The Margin of Appreciation of the Albanian Constitutional Court on the Constitutionality of Emergency Decrees of Executive Power

Abstract

The emergency decree as a normative act is regulated by Article 101 of the Albanian Constitution, as one of the powers of government in a parliamentary system. This disposition gives the executive power a quasi legislative prerogative. In fact, the issuance of this normative act is considered by constitutional doctrine as an exception from the general rule, according to which the executive power issues acts in accordance to the law, and the laws are exclusive acts of the legislator. Precisely to avoid unwarranted interference in the powers of the legislator, the constitution provides some criteria which are determinant in issuing these emergency decrees. The control of fulfilling these criteria by the competent authorities is necessary to ensure compliance with the principle of separation and balance of powers in a rule of law system. The most important mechanism of control provided by the Albanian Constitution is the control by the Constitutional Court, which assesses the constitutionality of emergency decrees regarding both formal and substantial aspects. The first aspect involves the existence of the conditions of necessity and urgency, i.e. circumstances that have obliged the government to issue such an act. The second element is temporariness of the act, which means that it is valid for a specific time period, at the latest till its adoption or rejection by the parliament. The third element is the 45-day deadline for the adoption of that act by the parliament and the specific procedure of its adoption. The Constitutional Court’s control of constitutionality should conclude whether this exclusive competence of the legislator is exercised by the government in accordance with the requirements provided for this purpose in the Albanian Constitution. This article intends to give an overview of the control that the Albanian Constitutional Court exercises on emergency decrees issued by the government, a mechanism used recently to amend important laws. It also gives a constitutional perspective on this act as an exceptional case in which the government issues legal acts with direct effects.