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Venice Commission publishes report on Olta Xhaçka's mandate: Independent MPs cannot be forced to vote properly

2024-12-10 11:39:09Politikë SHKRUAR NGA REDAKSIA VOX
Venice Commission publishes report on Olta Xhaçka's mandate:
Olta Xhaçka

The Venice Commission has published the report regarding the mandate of SP MP Olta Xhaçka.

Opinion of the Venice Commission on the mandate of Olta Xhaçka:

The Venice Commission has concluded that – Parliament is not obliged to vote in a particular way, but is only able to vote on issues that are within its competence .

The Venice Commission finds that: The principle that members of parliament are free to vote according to their convictions has been confirmed by the Albanian Constitutional Court with decision n.44/2011.

Venice Commission: There can be no exception to the fundamental principle of representative democracy, according to which the political mandate of a deputy is free and irrevocable and the deputy cannot be legally compelled to vote in a certain way

The Constitution may exclude certain issues from Parliament's decision-making (issues that are not put to a vote), but if the Constitution provides for the competence of the Assembly to decide (vote) on an issue, this vote must be freely given by each MP and cannot be dictated.

The Venice Commission confirms the position that according to the jurisprudence of the Albanian Constitutional Court itself, the Assembly sends for review to the Constitutional Court the issue of the incompatibility of the mandate of a deputy only when it is established that we are facing cases of point 3 of article 70 of the Constitution, (paragraph 11). That is, when the deputy himself uses state assets and profits from them. Other cases are reviewed by the Assembly itself (article 70/2 of the Constitution).

We recall that the majority did not send to the Constitutional Court the motion of 1/10 of the deputies regarding the incompatibility of the mandate of deputy Xhacka, as it assessed that the condition of "use of public property and benefit from this property" was not met. In that case, it was a private investment in private property and there were no benefits from public sources.

The Venice Commission explains that according to the jurisprudence of the Albanian Constitutional Court, the right of 1/10 of the deputies (Article 70, point 4 of the Constitution) consists in the right to initiate the Assembly to send to the Constitutional Court cases of incompatibility of the deputy's mandate related to the criteria of Article 70, point 3 of the Constitution (when the deputy uses public assets and benefits from them) (paragraph 30). Only in these cases does the Assembly have the obligation to send the case to the Constitutional Court. Thus, according to the Venice Commission, it can be seen that the parliamentary minority is protected according to international standards.

The Venice Commission notes that with the 2016 decision, the Court considered Article 70 of the Constitution (which provides for the motion of 1/10 of the deputies), as a lex specialis (prevailing norm) over Article 134 of the Constitution which provides for the right of 1/5 of the deputies to directly address the Constitutional Court (paragraph 11).

The Commission notes that following the Constitutional Court’s 2016 decision, Article 66 of the Law on the Constitutional Court was subsequently amended to allow 1/5 of the deputies to refer directly to the Constitutional Court a case of incompatibility of the deputy’s mandate. However, in the latest decision (the Xhacka case), the Constitutional Court, while not referring to (not addressing) the amendment to Article 66, maintains the position that 1/5 of the deputies cannot make such a request to the Constitutional Court.

We recall that in 2022, the Constitutional Court was set in motion at the request of 1/5 of the deputies, and examined the merits of the issue of MP Xhacka's mandate and summoned the parties to the process, but did not issue a final decision, dismissing the case with the argument that the Court should have been set in motion by the Assembly.

The Venice Commission finds that the Assembly (majority) recognizes the binding nature of the implementation of the decisions of the Constitutional Court.

The Commission analyzes the obligation to implement the decision of the Constitutional Court as a principle of the rule of law and the principle of loyalty to the constitution.

This Commission expresses the opinion that the two decisions issued by the Constitutional Court regarding Xhacka's mandate should not have been conditioned by a vote in the Assembly for their implementation.

According to the majority, in this specific case, the Assembly had no other option to implement the decisions of the Constitutional Court, other than to pass a vote in plenary session on sending the case to the Constitutional Court.

The Assembly has in fact implemented every decision that was clear for implementation and this is not achieved through dictating the vote. In other words, the decisions of the Constitutional Court should be enforceable and should not dictate the vote.

The Constitutional Court cannot create new norms, but only interpret constitutional norms (art. 49 – 53, 60). It is the competence of the legislature to create constitutional norms and the competence of the Constitutional Court to interpret constitutional norms.

According to the Venice Commission, the competence of the Constitutional Court, as a judicial and non-political body, should not violate/infringe on the domain/role of the constitutional legislator (parliament) which has the right to create norms (paragraph 51).

Constitutional courts must respect constitutional amendments made by the constitutional legislature (parliaments), when they come in response to the implementation of the Constitutional Court's decision, in order to avoid the perception of a "government of judges" - "gouvernement des juges"


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