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"You admitted that the law on ASH was a procedural violation", Artan Fuga open letter to the President: You rejected it after tolerating its entry into force
Written by SOT.COM.AL 26 Shtator 2023
Academician Artan Fuga has addressed an open letter to the President of the Republic Bajram Begaj, where he states that he was surprised by the recent interview of the head of state in which cannabis, the obligation for medical students and legal changes related to the manner of elections were discussed. in the Academy of Sciences.
He wrote that during the interview, Begaj admitted that the law voted by the Assembly that changed the way of choosing the governing bodies of the Academy was a "procedural violation".
According to him, after the law was passed, Begaj practically dismissed it with the interview he gave, considering it illegal as he tolerated its entry into force.
Albania needs to face the illegal, not let it pass,
Open letter addressed to the President of the Republic, Mr. Bajram Begaj.
Dear Mr. President,
I followed you with great hope in the interview you gave to the Voice of America during your participation in the proceedings of the last session of the UN. I focused with special attention especially on the answers you gave regarding the three laws: about cannabis, coercive obligations for medical students, as well as about the legal changes related to the way of elections in the Academy of Sciences of Albania!
Let me tell you that I am interested like every citizen who wants the rule of law to function, like every Albanian who needs to respect the role and duties of the President of the Republic and strives for this because it has to do with the destinies of the nation and the future of society, I admit that I was very surprised by the content of that interview.
Through this public letter, I wish to express my reasons regarding the above as a citizen, but also as someone who in the field of constitutionality, political systems, democracy, etc., has some additional, certainly not exhaustive, knowledge. I repeat, as I expressed in a previous public letter that I addressed to you (for which I did not even have a simple confirmation of receipt from the administration of the presidency), that here is no longer the question of the elections in the Academy of Sciences, this is a very minor problem, but the way the governance system works and the very separation of powers without which Albania is stolen, Mr. President.
In your interview given to the journalist of the Voice of America regarding the law that changed the way of choosing the governing bodies of the Academy of Sciences, you openly and universally admitted that the law voted by the Parliament of Albania, which came to you to announce or to was sent back, according to the obligation given by the Constitution, it was a "procedural violation".
The acceptance of this fact, officially by you, publicly expressed in a prestigious world media such as the Voice of America, with words issued by you yourself and not by any service of the presidency, has two extremely important aspects.
The first shows that you sincerely accept that a law made with procedural violations has come to you to be signed.
With this, you gave a punch to the practices of a deputy who, by reproducing the Stalinist-Punist mentality, according to the definition of the ladies deputies who wrote to you with great concern, led an "institutional coup".
According to me, a member of the Academy of Sciences who opposes these legal changes as socially harmful, the violations of the Rules of the Assembly, of the Code of Ethics of the deputy, in addition to the Constitution, were in fact not one or two, but several, one more serious than the other. With the public acceptance of these "violations" that you are calling "procedural", you practically gave the right to the deputies, Mrs. Flutura Açka and Ina Zhupa, who asked you in writing not to pass that law. Not only to these ladies, but also to the relators who refused to report on that draft law passed outside of any legal procedure, as well as to all the deputies who voted against this law.
Let me tell you that the lady deputy in question does not make a "complaint" to you as you said in your interview. It is not known anywhere that deputies make a "complaint" to the President of the Republic. On the basis of their constitutional rights as members of parliament, they requested you not to approve the law in question, presenting all the arguments that now, after the entry into force of the law, you also consider to have a real basis, so they were completely The right.
Your acceptance of the fact that the law in question had come to you by circumventing the procedures, has a second aspect, this time bitter and disturbing.
After that law was passed, you practically threw it down in your interview, considering it illegal after you allowed it to come into effect!
However, you did not find it reasonable to return a law that you understood and considered procedurally irregular to the Assembly for reconsideration. This is a great surprise, a great sadness for me as a citizen. By not acting, that is, by neither announcing nor reversing this law, moreover by remaining silent, without explaining your position, as you are doing now through the Voice of America, you gave the illegal the opportunity to become a law!!!
I think that this is where the issue becomes serious, especially when you think, as you said to the Voice of America, that you found only procedural violations, but that "they were not constitutional violations"!!!
Allow me to challenge this argument in support of your inaction. Like you, I know the Constitution of my country. Of course, the President of the Republic must keep clean the Constitution of the state he serves. Of course. But, if you see the laws of the Constitution regarding your role and powers in front of the laws issued by the Assembly, your powers, duties, and responsibilities are many times greater and more important than the examination of the constitutionality of the laws issued. The Constitution in force understands and legislates the role of the President not simply as an authority considered as a jurist who examines only whether or not a law is in violation with the Constitution. Without denying this duty of Yours, we must accept that with this function, the Constitution primarily establishes the Constitutional Court.
Nowhere in the Constitution is it written and cannot be written that you, as President, examine only the compatibility of a law with the Constitution and have nothing to do with other procedural or substantive violations of a law!
Of course, when it comes to constitutional violations, the issue becomes even more serious. However, I cannot agree with you when you say that procedural violations that are not directly constitutional violations do not constitute the object of your action when passing a law through your hands. Reading the letters of the ladies deputies, I found that nowhere did I see that they confuse procedural violations with constitutional violations. In any case, they inform you at the same time about serious procedural violations committed by individual deputies, and about the fact that the draft law in question, in its content, violates the country's Constitution with both feet.
It seems impossible for the President of the Republic to allow procedural violations, found by him, to pass before his eyes, without acting against them. I would like that as the head of the state, as the current Constitution defines you, like any other head of the state, you would not agree to pass illegal laws and legal norms with your tolerance.
Every jurist knows well that procedures are not only necessary conditions that legitimize or not the issuance of a law, but also that the procedures themselves shape a legal corpus in their own right. Even a simple court decision, in violation of the procedures, you know well, becomes null.
Any author or person even remotely initiated into the philosophy of law knows that law in a society of law is distinguished from the rules of a mob, from the customs of a gang, from immutable moral canons, etc., primarily by the fact that law also provides for the rules for changing the laws in force. So the procedures. Without respecting them, the state becomes a crowd, a gang, a clan. Therefore, it is said that "procedural violations" are so dangerous in the damages they bring.
I have never imagined that legal violations, such as procedural ones, could escape the filter of the President of the Republic, being noticed by Him, and yet be allowed to return to the laws. This is beyond imagination. Am I telling you right, it is something that also scares me because I want to consider the state, like its president, with confidence that it does not allow the illegal to become law.
I would like the institution of the Presidency to ask: Why were these procedural violations made regarding the approval of this law? Did they have a reason? What forced the deputies to approve a law with procedural violations? Who was interested in those violations and in violently passing the law in the Assembly? I would not pretend that Your assistants addressed me with these questions, as perhaps my "complaint" to You would compel them to. I don't even know if they delivered my letter to you! But what does that matter? I understand that you don't have time to meet millions of Albanians who are probably capable of raising even sharper concerns than me. Far from this claim. But I would like to believe that you have raised the above questions and had answers to them! How is it possible that the deputies who considered the procedures of the legislative process as laws did not implement them? Why?
I am convinced, Mr. President, that the philosophy of law in a society of law considers illegal any law that is approved violating the law-making procedures in force. Therefore, I have expressed that by not acting, unfortunately, you have paved the way for illegality; the illegal became the law. Isn't this a violation of a fundamental principle, not just an article, but an essential constitutional principle? Which constitutional judge would accept that the entry into force as legal of a procedurally illegal law is in accordance with the Constitution?
I understand, Mr. President, that you, as you rightly say, cannot interfere indiscriminately in government policies embodied in various laws. However, this law that we are dealing with did not come from the government at all, but simply from two initiator deputies who had not even managed to argue in their attached report why the draft law that they proposed was needed!
The illegal became legal. As such, it has also affected the individual rights of people who have built their lives and careers on respecting the laws and not making the laws a loophole to adapt them to their interests.
I dare to tell you this, Mr. President, that as an educator, teacher, professor, throughout my professional experience I have tried to educate students not only to be good citizens, but also to become barriers to anything illegal . To be active citizens. Not only to avoid being implicated even indirectly in legal violations, but also to be active against illegality wherever they see it.
I suppose that one day the Parliament of Albania would send to the President of my country a law that would prohibit the circulation of cars, prohibit the use of elevators in multi-story buildings, prohibit the sale of certain types of fruit in the market, etc. Nothing unconstitutional!!! Would it be possible for the President of the Republic to pass these laws without acting, under the pretext that they do not violate the constitution? Of course not!
I continue to think, Mr. President, that your position has been ineffective, resulting in the entry into force of a law conceived and approved illegally, fixed as you claim. Inaction was action.
It would have been nice if you had explained your position to the Albanians. Maybe even by publicly consulting with independent lawyers. Can a law made in violation of applicable legal procedures be legal? I am convinced that you do not need to be a specialized constitutionalist to answer this question that you should have asked. I think that Albanian society needs to hear you explain your attitudes and actions as head of state. It is a little surprising to me that you are speaking to us from the UN about our daily problems of non-compliance with laws after illegal laws have been put into effect.
Finally, Mr. President, I would like to share with you the well-founded conviction that neither the Constitution, nor the philosophy of law, nor the science of constitutional law, when you exercise your rights and duties according to what the law imposes, that is, when you return them to revision of any or several laws by the Assembly, you enter into a "conflict" with the Assembly.
The Constitution and laws of Albania do not recognize the term "conflict" in the sense you give it. It is not a legal, constitutional, legal term, but simply a key word used by politics. Sometimes even used to intimidate the President of the Republic.
Please do not call the return for reconsideration to the Assembly of a law approved by him with procedural violations as a "conflict" between the President and the Assembly! We do not need the President to feel inferior to the Assembly of Albania, to the government, to the parliamentary majority, to one or two deputies, or to the forces interested in illegality. I hope we share the same opinion. It can be said just as well: Why does the Assembly enter into "conflict" with the President? Why does the Assembly, which knows that the law will go to be promulgated by the President of the state, that is, by you, again, not even ask at all, but approves laws with procedural violations? This behavior worries me, so I ask myself: Does anyone in the Assembly have a tendency to ignore the President of the Republic?
Returning a procedurally illegal law back to the Assembly is dishonoring the Assembly of Albania and the deputies themselves, above all the citizens, because the deputies have taken an oath before the law to respect the latter. There can be no deputies, outside of any guess, who behave like "cuba", like "strong" in committees or in the corridors of the Assembly, or towards citizens who publicly express themselves against draft laws that they consider harmful. The deputies know it well, they have taken it upon themselves to respect the procedural norms. What you call "conflict", Mr. President, in my humble opinion, but based on the best authors in the philosophy of law, is nothing but a division of powers. We need this separation of powers. Without this, Albania is stolen. The separation of powers is not a "conflict" between the President and the Assembly, it is a constitutional principle. All the more, there was no room for "conflict" because you only have the right to return a law approved by the Assembly once.
You are right when you say that the deputies should find a way to respect the procedural rules that they have approved themselves. Everyone who loves the good of this country says this with you. But the work does not stop there. This is clear. The task is to know what the President of the Republic does when the deputies, with the cards of the majority, approve illegal laws? He cold-bloodedly sends them back to the Assembly for revision - I would say!
I want to say rightly and honestly, Mr. President, that your inaction, allowing a procedurally illegal law to come into force, made the illegal legal. Is this in accordance with the Constitution?
But what seems important is that the country needs to be given messages of incompatibility with illegality. Because otherwise what would we ask of an inspector when he sees corrupt practices on the ground and closes his eyes; a clerk when he sees injustice in his field and pretends not to see it; a tax official who turns a blind eye to sales units where money is laundered; what will we say to a citizen when he looks at us with surprise when we ask him to raise his voice about the illegalities in procedures of legalization, tendering, privatization, etc.?
All we have to do is shut up!
Apologizing for the concern that comes only from the civic interest, with the high goal of the functioning of government and the state, with attention to respecting the separation of powers, wishing you success in completing your duties, With many considerations,