7 May 2021 Statement of the Legal Adviser of the President of the Republic, Mr. Bledar Dervishaj
WHY THE 10 LAWS WERE RETURNED FOR REVIEW, THROUGH WHICH THE GOVERNMENT AND THE ASSEMBLY CHANGED THE JUSTICE REFORM
Honorable representatives of civil society and international organizations in Albania,
Unfortunately today, we witnessed how the Plenary Session of the Assembly that is ending its mandate, rejected 10 Decrees of the President of the Republic through which, 10 Laws affecting the foundation of the Justice Reform, were returned to the Assembly for review.
While we waited at least to hear in the MPs discussions the efforts to legally argue the rejection of the Decrees, unfortunately, we heard only political rhetoric, empty words of no value to society and Albanians, no value to the Justice System and a slanderous language not at all worthy for a rule of law State.
The Assembly managed to review 10 Laws which touch the heart of the Justice Reform, within 1 day!!! This rhythm, this legal and professional ability would be envied by every European country regarding their Parliamentarians!
The Assembly in one day, on March 23rd 2021, adopted 10 Laws drafted by the Government that fundamentally change the Justice Reform. These amending Laws have been returned for review by the President of the Republic during April.
Meanwhile, the Laws of Justice Reform which were changed within 1 day by this illegitimate Assembly, were drafted, consulted and adopted after a 2-year analysis of the entire justice system and after an extensive process of public consultation during 2015 – 2017.
The Justice Reform during these years (2015-2017) was trusted to a group of high-level experts and distant from the Government.
The role of the Albanian Assembly during 2016-2017 in the framework of the Justice Reform system was a certifying/adopting role of the product of the group of high level international and national experts, without having the right to touch the core of the provisions. In all the steps, the Justice Reform was certified by the Venice Commission prior of submission to the Assembly for adoption.
So, the questions which arise to the Assembly and everyone are these:
– Why the Government took hostage the Reform in the Justice System, to grab the Justice System?
– Why these amendments were not consulted with the Venice Commission in order to have an objective and independent Opinion?
– Why the work of the independent High Level Experts was rejected, such as this Reform was built and approved in 2016 and why these amendments were adopted with such emergency?
Everyone understands that this action of the Government intends to capture the Justice Reform, as well as to cover all the illegitimacy in its implementation, violating every principle and turning it into a Justice System for the Government and not a Justice System for the citizens.
During this period which corresponded with the election campaign, the Institution of the President of the Republic did not deal publicly with the unconstitutional way that the Government and the Assembly transformed the Justice Reform, but through legally reasoned Decrees, these unconstitutional Laws were returned to the Assembly for review and requiring from the Assembly to take the whole time needed for reflection.
This was also in order not to distract the attention from the electoral process.
But since the Assembly repeatedly delivers false information, we are obliged to clarify the public opinion.
We invite everyone to access the official website of the Institution of the President of the Republic of Albania and to become aware with the real reasons why these 10 Laws were returned for review to the Assembly by the President of the Republic.
If you read the constitutional and legal reasons, which our MPs were obliged to read them, instead they preferred to read whatsups and sms ordered from up and to act accordingly, anyone will understand how little by little, every brick of the Justice Reform building placed in 2016, today, not only is being damaged and removed, but in an ugly and secretly manner is being torn down.
These 10 Laws, drafted by the Government and adopted by the Assembly on March 23rd, 2021 consist of these violations:
– Those have been reviewed through an accelerated procedure (within 5 days) on 18th – 23rd of March 2021! This is in flagrant contradiction with the requirements of Articles 81 and 83 of the Constitution of the Republic of Albania. Any of the MPs shall not try in vain for to explain when the review in the Commission begins and when it should end, because we all know arithmetic and how to calculate the calendar days.
– This speed of review has led to that the legal amendments are done not only in violation of the Constitution, but also of the procedure set by the Regulation of the Albanian Assembly (Articles 26-28).
– This violation is repeated 10 times in a row for all the amending Laws by the Assembly.
– The legal amendments have been adopted in the absence of a comprehensive consultation process with the civil society or with all the responsible governing bodies of the Justice System.
This is clearly demonstrated by the relevant Reports of the Commission on Legal Issues, which once quote that such Acts were done by a joint working group in the Ministry of Justice with the governing institutions of the Justice System, and once say that the draft-laws were forwarded to the justice bodies for opinion!!
If they were drafted together with the justice bodies, then why should those be forwarded to them when they were part of the working group?! And why some comments from some of these institutions were expressed exactly during the review in the Commission?!
– The amendments were done by the Government in a complete lack of transparency with the public. No one was informed what was changing and why it was changing! Neither the civil society, nor the real stakeholders who give justice on daily basis.
– The procedure followed for these legal amendments was unanimously opposed by 71 civil society organizations, such as Albanian Helsinki Committee, Open Society Foundation for Albania, Institute of Political Studies and many others which participated during the public consultation process of the reform during 2016. Even such organizations identify in their public declaration what procedural constitutional violations are done by the Assembly of Albania.
– The legal amendments carried out by this Assembly, in 2021, seriously affect the climate of trust in the Justice Reform adopted with full unanimity with 140 votes in 2016, as well as in the implementation of the Justice System Reform.
– The proposals of the 10 draft-laws were drafted by the Government according to its will, while according to the parliamentary procedure it is camouflaged as if these are proposals of the Members of the Assembly, thus violating the principle of separation and balance of powers, defined in Article 7 of the Constitution.
– These actions show once again the status of the Government and the Assembly today, where both these bodies are united in a single body, while according to the Constitution they must function and remain separate.
– From the review of the parliamentary practice it results that the changes in the reform laws were not drafted by the Assembly, but by the Government, at meantime only to avoid the mandatory process of public consultation and transparency, these draft-laws were proposed on the same date by some different MPs, as if they were their product and proposal.
– How it can be quoted in the reports that the Laws are drafted by a working group under the steering of the Ministry of Justice and then these initiatives are signed as proposals of MPs?!?!
– This is the flagrant case which shows the level of arrogance reached by the Assembly and some MPs, who do not care and even try to cover or hide the violations they commit, at least from the procedural point of view, at least for “facade” !
– It is sufficient only the fact that all the 10 Laws are proposed, reviewed and adopted through a completely unconstitutional procedure and without extensive public consultation, which makes mandatory their return for review, under Article 85 point 1 of the Constitution, in order to fill the identified gaps.
– Some of these Laws substantially affect the composition of collegial judicial bodies. We will now have truncated judicial bodies. The change of the judicial bodies in the judiciary levels through the reduction of the number of Judges in their composition, risks to infringe the public interest for a professional, effective, impartial, undisputable justice in terms of the quality of its decision-making.
– On the other hand, the legal changes, adopted at the end of this parliamentary session, are an attempt to cover the shortcomings, violations and inaction of the new bodies of the justice system mainly of the High Judicial Council (HJC) and the Justice Appointments Council (JAC), but not only, during the implementation phase of the reform, which with their actions or inactions, or the violations committed, have exceeded any reasonable deadline for filling the vacancies in the High Court and the Constitutional Court by prolonging this process and not responding in time to the vital need that the country has for a fully functional High Court and Constitutional Court.
– From a chronological view of all the facts, it results that the High Judicial Council, a body constituted on December 20th, 2018, has presented unjustified delays in announcing, verifying, evaluating of the candidates for filling all the vacancies in the High Court.
– Therefore it was unacceptable that through these legal changes to build an absurd terrain by legitimizing the slow and unacceptable rhythm of the HJC that for filling the vacancies in the High Court, which according to these adopted provisions may last until December 31st, 2023.
– The legal amendments on the other hand try to cover the responsibility of the Prime Minister and the representatives of the majority in the Assembly or the Government, that with their statements or with their active actions in address or in cooperation with former members of the Judicial Appointments Council blocked the activity of this body (JAC) during the years 2017-2018 and causing that the vacancies in the Constitutional Court not to be filled in time.
These actions and blocking of the activity of JAC practically ejected the Constitutional Court from its function for almost 3 years or exactly for 33 months and consequently taking out of constitutional control the activity and decision-making of the Assembly and the Government for 3 years in a row.
– The Assembly of Albania, before proceeding to a priori acceptance of the draft-laws of the Government, should have received information from the High Judicial Council on this question:
When will be completed the promotion procedures for the 8 vacancies in the High Court announced for application by this body (HJC), from September 2019 (a vacancy); February 2020 (six vacancies) and July 2020 (one vacancy)?
The facts show that, if the High Judicial Council would have shown effectiveness, determination, responsibility in its work and the procedures for filling these 8 vacancies in the High Court, already announced for more than 1 year, would have ended, and today the High Court would have in its composition 15 members.
This situation is definitely unacceptable for the President of the Republic and for these reasons, he has not decreed by proclamation the Law No 45/2021 which amends the Law on the organization and functioning of the Constitutional Court, but he has returned it for review to the Assembly.
– While the situation is even worse with the Law No 50/2021 “On some additions and amendments to Law No 96/2016 “On the Status of Judges and Prosecutors in the Republic of Albania”, as amended”.
– Through these changes, among other things, it is intended that in the justice system the High Judicial Council (HJC) and the High Prosecution Council (HPC) appoint as Magistrate a former Judge or a former Prosecutor without first going through the re-evaluation process, thus without passing the vetting, which is in contrary to what the Constitution stipulates in its 179/b.
The Constitution (Article 179/b, points 4, 7) mandatory requires that if former Judges or former Prosecutors want to return to the system, they must first successfully pass the process of transitional re-evaluation, thus the vetting, through the vetting bodies that carry out it, which are the Independent Qualification Commission and the Special Appeal College.
– While this Assembly avoids this constitutional obligation, creating a small ‘door’, that the verification of former Judges and former Prosecutors, not the vetting, so this ‘verification’ to be carried out by HJC and HPC.
Then the question arises, for the Assembly, for the citizens, for the High Judicial Council, for the High Prosecution Council, for all:
What should we implement?
The Constitution adopted in July 2016 with 140 votes or the Law adopted by this Assembly today whose mandate is ending???!!!
The President of the Republic, once in the position of the Speaker of the Assembly, enabled the voting of the Justice Reform with 140 votes. He cares more than anyone for a comprehensive, regular and procedural consultation process in adopting any change that affects in any way the Laws adopted in full consultation.
Today, the Assembly, whose mandate is coming to an end, lost the opportunity to show not only moral, but also legal integrity, in the face of the function that it has not exercised for a long time, that of the qualitative, transparent, uncaptured legislator in function and only of public interest.
You can find all the Decrees and accompanying reasons of the President of the Republic on the official website of the Institution.