“Sovereignty springs from the people and belongs to them”

In the today’s modern states, it is understood that when speaking with the acceptance, or
not, of democratic principles of governance, the direct participation of the people in the
fulfillment of the government’s functions is included.  In fact, it would be ideal if the
governing of a country could be done directly from its citizens.  But the great number of
the citizens normally does not allow for the application of this method of state
administration (the fulfillment of the government’s functions.)  An obligatory solution is
found in that the whole activity of state administration is trusted to one group of individuals
elected in a way considered representative of the whole people’s collective.  From this
derives the division made between DIRECT DEMOCRACY and INDIRECT
DEMOCRACY.  This last one has almost disappeared in its pure meaning, but various
modern states have accepted it in the form of the LEGISLATIVE INITIATIVE and the
REFERENDUM.

Matter of Legislative Initiative

In states where the principle of separation of powers is applied, parliament is the body
which has the legislative function (approval of laws).  The laws approved are those which
support government’s effective administration of the country’s life.  Courts will be the
ones which will solve eventual disputes which have come up from the application in
practice of the laws.  The administration of the state tasks must have a legal basis of
judicial acts, the most important of which are the LAWS (normative acts approved by
parliament.)   The phases for the approval of a law in parliament are:

1.  Legislative initiative (the introduction phase)
2.  Discussion and approval by Parliament (the drafting phase)
3.  Decree and publication (the entry into force phase)

The legislative initiative is exercised from the government, its deputies, the president, and
the citizens of the country.  Hence, citizens themselves may present to the parliament a
draft law enclosed with supporting documentation. People’s initiative does not mean that
in order to be able to present a draft law directly to the parliament, the approval of all the
citizens of the country is needed, nor that of a special group of citizens.  The idea that
should be emphasized when we say people’s initiative, is that a request to approve a law
may come directly from the citizenry.

It is understood that both extreme alternatives: taking the initiatives on from a group of all
citizens or from one citizen alone, are unacceptable (one of the alternatives is practically
impossible while the other is inconvenient and potentially abusive.)  Therefore, a required
number of citizens must be established to avoid abuse and give citizens the opportunity to
view the people’s legislative initiative, as a way in which society will pay some attention to
the citizen for the most important issues.


Practically, the people’s initiative can be accomplished by presenting the draft to the
public to participate in the initiative, and after that - when the requested number is
reached (it can be requested that the signatures be gathered within a time limit,) one of
these initial signatories will be heard in a parliamentary session.  The presentation of the
law to the parliament can be trusted even to the government in order that the government
may perform a so called “technical verification” beforehand.  This would be useful for the
government to become familiar with the changes the law might bring to established
financial programs were it to be passed by the parliament.

Matter of Referendum

People’s legislative initiative is conceived as a form of direct democracy where the people
participate directly in the process of lawmaking, introducing law. The referendum can also
be viewed  as participation in lawmaking, only this time the participation of the people is
done in the discussion and approval phase (in the phase of constituting the law.)  What
we are speaking of, is what is called an abrogative referendum (one which has the force
of the law.)

In its pure meaning, the referendum presupposes participation in the legislative process of
the citizens with different views, political, national, social, and religious in origin crucial
issues not included in the debate between political parties.  Today, in the modern
democratic states,  (where this form of direct democracy is accepted,) there are different
classifications of referendums.  For example, based on the criteria of substance, we have
the constitutional or legislative referendum and administrative one; based on the criteria of
time, we have the successive and programmatic referendum; based on efficacity we have:
consultative referendums (where input is to be given to the legislature,) confirming ones
(where confirmation of the validity and efficacity of a norm is at issue,) and the abrogative
referendum (where the abrogation of an effective norm is at issue.)
From these, the two most important ones are:

a. The Constitutional Referendum.  This referendum, makes it possible to take
people’s approval on the fundamental law of the state.  As such, the constitutional
referendum is qualified as a form of direct people’s sovereignty.  Having people’s
approval can be determined some times to be the organic part of the constitutional
drafting process and other times it can be conceived as the phase which gives legal force
to the newly drafted constitutional act.

b. The Legislative Referendum.  Is a form that represents the meaning of the
referendum as a direct participation of the people in the discussion and the approval
phase of the law.  Within the frame of the referendums, the most well known one
nowadays is the abrogative referendum.  Through this referendum, a law or a central
administrative act is abrogated.

Problems Connected with Referendum


I.  One of the main problems with abrogative referenda, apart from the procedure
limitations which arise in its application, is how to address the case when the parliament
subsequently passes another law the same as the one abrogated through a referendum.
The issue reduces to which expression of the people’s will should take priority: the one
which is secured in the parliamentary elections (the parliament is considered to transmit
the clear will of the people,) or the one which is secured in the referendum.  The second
view is more persuasive.  If a law is abrogated  through a referendum then the parliament
should not touch that subject again, at least not until the end of that legislature.  People’s
participation is more direct with the referendum than with the parliamentary elections
(where deputies are selected to make laws.)  In the referendum, the expression of
people’s will is, chronologically, of a later date than the parliamentary elections.  The right
of future legislatures to treat the issue of a law abrogated by referendum is justified upon
the same basis.

II.  Indirect democracy has its basis on the affirmation: parliamentarians transmit the
people’s will.  But there is another way to express the people’s will and that is through the
political parties system.  It is presumed that every person sees his interests expressed and
protected through a political party, which is an active participant in the discussion of
political arguments.  With this regard, a referendum in a modern constitutional system, is
seen as an extraordinary, but reasonable instrument of the control against two organic
complexes which normally express its will: the parliament and the political parties system.

The achievement of these ideals is not a very simple goal to achieve.  Three circumstances
may place the referendum institution in crisis causing it to lose something from that pure
image of direct control exercised from the people:

a) The repeated requests for referendums of different social groups (normally they are the
minority groups), make the “electorate exhaustion” phenomena a reality.  This phenomena
makes the following referendums fall prey to an “electorate strike,” that is to say the
nonparticipation in the elections.

b) The phenomena of the majority referendum.  It happens that a majority in parliament
seeks approval, through referendum of important issues which form part of the political
discussion, (because it is confident of a positive conclusion) and in this way it avoids the
inter political party debate.  This could be interpreted as a manipulation of the people’s to
direct participation in state functions.  In this way, the referendum is no longer an
extraordinary scheme to express of the different interests of the people for a problem that
cross political boundaries.

c) Sometimes, the initiators of a referendum would ask for the approval of a pure political
aim rather than that of a concrete request.  This may become clear when a political
interpretation of the conclusions of the referendum is made.  In this way, they aim to reach
a positive evaluation of their political position, showing the people to be like a superior
court.

It can be drawn as a conclusion that the referendum is exposed to the danger of its
conversion into a tool of indirect democracy.

Submitted by Enkeled Alibeaj
Albanian School of Magistrates
Rruga e Elbasanit
Pranë Fakultetit të Gjeologji-Miniera
Tirana, Albania
Tel: 355 42 649 43
Fax: 355 42 649 40