The President of the Republic, Bajram Begaj, has submitted a document to the Constitutional Court, through which he asks this institution to annul the previous decision that suspended his decree announcing the elections for the Municipality of Tirana on November 9 — at a time when Erion Veliaj had moved the court, claiming that his dismissal was illegal.
Just one day after the Constitutional Court decided to suspend Begaj's decree for the part related to the partial local elections in Tirana, the president publicly declared that he would respect the decision — "as if there were no other choice," since, as is known, the decisions of the Constitutional Court have the force of law.
But unlike what he publicly declared, Begaj did not respect the decision: he is asking the Constitutional Court to overturn its decision-making and allow the elections for the Municipality of Tirana to take place, arguing that his decree was issued in accordance with the Constitution.
"The President of the Republic's defense submissions seem to be characterized by stubbornness in his legal position. Of course, it is not a sin to stick to your position, but what is striking is that the President of the Republic has not insisted so much on respecting the Constitution and his competence, as on the fact that the elections in Tirana must necessarily take place on November 9. It seems clear that this is his primary interest and not respecting the decision of the Constitutional Court. In this situation, the President should understand that something essential has changed for him: there is now a decision of the Constitutional Court to suspend the decree, which simply must be respected, not challenged. It is appropriate that the President of the Republic should focus on the defense on the basis of his decree, and not on whether it was suspended for the time of the trial. This is the reason that shows that he is no longer a party above the parties, but a clearly positioned party," - explained a lawyer to VNA.
In his submissions, Bajram Begaj emphasizes that the Constitutional Court cannot review Erion Veliaj's request, since, according to him, the arrested mayor should address the Administrative Court for dismissal, and not the Constitutional Court, since the act in question is administrative. In fact, this is an incorrect premise. The Constitutional Court is the only institution that determines its competence itself and that no one can condition it — not even Parliament by law. The President of the Republic is presumed to know that the laws of the Assembly are subject to review and even repeal by the Constitutional Court. So, in this respect, the Assembly is hierarchically lower than the Constitutional Court. The President must know that the Constitutional Court, when judging a case, refers exclusively to the Constitution and not to laws (laws are the product of Parliament).
The other argument that the Constitutional Court has not respected its jurisprudence, used by the President, is at least a mistake. The President argues that the 2017 CC decision number 24 supports the President's line, meaning that there are cases when an appeal can be made to the Administrative Court. VNA verified this decision. It concerns the decision to dismiss the former mayor of Kavajë, Elvis Roshi, for the purpose of the decriminalization law. The reference is more than wrong, because this Court decision has made it clear that in the case of dismissal under the decriminalization law, the decision to dismiss is not made by the Council of Ministers, but by the CEC:
“The court notes that in the concrete case the premature termination of the applicant’s mandate as mayor of the Municipality of Kavajë by the CEC came after the verification made by the PP regarding the declarations made by the applicant, based on and for the implementation of Law No. 138/2015. The PP has verified and ascertained several facts, which are provided for in Article 2/2 of Law No. 138/2015 as reasons for the termination of the mandate of elected or appointed officials. Under these conditions, the CEC has taken a decision for the premature termination of the applicant’s mandate. Therefore, it is not the CM that de facto and de jure has ended the mandate of the local government body in the concrete case, but it is the CEC and consequently only against the latter’s decision can the applicant initiate a judicial appeal procedure in the courts of ordinary jurisdiction. A mandate declared invalid or that expires before the deadline does not require other ascertaining legal acts, much less those that result in the dismissal of a body whose mandate has already ended.”
So, in this case we are not in the conditions of Article 115, which deals with dismissal by the Council of Ministers. It is quite clear that the reasoning in this case does not hold.
These lines of reasoning in the President's submissions clearly seem to have taken him off the axis of neutrality and standing on the parties, even though in the judicial process he is formally a party to the trial. This situation should not push him even further, stubbornly, into legal and political positions that show him as biased and not as a defender of constitutionality.
The Constitutional Court has set October 30th for the review of Veliaj's request, where the parties will face each other in a hearing.
