Guarantor of the Constitution


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.
For more than two decades 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.

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