9 August 2019 President Meta decrees the return to Parliament for the reviewing of law no. 53/2019 “For the Academy of Sciences of the Republic of Albania”
The Institution of the President of the Republic declares that the President of the Republic, H.E. Ilir Meta, in exercising of his powers, in accordance with Articles 85, paragraphs 1 and 93, of the Constitution, by Decree no. 11256, dated 08.08.2019, has decided:
Return to Parliament for the reviewing of Law no. 53/2019, “On the Academy of Sciences of the Republic of Albania”, with the aim of revising and improving point 1 of article 3, point 3, 7 and 14 of article 4, point 3 of article 6, points 5 and 6 of article 11 , paragraph 1 of Article 15, and paragraph 1 of Article 19, on the grounds attached to this decree.
At the conclusion of the review of this law, the President of the Republic has concluded that Law no. 53/2019 “On the Academy of Sciences of the Republic of Albania”:
– contradicts the provisions of the Constitution of the Republic of Albania;
– violates the autonomy of higher education institutions;
– violates the powers of the President of the Republic;
– is not in line with the existing legal framework in the Republic of Albania.
The President of the Republic declares that:
I.The provisions of point 1 of Article 3 of Law no. 53/2019, are not in accordance with the provisions of Law no. 80/2015, “On Higher Education and Research in Higher Education Institutions in the Republic of Albania”.
Unlike law no. 80/2015, in law no. 53/2019, it is provided that the Academy of Sciences of the Republic is given a higher status in the hierarchy of scientific research.
This is evident not only in point 1 of Article 3 of the newly adopted law, but also in its other provisions:
Article 4, point 9 of the law states that the Academy of Sciences cooperates with domestic institutions with research capacity, such as higher education institutions, research institutes and centers in order to coordinate scientific research and to prepare young researchers.
This provision is almost in the same spirit as the provisions of law no. 80/2015, but if we compare point 1 of article 3 with point 6 of article 9, of law no. 53/2019, it seems clear that the Academy of Sciences and its Assembly members are given not only a coordinating but also a supervisory role over the scientific activity of higher education institutions.
If the intention of the legislator is that the whole process of scientific research be led by the Academy of Sciences then it should be formalized in the same way as in law no. 53/2019 “On the Academy of Sciences” and Law no. 80/2015 “On Higher Education ..”, so that these two laws are completely in harmony with one another and do not bring into practice interpretations of the role, activity or products that two autonomous institutions, such as the Academy of Sciences and institutions of higher education have or realize.
The definition that the Academy of Sciences is the highest public institution that carries the best values of scientific research should also be accompanied by clear provisions in the law on how these autonomous institutions work and coordinate with each other in order to co-ordinate, develop, organize and administration of research activity.
II.The provisions of point 3 of article 4 of law no. 53/2019, which foresees the role of the Academy of Sciences in the development of strategies and policies for the unified use of the official Albanian language, contemporary terminology of science and technology, and for the consolidation of the Albanian language in all fields of science, must be reassessed by the Assembly.
The Academy of Sciences should not be the only institution in carrying out such a major decision-making process in the Albanian language, without including the constituent departments of the faculties of language, social sciences, journalism, etc., which may have concrete proposals. , for concrete issues related to the use of the Albanian language.
Welcoming the proponents and all those who have contributed to the law, it is worth noting that, given the current composition of this institution and in conditions where, even the future cannot be foreseen, the Academy of Sciences cannot and, in fact, it should not deal solely with the delicate problems of adapting, unifying, changing the core symbol of our nation’s identity, with the dramatic changes that life has brought since the last linguistic convention held in 1972.
The treatment and decision-making of issues related to the Albanian language go beyond the boundaries and the will of the individual activity of the Academy of Sciences and must be dealt with in a more comprehensive way so that all our compatriots, especially linguists, can be represented and heard, as and be part of decision-making and unification / s.
It is necessary to include in this process all institutions that have value, so the implementation of strategies and policies in this regard must first take the decision or the expressed will of the Albanian Parliament.
For these reasons, the President of the Republic considers that the provisions of point 3 of Article 4 of Law no. 53/2019, must be reassessed by the Assembly.
III.Point 7 of Article 4 of Law no. 53/2019, is not in line with the provisions of Law no. 80/2015 “On Higher Education and Research in Higher Education Institutions in the Republic of Albania”, as it creates an overlap in this new function of the Academy by creating a clash of its competences with those of higher education institutions.
Higher education institutions will lose their autonomy in front of the Academy of Sciences, while according to the provisions of Article 57, point 7 of the Constitution, the autonomy of higher education institutions and academic freedom are guaranteed by law.
Paragraph 7 of Article 4 gives the Academy of Sciences a higher role of authority vis-à-vis higher education institutions, making these provisions not only incompatible with law no. 80/2015, but also contrary to the provisions of the Constitution regarding the particular autonomy enjoyed by these institutions.
IV.Threating the autonomy, creation of a dual treatment, and the collision of laws.
Paragraph 14 of Article 4 of Law no. 53/2019, is not in line with the provisions of Law no. 80/2015.
By comparing the provisions between the two laws, it seems clear that the Assembly, with its provisions on the key role and functions it has given to the Academy of Sciences in Article 4, point 14 has provided powers that are already sanctioned in the law on higher education institutions, affecting thus the autonomy of these institutions in the field of doctoral treatment and development.
Consequently, this legal situation creates a double legal treatment, slamming the laws between them unnecessarily to regulate otherwise.
V.Paragraph 3 of Article 6 of Law 53/2019 contradicts the very spirit and provisions of the Law on the Academy of Sciences, as well as the principles of the Constitution for the prohibition of any kind of discrimination.
Research institutions in Albania, as well as the Academy of Sciences, have a duty to reach out and collaborate with all researchers and scientists of Albanian origin or Albanian citizenship located in the region or anywhere in the world.
But for the realization of this important national mission with particular values for Albanian culture and science, forms and mechanisms must be found that are in line with the principles of the Constitution and in harmony with the legislation.
Acquiring the status of external member of the Academy of Sciences of Albania solely on the basis of the Albanian origin or ethnicity of a member of a science academy of another country must respect what the law of the Academy of Sciences is based upon its members, therefore, the free run of any person submitting this request.
Candidate admission is presumed to be performed individually rather than in a group and is reviewed by the Assembly on a case-by-case basis and on the basis of positive or negative ethnic or negative discrimination criteria for each candidate presented.
In this provision of the provision we are concerned not only with the conditions of discrimination, but also with the violation of the will of the individual who must necessarily express it even in the case of integration and esteem by being involved in the structures of an institution of critical importance. special, as it is in fact the Academy of Sciences.
It is concluded that the right to be a decision maker and contributor to the activities of the Academy of Sciences belongs to both elected members and automatically accepted members, further deepening the discriminatory position between categories in conditions where the former are part of the selection process while the latter from the status of a member of the academy he holds at a member academy of the “All European Academies”.
VI.Paragraph 1 of Article 15 of Law no. 53/2019 contradicts other wording of this law and establishes the full premises for discrimination on the basis of equality of opportunity and civil rights on grounds of age, which is categorically prohibited by both the Constitution of the Republic of Albania and the Work Code of Ethics.
Paragraph 1 of Article 15 expressly provides that:
“Members of the Assembly may be elected persons up to the age of 68 for the academic title and up to 65 years for the Associate Academic Degree.”
This wording has no legal coherence where on the one hand age restrictions are imposed on candidates seeking to enter the Assembly of the Academy of Sciences and on the other hand the Law on the Academy of Sciences in Article 6 (4) clearly stipulates that a member of the Assembly only at the age of 75 does he receive the title “Member Emeritus”.
In this way, in addition to the lack of logical coherence between the two norms within the law, a clear discriminatory situation is also created between individuals who are already members of the assembly and individuals who wish to run for membership, making this point of Article 15 of Law no. 53/2019, contrary to the provisions of Article 18 of the Constitution and Article 14 of the European Convention on Human Rights.
VII.Paragraph 1 of Article 19 of the law under consideration creates normative ambiguity about the status, functions and role of the Academy of Sciences.
There is a legal uncertainty as to the role and functions of the Academy of Sciences itself in establishing short-term and long-term research units. It does not define what “long term” means.
By not placing time constraints on these search units the possibility of them being permanent is created. Also for short-term search units, which are limited to an activity of up to two years, it is not specified whether they can be transformed or renewed mandate by becoming practically long-term. Therefore, the division into “long-term” and “short-term” research units does not legally resolve the uncertainty created as to who is entitled to establish these research units, which in the law on education and research is analogously the proposal of HEIs is given to the Ministry covering the relevant field and the Council of Ministers.
Under the circumstances, scientific research is currently regulated by law no. 80/2015, the establishment of scientific research institutions parallel to those that are outside the system of the Academy of Sciences is endangered and the role of the Academy in the scientific research system in Albania needs to be clarified.
Thus, the establishment of the legal framework of the entire system of scientific research in the Republic of Albania and subsequently the legal definition of the role and functions of the Academy of Sciences within this system would be essential for the well-orientation and dedication of state budget funds.
VIII.Points 5 and 6 of Article 11 of Law no. 53/2019, contradict the Constitution of the Republic of Albania and violate the competences of the President of the Republic.
The Constitution has not set a specific deadline within which the President of the Republic should express himself or for any consequences that may result from not expressing his will in the process of appointing the President of the Academy of Sciences.
Meanwhile, the provision of point 5 of article 11 of law no. 53/2019 aims to establish a 10-day deadline, within which the President of the Republic must carry out the appointment of the President.
Also, point 6 of this article provides for a restrictive mechanism for the powers of the Head of State that do not exist in the Constitution and that, moreover, the constitution does not even intend to include them in the provisions of the constitution of the state.
Even in the initial version of the draft law submitted to the Assembly by MPs on 03.04.2019, the provisions of the draft law presented did not contain these legal rules with a restrictive nature of the powers of the President of the Republic.
By examining the parliamentary practice of the draft law, it is not possible to understand what was the reason and purpose of interfering with the law at this level of unconstitutionality!
Given the fact that this draft law has been considered by the Committee on Education and the Means of Public Information at its meetings of 09, 10, 11, 15 and 16 July 2019, it is clear that all subsequent reflections of this committee, but also afterwards of the Assembly in the plenary session of 18.07.2019, were made subjectively and completely unsupported, referring to the fact that during the period that the draft law was being considered in the parliamentary committee, the President of the Republic in exercising his powers by Decree no. 11223, dated 11.07.2019 has rejected the appointment of Academician Skënder Gjinushi, as the President of the Academy of Sciences of the Republic of Albania.
The provisions of points 5 and 6 of Article 11 of Law no. 53/2019, essentially limit the powers of the President of the Republic.
Moreover, referring to the content of these provisions of the law, Parliament, in a completely wrong way, overturns the authorities and the role of constitutional bodies in the Republic of Albania, which finds no support in the Constitution of the country or in the jurisprudence of the Court. Constitutional.
It is not possible for a body of the Academy of Sciences to review and expressly decide on the Decrees of the President of the Republic, as this is not provided for in the Constitution.
The deadlines and mechanisms for unlocking processes in certain cases should be laid down in the Constitution.
The Constitution does not provide for the process of appointing the President of the Academy of Sciences, no deadlines, no unlocking mechanisms, nor any other institutions that may decide on the decrees of the President of the Republic on this matter.
This is not a constitutional forgetfulness, but a expressed will, as the provision of Article 92 / g has been the same and unchanged since the adoption of the Constitution of the Republic of Albania in 1998.
The above, what the Constitution did not want, cannot be done by law, thus overturning the hierarchy of acts in the Republic of Albania.
The President of the Republic is the nominating body for the appointment of the President of the Academy of Sciences, and this power of the Head of State can in no way be derived or confined to a second decision-making of any other institution or body, whatever it may be.
This competence can in no case be of a symbolic character, but a guarantor of the principle of separation and balance of powers.
The provision of point 6 of article 11 of law no. 53/2019, eliminates and exceeds the competence expressly provided for in the constitutional provision giving priority to a lower-level legal act.
Consequently, the principle of the rule of law, expressed in the hierarchy of norms and the primacy of the Constitution, in relation to other legal norms, is also violated.
In these conditions, through the provisions of points 5 and 6 of Article 11 of Law no. 53/2019, we are facing a situation of flagrant violation of the Constitution, because we are dealing with a restriction of the powers of the President of the Republic through a law, which is an act of legal power lower than the Constitution and cannot prevail on it.
For the foregoing, with the sole purpose of improving this law in accordance with the constitutional requirements and respecting the autonomy of higher education and research institutions, and in order for this new law to be in harmony with the existing legal framework in the Republic of Albania, I have decided to return for review of law no. 53/2019 “On the Academy of Sciences of the Republic of Albania”, with the aim of revising and improving point 1 of article 3, point 3, 7 and 14 of article 4, point 3 of article 6, points 5 and 6 of article 11, point 1 of article 15 as well as point 1 of article 19 according to the reasons given above.
The full reasons attached to the Decree of the President of the Republic can be found on the official website of the Institution of the President of the Republic.