I.  Introduction -- Checks and Balances

An important goal of Albania’s new constitution is to provide for the separation and
independence of the three branches of government---the executive, the legislature, and
the judiciary.1  In a democratic system of “checks and balances” each branch has
independence from the other branches, and has the ability to check the other branches in
certain situations.  In this manner, if one branch of government abuses its power, the other
branches will have the competency to correct the situation.

II.  The Role of an Independent Judiciary

If the judiciary is independent it will be able to protect individuals’ rights if they are
abused by the government, or to strike down a law passed by parliament that violates the
constitution.  In western democratic systems, illustrating this independence, courts
regularly rule against the government.  Courts frequently, for example, issue awards for
money damages against the government if the government has breached a contract or
violated an individual’s human rights.

If the judiciary is not independent, courts will simply rule in the way that they are told to
by the executive or legislative powers.  This would allow the executive (or legislature) to
do just about anything it wishes--including firing individuals for their political and religious
beliefs and placing people in internal exile.  Under old soviet systems for example--in
which the judiciary was not independent--the judiciary used to be characterized by
“telephone justice” where the judge would be ordered over the telephone by party
officials to rule in a certain way.

There has been a problem with judicial independence in Albania in the recent past.
Various commentators feel that the executive and legislative branches acted illegally to
oust the previous Chief Justice of the Court of Cassation.  Other judges have been
transferred to remote regions as punishment for being too progressive or for failing to do
what the executive power wanted.  Some judges have felt intimidated by the executive
branch and were therefore reluctant to do anything that the executive branch disagreed
with.  Without a strong, independent, and ethical court system in Albania, democracy
cannot succeed.
 
 


III.   Special Constitutional Provisions to Promote Judicial Independence

Albania’s new constitution could include special provisions to help insure greater judicial
independence.  For example, the constitution could give some judges life tenure, could
address the length of the employment term of other judges, the payment of judges’
salaries, the location and transfer of judges, and the administrative and budgetary
independence of the judiciary.  While not all of these items will necessarily be specifically
included in a constitution, they are important to judicial independence, and are discussed
below.

Life Tenure for Certain Judges:  In some systems, judges are hired and fired
for political reasons, rather than on merit.  For example, judges might be
threatened with removal if they rule in a way that the government does not like or
if they rule against the dominant political party.  To guard against this and to help
increase the independence of judges, the new constitution could provide life
tenure to certain judges.  Judges with life tenure would remain as judges until they
reach a certain retirement age; they could only be removed from office if they
become mentally incompetent or if they commit certain crimes in the fulfillment of
their job duties.  If high level judges are given life tenure, they will be more
insulated from this political pressure.  At the same time, giving judges life tenure
could make it more difficult to remove inefficient, lazy or corrupt judges.

Term Length for Other Judges: The term of employment for other,
lower-level, judges could be determined in a number of different ways.  Judges
could stay in the job indefinitely, unless the they are removed for cause by the
body that is involved in the selection of judges.  Judges could be appointed for a
fixed period of time; the time might be set so that it does not correspond to the
political election cycle.  Judges could then be reappointed by a judicial selection
body, or even confirmed through a popular election in the district in which they
work.  (The selection, removal, and discipline of judges is discussed in another
concept paper available from ACCAPP).

Judicial Payment:  The payment of judges is very important in ensuring their
credibility and honesty.  Judges that are paid a very low wage may be tempted by
corruption.  The constitution might guarantee judges a salary that is high enough to
help avoid the temptation of corruption.  The wage could be set in the constitution
to that of other high government officials.  There are some other people who
believe that the payment of judges’ salaries is a matter that is best left out of the
constitution.  Instead, the constitution might specify the method in which judicial
salaries are set.  For example, it could delegate the power to Parliament or to an
administrative office within the judicial branch to set judicial salaries under certain
defined guidelines.


Transfer Policy:  In some systems judges might be transferred to a remote
region of the country if they opposing the party in power.  If abused, the power to
transfer judges could be used inappropriately to intimidate judges into ruling a
certain way on a given case.  Thus, it is important that sufficient safeguards be put
into place to ensure that the judicial transfer policy is not used to exert political
pressure on judges.  The best safeguard against this is to ensure that the body
responsible for the transfer of judges is one that, itself, is insulated from political
pressure.  Thus, the constitution could provide that the body responsible for the
selection and removal of judges also regulate the transfer of judges.

Budgetary and Administrative Independence of Judges:  It is also important
that the judiciary have some degree of control over its own budgets and
administrative functions.  If the courts’ budgets are controlled exclusively by the
executive power, the executive could dictate how the court spends it money and
might even deny funding unless certain political mandates are followed.  Excessive
administrative control by another branch could also result in administrative
functions being politicized.  For example, the courts’ enforcement offices are
often crucial in giving effect to judicial decisions.  If these offices are controlled by
another branch of government, the other branch could selectively determine not to
give effect to certain judgements.  The new constitution could address the
budgetary and administrative independence of the courts in a way that insulates
these areas from excessive control from the other branches of government.

IV.  Conclusion

While not all of the above items will necessarily be included in the new constitution, it is
important that the constitution drafters consider these items and determine how best to
ensure real judicial independence.

The constitution drafters should also address methods to ensure that the judiciary does
not exceed its power.  Thus, while this paper has focused on judicial independence, it is
important also to realize that in a system of “checks and balances” complete and total
independence of the judiciary is not the goal.  The goal is a system of government
whereby each independent branch has the ability to control the other branches when they
exceed the appropriate limit of their power.  Although not addressed here, sufficient
constitutional mechanisms also need to be in place to check the judiciary when
appropriate.

Submited by CEELI Legal Specialist Robert A. Pulver, Esq.
American Bar Association (ABA) Central and East European Law Initiative (CEELI)
Rr. Ismail Qemali, Pall. 34, Ap. 2
Tirana, Albania
Phone: 355 42 346 24
Fax: 355 42 331 97
E-mail: [email protected]