Yesterday, Mr. Adnor Shameti, a socialist MP, member of the parliamentary Legal Affairs Commission stated:
The Legal Affairs Commission will exercise the competencies of the High Prosecutorial Council and, after we have held the hearing session, we will shortlist the best candidates that will be put up for a vote in Parliament.
This statement is exactly what it sounds: Parliament is usurping the functions of an independent institution established by the Constitution. The Legal Affairs Commission vesting itself with such competencies without any single legal reference in the Constitution, the Parliamentary Regulations, and without any formal decision by Parliament.
How did we get here?
The Constitutional amendments approved with bipartisan support in July 2016 determine the evaluation and election of the candidates for Prosecutor General (PP) by the High Prosecutorial Council (KLP).
The Constitution formulates this procedure as follows:
Article 148a(1): The Prosecutor General is appointed by three-fifths of the members of Assembly among three candidates proposed by the High Prosecutorial Council, for a seven- year mandate, without the right to re-appointment.
(2) The High Prosecutorial Council shall select and rank the three most qualified candidates, based on an open and transparent procedure and forwards them to the Assembly, in accordance with the law.
The Constitution also determines the criteria candidates need to meet, including vetting:
Article 148ç(1): Prosecutor can be Albanian citizens appointed by the High Prosecutorial Council after being graduated from the School of Magistrates and after the conduction of a preliminary process of verification of their assets and their background checks, in accordance with the law.
Moreover, the Constitution clearly states that the end of the PP’s mandate is declared through a decision of the KLP (Article 148c(2)).
The Constitutional amendments of 2016 do not envision any transitional period regarding the general prosecutor, because it was agreed that the incumbent PP Adriatik Llalla would see through his term which ended only after the KLP would have been installed:
The High Prosecutorial Council shall be established within 8 months from the entry into force of this law [the new Constitution].
The Constitutional amendments entered into force on August 11, 2016. This means the KLP should have been installed by February 11, 2017. Nevertheless, ten months from this constitutional deadline, the KLP has not yet been installed, in violation of the Constitution, with the excuse that no qualifying member from civil society has applied for the seat, which is reserved for a civil society representative.
The Law on the Organization of the Prosecution System
On October 6, 2016, nearly 3 months after the Constitutional amendments became effective and 3 months before the Constitutional deadline to install the KLP, the socialist majority approved the Law on Organization of the Prosecution System, which contained several foresights that appear at clearly violate the Constitution and be at odds with the aims of the judicial reform.
- The law introduces a Temporary General Prosecutor (PPP), who does not appear in the Constitution, which would serve between the time that incumbent General Prosecutor term ends and the moment the the KLP is installed.
In other words, the socialist majority enacted a law, which predicted that the KLP would not have been installed by the constitutional deadline of February 11, 2017, and not even by the end of incumbent prosecutor’s term in December 2017, that is, 10 months after the constitutional deadline
2. The law does not limit the time that the PPP shall serve, which means that he shall stay in office for as long as the KLP is not installed (in violation of the Constitution) – potentially indefinitely.
3. The PPP is elected with simple parliamentary majority, which means he can theoretically be elected by 36 deputies, which is the majority of the quorum of 71 deputies. On the contrary, the Constitution states that the PP can only be elected by 3/5 of the parliament.
4. The PPP is elected without being vetting, which is a violation of the constitution that does not allow any new prosecutorial appointment without prior vetting.
The Legal Affairs Commission
Now, that the majority has failed to install the KLP within the constitutional deadline, with the justification that no suitable civil society candidate could be found—all while a civil society candidate for the High Judicial Council, with the same set of requirements, was easily found—it is using the Law on the Organization of the Prosecution System to appoint by a simple majority vote a PPP, for an indefinite term .
First, the Constitution clearly states (Article 148c(2)) that only KLP can declare the end of a PP term. This means that until the KLP has been installed, Adriatik Llalla’s term cannot be officially declared completed, even though he has been 5 years in office. It is in no way the right of the government or parliament to do so and declare the vacancy.
Second, parliament has no legal authority to vest the Legal Affairs Commission with the KLP’s constitutional competencies, as deputy Shameti claims. To make it even worse, it appears the Legal Affairs Commission has vested himself with such competencies because there is not even any Parliament’s Decision to this end.
Prime Minister Edi Rama has announced that the deadline for applicants for the position of PPP is tomorrow at 12:00, i.e. a little more than 24 hours from the call for applications.
The entire procedure, entirely in violation of the Constitution at least since February 11, 2017, and openly endorsed by the international diplomats in Albania, is being rushed through at a time where the prosecution is investigating the involvement of several high-level politicians in drug trafficking and organized crime, including the former Minister of Interior and Edi Rama’s right hand Saimir Tahiri and other close allies of the Prime Minister.
Whoever is appointed (practically) by Edi Rama as a PPP will operate on the flimsiest of legal bases – and will affect the rule of law in the entire country for the foreseeable future.