At issue is the question who or which institution should have the ultimate political authority
in the Albanian Republic.  This question basically concerns the balance of powers
between the president as head of state and parliament as the body which practically
represents the sovereignty of the people.

During past years, Albanian citizens lived in a political system where the president before
1991 held an extremely strong position, which was maintained in part after 1991.
Although many Albanians, most likely a strong majority, were rather unhappy with their
former president, it was virtually impossible to hold him responsible for the economic
disaster and to bring about the necessary political changes within a reasonably short
period of time.

The Law on the Major Constitutional Provisions of 1991, while establishing a presidential
government, is still not very clear about the question here posed.  On the one hand, it
states that all public authority derives from the people (Art. 1) and that the separation of
powers notably between the People’s Assembly, the Council of Ministers and the
President is a fundamental principle (Art. 3).  On the other hand, these Constitutional
Provisions shy away from unambiguously answering the question of ultimate political
authority by declaring the People’s Assembly as the “highest organ of state power” (Art.
15) while at the same time bestowing the President with competencies which suggest that
indeed he is the highest organ (Arts. 28 and 33).  Furthermore, the Council of Ministers is
established as “highest executive and legislative organ”  (Art. 33).  That is why a new
constitution has to address more vigorously the problem of supreme public authority and
make a decision where to locate and how to control the sovereign power.

For all intents and purposes, such a decision will have to be based on a choice between a
presidential system, a parliamentary system, or a mixed (or semi-presidential) system.
The choice is necessary in order to establish an effective government, to distinguish more
clearly between the powers of the different branches of government and give each of
them a determinate mandate, and to establish effective checks and balances in order to
ascertain that all public authorities that act in the name and in the interest of the Albanian
people can be controlled and held responsible on the basis of the constitutional
provisions.  In a presidential system, the president is not just the head of state who
represents the people and national unity but also the supreme governor.  This means that
the ultimate executive power is located in the office of the president who, as matter of
consequence:

Determines ultimately the fundamental political decisions, even if this competence
may be delegated by him to a prime minister or a council of ministers;
Appoints and discharges the prime minister and the members of the cabinet (or of
a council of ministers);
Declares the state of war and the state of emergency and exercises the
emergency; and
Dissolve parliament under certain conditions.


One may say that a “good” president who acts in the interest of the people, has been
elected by the people, and respects the constitution, makes for a good and effective
government.  On the other hand, the concentration of political powers in one hand and in
one office is quite risky, not only in times of crisis, because too much depends on the
integrity and competence of one person.  Moreover, in a presidential system, the
executive power is very likely to override and push aside the deliberations and resolutions
of those who are actually the deputies of the people and represent the different groups
and interests of a society.

In a parliamentary democracy, the lawmaking body plays a central role and tends to
reflect more adequately the different societal interests, as well as societal divisions.  The
most important powers of parliament in a parliamentary system usually are:

Elect the government (prime minister or chancellor and council of ministers or
cabinet) and to vote the members of government out of office if need be;
Program the state administration and shape politics by passing the necessary
laws;
Debate and check on the performance of government, including, if need be,
rescission of its decisions; and
Declare the state of emergency and state of war.

This means that the competencies of the president as head of state are limited to
representative functions and to residual powers, such as the exercise of pardon,
appointment and discharge of diplomatic personnel and signing of laws.  This also means
that governmental policies are less dominated by an executive logic and more shaped by
considerations publicly debated in parliament.  The parliamentary decisionmaking
processes may be more time-consuming and troublesome; however, parliamentary
decisions are less likely to be arbitrary.  If, however, there is a stalemate in parliament or
if the parliamentary factions are hopelessly divided over crucial issues, a parliamentary
system may be unable to produce the necessary political decisions and may immobilize
the government.


To avoid such risks one may want to establish a “mixed system” that combines a strong
parliament with a strong executive that is still effectively controlled by parliament.
Whether the executive power is located with a president or, preferably, a chancellor or
prime minister is not a matter of principle but ultimately a practical question.  It is crucial
for a mixed semi-presidential system or a chancellor/prime minister democracy that
parliament as the body representing the people holds a strong position by electing and
controlling government.  On the other side, the executive power enjoys more
independence than in a strictly parliamentary system but less than in a presidential system.
One may say that the sovereignty of the people is delegated--always temporarily--to
parliament through elections and to the member’s government who are voted into office
by parliamentary majority.  It makes for a fairly clear separation of powers if, within a
mixed system, the president is limited to representative functions thus playing a politically
neutral role, while parliament is the supreme legislative power and determines the
composition of the government, and the latter (council of ministers, prime minister, or
chancellor) is the supreme executive power.  In  a “mixed system,” the crucial problem
will always be whether and how parliament can be dissolved (by majority vote, a decision
of the president and/or the council of ministers) and how a change of government can be
brought before the end of the legislative session.

By Professor Dr. Günter Frankenberg
J.W. Goethe-Universität
Frankfurt am Main
Institut für Öffentliches Recht
Senckenberganlage 31
D-60054 Franfurt/Main
Tel.: 069-798-2-29-91
Fax:  069-798-2-83-83