Four months before the May 14 election, the majority promised wage increases and benefits for various interest groups in the country. The experts explain that the majority’s interpretation of the electoral law, which must be changed, goes against the principles defined in the ODIHR documents, where Albania has been involved since 1990. Expert Viktor Gumi told Faktoje that “the Electoral Code should be changed to include prohibitions in the time period before and during the campaign month for local elections, because this is the international standard that should be further reflected in the Electoral Code.”
Two months before citizens go to the ballot boxes to choose who will run their city for the next 4 years, Prime Minister Edi Rama made a new promise in a public event.
“ I have to tell you today that in April, this April, not in April of next year and not on April 1, but on April 30, specialized doctors will start receiving 50 thousand new leks in addition to their salary. We will, at the same time, also keep the promise of a 7% salary increase for general practitioners and nurses .” – Edi Rama, Prime Minister, March 6, 2023
The Electoral Code (Article 91, point 4 ) prohibits the proposal, approval or issuing of laws and bylaws benefitting certain categories of the population, in the period four months before the date of the elections until the formation of the new government. As an example, the law mentions “increasing wages, pensions, economic or social support, reducing or removing taxes, establishing fiscal amnesties, etc…
Based on Prime Minister Rama’s statement and the electoral law, Faktoje decided to verify whether the Prime Minister’s promise to raise wages goes against the law.
What does the CEC say?
In order to understand if Prime Minister Rama’s statement regarding the increase in doctors’ salaries contradicts the legal provisions, Faktoje asked the Central Election Commission about the case. In response, the CEC informed Faktoje that the Electoral Code and Decision No. 9 of the CEC foresee the prohibition of the promise of salary increases only in the period before parliamentary elections, excluding local ones.
The supporting argument for this legal interpretation was the fact that the Electoral Code and Decision No. 9 of the CEC mention the period four months before the date of the elections “until the formation of the new government after the elections …”Due to the use of the term “new government ‘, the CEC argues that this point of the law can only be applied to the general elections for the Assembly of Albania.” As above, in the absence of a prohibitive provision, the issuance of this category of acts for local elections, be it even partial elections, does not constitute a prohibited activity for the Central Election Commission.” – said the CEC for Faktoje.
What does the law say?
The Electoral Code of Albania in article 91 defines the prohibition of the use of public resources in support of electoral subjects. This article is part of Chapter I of the law, which regulates the financing of elections by defining the rules for funding sources, public and private funds that political parties and candidates can collect.
This part of the law consists of 14 articles. 13 of them are articles that apply to both general and local elections. Only one of them, article 9 (and even only point 4 of this article), in the legal interpretation cannot be applied to general elections.
Decision no. 9
The Electoral Code charges the CEC with the obligation to issue more detailed instructions to determine the use and distribution of public resources. Thus, the regulatory commission of the CEC approved Decision No. 9 for defining the categories of prohibited activities before the elections.
The main part of the object of this decision is “determining the rules for the reporting of public activities of central and local public institutions“.
Despite this, Decision No. 9 “copy-pasted” point 4 of Article 91 of the Electoral Code, without changing or adding any further details.
The term “new governance”
Based on the fact that the term “new government” for the Central Election Commission excludes local elections, Faktoje turned to the law again. In any case, the law mentions the term “local government” to regulate local elections.
- The purpose and scope of the Electoral Code is to set the rules for parliamentary, local elections, and referenda.
- In its definitions’ section, the Electoral Code defines that “election period” as the period of the year determined in the Code, during which the next periodic elections for the Assembly of Albania and local government bodies take place.
- At the same time, this Code defines “election” as “voting for the Assembly, for local government units and referenda.
- The Constitution of Albania has a dedicated chapter that regulates the operation and method of election of the “Local Government”.
In fact, the term “governance” is used in the Constitution of Albania specifically for “local government”. The term “central government” or the term “government”, on the other hand, do not exist in the Constitution, since the law refers to the government using the term “Council of Ministers”.
What the experts say
Finding no exclusive connection between the term “new government” and “local government”, Faktoje decided to turn to experts in the field for more information.
The legal perspective
Viktor Gumi, lawyer, and election law expert, who was part of the drafting of the Electoral Code, shares with Faktoje the definition of “government” in the Albanian dictionary.
Viktor Gumi, legal expert
“According to the dictionary of the Albanian language, “Government” is the highest central body of the state administration, which exercises executive and order-issuing activities”. Article 95 of the Constitution stipulates that the Council of Ministers (Government) consists of the Prime Minister, the Deputy Prime Minister, and the ministers. Article 91, point 4 uses the term “formation of the new government”, and in no international practice does the word “new government” refer to the mayor or the municipal council.” – argues Viktor Gumi for Faktoje.
At the same time, Gumi recalls that in the discussions held in the Political Council in 2020, which made the last changes to the Electoral Code, it was the Legislator’s intention that Article 91, point 4 should not be included and not applied in the case of local elections. On this basis, Gumi points out that the Central Election Commission cannot impose prohibitions without a legal basis in the Electoral Code. Consequently, in the case of local elections, the increase of salaries and pensions is allowed, as long as it is not provided as a prohibition in the Electoral Code.
However, despite this, the practice of raising wages four months before the elections is actually a violation of OSCE rules, Viktor Gumi explains.
“Specifically, this increase contradicts the OSCE Copenhagen Document and the joint Guidelines of the ODIHR and the Venice Commission on preventing and responding to the misuse of administrative resources during electoral processes.” – Viktor Gumi.
The civil law perspective
Gerta Meta, executive director of the Association for Democratic Culture, part of the civil society that also engages in the observation and smooth running of the elections in the country, sees with regret the reduction in the implementation of the Electoral Code, and more specifically the prohibition of decisions that benefit certain groups of the society, only for the general elections.
Gerta Meta, Association for Democratic Culture
“The spirit of the law, in fact, is to always treat the voters equally, especially on the eve of elections in all election processes, such as central and local ones, so it does not make sense to limit the activity of the institutions in a pair of elections, such as the general ones, and not considering doing the same for the local ones. – Gerta Meta, Association for Democratic Culture.
For Meta, the Electoral Code should be amended in order for everyone to clearly understand, without playing with deadlocks or legal loopholes, what is considered a “new government”.
Amendments to the law
The legal expert for elections, Viktor Gumi, considers it necessary to change the Electoral Code to regulate this provision.
“Article 91, point 4 of the Electoral Code should be amended to include prohibitions in the time period before and during the campaign month for local elections because this is the international standard that should be further reflected in the Electoral Code.” – said Gumi for Faktoje.
The Head of the Association for Democratic Culture, Gerta Meta, said that the situation should not be limited to reading or interpreting the Code. “This requires that all political actors in the country, and especially the government, to show integrity and maximum care in political behavior, treating voters equally in every election process.” – explains Meta.
Changing the Electoral Code is not a new thing for the Parliament of Albania. In February 2022, the Assembly of Albania established a committee for electoral reform. This would be the 9th time that the legislator decided to change the electoral law since the fall of communism.
After being mandated in early February, the electoral reform commission met for the first time in June 2022. The second time this committee met was on August 6, 2022, at which time its 6-month mandate ended. The members asked for the extension of the mandate of the reform committee for another 6 months.
Arguments of political parties
After the Assembly postponed by 6 months the deadline of the electoral reform committee, even though the latter had not managed to produce a work plan, the discussion on the amendment of the Electoral Code continued. Point 4 of Article 91 of the Electoral Code was part of this discussion, precisely with the aim of fixing this impasse.
In December 2022, the initiative for changes to the Electoral Code proposed by MP Enkelejd Alibeaj on behalf of the Parliamentary Group of the Democratic Party suggested changing Article 91 to include local elections in the prohibitions of point 4.
In Article 91, the following additions and changes are made:
- From the date of issuance of the decree of the President of the Republic on setting the date of the elections until the formation of the new government or until the day the Mayor takes an oath, as the case may be, after the elections, it shall be prohibited to propose, approve or issue laws or by-laws benefitting certain categories of the population, such as acts that provide for the increase of salaries, pensions, economic or social support, the reduction or abolition of taxes, the establishment of fiscal amnesties, the privatization or giving of assets or rewards, etc., except when such an initiative is dictated by a state of natural disaster.”
However, the Socialist Party in the Electoral Reform Committee thought that as long as there are elections in Albania every two years, such drastic bans with this time-frequency could violate the constitutional mandate to govern the majority that emerges from the elections. For this reason, the SP decided to ask ODIHR for its opinion on this matter.
“Blurred border between the state and the party”
In its final report on the local elections held in Georgia on October 2 and 30, 2021, ODIHR assessed a situation similar to that in Albania, where during the electoral campaign for local elections, the cabinet of ministers engaged in electoral campaigning for the incumbent candidates, promissing economic benefits to different groups of society.
OSCE ODIHR report on local elections in Georgia 2022
“The undue advantage of being in office continued throughout the campaign with announcements of public projects, promises of social benefits and a plan to increase the salaries of public servants starting in January 2022.
Throughout the campaign, cabinet ministers, including the prime minister, became an active part of the ruling party’s campaign activities, informing about planned infrastructural, economic and agricultural projects for over 14 billion euros, announcing the transfer of hundreds of homes to displaced families, increasing the monthly payment for veterans, increasing the salaries of public servants and promoting the government’s plans to increase the budgets of municipalities and future large-scale economic and infrastructural projects.”
The ODIHR report goes on to note that although some of these measures had been initiated before the start of the campaign, these actions go against the spirit of the law and blur the line between party and state.
The Copenhagen Document by the OSCE (1990)
Paragraph 5 of the 1990 OSCE document , to which Albania also agreed, states that the parties “solemnly declare that among those elements of justice
which are essential for the full expression of the inherent dignity and equal and inalienable rights of all human beings is also a clear separation between the state and political parties; in particular, political parties cannot merge with the state;
Joint Guidelines of ODIHR and Venice Commission (2016)
At the same time, the document mentioned by the expert Viktor Gumi that is violated by making promises of benefits to different groups of society 4 months before the elections, is that of the “Joint Instructions of the ODIHR and the Venice Commission”.
Paragraph II, letter B of this instruction speaks precisely about the prohibition of misuse of state administration resources. Point 1.3 of this instruction states the following:
“…the normal work of the government must continue during the election period. However, to prevent misuse of administrative resources that unbalance the level playing field during electoral contests, the legal framework should state that no major announcement related to or intended to create a favorable perception of a particular party or candidate should occur during campaigns.”
At the same time, in paragraph II, letter B, point 1.1, it states that “the legal framework must provide effective mechanisms that prevent public authorities from taking unfair advantage of their position, holding public activities for electoral purposes, including charity events, or events that favor or disfavor any political party or candidate“.
Clearly, the non-inclusion of municipal elections in the legal restrictions on public activities 4 months before the elections is considered by experts as non-compliance with the spirit of the law but also the rules set by ODIHR for the democratization of this process. This has not stopped the majority from taking advantage of the impasse created due to legal interpretation, to announce promises that financially reward different parts of society.
The lack of political will to fix this legal impasse is proven by the argument used by Prime Minister Rama himself. In defense of his announcement on the salary increase, with offensive language for those who demand equality in the treatment of local and general elections by the electoral law, the prime minister boasts of the interpretation he himself has made of the law.
“Political illiteracy is worse than actual or functional illiteracy! The article that prohibits salary increases 4 months before the elections is related to the political elections, which talks about the period before the creation of the new government.” – Prime Minister Edi Rama, March 29, 2023
After announcing the salary increase for doctors, Prime Minister Rama continued to announce an increase in the minimum salary, increase in economic aid, and an increase in the average salary, all in the pre-election period.