Martin HenzeDemocracy: the government of the people by the people for the people.
Mr Henze, after the adoption of the agreement on electoral reform on 5th June the government of Prime Minister Edi Rama decided to cancel the pact with the genuine opposition and unilaterally amend the Constitution. What consequences will this decision by Edi Rama have for EU integration?
Henze: Prime Minister Rama’s statement on 10 July 2020 that he will support constitutional amendments that reverse the national agreement between the elected opposition, led by the opposition leader Lulzim Basha, who represents over 50% of the electoral population, and the Rama ruling party of 5 June, on electoral reform, by unilaterally changing the electoral system, leads to the current discussion.
The agreement of 5 June 2020 was negotiated and signed by mutual agreement between the ruling party and the elected, united opposition led by Lulzim Basha. De iure it cannot be terminated or dissolved.
The background to the contractual agreement of 5 June, which was concluded under the auspices of the EU and the USA, is the agreement of 14 January 2020 on the framework for cooperation on electoral reform between the ruling party and the united opposition.
Prime Minister Rama’s statement on 10 July that he would support constitutional amendments that would reverse the June 5 agreement on electoral reform by unilaterally changing the electoral system came the day after Rama publicly announced that he did not have sufficient parliamentary approval. However, as it turned out, this was wrong news and was rejected by so-called opposition parliamentary deputies. These members of parliament communicated that a required majority had been reached.
This sudden change in Rama’s position came after the Socialist Party and its representative on the Political Council had repeatedly and publicly rejected any change to the system, including the proposal for open lists and the proposal for constitutional amendments, during the negotiations on the Political Council and before and after the agreement of 5 June on electoral reform.
Of course, the principle of pacta sunt servanda applies here too. Mr Rama will not get out of the agreement of 5 June 2020 so easily. A termination of the contract: not possible.
This process shows that Rama and his government, including the probably illegal opposition in parliament, the person of Hajdari is conspicuous, and that they are not reliable representatives for the Albanian people and for the international community.
It is a clear breach of contract committed by the ruling Rama, Hajdari and their comrades. What does Schopenhauer say about a breach of contract: “The breach of contract is a lie, namely the cunning, false and complete circumvention of the contracting party”.
This breach of contract by Rama and his comrades has serious consequences.
The new draft which is now before us is not in conformity with Europe, contradicts the minimum democratic standards, especially in the prohibition of coalition, a typical post-communist approach from the 19th century.
Now the people involved are trying to heal this breach of contract by arguing that the contract will be respected and only modified and that the constitution must be changed. As a result of the compromise of 5 June 2020, an electoral law is now to be drafted which corresponds to the sole will of the government. Ultimately, this approach shows that there is a lack of understanding of democratic processes, including the formation of a compromise and compliance with the treaties.
It excludes the majority of the Albanian electorate from the opinion-forming process, and the idea of a constitutional amendment represents a massive breach of the constitution, in other words, the perversion of justice that is relevant under criminal law, and the Albanian people, the sovereign, but also the international community no longer have any confidence in the actions of Rama and his comrades in parliament.
What a result, Mr Rama, Mrs Hajdari, they have turned their backs on the Albanian nation and Europe, on the future. On 10 June 2020 they have become people of the past, In addition, there is the massive threat by Prime Minister Rama, who is accused of corruption, electoral fraud, the formation of a criminal organization, treason (in this case the negotiations with Serbia) and massive breach of the constitution, among other things, as a violation of the law. Also his possible stays in French prisons for receiving stolen goods and drug dealing in 1993/1994 are discussed.
Mr. Rama imputes untrue allegations and threatens via Tweet, on 11 July 2020, 12.53 p.m., the elected democratic opposition, led by the Democrat Lulzim Basha, and thus indirectly also the international community, i.e. the USA, EU and Germany, which participated in the agreement on the election law with commitment. I quote: “…stop the insults and threats, do not say that the agreement of 5 June has been broken, that the agreement was made with them and for them, not for us! We don’t want or want any party election administration, so do not provoke us to…”
Of course, the ruling party Rama has broken the June 5th agreement if it no longer wants to abide by the agreement. Mr Rama is now showing who he really is, not an Albanian patriot, not an EU citizen, a person who represents himself and his own interests.
In addition to the five key priorities formulated by the Commission in the progress report for meeting the conditions for opening accession negotiations, the OSCE/ODIHR and the Council of Europe’s Venice Commission have formulated clear recommendations for electoral law reform in 2013 and 2015. These will be implemented through the agreement of 5 June 2020. However, they will not be implemented by the new Rama and Hasdari draft. A breach of the constitution and a ban on coalition etc.pp. are a no go.
According to the developed compromise paper of the EU, which contains 15 hard criteria in addition to the criteria from Copenhagen, including the restoration of the
A constitutional state, a democratic election law, free parliamentary and local elections and the indictment of the members of the governing party, which rigged the parliamentary elections in 22017, were decided by the German Bundestag in September 2019 and adopted by the Council of Europe and the European Parliament. Germany and the other EU countries are legally bound 1:1 to this decision document, therefore there will be no more negotiations.
Of course Rama is aware of the decision and it has also been officially announced by the EU. The German ambassador in Tirana had also repeatedly and rightly pointed out the 15 criteria in the last few days.
Rama has done nothing on this matter since 2014. The current breach of the 5 June treaty on electoral law reform shows, no reliability, shows that the Rama government has absolutely no interest in Albania becoming a member of the EU.
However, since more than 95% of Albanians want to become members of the EU, it is clear that the Rama government and parliamentary representatives, especially Hasdari, seem to have no more bais in the Albanian nation, it is clear that fundamental changes need to be made in Albania.
Behind every single criterion which Albania now has to solve, there are considerable commitments to fundamental political changes.
For this, Albania needs an intact political, democratic and legal system, an intact, regular economy and, very importantly, consensus within the society, all factors are currently lacking.
Under these conditions, there will be no talks with the EU. It will also have serious consequences for the Rama government. The international community will not let Mr Rama drag himself through the ring, not threaten it. Mr Rama drove the last nail into a board of his political coffin on 10 July 2020, it is his political end.
The cancellation of the Rama agreement with the elected opposition also destroys the EU and US investments to normalise the political situation in Albania. Will the EU and the German Bundestag allow Edi Rama to act against them too? Can you go into some details?
Henze: The principle applies: Pacta sunt servanda. We have serious doubts as to whether Rama can even de iure annul this agreement of 5 June. There is no reason for termination. It is signed, certified by the USA / EU. We don’t know what Mr. Rama and Mrs. Hajdari are actually talking about, at least their commitment is not related to reality.
If the government of Rama does not keep to contracts, there can be no negotiations with these ladies and gentlemen, the trust is lastingly destroyed.The government is completely isolated. History punishes those who are late, Mr. Rama.
It has been communicated quite clearly by the US ambassador and also by the EU, the agreement of 5 June 2020 applies. Mr Rama, Hajdari & Co. no longer have any support in this matter.
In the current legal situation and the absolute loss of confidence of the entire Albanian population in the will for reform of the Rama, Hajdari & Co. government, one can only concentrate on the narrative of democracy, new elections.
Allow me to point out the following in this context:
1 The purpose of this electoral reform, which is also an essential point for the start of talks with the EU, was to prevent manipulation, as in the 2017 parliamentary elections, initiated by members of the governing party, or illegal local elections, as in 2019. This has been done by the use of additional coercion by the international community against the Rama government, now on 5 June 2020. All Albanian citizens should be able to participate as free and equal in the democratic process. This is of particular importance for the Republic of Albania, because only in this way can freedom be secured through the absence of dominance: The principle answers to [preserving liberty], we have seen, are by a quite extensive set of procedural protections, and by a still more elaborate scheme designed to ensure that in the making of substantive choices the decision process will be open to all on something approaching an equal basis, with the decision-makers held to a duty to take into account the interests of all those. Further reforms were to be left to parliamentary discussion in the future, the primary goal initially being to prevent the now upcoming elections from being rigged again. The conclusion of the electoral law was to be realised at the latest one year before the new elections, hence the decision date in June 2020.
2 The project of Rama, Balla and Hajdari now this anti-democratic election law with a constitutional amendment, creates a complete chaos and slams the door to the EU, if implemented, as long as this government Rama is in power. The result is that Albania has no future.
Albanian constitutional law gives the Albanian Constitutional Court the basis of its existence and its power of decision. Constitutionally, the Constitutional Court and the Albanian constitution form a symbiotic unit.There is no functioning Albanian constitution without protection, without the guardian, the Constitutional Court. There is also no functioning Albanian constitutional court without the Albanian constitution.
The Albanian constitution places state rule in a “value-based order”, which the Constitutional Court is supposed to defend when a party, such as Rama, attempts to abuse democratic procedures and institutions in order to eliminate the liberal democracy it is fighting against, to establish incompatible forms of rule such as a dictatorship.The rule of law applies, the law takes precedence over politics, a clear relationship of subordination and superiority. Rama and Hajdari don’t seem to want to see that. Incidentally, this ignorance is a no-go for any negotiation with the EU. How should the EU be able to negotiate with anti – democrats. A minimum standard is expected, that is, implementation of the Copenhagen criteria, implementation of the 15 points of the EU/German Bundestag, restoration of the rule of law, elections in 2020.
The Albanian Constitutional Court therefore has the task of determining the content of constitutional norms in case of dispute in an authoritative manner, of further developing constitutional law and of enforcing the requirements and standards of constitutional law against the political decisions of the legislative parliament and the government, against the exercise of public administration and against the judiciary. The Albanian Constitutional Court itself contributes to the formation of the law by determining the legal principles of the Constitution in accordance with the principles of legal reasoning and justification.
In concrete terms, this means, for a constitutional amendment, that any Albanian constitutional provision must be interpreted in such a way that it is compatible with these fundamental constitutional principles and fundamental decisions of the constitutional legislator.
Because of the “unity of the constitution”, which must be presupposed and which is founded in the “Decision of the pouvoir constituant”, this does not lead to an immanent hierarchy of the constitutional provisions themselves.
It does mean, however, that the Albanian constitution can only be amended if at the same time its protection against possible unconstitutional activities of the government and/or parliament can be guaranteed. So, separation of powers, that basic democratic principle par excellence, exists. Simply, not legally, formulated: The Albanian constitution can only be amended if a constitutional court is operational which can examine this amendment. In the absence of a functioning Albanian constitutional court, Rama cannot therefore amend the constitution at present. If, nevertheless, the Government of Rama and/or the Albanian Parliament amends the constitution, an “unconstitutional law” is in place. An unconstitutional activity of the organs is constitutionally not to be regarded as an unconstitutional measure or a legal decision of the parliament to amend the constitution. An unconstitutional constitutional amendment, such as the one now being considered by Rama, is a legal act not covered by the amending decree to the Albanian Constitution.
If Rama nevertheless amends the Albanian constitution by means of a parliamentary decree, the unconstitutional constitutional amendments are null and void, i.e. they are not effective. The government must resign, parliament is dissolved and new elections are held. That nevertheless a resolution has now been prepared shows, on the one hand, the criminal energy of the Rama government and some representatives of the parliament to disregard the constitution and shows, on the other hand, that the Rama government and representatives of the parliament seem to have no expertise when it comes to the observance of legal rules, this can be seen very well from the breach of the agreement of June 5, 2020, but also from the intention to want to change the constitution illegally. We will now see something similar, the same pattern as with the other unconstitutional laws, the same pattern. If a decision is taken to amend the Constitution, the President of the Republic must firstly reject this law.
It cannot be ruled out that the Rama government has wanted this situation, because the consequence could then be that Rama wants to conduct the upcoming elections according to the old electoral law, which allows many variants of manipulation. To deny that Albania has fallen into a serious, perhaps fatal, crisis would be to close one’s eyes to reality, that Albania currently has no constitutional state or democracy, that the nation has lost its acceptance of the situation and that Albania is indeed facing an economic and legal abyss.
The DNA of Rama does not contain any information on respect for others, freedom, democracy and empathy towards the Albanian people and no will to become a member of the EU. There is a legislative and constitutional emergency in Albania, the rule of law and the separation of powers are not functioning and the government is constantly violating basic constitutional principles, and there is also the chaos that the Rama government is creating in its flawed pandemic control and evading any democratic dialogue and compromise.
The question therefore arises as to whether the President of the Republic should declare a state of emergency, dissolve parliament immediately and prepare for new elections. Albania is in a concentrated state of legislative and constitutional emergency. This is supplemented by frontal attacks on the constitution by the ruling party. Basically, the Rama government is an enemy of the constitution per se; in other countries such parties would be banned.
The Albanian state is de facto and de iure incapable of action, which is fundamentally contrary to the constitution. A truly democratic government must ensure prosperity, freedom and peace for the sovereign, the people and support the people in the exercise of their human rights. Everyone is endowed with inalienable rights that must be protected, and this is done by a constitutional court, by a supreme court, by a free press and by free and democratic elections. In a situation in which the democratic constitutional state, as in Albania, no longer functions and a government reacts arbitrarily, a democratic electoral law that allows free, secret and equal suffrage is to be prevented and constitutional order is threatened, it may be the constitutional duty of a President of the Republic to restore the protective function of the Albanian constitution and the democratic constitutional state through the corrective of a democracy: new elections.
Prior to this legal act, the Government should be requested, for the last time, to inform the President of the State in detail within 24 hours of how and when the Government intends to restore the dysfunctional rule of law and democracy/separation of powers, to meet the 15 EU criteria, to implement the adopted electoral law reform of 5 June and to hold parliamentary and local elections in 2020.
Albania held the elections on 30 June 2019 as a communist model without the opposition. Should there be a stronger reaction of the international community to prevent a repetition of such a farce with the parliamentary elections in 2021?
Henze: There was a constitutional decree of the president according to article 93 of the constitution and after that the election date was October 2019 and not June 30, 2019. As long as no constitutional court repeals the decree of the president Meta, a real constitutional patriot, it is law and also obliges the Government Rama to follow it. The local elections 2019 were therefore illegal.
The election was therefore an internal committee election of the governing party Rama, an internal party election, which after the election was completed illegally occupied all local functions, but no local elections. The occupied municipalities are currently managed by illegal mayors of the Rama government. Many mayors have had to resign in the meantime, so they had to give up their criminal had kept the past secret, all party friends of Rama. A shameful situation for Albania.
There were hardly any serious election observers on the ground, many had cancelled because they did not want to participate as election observers in an internal election of a governing party, only a few representatives from the OSCE were on the spot. The OSCE report on this election substantiates the chaos and the anti-democratic process and the result.
As already stated, Albania has no other chance to escape from the chaos than through new elections in 2020, there is no time for experiments. After this process, the government must resign or be dismissed for anti-constitutional activities and a new election date should be set in autumn. This would also ensure and guarantee access to the EU.
If Mr Rama thinks that he has implemented a fantastic policy over the last few years, that flourishing landscapes have been created in Albania, he need not be afraid of an election, he should actually be pleased to finally have his successes confirmed by his re-election, by an honest, democratic election.
The Albanian fathers and mothers, from the mountains of northern Albania, from the coast of southern Albania, from the border with Kosovo and Macedonia, from the centre of Albania, should now rise courageously and set off for new shores, giving their daughters and sons of Albania a future in Albania and the European Community.