Recent reports on a parliamentary speech of Deputy Blushi (member of the ruling Socialist Party) describing the incrimination of other deputies, or claims of an unlawful surveillance of President Bujar Nishani paint a picture of a very problematic political development in Albania. These reports match earlier accusations made in 2009 by then President Topi from the conservative Democratic Party. In the following post I will briefly portray the president’s role in the political system and embed this in a description of the difficulties arising from the politicized state security forces and judiciary with a strong clientilism trying to make the president the “henchman of the prime minister” (Osterberg-Kaufmann forthcoming).
Presidential power in Albania
With a pre-emptive transition process accompanying independence and the personal continuity during the constitution-making process in the early 1990s, Albania was predestined to design a strong presidential institution. This process of democratization initially perpetuated the totalitarian and personalized cult around Hoxcha, who was the leader of communist Albania for over 42 years (Osterberg-Kaufmann 2012, 221). The premise for the establishment of a de facto delegative democracy in the 1990s was the close relation between a paternal figure and the non-scrutinized nature of presidential leadership (O’Donnell 1994, 59). The socialist constitution was replaced in April 1991 with an interim constitution. This interim constitution reproduced the old leadership pattern, offering President Sali Berisha the opportunity to bypass and marginalize parliament. From today’s perspective, the presidential power of Berisha up until 1998 can be considered relatively strong. This is partly to blame for the fact that in 1996 “Albania had degenerated into an illusion of democracy with an isolated authoritarian president, facing no effective parliamentary opposition, supported by an overly large highly politicized security apparatus” (Fischer 2010, 428).
Following the crisis of a failed draft constitution, but even more so the economic and political crisis of 1997 and 1998, the constitution-making process was dominated by the landmark establishment of a parliamentary system with an indirectly elected president, supported by a referendum. Nowadays Albania has one of the constitutionally weaker presidents in South-East Europe. According to Art. 85, the president has suspensive legislative veto powers, which can be overruled by an absolute majority, and according to Art. 134 the president (along with other institutions) can initiate a judicial review. Following the logic of a parliamentary system, the president nominates the prime minister (Art. 96 Sec. 1-4), which has to be confirmed by a majority in parliament. Overall, the presidential role remains reactive. This observation is also confirmed by the absence of a presidential legislative initiative. His competences are limited and, in addition, not even concentrated on standard competences expected also for a parliamentary system, which is different from for example Macedonia, and which entails a systematically weak position for the president.
Lustration Law 2009
With the competence of a legislative veto, the Albanian President would have the opportunity to at least establish some moments of power and thus influence both the policy agenda and the expectations of rivaling political institutions, as well as the public. Yet, in case the opportunity structure arises (for example in terms of public support for a veto), presidents choose to avoid the political confrontation. In the following, I will illustrate this for a highly controversial legislative project: a lustration law. This law also gave a brief glimpse (thanks to the reports in wikileaks) about the informal pressure behind political decision-making in Albania.
With the possibility of “the firing of anyone without proving he or she committed a crime” (Koci 2014), the 2009 lustration law became a confrontational issue between Prime Minister Sali Berisha and President Bamir Topi (both at that time important figures in the conservative Democratic Party). The political positions in this difficult case were clear: President Topi was against this legislative project based on its far-reaching consequences. Prime Minister Berisha was pushing for the implementation of this internationally criticized law. It certainly carries a sad irony that Topi, who had not been politically active in communist times, thought of returning the lustration law to parliament. After all, this law had the function of banning former secret police officers, or employees in the judicial system, from public employment. Some authors consider the draft of the law in 2008 to have “[…] coincided with the prosecution of one of the biggest corruption charges, the so called Gerdec affair, which exposed several current ministers” (Elbasani and Lipinski 2011, 10). In a confidential interview between a US-diplomat with the then-President Topi, the president claims “[…] that in the event he vetoes the Lustration Law the DP [Democratic Party, author] would launch a “frontal assault” against him, including a smear campaign to paint him as protecting former communists” (Wikileaks 2009a).
Nevertheless, Topi confirmed in another confidential conversation “that representatives of former victims of the Albanian communist regime – a key political constituency for Topi – unanimously urged (him) [Topi] not to reject outright the Lustration Law, claiming that to do so would be politically devastating for him” (Wikileaks 2009b). Although the constitutional court later abolished the law, Topi’s obvious fear limited his radius of action. Although it should be clear that Wikileaks as the source of information chosen here has to be handled with care, considering that the statements given in private to a United States official might have different motivational backgrounds. However, despite the obvious opportunity structure, President Topi did not use his legislative veto. The Albanian Constitutional Court declared the lustration law as unconstitutional in 2010. The decision of the constitutional court was no surprise, as the lustration law from 2009 would have allowed for the prosecution of half the constitutional court (Likmeta 2012).
Presidents in Albania obviously face high informal pressures to align with the government. Due to the sensitivity of informal influence we are hardly ever able to consistently trace this problem. However, the two reports of the two presidents show how informal pressure on president in Albania might work. And although the accusations of Bujar Nishani from 2015 were – at least what it looks like at the moment – a political move and not followed by any legal action, they show a similar pattern as the accusations of Bamir Topi in 2009. Both claims are nearly impossible to verify and go in hand with legislative initiatives concerning reforms of the legal system. A series of political corruption scandals, the grave distrust of the public towards the political elite and a political culture characterized by a specific form of personalization and clientilism is thus seriously damaging Albania’s democratic development.
Elbasani, Arolda, and Artur Lipinski. 2011. “Public contestation and politics of transitional justice: Poland and Albania compared.” EUI Working Paper Series 11. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1956796
Fischer, Bernd J. 2010. “Albania since 1989: the Hoxhaist legacy.” In Central and Southeast European Politics since 1989, edited by Sabrina P. Ramet, 421–44. Cambridge: Cambridge Univ Press.
Fruhstorfer, Anna and Michael Hein. forthcoming. Constitutional Politics in Central and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems. Wiesbaden. VS Springer.
Koci, Jonilda. “Albanian lustration law criticised.” SETimes.com. Unpublished manuscript, last modified May 09, 2014. http://www.setimes.com/cocoon/setimes/xhtml/en_GB/features/setimes/features/2009/02/05/feature-02.
Likmeta, Besar. 2012.”Albania President Savages Berisha’s Communist Past.” Balkan Insights. March 7. Accessed January 20, 2015. http://www.balkaninsight.com/en/article/albania-president-pans-berisha-for-his-communist-past
O’Donnell, Guillermo A. 1994. “Delegative democracy.” Journal of Democracy 5 (1): 55–69.
Osterberg-Kaufmann, Norma. 2012. Erfolg und Scheitern von Demokratisierungsprozessen: VS Verlag für Sozialwissenschaften.
Osterberg-Kaufmann, Norma. forthcoming. „Constitutional Politics in Albania.“ In: Constitutional Politics in Central and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems. edited by Anna Fruhstorfer and Michael Hein. Wiesbaden. VS Springer.
Ramet, Sabrina P., ed. 2010. Central and Southeast European Politics since 1989. Cambridge: Cambridge Univ Press.
Wikileaks. 2009a. “PRESIDENT TOPI; IT’S LONELY AT THE TOP.” Accessed May 09, 2014. https://www.wikileaks.org/plusd/cables/09TIRANA9_a.html.
———. 2009b. “PRESIDENT TOPI LEANING AGAINST VETO OF LUSTRATION LAW.” Accessed May 09, 2014. https://www.wikileaks.org/plusd/cables/09TIRANA18_a.html.
 Partia Demokratike e Shqipërisë (PD)