The Venice Commission has published its opinion on the mandate of Olta Xhaçka.
According to Venice, members of the Assembly are free and cannot be forced to vote in a certain way.
“Parliament is not obliged to vote in a certain way, but is limited to voting only on issues that fall within its competence”, states, among other things, the Venice opinion.
Conclusions of the Venice Commission:
The Venice Commission has been invited by the President of the Assembly of the Republic of Albania to give its opinion “on the relationship between representative parliamentary democracy and binding decisions of the Constitutional Court in the context of the role of the Assembly in examining motions on incompatibility with the mandate of a member of the Assembly”, thus addressing the implementation of Constitutional Court decisions by the Parliament.
This Opinion does not intend to take a position on specific decisions of the Constitutional Court, nor is it the competence of the Commission to interpret the Constitution of Albania
The concept of incompatibility is understood as an obstacle to a deputy from exercising his or her mandate due to holding a position (private or public) which is considered incompatible and in conflict with the duty of the deputy. It focuses on the reasons for withdrawing the mandate through the application of the prohibition to hold an incompatible position. One of these reasons may be a conflict of interest between functions.
The questions regarding the mandate of a deputy (questions 1 and 3) are understood as follows:
“What standards govern the mandate of a deputy in a representative parliamentary democracy and under what circumstances can a deputy be forced to vote in a certain way?” From this it can be concluded: Respect by all authorities for the decisions of the Constitutional Court is based on the principle of constitutional loyalty as an element of the rule of law. This respect should not be conditioned by the vote of a parliamentary majority, but constitutes an essential requirement of the rule of law. When a decision of the Constitutional Court interprets the Constitution as limiting the decision-making power of Parliament, the latter must adopt a decision consistent with the Court’s judgment and vote only on limited issues as determined by the Constitutional Court, and not on the possibility of referring the case to the Court. In this way, Parliament is not obliged to vote in a certain way, but is limited to voting only on issues that fall within its competence.
As regards the questions on the standards for incompatibility provisions and the role of legislative and judicial bodies (questions 2 and 4, part one), it can be concluded as follows:
In general, the principle of separation of powers requires that several positions cannot be held by the same person at the same time, thus guaranteeing the integrity and proper functioning of each power (legislative, executive or judicial). In some cases, international standards provide for absolute incompatibility (e.g., being a member of parliament and simultaneously a judge). In other cases, exceptions are allowed (e.g., a member of parliament who is part of the government). Normally, when a person is found to hold two positions that are incompatible with each other, the situation can be regulated by the person himself – usually by choosing one of the positions and giving up the other. However, in cases where the situation is not regulated, the usual consequence is that the person in question loses his or her mandate. As for the procedure for establishing incompatibility, there are no clear standards.
With regard to state practice on incompatibility provisions and the role of legislative and judicial bodies (questions 2 and 4, part 2), the Venice Commission has collected information on constitutional incompatibility provisions in 12 member states and the European Union (EU).
The findings of the analysis show that there is no uniform approach to incompatibility issues and state practices vary depending on various factors, such as the structure of government, the number of chambers and other country-specific parameters. The questions of the President of the Assembly of Albania on state practice can be addressed, with caution, as follows:
Based on the material reviewed by the Venice Commission for this Opinion, the determination of incompatibility with the mandate of a deputy – at the constitutional level – is in most cases based on the other positions held by the deputy. In some countries, activities of a member of parliament (such as those for profit-making purposes) may be considered incompatible with his or her duties as a member of parliament (although this is not always regulated at the constitutional level). In most countries, the subjects entitled to refer a matter to a judicial body are political bodies or persons who are part of a political body; and in most cases the examination is carried out by a Constitutional Court or an ordinary court. Only in a few countries is the issue of incompatibility decided by the legislative body.
The question on the Constitutional Court and the creation of new constitutional norms (question 5) is understood as follows:
In principle, can a Constitutional Court create new norms? It can be concluded that the power to create new constitutional norms belongs to the legislative power, while the power to authoritatively interpret an existing constitutional norm belongs to the Constitutional Court, which takes into account general constitutional principles, such as access to justice, when interpreting specific constitutional provisions. However, the exact boundary between the interpretation of an existing constitutional norm and the creation of a new constitutional norm is not clear.
The Venice Commission remains at the disposal of the Albanian authorities for further assistance in this matter.
