FLASH
Shkruar nga Jordan Daci
The 2016 reform, coupled with such a narrow interpretation of immunity and the role of the Assembly, has produced a system where the classic checks and balances of power have been profoundly eroded. Guarantees built on the experience of European states and decades of constitutional traditions were replaced by a simplified, politically motivated approach with unforeseen consequences...
Constitutional justice requires deep analysis and reasoning that will stand the test of time for many decades, far from the current interest or issue, and that ensures the system's sustainability beyond the events and interests of certain moments. Otherwise, it becomes a cause for the disruption of constitutional balances and thus undermines the functioning of the Rule of Law and Democracy. This is precisely what has been caused by several decisions of our Constitutional Court, including the one on security measures in the case of Sali Berisha, with an impact on today's case, etc.
Specifically, the Constitutional Court’s Decision No. 1, dated 18 January 2024, in the case concerning MP Sali Berisha, marked a turning point in the constitutional treatment of personal security measures against elected officials. In that decision, the Court explained that the measures of obligation to appear and prohibition of leaving the country do not constitute a limitation of the parliamentary mandate and, therefore, do not require the authorization of the Assembly. According to the reasoning, these measures “do not fundamentally prevent the MP from exercising his functions”, but only impose procedural obligations that do not infringe the immunity established in Article 73 of the Constitution.
However, this interpretation constitutes a significant departure from the consolidated constitutional tradition before 2016, where parliamentary immunity was understood as a protective mechanism not only against arrest, but also against any measure that made the normal exercise of parliamentary function practically impossible and violated freedom in any form. If this classical approach were maintained, any security measure that limits the movement of an MP, such as the obligation to appear within a certain deadline or the ban on leaving the country, etc., would be considered a restriction of freedom and thus of his mandate and would require the prior approval of the Assembly, and this should have been the decision for Berisha and anyone else after him.
The Constitutional Court's decision, taken in the context of a highly political case, shifted the focus from the institutional protection of the mandate to a formal assessment of the nature of the measures. This new standard considers it permissible for a deputy to be subjected to measures which, although not removing the mandate, clearly limit the exercise of his mandate and undoubtedly constitute a restriction of freedom. In this way, the Court established a precedent that is now irreversible as long as the Constitution itself is not amended or this practice is not changed.
This precedent has a direct impact on the assessment of the constitutionality of the measure of suspension from office. Although the measure of suspension has not yet been analyzed by the Constitutional Court, its logical position in the system of security measures as a preventive and not restrictive measure such as arrest, or the obligation to appear or the prohibition to leave the country, etc., makes it less restrictive than the security measures examined in the Berisha case. Therefore, suspension does not affect personal freedom and does not impose obligations of a coercive nature; it is functional in nature and does not interfere with the fundamental rights of the individual in the same way as the prohibition of movement. Given that the Court has considered substantially more severe measures against a deputy to be constitutional and has not justified them by requiring authorization from the Assembly, it is difficult to argue that suspension is not in accordance with the Constitution.
However, the real problem is not related to the relationship between the measures, but to the effect they produce on the principle of the separation of powers and the nature of the public mandate. The deputy is a functionary directly elected by the people and his mandate is given special guarantees only to protect the representative function from interference by other powers. For this reason, the suspension of a deputy by the court or the prosecutor's office would always be incompatible with the Constitution and Article 242 of the Criminal Procedure Code itself prohibits the application of this measure to those elected under the electoral law (an ambiguous terminology). By implying the deputy as directly elected by the people.
In the case of ministers and the Prime Minister, the situation is even more exposed. Unlike MPs, they do not have procedural immunity and can be prosecuted without the authorization of the Assembly. In a strong constitutional tradition, the suspension of members of the Council of Ministers would require a parliamentary oversight mechanism, since interference in the exercise of the executive function is interference in the structure of government. However, since the Court has considered it permissible to impose restrictive measures also against MPs, there is no longer a constitutional basis to claim a higher standard of protection for ministers or the Prime Minister. The logic of the decision itself leads to the conclusion that the judiciary can impose measures that practically block the exercise of duty even for members of the executive, but the question arises, for example, can such a thing be accepted against the President of the Republic? The answer is unequivocally no for the President. This shows the ambiguity and problematic nature of the unlimited application of this norm without being formulated and understood in accordance with constitutional principles and norms.
In this sense, decision no. 1/2024 is not simply a wrong decision in theory, but an act that has inevitably changed the constitutional relations between the powers. The 2016 reform, coupled with such a narrow interpretation of immunity and the role of the Assembly, has produced a system where the classic balances of power have been profoundly weakened. The guarantees built on the experience of European states and decades of constitutional traditions were replaced by a simplified, politically motivated approach with unforeseen consequences.
Today, these consequences are visible and the precedents created against a certain individual are being applied and will be applied to everyone, regardless of political difference. What was considered a useful tool at a particular moment for a particular case has now become a norm of action that affects the entire system. Therefore, it is fair to say that this decision, which at the time of its adoption was not in accordance with the principles of the Constitution, is producing uncontrollable effects today, and no one who supported it then has any basis today to oppose its logic.
The only solution is to restore the constitutional balances made messy by the ignorance of the constitutional amendments from 2008 onwards and especially by the gross ignorance of the drafters of the 2016 constitutional amendments who did not look further than their noses and did not view the constitutional system as a whole, but blindly implemented orientations from incompetent people, etc.
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