In this legislature, the majority has refused to establish 8 committees of inquiry requested by the opposition. Lawyers criticize these decisions as violations of the constitutional rights of the parliamentary minority. SPAK itself “removes any concern” that the Socialist Party has in claiming that the parliament’s inquiry might harm the prosecution office’s investigation. On the contrary, SPAK Chief Altin Dumani told INA Media that both sides might collaborate and that the Special Prosecution Office follows parliamentary inquiries with attention.
Author: Esiona KONOMI
Feeling enthusiastic after having just approved by consensus a resolution on Kosovo, MPs stood up from their chairs, convinced that they had carried out their parliamentary duties after 7 hours of discussions.
The minority, which for weeks had been debating harshly and, in some instances, had caused temporary blocking of the Assembly’s proceedings, had made a “ceasefire” for Kosovo in that Thursday of October 12.
However, after opposition MPs had turned their back to the podium, the Speaker of Parliament suddenly announced another voting procedure. Among them, the rejection of two committees of inquiry requested by the opposition (one on concession agreements in the health care sector and another about abuse of personal data in TIMS).
Although the opposition protested and reminded the plenary session leader that no new issue could be put on the agenda given that, according to the Assembly’s Rules of Procedure, the agenda is published 48 hours in advance, Speaker Lindita Nikolla guided the vote by rejecting two more demands of the opposition.
“It is absolutely a violation of the Rules of Procedure. It was inserted beyond the deadline and, above all, the parliamentary procedure was violated, because they did not allow one speaker in favor and one speaker against for each draft decision,” said Gazment Bardhi, MP who signed the request for the setup of the Committee of Enquiry.
Bledar Çuçi told INA Media that respect for parliamentary procedure in this instance was not possible: “The fact that they were not discussed in the parliament plenary session is a result of the opposition’s behavior. They blocked the plenary session and did not want to participate in this discussion. The opposition ruined this itself.”
Parliamentary committees of inquiry are a parliamentary instrument envisaged in the fundamental document of the state, namely article 77 of the Constitution.”
The Constitution recognizes this right for all political parties, as long as at least 35 MPs request it.
“The Assembly has the right and, upon request of one-fourth of its members is obliged to designate committees of inquiry to review a particular issue. Its conclusions are not binding on the courts, but they may be made known to the office of the prosecutor, which evaluates them according to legal procedures,” – the Constitution says.
This tool has been used more extensively by the opposition and sometimes even by the majority as a mechanism of legislative power control over the government.
Nevertheless, the sides have clashed with one another through the years and have addressed the Constitutional Court several times for interpretation. The Court has expressed its opinion on committees of inquiry in 2003, 2007, and also in 2014.
Broad scope of inquiry…
During this parliamentary legislature, only two committees of inquiry requested from the opposition have been accepted: one on the incinerators and another on the 2021 elections.
In the process of rejecting 8 other committees, the majority has used different arguments. Initially, it said that they would not accept any request carrying also the signature of Sali Berisha because he had been declared “non grata” by the United States. The Socialists accompanied this also with the need for a new law on committees of inquiry and said that they were not willing to establish new committees until the legal basis had been improved first.
Recently, the rhetoric of the parliamentary majority has changed. Prior arguments are no longer used and there are two main pillars on which the majority relies for refusing committees of inquiry requested by the opposition: the scope of the issue proposed for inquiry is very broad and they are issues investigated also by justice.
Bledar Çuçi insists that there may be no committee of inquiry on a given sector, such as for instance the health sector.
“They have requested the establishment of a committee of inquiry, and so let’s look at all public contracts, partnership contracts, or any activity of the Ministry of Health. We may not have a committee of inquiry on one general issue or many general issues, but we may have a committee of inquiry as the law stipulates: for specific issues,” told INA Media the head of the Socialist Party Parliamentary Group.
The opposition is convinced that this right it has is undeniable and compulsory for the Assembly, anytime it is requested by 35 MPs, and they rely on the Constitution, the Assembly’s Rules of Procedure, and decisions of the Constitutional Court for this.
“This has been a clear position of the Constitutional Court since 2003 onwards. And, in 2007, the Constitutional Court said that the majority may propose alternative formulations of the scope of work, but it may never decide to reject a request for a committee of inquiry,” said Gazmend Bardhi to INA Media.
The truth is that in the absence of a fully accepted scope of inquiry, none of the sides has made any effort for consensus. The opposition has not proposed a scope of inquiry that is different and nor has the majority made any reformulation of its own.
Bardhi blames the Socialists for this: “In the case of the three requests for the establishment of committees of inquiry, the majority has decided to reject the requests without making any attempt to formulate alternative proposals of the scope of inquiry, which clearly shows the unlawfulness of these decisions.”
According to the meeting minutes of a closed-door meeting of the Conference of Parliamentary Group Chairs of September 29 this year, which INA Media possesses, the head of the Committee on Legal Affairs refused in the name of the majority to propose a consensus formula.
“Now, you’re saying that we should narrow it down, but you are the ones requesting it. You reformulate it and bring it within the constitutional boundaries, and then we… certainly have no reason to be against,” Klotilda Ferhati of the Socialist Party said.
What did the Constitutional Court say concretely about the scope of committees of inquiry? By the decision of 2007, this Court reached the conclusion that the Assembly “…has the obligation to not discuss the establishment of the committee…” when this is requested by the parliamentary minority.
The scope of inquiry, according to the Constitutional Court “…may not be reduced by the Assembly to such an extent as to make it impossible for the committee to carry out its work…”. Therefore, the Court continues its argument, “…the right of the minority to decide the scope of the inquiry limits the competence of the majority to change this scope without the consent of the minority, except for cases when it is found that the purpose and scope of inquiry affect constitutional principles…”
Expert of constitutional law Bledar Dervishaj told INA Media that when the scope of inquiry is considered broad, it may be reformulated, through a consultation process among political forces, but this may not be grounds for their refusal.
“In an analogy, if there is a request for instance for a parliamentary inquiry into all high-rise buildings in Tirana, naturally that would be a broad scope of inquiry, but if it is specified for one or several concrete high-rise buildings, this is a specific scope of inquiry that may not be refused,” Dervishaj notes.
Lecturer of law Jordan Daci, too, does not see the scope of the inquiry as a reason for not establishing a committee of inquiry.
“The language of paragraph 2 of article 77 of the Constitution does not leave room for interpretation. Nor does the practice of the Constitutional Court. The Assembly is obliged. Period. Obliged. It suffices to have the request from 1/4th of MPs and the establishment is automatic,” Daci stresses.
“We don’t want to obstruct justice,” but what does SPAK say?
The majority has rejected parliamentary inquiries with another argument too, claiming that the issues in question are being investigated by justice parallelly and this, according to them, based on the decisions of the Constitutional Court would represent a violation of the independence of powers.
“In relation to almost all issues that committees of inquiry have been requested for, the prosecution office has initiated criminal proceedings, criminal investigation. In this case, we need to respect the independence of constitutional institutions and the principle of the separation of powers. The investigation is an exclusivity of the judiciary, of the prosecution office,” – head of the Socialists in parliament, Çuçi, says.
In fact, the Constitutional Court granted the opposition a defense tool in a decision of 2014 when it stated: “the fact that a similar issue is being investigated by the prosecution office does not create a priori an obstacle for its establishment.”
Nevertheless, the Court leaves a “task” for the committee of inquiry and the Assembly that, after the establishment of the committee, they focus on the scope of the parliamentary inquiry, so that any interference with the activity of the prosecution body is avoided.
“Parliamentary inquiry conducts verifications, issues institutional responsibilities, and takes legislative measures, unlike a criminal investigation, which, if it finds legal violations, indicts individuals and demands that they be sentenced to imprisonment,” Gazment Bardhi rebuts.
INA Media asked the head of the Special Prosecution Office, whether SPAK’s work might be harmed by a parallel parliamentary inquiry, and in a written response, Mr. Altin Dumani expressed no concern in this regard.
“Parliamentary committees of inquiry have a purpose and function that is different from the investigation conducted by SPAK, which is of a criminal nature. The standards of proof in the criminal process are clearer and the procedure followed to bring charges is much more rigorous,” the head of SPAK said.
Mr. Dumani adds that the law envisages that the Special Prosecution Office may collaborate with parliamentary committees of inquiry, according to legal provisions in force.
Stressing that “in any case, the criminal investigation is independent,” the head of the Special Prosecution Office told INA Medias that “The Special Prosecution Office has been and is attentive to inquiries by parliamentary committees for those criminal offenses that are within its jurisdiction.”
Experts of constitutional law also do not see the “concern” of the majority, that a parliamentary inquiry led by the opposition may obstruct the prosecution office, as founded.
Constitutionalist Sokol Hazizaj says that both inquiries are conducted from different angles and have entirely different uses.
“In fact, in a normal parliament, parliamentary inquiry even brings a normal investigation within tracks. Moreover, it leads to legal improvements in the field of managing public funds”, Hazizaj told INA Media.
According to Jordan Daci, the investigation by justice bodies neither overlaps nor replaces parliamentary inquiry.
“The latter does not have the purpose that the justice investigation has, but is a means for parliamentary control over the other powers and it belongs to the minority of 35 MPs and is not linked with the opposition logically, but with 35 MPs who in normal countries might bring together many groups, including from the ranks of a majority,” Daci says.
Even for lawyer Bledar Dervishaj, the parliamentary inquiry does not exclude or obstruct the investigation by the prosecution office.
“Justice institutions seek criminal responsibility while parliament goes further into political, administrative responsibilities or into highlighting deficiencies of administrative structures or political decisions to get to an analysis of legal initiatives that might be regulated by it,” Dervishaj notes.
“When there’s a will, there’s a way,” the incinerators, and a Tweet by Yuri Kim
The Assembly of Albania has a fresh precedent, in which the sides were “forced” to find common ground, although the same issue was being investigated by justice, and the scope of inquiry proposed by the opposition was not accepted immediately by the majority in its initial form.
“The most important initiative of the opposition that gave results was that of the incinerators. A committee of inquiry is of value when there are also criminal investigations and the international pressure also had an impact here the pressure to fight corruption,” points out Afrim Krasniqi from the Institute of Political Studies.
At the time, the majority was not demonstrating a will to accept a parliamentary inquiry for what was known as the “incinerators affair,” but as was proven later, internationals exerted their pressure.
“At the time, we proposed a scope of inquiry into the incinerators, focused concretely on procedures for the incinerators in three cities: Tirana, Elbasan, and Fier. The majority hesitated to accept the scope and proposed a broader scope, one that would inquire broadly at waste management, starting from an earlier period. Within the plenary session, we negotiated with the SP group on 3-4 variants until we agreed,” recalls for INA Media Jorida Tabaku, the MP who led the parliamentary inquiry into the incinerators, specifying that by request of the majority, the scope of the inquiry not only was not limited but it was expanded.
However, though it initially agreed to establish the committee, the Socialist majority a few months later tried to shut it down again, using as an argument the expiry of deadlines. “We complained to the American Embassy and the European Union,” Tabaku specifies.
The truth is that the majority withdrew and accepted to extend the deadline for the parliamentary inquiry into the incinerators, a decision that was immediately applauded on February 4 by then-American Ambassador Yuri Kim who wrote on Twitter:
“Strengthening democratic institutions and fighting corruption are U.S. priorities in Albania. we welcome the extension of the parliament committee on the incinerators. We urge all relevant authorities and institutions to examine and take appropriate action. We will be watching this closely.”
Experts: A constitutional right of the opposition is being violated
The majority itself admits that “It is undoubtedly a constitutional right of the opposition to establish committees of inquiry, but as the Constitutional Court says, this right should not be abused.”
However, Gazment Bardhi only sees a pretext behind this statement by his socialist colleague Bledar Çuçi.
“It is understandable that the arguments used by the majority have absolutely no constitutional or legal basis, but they are just justifications to deny every right to the parliamentary opposition,” he noted.
Experts of constitutional law, asked by INA Media, do not see the majority’s claim as founded and view its decisions to obstruct these rights of the opposition as violations of the constitutional rights of the parliamentary minority.
Constitutional lawyer Sokol Hazizaj argues that “the notion of committees of inquiry is the essence of parliament and its fundamental duty. Their establishment is more of an obligation than a right.”
Can the majority restrict this constitutional right of the minority?
“They (minorities in Parliament) may not lose this right because of the will expressed by vote by majorities. A parliamentary inquiry is a main mechanism of parliamentary control and disallowing it is a violation of the constitutional right of the opposition,” Bledar Dervishaj argues.
Jordan Daci underscores that in a parliamentary republic, committees of inquiry “are a direct exercise of the sovereignty of the people and a component of mutual checks created in the context of the principle of the separation of powers. The parliamentary inquiry also has a political side that should not be in the judicial one.”
Are they worth it…?
Albania has experimented with parliamentary inquiries from the first days of democracy. the sides have moved from being in power to being in opposition.
Afrim Krasniqi of the Institute of Political Studies, which has been monitoring the activity of Albania’s Assembly for years, says that committees of inquiry have a “fragile” history in Albania.
“Continuously, they have mainly been tools of political fighting more than an exercise of the competence envisaged by the Constitution. I see the recent decisions as an attempt to gain credentials for the political action of the day than really a desire to truly have parliamentary inquiries,” he says.
During this protest of the opposition to establish by all means committees of inquiry, parliamentary work has been damaged and the standards of decision-making have been called into question, with the approval of some important laws for which there was no parliamentary debate and the number of MPs who voted in favor of them could not be verified.
Others view the historical product of parliamentary committees of inquiry from an entirely different angle.
“In many cases, committees of inquiry have served as excellent trampolines for the career of those who have led them or the members who have stood out the most and have had a higher sense of protagonism. In these committees, those who have stood out in all forms and ways are even future presidents or vice presidents of the U.S., ministers of the German government, etc. We may say with confidence that, for better or worse, the Albanian practice does not lag behind in this tendency,” says lecturer of constitutional law Denar Biba, in an analysis on committees of inquiry in domestic and foreign practice.
*Committees of inquiry in this legislature (2021-2023)
List of rejected committees of inquiry:
- Committee of Inquiry into the Becchetti Case;
- Committee of Inquiry into Strategic Investments;
- Committee of Inquiry into the Durrës Port;
- Committee of Inquiry into the Travels of Prime Minister Rama;
- Committee of Inquiry into the McGonigal Case;
- Committee of Inquiry into Personal Data (TIMS);
- Committee of Inquiry into Concessions in Health Care;
- Committee of Inquiry into Cases of Conflict of Interest.
List of accepted committees of inquiry:
- Committee of Inquiry into the 2021 Parliamentary Elections (headed by E. Alibeaj);
- Committee of Inquiry into the incenerators (headed by J. Tabaku).
Ky shkrim është pjesë e projektit që mbështetet financiarisht nga Zyra e Mardhënieve me Publikun e Ambasadës së SH.B.A. në Tiranë. Opinionet, gjetjet, konkluzionet dhe rekomandimet e shprehura janë te autor-it/ve dhe nuk përfaqesojnë domosdoshmërisht ato të Departamentit të Shtetit. / This article is part of a project that is financially supported by the Public Relations Office of the US Embassy in Tirana. The opinions, findings, conclusions, and recommendations expressed are those of the author(s) and do not necessarily represent those of the Department of State.