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The Violation of Citizens' Rights to
Employment and their Illegal Dismissal Should not be Allowed
Tirana, January
16, 2006
In
recent days, print and broadcast media notified that soon the Council of
Ministers would approve a draft-decision that forbids family members and
relatives of current and former government officials to work in the customs,
taxation, and public procurement sectors.
The news
was also confirmed by the Prime Minister who said the government would soon pass
this decision.
The
Albanian Helsinki Committee, although not yet fully familiar with the contents
and details of this project, for sensitization and prevention reasons, decided
to publicly submit the following objections:
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The
approval of this decision, in spite of good intentions, would directly harm
the legitimate rights of citizens sanctioned in article 18 of the
Constitution, which says, "All are equal before the law. No one may be
unjustly discriminated against for reasons such as sex, race, religion,
ethnicity, language, political, religious, or philosophical beliefs, economic
condition, education, social status, or ancestry," in article 49 of the
Constitution, which notes, " Everyone has the right to earn the means of
living by lawful work that he has chosen or accepted himself. He is free to
choose his profession, place of work, as well as his own system of
professional qualification,” as well as in article 107 of the Constitution
that reads, "Employees in the public administration are selected through
examinations, except when the law provides otherwise. Guarantees of tenure and
legal treatment of public employees are regulated by law."
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The
Labor Code of the Republic of Albania says, "Any discrimination in the area of
employment and profession is forbidden; that 'discrimination means any
distinction, exclusion, or preference based on race, color, sex, age,
religion, political beliefs, national origin, social background, family
relations, physical or mental handicaps that violates the right of the
individual to be equal in employment and treatment."
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The
AHC is of the opinion that such cases may not be included in the notion of
"conflict of interest." Extended and subjective interpretations related to
conflict of interest would seriously harm citizens' legitimate rights and, as
a result, might be accompanied by harmful consequences. The concept of
"conflict of interest" is real, not supposed. It relies upon legal criteria.
In the
opinion of the AHC, if cases of forbidding employment or dismissals, envisaged
to be approved in the decision of the Council of Ministers, would be considered
legitimate, it would then be reasonable to enforce the same criterion in other
sectors as well, such as the prosecutor's office, courts, the High State Audit,
the Inspectorate for the Control and Verification of Assets of Public Officials,
etc., which, as is known, are important and delicate sectors.
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The
AHC also deems it necessary to highlight the fact that law no. 8549, dated
11.11.1999 “Status of the civil servant" determines the rules for hiring and
dismissing civil service employees, which rely on the principles of
professionalism and transparency, responsibility, and correctness in enforcing
legislation in force (article 3).
With
regard to ethics regulations in the public administration, law no. 9131, dated
8.09.2003 is relevant. This law deals with conflict of interest (article 4) and
avoiding conflict of interest (article 5).
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The
AHC also takes into consideration law no. 9367, dated 7.04.2005 “On the
prevention of conflict of interest in exercising public duties." The law
provides a definition of the notion of "conflict of interest" (article 3).
Whereas article 32 of the above law deals with definitions for the tax or
customs administration official. This provision provides for no prohibition in
hiring or dismissing persons who may be family members or relatives of senior
officials, government, or former government members.
The AHC
is of the opinion that the contents of this statement might be useful to a
review of this issue, which deals with respect for the Constitution and
legislation in force.
For the
above-mentioned reasons, the AHC suggests to the government to not approve the
decision in question.
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