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Article 7 of the Constitution of the Republic
of Albania guarantees the separation of
powers, as an indispensable prerogative for a
democratic society. In a democratic republic,
the executive power and the legislative one
work closely together, in order to implement
the legal acts necessary for the development
of society. Whereas the judiciary power has
the duty to protect citizens from eventual
infringements of their rights caused from
public authorities. According to the
Constitution, the Constitutional Court has the
duty to oversee the applicability of the
Constitution by other public authorities. The
Constitutional Court is the last instance
entitled to perform the judicial review of the
normative acts enacted by other state bodies,
focusing on their compatibility with the
Constitution.
Constitutional justice implies a variety of
institutions entitled to protect the legal
order of a state. To put it differently, this
is known as “guarantor of the Constitution”.
Based on the above - mentioned considerations,
the competence of the Constitutional Court
concerning the review of the legislative
process is considered to be of a paramount
importance for the rule of law. This trend to
review the activity of the lawmaker has turned
out to be a distinctive feature for all
democratic regimes in the world, respecting at
the same time, the sovereignty of legislators.
Therefore, the role of the Constitutional
Court has increased sharply particularly in
countries, which emerged from the totalitarian
regimes.
What do we mean by “guarantor of the
Constitution”? It means an organ that is
entitled to protect the Constitution from the
eventual violations of the other state
bodies. Hence, we speak of a guarantor of the
Constitution. Bearing in mind the fact that
the Constitution is a variety of legal norms
approved by the legislators, its violation may
derive from an action or inaction that comes
against the above-mentioned norms. The
Constitution, as any other normative act,
might be violated by those that are entitled
to implement it. This may occur directly (from
organs that have been provided by Constitution
for its implementation), or indirectly
(deriving from the laws enacted for the
implementation of the Constitution). The
requisite to protect the Constitution from the
abuses of certain legislative and executive
bodies during its implementation has derived
from the principle of rule of law and has been
related to the legality of the state power –
the exercise of all the functions only in
conformity with the law. Precisely, having in
mind the above – mentioned principle, and
believing that such an institution will serve
to the establishment and protection of
democratic institutions, the Albanian
lawmakers have foreseen the establishment of
the Constitutional Court.
During the activity of the Constitutional
Court since its establishment in 1992, it has
handled
cases of different importance and characters,
creating step by step a rich experience, where
it has been obvious the progressive effort to
appropriately protect the constitutional
principles. Although one may disagree, taking
into account the short period of time at our
disposal in order to prepare the right
judgments, this institution has tried to be
impartial and independent.
Due to the nature of cases judged by the
Constitutional Court, it has very often been
the target of political criticisms. These
clashes are inevitable knowing the subject
matter of Constitutional Court – judicial
review of the constitutionality of the acts of
legislative and executive powers. Moreover,
the Constitutional Court has the duty to
oversee whether the political power has been
exercised under the limits recognized by law.
These limitations should not be exceeded
otherwise the whole system of legal order and
state authority will not be respected.
From this point of view, Constitutional Court
should not be understood as an organ that
stands above the others or avoids them. It
plays an equilibrium role pertaining to the
separation of powers and their reciprocal
control, as one of the leading principles of
the rule of law. This kind of constitutional
control exercised by Constitutional Court is
the best way to ensure the performance of
state activities in accordance with the law,
what constitutes the key element of the rule
of law. The constitutional doctrine embraced
the theory of Hans Kelsen (Austrian
constitutionalist who is considered to be the
father of the foundation of the Constitutional
Court) for having an institution entitled to
control the activity of the state bodies for
the purpose of avoiding as much as possible
arbitrariness and anarchy that often give very
serious consequences directly upon the
citizens. Thus, at the beginning of 20th
century, the Constitutional Court was thought
to be a valuable institution, which would
ensure the respect of fundamental human rights
and freedoms.
Viewed from this angle, the Constitutional
Court of the Republic of Albania has brought
novelty in governance, although some of its
judgments have been associated with
resentment. Although its authority to review
the individual constitutional complaints have
been reduced as compared to authorities
foreseen by the Main Constitutional Provisions
and to the authorities of some other homologue
courts in several states, the role of the
Constitutional Court has become more evident
to citizens.
During these 10 years since its foundation,
the Constitutional Court has been shaped as a
pure constitutional institution like its
homologues in European countries. It has
regular relations and exchanges of experiences
with similar institutions in Europe, and it
has adhered to different conferences and
organizations. The real purpose of this
participation is to better serve to the
mission of the constitutional justice.
Furthermore, the Constitutional Court
publishes periodically its decisions, granting
access as widely as possible to lawyers,
scholars and other people interested in it.
Constitutional Court presents itself in
Internet with its website, where you can
access information about the competencies,
organization, composition, administrative
structure, judgments delivered since 1992, and
its activity. You will find the relevant part
of the Constitution dealing with the
Constitutional Court and the integral text of
the Law On the Constitutional Court of the
Republic of Albania too.
Dr. Vladimir Kristo
President of the Constitutional Court
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