The prolonged conflicts between the Parliament and the President of the Republic have forced the latter to apply to the Constitutional Court inviting it to make a clear decision on the clear separation of powers between the two institutions.The basis of the conflict is the appointment of the members of the same Constitutional Court, a process that has been suspended for many months after the majority refuses to approve the appointments of President Topi. The issue will be reviewed at the February 16 by the Constitutional Court.
In October 2011, the majority with 72 votes approved the decision with which it sent back the law decrees of the President of the Republic of Albania Bamir Topi, for the replacement of the three members of the Constitutional Court. This initiative indirectly extended the mandate of 1 / 3 for members to be replaced for another three years. The action of the majority has increased the institutional conflict between the President and the Parliament.
A few days later, the president, through a request presented to the Constitutional Court, asked for the resolution of the disputes with the Parliament and "the abolition of the resolution number 106 of the 23 / 06 / 2011 of the Parliament;" The resolution of conflicts of jurisdiction between the institution of the President of the Republic and the Parliament “. According to the head of state, Parliament has not taken any measures to resolve the issue of the appointment of three new members. The accusation carried out by Bamir Topi is based on a sentence issued by the Constitutional Court for the interpretation of the 125 article, paragraph 3 of the Constitution. Although the mandate of the three members expired in May of the 2010, Admir Thanza, Petrit Plloci and Xhezair Zaganjori, continue to remain in office. The lack of replacement was the result of the dispute between the Presidency and Parliament.
To prevent the Constitutional Court from being a party, the legislator has provided in the Constitution that the composition of the Constitutional Court must be changed every three years for one third of its members according to the procedure established by law. For the application of the article regarding the replacement of members, it is the Parliament that has prevented the implementation of the Constitution. According to the lawyers of the Presidency, in addition to blocking the process, the majority ignored once again the sentence of the Constitutional Court, which believes that “the provision of the article 125 / 3 of the Constitution is an organizational principle, based on the specific characteristics of the constitutional process that aims to preserve the Constitutional Court composed of a majority of two thirds of the incumbent members, allowing the creation of a special judicial experience in the field of constitutional justice "." The experience acquired by the Court, as it has an impact direct on the quality of its decisions, is considered a value protected by the Constitution. The identification and implementation of an appropriate mechanism to comply with the 125 / 3 article of the Constitution is a task for the constitutional legislator "- observes the constitutional body. Even after this sentence, the majority does not change position, thus increasing the conflict with the head of state even more.
The return of the three decrees of the Head of State
In October last year, the Parliament sent back the three names decreed for the Constitutional Court by the head of state, extending the mandate of the members (with expired mandate) for another three years. The withdrawal of the candidates proposed by the President of the Republic was made by the Parliament without being taken into consideration. The names were sent to Parliament at the beginning of September 2010, to be subject to review at the Permanent Commission and later to be voted in parliament, but the Democrats prevented the progress of the process. The majority has set in motion the Constitutional Court for the interpretation of the articles dealing with the replacement of the members of the Constitutional Court and the Cassation. The analysis of this request has suspended the procedures for the replacement of the members of the Constitutional Court by the Parliament. At the end of this process, the court expressed the opinion that it is up to the Albanian Parliament to find the appropriate mechanism and implement it to comply with Article 125, paragraph 3.
Even if this sentence was published in the Official Journal, the article is not implemented in Parliament, thus leaving the replacement of members in stagnation. The impediment that postpones the replacements
The majority that decides the agenda of parliamentary work has hindered the process of replacing the members of the Constitutional Court. Although the latter expressed itself in a sentence for the implementation of the law, the Parliament continues to impede the process, thus delaying the replacement of the judges of the Constitutional Court. Parliament, the "selective" selection
In September of the 2010, the President of the Republic, Bamir Topi, proposed four names for the replacement of the members of the Constitutional Court: Artan Hoxha, Fatmir Hoxha, Ardian Leka and Elvira Jorgaqi. Although the Democratic Party has decided to reject the presidential decrees, the majority has made an exception only for one name, that of Fatmir Hoxha. The latter was selected selectively by the majority.
What is provided for in the Constitution for the replacement of members.Part Eighth / Constitutional CourtArticle 1251. The Constitutional Court is composed of nine members, appointed by the President of the Republic with the approval of Parliament. 2. The judges remain in 9 office for years and cannot be re-elected, they are chosen among lawyers with great qualifications and with a work experience not less than 15 years in the profession. 3. The composition of the Constitutional Court is renewed every three years for 1 / 3 of its members according to the procedure established by the law.4.
The President of the Constitutional Court is appointed among its members by the President of the Republic with the approval of Parliament for a period of 3 years.5.
The member of the Constitutional Court remains in office until the appointment of his successor. The interpretation of the article 125 / 3 according to the Constitutional Court1. The 125 / 3 article of the Constitution constitutes an organizational principle, based on the specific characteristics of the constitutional process and aimed at preserving the composition of the Constitutional Court constituted by a majority of 2 / 3 of the members in office, allowing the creation of a specific legal experience in the field of constitutional justice. This experience acquired by the Court, as it has a direct impact on its decisions, is considered a value protected by the Constitution. 2. The identification and implementation of an appropriate mechanism to comply with the 125 / 3 article of the Constitution is the responsibility of the constitutional legislator.
Those who leave and those who are proposedThe mandate has expired at:1. Admir Thanza2. Petrit Plloci3. Xhezair Zaganjori They are proposed by the President:1. Ardian Leka2. Artan Hoxha3. Edlira Jorgaqi
Article of Luis Tanushi. Published in the Shekulli newspaper of 4 February 2012. Original title.Translated by AlbaniaNews from Irena Popi.
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