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Part IV Europe © Copyright by the Endowment of the United States Institute of Peace © Copyright by the Endowment of the United States Institute of Peace 11 The Drafting Process for the 1998 Albanian Constitution Scott N. Carlson hen the Republic of Albania adopting a new constitution, but it does adopted a new constitution in shape the context in which constitutional re- 1998, it joined the ranks of other form developed. It helps to explain the lack WCentral and Eastern European countries of constitutional materials in the Albanian that have moved to democratic forms of gov- language, lack of familiarity and experience ernment. For Albania, the new constitution with modern democratic institutions and provides a historic foundation upon which to human rights, and both international and forge an independent and democratic future. local agreement on the need for extensive © CopyrightThroughout its recent history, by Albania the has Endowmentforeign input. of endured domination and rigid control at the Introducing a new constitutional system thehands United of regional powers. States Even when inde- Instituteor structure is unavoidably of challenging.Peace Even pendent, the country has suffered under au- a completely tried and tested system or struc- tocracy, most egregiously so under Stalinist ture may fail when applied to a new environ- dictator Enver Hoxha, who led post–World ment. The process of legal transplantation is War II Albania into forty-five years of exile delicate, as the host state can reject foreign from the international community. Alba- legal concepts for a variety of reasons. Legal nia’s adoption of a democratic constitution and political traditions can be both founda- was a significant step toward solidifying its tions upon which to graft new structures and democracy and joining the community of obstacles to implementing them. Albania’s countries that rely on constitutions to struc- efforts to develop a democratic constitution ture and safeguard their democratic systems provide a classic illustration of the challenges of government. that legal, political, and social traditions pose Albania’s history of domination and iso- to persons advocating substantial systemic lation does not fully explain its delay in change. The tumultuous events before and 311 312 Scott N. Carlson during the 1997–98 drafting process chal- economy. Party dogma dictated that plural- lenged local and international actors to de- ism in the Western sense simply reflected vise new methods to engage politicians and “the multiplicity of groups with opposing in- the public, and the drafting and approval of terests in the ranks of the bourgeoisie.”5 The the 1998 constitution represents a novel and constitution provided for a highly centralized sustained effort to incorporate public par- state that emphasized collectivism in all as- ticipation, both local and international, in all pects. The constitution nominally permitted aspects of the process. some personal property, but state involve- Albania was introduced to constitution- ment in all aspects of economic and politi- alism before World War II, but the period cal life was so extensive that taxes and levies concluded with the self-proclaimed King were abolished.6 In general, modern concepts Zog ceding power to occupying Italian fas- of individual civil and political rights and the cist forces. During the war, the constitution separation of powers were considered irrel- was suspended and Albania administered by evant. The will of the masses—as expressed Italian appointees. Immediately after World through the monolithic Party of Labor—was War II, Enver Hoxha and his partisans se- to direct all organs and functions of the state cured control of Albania. On January 11, “for the purpose of defend ing the victories 1946, a constitutional assembly declared Al- of the revolution and strengthening of the bania to be a “people’s republic,” and two socialist order.”7 months later, on March 14, 1946, the assem- In 1990–91, the Party of Labor began to bly adopted a new constitution.1 This consti- acknowledge that their vision of a mono- tution, as amended, provided the structure of lithic socialist state was no longer viable, the socialist state for the next thirty years. and gradually, party officials began work on In 1972, the Sixth Congress of the Alba- drafting laws that would implement radi- nian Party of Labor issued the directive that cal reforms in the system of government, a new constitution should be formed, an ef- introducing political pluralism and modern fort that culminated on December 28, 1976, democratic institutions to protect basic hu- with the promulgation of a new constitu- man rights. The result of this process was a tion. In the words of Enver Hoxha, the new set of laws commonly referred to as the Ma- ©constitution Copyright was necessary to “complete by thethe jor ConstitutionalEndowment Provisions.8 Collectively, of construction of socialism and the further de- these laws established the basic framework velopment of our state of the dictatorship of for a modern democratic state and protec- the proletariat.” United2 According to States official state tions Institute of individual human ofrights. Peace pronouncements, the new constitution was The provisions were a dramatic change drafted with the benefit of public consulta- from the past, but there remained a need tions: Over the course of “several months,” and political commitment to develop a the draft was “submitted for study to the permanent constitution. Acknowledging this working masses all over the country.”3 Sug- fact, Albanian legal professionals opened a gestions emerging from these consultations dialogue with the Venice Commission of with the public were “recorded and studied,” the Council of Europe in November 1991, and “all suggestions improving on the docu- seeking to benefit from their diverse pool ment” were adopted.4 Despite this encourag- of constitutional-law experts.9 The Major ing rhetoric, the 1976 constitution did not Constitutional Provisions suffered from recognize the institutions of pluralist democ- shortcomings and lacked clarity in certain racy nor permit the formation of a market areas, and Albanian legal professionals were Framing the State in Times of Transition 313 interested in addressing these issues in a nounced that the Socialist Party complaint manner consistent with international best had been misplaced, causing a delay. Directly practices. One area of political concern was before the referendum, three of nine mem- the ease with which the provisions could bers of the court resigned in protest.13 Given be amended, as a simple two-thirds vote the court’s sua sponte review authority14 and of parliament could amend any and all of the gravity of the complaint, failure to re- them.10 Such a standard was not unaccept- view the matter before the referendum able per se, but a more deliberative process, created the distinct appearance of further perhaps including a referendum, would have political interference. been more open and less subject to manipu- Nonetheless, the referendum proceeded lation by political supermajorities. In any without the benefit of a court review. Voting case, the provisions were only intended to was relatively calm and uneventful, and the be temporary, as they called upon the parlia- final tally resulted in an unequivocal defeat ment to establish a constitutional commis- for the proposed draft,15 surprising many sion to control the drafting process. During in the local and international communities. 1993 and 1994, such a commission worked The Venice Commission had completed its on a draft text and developed various ver- review of the proposed draft the week be- sions of it. Generally speaking, the various fore, finding it “unfortunate that the pro- texts all contained the basic provisions for tection of human rights . [does] not form establishing a fully functional parliamentary part of the fundamental principles of the democracy.11 Constitution.”16 However, the commission’s In the summer of 1994, President Sali Ber- role was not widely understood and it is un- isha and his confidantes handpicked a select likely that its evaluation had any impact on group of draftsmen and encouraged them to the outcome of the referendum. The issue of finalize a draft that would be put to a popular a permanent constitution languished there- vote in a referendum. Those excluded from after for several years. the drafting process, such as opposition par- The next national election was the parlia- ties, considered President Berisha’s initiative mentary election of 1996. In contrast to the to have placed political considerations above 1994 referendum, this election was fraught © Copyrightthe established drafting process. by Of particuthe- Endowmentwith manipulation and intimidation. of Inter - lar concern was the proposed ratification national criticism followed, and the landslide process. Lacking the necessary two-thirds reelection of the ruling majority was under- themajority United to approve a replacement States text un- Institutestood to be of questionable of Peace legitimacy at der the Major Constitutional Provisions, the best.17 The government further jeopardized governing coalition passed a referendum law its dubious position when it refused to take with a simple majority on October 6, 1994, legal action to halt Albania’s rapidly expand- providing an alternate method of approving ing pyramid schemes later in 1996.18 Allega- a permanent constitution.12 The opposition tions were made that the governing majority Socialist Party protested publicly, challeng- was involved in the schemes, and tensions ing the constitutionality of the referendum within the country increased as the year law in the constitutional court. ended and the schemes began to fold. From As the November 6, 1994, referendum November 1996 through March 1997, the approached, there was concern that the con- majority of the pyramid schemes collapsed; in stitutional court had not yet heard the case. some cases, their leaders disappeared. Slowly, When pressed for a response, the court an- thousands of citizens began to realize they 314 Scott N.