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When Sokol Sadushi sets himself the task of expelling Holta Zaçajn from office

2024-12-12 16:27:00, Opinione Endri Xhafo

When Sokol Sadushi sets himself the task of expelling Holta Zaçajn from

Journalist Endri Xhafo

Holta Zaçaj is the president of the Constitutional Court, Sokol Sadushi is the president of the Supreme Court. The Supreme Court proposes 3 of the 9 members of the Constitutional Court; the others are proposed equally by the Assembly and the President of the Republic.

Sokol Sadushi announced on Tuesday that Holta Zaçaj's term as a judge will end on March 10, 2025. In fact, this announcement should have been made by Holta Zaçaj herself. Why? Because the law determines that the vacancy, i.e. the end of the mandate of a member of the Constitutional Court, is announced by the president of the Constitutional Court. In this case, Zaçaj for Zaçaj. But Zacaj didn't do it. Then Sadushi did it. Why? Because the law does not determine what happens when the president of the Constitutional Court "goes crazy" and does not announce the vacancy. But Zacaj is not crazy, yet! The lady thinks that her mandate as a judge of the Constitutional Court does not end when the president of the Supreme Court says so. The President of the Supreme Court, on the other hand, thinks that the announcement of the end of the mandate of the judge of the Constitutional Court by its president is merely a formal act. This situation is called "constitutional disagreement". Although various constitutionalists think that this story of Sokol Sadushi is as if the president of the Court of Appeal is fired to say that Mr. Sadushi's mandate as president of the Supreme Court has ended. In other words, being in the hierarchy below the Constitutional Court, the Supreme Court cannot initiate "constitutional disputes".

"Constitutional disputes" are nevertheless normal in democracies. They arise when two or more institutions interpret the same law in different ways; the final interpretation, - which puts an end to the "constitutional dispute", - is made by... the Constitutional Court. From the case in question, however, a question arises: Can the Constitutional Court interpret a case when at first sight there is a conflict of interest between its members and the case under review? Because, for the specific case, for the mandate of Judge Zaçaj, 2 other members of the court who ran against her for the post of chairperson would have to be expressed and, secondly, - the most important, - in addition to the mandate of Holta Zaçaj, in the game there are also the mandates of Sonila Bejte and Elsa Toska (resigned). The answer is, yes! The Constitutional Court can also examine cases of conflict of interest!

There are at least two precedents in this regard. The first, in 2010. The Constitutional Court overturned the law on "lustration", even though at least its chairman, Fehmiu Abdiu, was directly affected by the law. The second precedent, the vetting law in 2016. The Constitutional Court did not overturn it, the vetting remained in force and all members of the Court were subject to the process; this, even after a consultative opinion of the Venice Commission. The irony of fate: the 2016 vetting law purged the entire Constitutional Court of its members and sadistically humiliated Mayor Bashkim Dedja for a "stinking" 60m² apartment, while the 2010 "lustration" law would only affect any member of the court.

Despite the precedents, Ms. Zaçaj chose to ask the opinion of the Amicus Curiae once again for the umpteenth time of the Venice Commission, the advisory body on constitutional issues of the Council of Europe. I don't know if there is any member country of the Council of Europe that could have asked "Venice" more opinion than Albania since its membership in 1995?

Holta Zacaj

The political game with the mandates of the "Constitutionalist"

Earlier, there was a big debate about when the mandate of a member of the Constitutional Court begins: At the moment of the end of the mandate of the predecessor member, i.e. the creation of a vacancy, or when the new member takes office? It's really crazy just asking it as a question, but here it is. In the end, logic seems to have prevailed: The mandate begins with taking office! And the task is taken after taking the oath to the President of the Republic (Article 129 of the Constitution). How long is the mandate? Normally 9 years. So, the day of the oath + 9 years. I mean 365 days x 9. Period! Simple arithmetic. The case of Mrs. Zaçaj and another one - Sandër Becit - are a little more specific.

In the summer of 2016, during the constitutional changes of the justice reform, it was decided that the Constitutional Court would be renewed every 3 years with one third of it, that is, with 3 members. And with transitional provisions in the Constitution, a calendar was also defined, according to which the one who would succeed the judge whose mandate ended in 2017, would remain in office until 2025. And the one who would replace the judge whose mandate ended in 2020, he would remain in office until 2028. All other judges of the Constitutional Court would serve a full term 9 years old (Article 179.3 of the Constitution). That's what the Constitution says. No more words!

The judge whose mandate ended on March 10, 2017 was Vitore Tusha; her successor, Holta Zaçaj. But Holta Zaçaj was sworn in only on January 25, 2023. What happened in the meantime? Mrs. Tusha remained in office for many years after her term ended. Why? Because that's what the Constitution says: The member whose mandate has ended stays in office until the successor comes. This is done so that the court can function. However, the procedure of appointing a member of the Constitutional Court can take time. This process took even more time during the mass purges of judges and prosecutors from the vetting.

The debate now is when in 2025 the mandate of Mrs. Zaçaj ends? She herself, in the applications she made to the Supreme Court as the nominating body to be appointed as a judge of the Constitutional Court, signed as the deadline March 10, 2025, which the Supreme Court (Sokol Sadushi) issued according to the date of the end of Vitore Tushai's mandate eight years ago. And, in the press release on Tuesday about the end of Holta Zacaj's mandate, Sokol Sadushi tells me with a cynical insistence that you, my lady, have signed with your hand that the mandate will end on March 10, 2025!

But this interpretation is nowhere to be found either in the Constitution or in the laws! Even the decision of the Supreme Court on the appointment of Mrs. Zaçaj as a judge of the Constitutional Court does not have a date, but only the year 2025.

Holta Zaçaj, this time from the position of the president of the Constitutional Court and not the applicant whose file passes through the hands of third parties, makes an interpretation based on Article 148 of the Code of Civil Procedure on the calculation of deadlines, to say that the mandate of it ends on the last day of the last month of the year 2025. For many jurists, this reasoning holds. But you can't deny that this is a double-standard reading of the duration of the mandate by Ms. Zaçaj herself. Why did you read it differently the first time? Two reasons are:

Or, as much as he knew, he did as much; and only when she became a member, - and then president, - of the Constitutional Court, she had another, more professional reading of the law;

Or he copy/pasted the wording of a Supreme Court job announcement, so that he wouldn't be disqualified for "not using the language of the announcement".

Supreme Court

One may say: Well, what does nine months earlier and nine months later do to an individual?

The problem, even more constitutional, seems to be related to the other two mandates that would have to respect the renewal of the Court with a third. Who are they? Transitional provisions speak only for 2 individuals: One identified as Holta Zaçaj and the other as Sandër Beci (assigned in 2020 to 2028). But renewal is not guaranteed.

Here the interpretations run wild. Elsa Toska, elected for a 9-year term, resigned in September, but is staying in office until a successor arrives. Whoever replaces her will end her term and not start a new one.

Sonila Bejte (continuation of the mandate of Besnik Muçi, resigned), has been named as one of the three people who must ensure the renewal of the court with a third of its members. Meanwhile, the lady is continuing a 9-year mandate started by Besnik Muçi in 2019, which should end in 2028! Remove Holta Zacajn, who has a debate with Sokol Sadushi only if he leaves on March 10 or December 31, as it turns out that the other two ladies, Elsa Toska and Sonila Bejtja, must also leave in 2025, to ensure renewal with a the third of the court? If we do an arithmetic operation and remove 9 years of mandate from 2025, the result takes us back to 2016, when the vacancies for these two positions were created. But in this way we return to the idiotic debate whether the mandate begins when the office is taken or when the vacancy is created?

From the letter that Holta Zaçaj, as president of the Constitutional Court, has sent to the Venice Commission, you can see that she requests an interpretation for this constitutional contradiction between the provisions that require the periodic renewal of the Constitutional Court every 3 years with 3 members and the guarantee of the duration of mandate of the constitutional judge as a guarantee for his independence.

It is clear that the renewal order has been disrupted by the long delays in filling the vacancies that the vetting created in the Constitutional Court itself. To now seek to apply it to the detriment of the constitutional mandate of a constitutional judge would be a fundamentally unconstitutional act even for a country like Albania, reminiscent of the character of Satina (Nicole Kidman) in Baz Luhrmann's Moulin Rouge, when Harold Zidler, the cabaret impresario, told him: The show must go on Satan. We are creatures of the underworld. Love is a luxury for us!

Sokol Sadushi

What motivates Sokol Sadushi?

This is ground for speculation. And the first speculation begins with the sentence: Americans are behind Sokol Sadushi!

Public fact: The President of the Supreme Court, Sokol Sadushi, has been elected as the President of the Judicial Appointments Council (KED) for 2025.

This KED is like an appendix. An organ that was removed, life continues for beauty! The KED is elected every year, - because that's the term it has, one year, - with a goggle lottery in the Presidency, which is similar to that of Telebingo, but for which the Presidency requires a direct connection in the name of transparency, which in fact represents only one of the rare cases that the President also "does some work" and, therefore, appears on television.

However, the KED evaluates the professional and moral criteria of candidates for High Inspector of Justice and candidates for members of the Constitutional Court. In other words, if Holta Zaçaj's mandate ends not on March 10, but on December 31, the new candidacy will be examined by the 2026 KED and not the 2025 one where Sokol Sadushi is the chairman. But if Holta Zaçaj, Elsa Toska and Sonila Bejtja leave the Constitutional Court in 2025 to ensure its renewal with a third of the members, the 3 new members will go through Sokol Sadushi. This is a fact. The speculation made by politicians is that they add the name of Fatmir Xhafajt, the "father" of justice reform, to the latter's name.

From the Constitutional Court, they shout in a muffled voice for a coup by Sokol Sadushi and are looking for allies to protect not only the nine months of Holta Zaçaj, but especially Sonila Bejte and Elsa Toska (the successor). It is difficult for them to find allies in these times, after some scandalous decisions of the Constitutional Court, which are masked by the term "complex". Likewise, the same sources from the Constitutional Court do not connect Mr. Sadushi's decision to expel Holta Zaçaj with Holta Zaçaj's request to "Venecian" for the term of deputy Xhaçka. But there are no coincidences in politics! And to believe otherwise is naive!