IPLS SERVICES: CONSTITUTIONAL COURT OBSERVER

Decision No 61

Tirana, 22 November 1999
Applicant: Prime Minister of the Republic of Albania, represented by Mr. Qirjako Qirko, General Secretary of the Council of Minister.
Interested Parties:
  1. Assembly of the Republic of Albania, represented by Mr. Viktor Gumi, Legal Advisor.
  2. National Intelligence Service represented by the Director, Mr. Fatos Klosi.
Subject:

Abrogation of Law No 8479, dated 29 April 1999 "For Some Amendments in the Law No 8391,dated 28 October 1998 "For National Intelligence Service", as incompatible with Constitution.

Legal basis: Article 92/f, 132/1, 131/a and 124/1 of the Constitution.

The applicant claims that this law has not reflected the change made in the Constitution to name of state institution National Intelligence Service.

Contrary to that and of the draft presented by the Government, the Assembly without convincing arguments did not agreed to name this central institution State Intelligence Service and in the new law left unchanged its previous name.

Regarding the secret nature of this organ, which is under the Prime Minister, it cannot any longer bear this name because its activity under the new Constitution has another meaning.

On the other hand, insisting for full abrogation of the aforesaid law, representative of the applicant claimed during the session that procedure provided in Article 81 letter "f" of the Constitution was not followed, because the law was not voted by 3/5 of Assembly.

Constitutional Court

After having heard explanations of applicant’s representatives and interested parties and discussed the case substantially,

Observed

Application of the Prime Minister is partially right. It has to be admitted its partial abrogation for incompatibility with Constitution Law No 8479, dated 29 April 1999 "For Some Amendments in the Law No 8391, dated 28 October 1998 "For National Intelligence Service" only those parts dealing with the name of this institution.

Examination of this application must be extended to central law into those provisions that have been subject of these amendments.

Article 92 letter "f" of the Constitution uses "State Intelligence Service" instead of "National Intelligence Service". Under such circumstances legislator must have had adhered to the text of the Constitution and replace in the new law the term used in the Constitution. Therefore, it should have acted exactly as it did when replaced "Chairman of the Council of Ministers" with "Prime Minister" or "Chairman" and "Deputy-Chairman" with "Director" and "Deputy-Director". Non-observance of this requirement constitutes violation of Constitution. Thus, the Court is to the opinion that term "National" shall be avoided through deletion of this term from all provisions of aforementioned laws.

The Court takes a different view concerning applicant claims raised during the session, which is approval of the law without following procedures provided in Article 81/a of the Constitution, because this law was not voted by 3/5 of majority of the Assembly.

Such claim is not founded. State Intelligence Service is not a constitutional organ; therefore it is not part of the category of institutions for which Constitution requires the approval with qualified majority of votes for their organization and operation.

State Intelligence Service is an institution mentioned in the Constitution only for the appointment of the director, which is in the competencies of the President of the Republic. The treatment of this institution under the Constitution is different from that of other institutions, which are directly provided in the Constitution such as Assembly, President, Council of Ministers, Constitutional Court, Supreme Court, etc., which are constitutional institutions in understanding of Article 81/2 of the Constitution.

Therefore

The Constitutional Court of the Republic of Albania, in pursuance of Article 131/a and 132/b of the Constitution of the Republic of Albania, and Article 41 of Law No 8373, dated 15 July 1998 "On Organization and Operation of Constitutional Court of the Republic of Albania", with majority of votes,

Held
  1. Declaration as incompatible with Constitution only of the term "National" in the provisions of the Law No 8479, dated 29 April 1999 "On National Intelligence Service", as well as in the provisions of Law No 8391, dated 28 October 1998.
  2. Refusal of other parts of the application dealing with abrogation of the Law No 8479, dated 29 April 1999.

This Decision is final, cannot be appealed and comes into force with its publication in the Official Journal.

Dissenting Opinion No 1

Application of the Prime Minister should have been substantially refused for the following reasons, other than those mentioned in the decision for the procedure of approval of the law:

  1. Subject of the application is abrogation on unconstitutional grounds of Law No 8479, dated 29 April 1999 "For Some Amendments in the Law No 8391, dated 28 October 1998 "For National Intelligence Service", due to the name of organ "National Intelligence Service" instead of "State Intelligence Service" as defined in the Constitution. Such name (National Intelligence Service) is made pursuant to Law No 8391, dated 28 October 1998 and not pursuant to Law No 8479, dated 29 April 1999. The latter made replacement of some terms and expression, without mentioning anything regarding the name of the organ. Thus, application to refuse Law No 8479, dated 29 April 1999 due to the name of the organ is not founded.
  2. National Intelligence Service is not a constitutional organ, so its name is not directly defined in the Constitution. Different names, which may be given to this organ, do not interfere with competencies and activity of this organ defined in the main law. They remain as defined in the law, regardless name of the organ. As a result in the context of constitutional control, it is not important the name legislator has given to this organ, since the term itself is not a constitutional problem.
  3. It is claimed that Constitution has given a different name to this organ, because Article 92/f says that President of the Republic "appoints director of State Intelligence Service", thus denomination by law of the organ as "National Intelligence Service" is unconstitutional. This claim is not true, because in special provisions of the Constitution other terms are mentioned such as those in Article 168/3 (National Security Council), Article 69 (employees of National Security) etc. The latter directly relates to employees of National Intelligence Service, but it does not mean that it defines the name of organ. The purpose of expression used in this Article is to indicate that employees of National Security and other employees expressly mentioned cannot run neither for the members of Assembly nor be elected as member of Assembly without giving up their job. This is the purpose of the expression in Article 92/f of the Constitution defining one of the powers of the President of the Republic, which is to appoint the director of this organ. Both terms used in the Constitution, in Article 69 as well as Article 92, are equal, but none of them made denomination of the organ. Thus, expression used in Article 92 cannot serve as an argument for admittance of the application. Since Constitution does provide for the name of organ, legislator has to make that correction.

On the other hand, according to the dictionary of Albanian language word "national" in one its versions is equal to the word "state", therefore there is not any avoidance in the name given to this organ.

Referring to above presentation of the fact application of the Prime Minister for incompatibility of the Law with Constitution due to the name of the organ must have been refused.

Dissenting Opinion No 2

Application of the Prime Minister is not founded and must be refused not only relating to full abrogation of the Law No 8479, dated 29 April 1999 "For Some Amendments in the Law No 8391, dated 28 October 1998 "For National Intelligence Service", but also for the change of the name of this organ from National Intelligence Service to State Intelligence Service.

Constitution of the Republic of Albania defines main principles of the organization and activity of some state organs: Assembly, President, Council of Ministers, Constitutional Court, Supreme Court, etc. Constitution does not govern many other organs as a result does not provide for the name of the organ, which means that it shall be done by laws with scope organization and activity of these organs. In our case National Intelligence Service is not defined in the Constitution, but in Law No 8391, dated 28 October 1998.

Article 92 of the Constitution defines appointment of "the director of the State Intelligence Service" as one of the competencies of the President of the Republic, but it does not mean that defines also the name of Intelligence Service. This is so, because the purpose of the provision is definition of the President’s competence and not the name of the organ.

The Constitution is not consistent with name used for this organ. While in Article 92 uses State Intelligence Service, in Article 69/c uses "national security" to define persons who may not run for member of the Assembly.

From a grammatical interpretation of letter "f" of Article 92 of the Constitution results that in comparison with names of the organs provided in other paragraphs of this Article, it is obvious that names of some institutions begin with capital letter such as the case of the Chairman of Academy of Sciences or Prime Minister, etc. It can be interpreted that these names are defined and cannot be changed by law. While in the case of "director of intelligence service" or "rectors of the universities", etc., start with small letter, therefore their names may be defined or changed by law.

Assembly of the Republic considers insufficient "national security" because it is mentioned in other laws it has approved. Thus, in Law No 8457 dated 11 February 1999 "On Information Qualified as State Secret" in Article 2 defines that "National Security means to defend independence, territorial integrity, constitutional order and international relations of the Republic of Albania".

Further to above reasoning I vote in favor of refusal of the application.


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