, that of the Institution of the President of the Republic.
You know, like no other, how opposed to the cancelation of the MP mandates, the President of the Republic has been and still is. An unjustified action by the opposition that has really set a very negative precedent.
I do not hesitate to ask You to help the Prime Minister, who is also the Head of the Socialist Party, not to set the most absurd precedent in the history of the former Communist countries, that of the annihilation of the Democratic Party, not only as the main opposition force today, but also as the first pro-Atlantic and pro-European opposition force of our country.
Understanding also the position You are in, due to the very high duty you represent and the situation that is not so good and representative, in which the most important institution of the country is today, due to the responsibility of all the political actors in the country, I continue to hope that Your experience, especially in parliamentary life, You will make the best efforts to restore the political dialogue and return to normality of all the democratic institutions.
In the current circumstances, the Albanian Parliament needs so much the experience and the foresight for wise and contributing solutions, to serve the opening of negotiations with the European Union on October 18th which is approaching and thus every day he must think and act on the interest of all Albanians and the nation-wide aspiration to join the European Union.
I believe that with Your experience You will help Parliament to return to normality.
Lastly, the President of the Republic guarantees the Parliament of Albania that he is in office, willing, cooperative and fully aware to take all important decisions in the best interest of the country, in accordance with the powers vested in him by the Constitution and with his solemn oath to serve the general interest and advancement of the Albanian people.