2. THE HIGH COUNCIL OF JUSTICE
|The High Council of Justice (HCJ) is the state
authority in charge of appointing, dismissing, transferring and instituting
disciplinary proceedings against judges of primary and secondary instance in the
Republic of Albania (art. 147 of the Constitution). As a consequence, issues
relating to the organisation and actual functioning of the SCJ have an immediate impact on
the overall rule of law in the country.
The HJC does not belong to any of the classical branches of Government. The Constitution itself makes it very clear as it dedicates the HCJ a separate chapter keeping it clear from the Legislature, the Executive and even the Judicial Power.
Traditionally, the role of the HCJ has been viewed by Albanian scholars as limited to its disciplinary competencies. In fact, this is only true to a certain degree. On the other hand, the HCJ does exert quasi-regulatory powers, which consist of the following:
Firstly, in establishing the territorial jurisdiction for the courts of primary instance and those of appeals (this is a prerogative of the President of the Republic), the President acts on the proposal of the Minister of Justice who, on his side, is obliged to check such question out with HCJ (art. 11 of law. No.8436 dt. 28.12.1998 "On the Organisation of the Judiciary in the Republic of Albania);
Secondly, in establishing the overall number of judges who are to serve in the ranks of the judiciary (this is again a presidential prerogative), a preliminary opinion from the HCJ is mandatory (art. 11 of the same law);
Thirdly, the HCJ is an important actor in the area of training for the judiciary as it announces and organises exams for judges jointly with the school of magistrates and School of Law at the Tirana University (art.20 of the same law).
Bearing all this in mind, it is clear that the HCJ is not just a human resources department for the judiciary. It has the potential to play a decisive role in the affairs of the judiciary.
It is advisable that the quasi regulatory capacity of HCJ be expanded by envisaging in the upcoming law on HCJ, (a draft is being worked out by the Government in conjunction with Institute for Policy & Legal Studies), in addition to aforementioned competencies, the right for HCJ to provide preliminary opinions on all those bills which affect the judiciary. In other words, some kind of HCJ activism would not harm.
At present, the activity of HCJ is based on a number of articles which are to be found in legal texts as different as the Constitution (art 147), the Law no. 8436, dt. 28.12.1998 "On the Organisation of the Judiciary in the Republic of Albania" as well as the Law "On the Election of the Members of the High Council of Justice". Its internal by- law provides the HCJ-s internal rules of procedure.
At this point it is important to focus on an existing inconsistency between the Constitution and the aforementioned legal texts. Namely the Law "On the Organisation of the Judiciary in the Republic of Albania" provides that judges of first instance and those of the courts of appeals are nominated by the HCJ (articles 20 and 24 of the law). The new Constitution which came into effect on 28 November 1998 (a symbolic coincidence with the independence day) has made a slightly different option as it stipulates that the nominations of the judges are made by the President of Republic upon the proposal of SCJ (art.136, par. 4 of the Constitution).
Whereas the question of hierarchy of norms is clear (the constitutional text is to prevail), the situation is complicated by article 178 of the Constitution itself which stipulates that "statutes or any other normative acts which have came into effect before the adoption of the present Constitution shall be applicable as long as they have not been repealed". Paradoxically, law no. 8436, was adopted by the Assembly after the adoption of the Constitution (incredibly, the drafters didn't take into account the changes brought about by the Constitution. They persist to say that the SCJ makes the nominations) and still suffers from the same symptom of earlier statutes adopted before the Constitution. The scariest scenario would be one in which the SCJ would continue to decide nominations even against the will of the President of the Republic in clear breach of the constitutional provision.
At first sight, the only way to avoid such collision of norms would be to repeal the Law "On the Organisation of the Judiciary in the Republic of Albania". Such a drastic move could be spared anyway (the said law is quite new and crucial for the normal functioning of the judiciary), thanks to the intervention of the Constitutional Court. In one of its recent rulings, the Constitutional Court has taken a pragmatic approach to this issue. What the Court said in that particular case could be summarised as follows:
If the constitutionality of a statute is challenged in front of the Constitutional Court, the said court will try to establish whether the contested statute is found incompatible with the Constitution in its entirety or only with respect to particular articles. In the second case (when only one or a few provisions are incompatible with the Constitution), the Constitutional Court would only repeal the "infected" articles and let the statute in place until thorough revision is undertaken by the responsible government agencies. In more practical terms, somebody needs to lodge an application with the Constitutional Court challenging the constitutionality of the articles 20 and 24 of law no.8436. Following such application, in all likelihood, the Constitutional Court will repeal the said articles and leave law no.8436 in place in its entirety.
The Question of the Judicial Inspectorate of SCJ - Perhaps the hottest issue to be settled when it comes to the SCJ is the organisation and functioning of the inspectorate attached to it. The Judicial Inspectorate is supposed to exert control on the judiciary on behalf of the SCJ. Its competencies of control, which are to be found in the Law no. 8436 (art. 44), are formulated very vaguely. As a consequence, there exist serious uncertainties as to the procedures to be followed by the inspectorate with regard to the investigation and the decision making on questions of misbehaviour of judges.
One recommendation for the SCJ judicial inspectors is for them to learn the techniques of administrative investigation envisaged in the Albanian Code of Administrative Procedure and use them in the context of investigation of misbehaviour of judges.
In addition to the existing uncertainties, in present-day Albania there exist two inspectorates with a very blurred distinction among each other. The first inspectorate is the one attached to the SCJ as envisaged by art.17 of the Law. No.8436 "On the Organisation of the Judiciary in the Republic of Albania". The second one consists of a number of inspectors attached to the Minister of Justice.
It is important to note here that the SCJ inspectors enjoy the status of judges of appeals courts (immunities included). On the other hand, the inspectors of the minister are mere civil servants. Whereas the competencies of the SCJ inspectors are reasonably clear (if we leave apart for a moment the procedural aspect of their activity which is far from being clear), the scope of activities to be ascribed to the ministerial inspectors is highly unclear. Art. 17 sheds some lights on an otherwise blurred borderline between the two offices. The said article indicates that SCJ inspectors engage to inspect courts of primary and secondary jurisdiction in order to check out the veracity of claims coming from individuals and government agencies, the delivery of judicial services, the performance of judges, their workload as well as the overall state of affairs of the judicial branch of government. In paragraph 3 of article 17, it is specified that the inspectors of the Minister of Justice are put at the disposal of SCJ inspection groups in order to facilitate the completion of their tasks (specified above) with the notable exception of cases related to the professional performance of judges. In these cases the ministerial inspectors are not to intervene by any means.
The last paragraph of the same article says that the organisation and the functioning of the SCJ inspectorate are provided for in the SCJ internal by-law. Here again, there exist strong objections. The SCJ inspectorate is perhaps the only government agency capacitated to perform controls on the judiciary. The effects of its work are potentially huge, both in the good and the bad. Therefore, it is essential for their competencies to be envisaged in detail in a piece of legislation. The argument here is that the constitutional entitlement for SCJ to control the judiciary is not a sufficient basis for its inspectorate to perform smoothly. A separate law is also a guarantee for a better dissemination of its content.
Another question of principle (it is presently an issue that has prompted hot scholarly debate) is whether the parallel existence of the two inspectorates (some argue that the one attached to the Minister is not a real inspectorate) is of any use. The extreme view on this matter is that the existence of the ministerial inspectors is but a reminiscence of the old communist age, an expression of the then legitimised interference of the executive power into the affairs of the judiciary (the Albanian constitutional doctrine at the time was that of unity of government powers). Another argument of a practical nature is that the parallel existence of the two inspectorates would bring about serious problems of communication and in a longer run the failure of the supervisory role of SCJ. The supporters of this view would therefore advocate for the abolishment of the office of ministerial inspectors and the following concentration of supervisory powers on the hands of SCJ inspectorate.
Such view does not seem able to strike deep root anyway. Most scholars argue that leaving supervisory powers with the SCJ inspectorate alone is not a very good idea if one takes into consideration the fact that the SCJ 's members are judges for the most part (article 147 of the Constitution says that 10 out of the 15 members of the SCJ are judges elected by the Judicial Conference). This being true, the judges might be inclined to support judicial independentism to the point of virtual unaccountability. Such a thing would be clearly at the expense of overall rule of law and the constitutional doctrine of checks and balances. Although the actual verification of such scenario does take some fantasy, it is not completely unlikely.
On the other hand, the ministerial inspectors, being the minister in a constant state of "institutional tension" with the judiciary, should, in theory, be more prone to collide with the judiciary. In addition to the aforementioned, the ministerial inspectors are more accessible and, as a consequence, they constitute a better remedy for the individuals whose rights have been allegedly violated by the judiciary. What is more, the performance of the SCJ inspectorate is arguably diluted by the fact the SCJ itself is not a standing organism, but rather a periodical meeting of its members.
The Supreme Council of Justice: Standing Committee vs. Periodical Meeting -
It is certainly true that SCJ is not there to solve all the problems of the judiciary. Nevertheless, many scholars plausibly argue that the poor performance of the judiciary is ascribed to a great extent to the inefficiency of the SCJ. On the other hand the inefficiency of the SCJ is traced down to the fact that SCJ suffers from a certain organisational volatility due to its way of conducting business (via periodical meetings). Despite the conspicuous divergence of opinions on this particular issue, everybody seems to agree that a minimum of organisational stability is needed for SCJ to perform its functions smoothly. Whereas transforming the SCJ into a permanent committee, with full time serving members, is virtually impossible (one needs to take into account that the members of SCJ such as the President of the Republic, the Minister of Justice, the President of the Supreme Court and the others, are supposed to serve elsewhere in the institutional scheme), several "moderate" proposals have been put forward in order to achieve a minimum of compactness. One of these proposals is to have the mandate of the judge members of SCJ suspended for the time they are called upon to serve as members of SCJ. Another proposal is for the deputy chairman of SCJ to serve on full time basis. The revision of the honoraria of SCJ members (of course upwards) is considered to be yet another mean aimed at achieving a higher degree of devotion form SCJ members.
Moreover it has been suggested that the SCJ should split itself into sections. Such an arrangement would allow the Council to review more cases, with a higher expediency as well as a higher level of professionalism due to the specialisation. Of course nothing would impede the SCJ to review cases in plenary sessions any time it considers it appropriate.
There is yet another factor that seems to be able compromise the effectiveness of the SCJ. Commonly, the SCJ convenes for its regular meetings at the presidential building. The SCJ inspectors are packed in a 20 square meter room at the Attorney General 's building. What is more, the budget allocated to SCJ and its inspectorate is extremely meagre. The absence of such basic facilities has undermined the effectiveness of the organisation and has determined, indirectly, the negative consequences in the work of the judiciary. So far, the authority of the President of the Republic has not proved sufficient for SCJ to secure decent funding from the Government.
Another major uncertainty for the SCJ that needs to be settled in the upcoming law is the question of the deputy chairman. In other words, who is to serve as the deputy chairman of the SCJ? Some scholars and practitioners argue that such role is to be left with one of the judge members of SCJ. Others (actually most of them) want the Minister of Justice to act as the SCJ deputy chairman.
Those who advocate the view that the Minister of Justice should have a greater role within the SCJ tend to draw justification from recent developments in the legal system. These developments, which have brought about the domination of the SCJ by judges (in the past the SCJ used to exert supervisory powers on all magistrates including public prosecutors), the establishment at the Supreme Court of the Office for the Management of the Judicial Budget (the management of the judicial budget was formerly left with the Minister of Justice) as well as an increasing reverence of the executive power of the government for the judicial independence, risk to leave the Minister of Justice completely outside the judicial affairs. The Minister of Justice does have a role to play in the affairs of the judiciary without necessarily breaching the separation of powers doctrine.
A question of primary importance for the functioning of the SCJ is the one concerning the role of the President of the Republic in his capacity as chairman of SCJ. The new, 1998 Constitution seems to enhance the responsibilities of the President as it stipulates that it is him who makes the appointment of judges (contrary to the former constitutional provision which left such authority with SCJ) upon a proposal from the SCJ (art. 136, par. 4 of the Constitution). Nevertheless, it is widely accepted that such a competence of the President of the Republic is not meant to transform his honorific role within HCJ into something more substantial. The constitutional provision is only aimed to make the appointment of judges more ceremonial. Despite the fact that such interpretation of the intent of the drafters is not challenged, there remains a practical problem. Namely, what happens if the President of the Republic declines to appoint somebody as a judge notwithstanding the SCJ proposal? The most widely accepted view in this respect is that the President of the Republic should try to avail himself of the procedural advantages recognised to the chairman of a collective body, as stipulated by the Albanian Law "On the Functioning of the Collegiate Bodies of the Public Administration", thus trying to avoid collision with the majority of SCJ. In any case it is clear that such issues are left for solution to customary rules rather than written provisions.
Problems of Jurisprudence - Beyond organisational deficiencies and the scarcity of legal provisions on the organisation and functioning of the SCJ, the latter faces certain conceptual problems which are not settled so far by the scarce jurisprudence produced by the SCJ and the Courts. The SCJ does exercise its competencies via individual decisions for the appointment, dismissal, transfer and the institution of disciplinary proceedings against judges. Particularly in cases of dismissal, which by their nature are more conflicting, the SCJ has to operate by resorting to unclear notions such as the professional insufficiency, the compromising of the figure of the judge, personal performance etc (art. 147, par. 6 of the Constitution). Now, the SCJ has to develop tests in order to be able prove, for instance, the professional insufficiency of a judge. As for the methods of investigation to be used by the SCJ and its inspectorate, it is worth for them to explore the Code of Administrative Procedure.
Conclusions - At the end of these comments, the following conclusions are due:
In first place, the activity of the Supreme Council of Justice needs to be thoroughly regulated by a parliamentary statute. Such statute, along with the Code of Administrative Procedure and the Law on the Functioning of Collegiate Bodies of the Public Administration should be sufficient legal basis for most of SCJ activity;
In second place, the parallel existence of the two inspectorates, one being attached to the SCJ and the other to the Minister of Justice, is both complementary and beneficial for the smooth exercise of supervisory powers on the judiciary;
In third place, the SCJ needs to acquire a certain organisational stability by having at least one of its members serve full time at the SCJ;
In forth place, budgetary allocations for the SCJ should be more generous in the future;
In fifth place, the SCJ itself should rush to develop tests, generally enrich its jurisprudence and definitely settle the conceptual uncertainties that characterise its work at present.
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Institute for Policy & Legal Studies 2000