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AHC
writes to the CEC Chairman regarding two
instructions and document no. prot. 412, dated
23.01.2007 of the Interior Ministry
In order for the
right of voters to be respected and in order to
ensure better respect for the law, AHC sent a
letter to the Central Election Commission to
express concern regarding misunderstandings and
legal violations that may be caused by two
instructions of the Ministry of Interior and the
letter sent by Mr. Ferdinand Pone to civil
registry offices on supplying citizens with
certificates for voting.
Prot____
To: Mr.
Çlirim Gjata
Chairman of the Central Election Commission
Central Election Commission
From: Prof.as.dr.
Vasilika Hysi
Executive
Director
Albanian
Helsinki Committee
Subject: Regarding two
instructions and document no. Prot. 412, dated
23.01.2007 of the Interior Ministry
Tirana, February 1, 2007
Honorable Mr. Gjata,
During these past days, the
Albanian Helsinki Committee has become aware of:
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Instruction no. 98, dated
15.01.2007, of the Ministry of Interior "On
procedures to draft preliminary voter lists"
for elections of local government bodies of
February 18, 2007 (Published in the Official
Gazette, No. 3, January 15, 2007).
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Instruction no. 130, dated
18.01.2007, of Interior Minister "On
procedures for reviewing preliminary voter
lists and the announcement of hte final
voter lists" for elections of local
government bodies of February 18, 2007"
(Published in the Official Gazette, No. 5,
January 19, 2007).
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Document no. 412, dated
23.01.2007, “On the enforcement of legal
provisions by the civil registry office,"
signed by Mr. Ferdinand Pone, Deputy
Minister, sent to civil registry offices
(see copy of attached letter).
Considering the above issues
relate to the enforcement of the Electoral Code,
we deem it necessary to present the following
comments:
1. Instruction no. 98,
dated 15.01.2007, of the Interior Minister,
among other things, refers to article 102, item
4 of the Constitution and the law no. 9087,
dated 19.06.2003 “Electoral Code of the Republic
of Albania", amended by Law No. 9676, dated
13.01.2007.
As is known, article 104, item 2
of the Constitution gives the Minister the
right, pursuant to his competences, to issue
orders and instructions. However, according to
item 2 of article 148 of the Constitution, it is
the law that "should authorize the issuance of
sub-legal acts, determine the competent body,
issues to be regulated, as well as principles on
the basis of which these acts are issued."
According to item 1 of article 40
(transitory provisions), of law 9676, dated
13.01.2007 “On some amendments and additions to
the Electoral Code," the Interior Minister could
issue instructions only related to procedures
for updating the voter lists and not to issues
dealing with the duties of the local government
unit chairperson (see items 2 and 3 of article
40 of the Electoral Code).
2. Instruction No. 130,
dated 18.01.2007 of the Interior Minister also
refers to article 102, item 4, of the
Constitution and the Electoral Code amended on
13.01.2007. This instruction, as mentioned
above, deals with procedures for reviewing
preliminary voter lists and announcing the final
voter lists.
No item of article 40 of the
Electoral Code tasks the Interior Minister to
issue instructions regarding cases when changes
may be made to the preliminary voter lists,
procedures ot be followed upon announcement of
the preliminary or final voter lists, the right
to complain to the local government unit
chairperson or the court, the notification of
voters, etc. We deem it necessary to mention
that article 40 of the Electoral Code contains
12 points, whereas the Interior Minister's
instructions on procedures for reviewing the
preliminary voter lists and the announcement of
the final voter lists contains 24 points.
3. Regarding the letter
signed by Mr. Ferdinand Pone, Deputy Interior
Minister, the reason why this letter needed to
be sent is not clear. In terms of its form, the
letter resembles a letter; in terms of its
contents, it appears to be an instruction, a
sub-legal act issued by a body or person who is
not competent because the law does not authorize
him.
It should suffice to mention only
the fact that at the start of item 5 of the
letter, it is written, "Pursuant to paragraph 1,
letter a, item 12, of paragraph IV, of item 18,
of article 39 of the law No. 9676, dated
13.01.2007 “On some amendments and changes to
law No. 9087, dated 19.06.2003 “Electoral Code
of the Republic of Albania" amended, we notify
you that...".
The law does not authorize the
Interior Minister, let alone the Deputy Interior
Minister, to issue orders or instructions
pursuant to the enforcement of provisions
mentioned in the letter referred to. Without
changing the contents of the law and by
respecting the will of the lawmaker, only the
CEC, pursuant to it, may issue respective
instructions.
Although the act issued by the
Deputy Minister is, in our opinion, absolutely
invalid, its wording in item 5 leaves room for
different misinterpretations and abuse that harm
free vote and run counter to item 19, paragraph
IV of article 181/2 of the Electoral Code, which
only talks about persons (voters) who poses an
old birth certificate, but who "Do not have the
possibility to collect the package of supportive
identification documents...".
The claim that the Deputy
Minister's letter is related to the enforcement
by civil registry offices of the law on the
civil registry service does not stand because:
a. In item 5 of the
above-mentioned letter, it is said,
"Pursuant to paragraph i, letter a, item 12,
of paragraph IV of item 19 of article 39 of
the Electoral Code";
b.According to article
73 of law No. 8950, dated 10.10.2002 “On the
civil registry service", the Council of
Ministers is tasked with issuing sub-legal
acts pursuant to some provisions of this
law.
The Albanian Helsinki Committee,
as is known, is an accredited organization for
monitoring the February 18, 2007, elections for
local government bodies. To that effect, on
certain issues, we are allowed to inform the
CEC, the constitutional body that prepares,
oversees, directs, and verifies all aspects
having to do with elections.
We would request that the
contents of this letter be made known at the
first meeting of the Central Election
Commission.
Respectfully,
Prof.as.dr. Vasilika HYSI
Executive Director
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