Democracy is a word coming from Greek that means that a people should be self-governing.  This concept has always been interpreted as meaning that representatives of the people should have a role in administering a country.  The people are normally represented in the parliament, the congress or the assembly, as the institution where the “agents” of the people seat is called in Albania.  This institution is often called “legislature”, a word coming from Latin and indicating a body of persons entrusted with the power of making the laws of a State.

Therefore, representation and law-making powers are the main concepts to be borne in mind when talking about the legislative branch.  Representation, on the one hand, explains why members of parliament are entitled to take decisions that will normally affect the entire population.  Laws, on the other hand, are the instruments by which decisions having a general scope are taken.

Division of Local and Central Power to Legislate

Naturally parliamentary action encounters some limits.  A first limit comes from the division of power between central and local government.  Legislation on certain matters, or just the discipline of its implementation, is in some countries reserved to the local representative body in observance of the principle of subsidiarity.  According to it, decisions should be taken at the level that is closer to the citizens.  Local authorities, in certain cases, are better informed on the situation of a particular area and therefore better apt to take decisions.  This limit is more relevant to federal States than to Albania, who is a relatively small country and might not need to confer legislative powers to local bodies.

Delegation of Power

Parliaments sometimes have a limited power to delegate their legislative attributes to governments.   Delegation of power is considered useful in matters that require technical knowledge or when it is necessary to give a comprehensive scope to the discipline to be introduced.  Delegation of legislative power, for instance, is often used to collect in a single text all the legislation on taxation or on house-building.  Normally delegation of legislative powers is only allowed for specified objects and for a limited period of time, to the government as a whole, and not to single ministers: in all these cases parliaments have to set governing principles and criteria.

The rationale behind these restrictions owes to the fact that parliament is the body vested with legislative power and should deprive itself of it only when necessary, with good reasons and for particular matters.  In certain systems, legislation adopted by the government through delegation by parliament loses its force if it is not later “recognised” or ratified by parliament itself.  Albanian constitutional drafters should consider whether to include or not in their future constitution the capacity to delegate legislative power.
 Budget and War

Parliaments, as representative of the people, have power over the budget.  The budget contains the indication of taxes and expenditure and is a fundamental document to trace government’s policies and choices over scarce resources.  Most constitutions provide that budget be passed by parliament.  The reason for this is that parliament has to authorise the expenditure and the collection of taxes; others think that the law passing the budget implies an approval of the political and financial plan of the government.  Whatever the interpretation of this power, the representatives of the people have a word on this matter.

Parliaments are often vested with the power to declare a state of war or to authorise the declaration of war.  Such a sad declaration, always connected with unforeseen and grave consequences, must receive the agreement of parliament and not be left alone in the hands of the executive.

Power to Appoint Authorities and the Ombudsman

Many parliaments have also the power to appoint authorities of important institutions, such as, for instance, members of the Constitutional Court, the head of the State television, or the Ombudsman.  The latter is a State’s organ that could be introduced in Albania, after having been established in a wide range of countries, under names such as the People’s Advocate, the Mediator, the People’s Defender, and so on.  These names can help illustrate the primary function of this institution, which is to oversee the fairness and legality in public administration.

More specifically, the office of the ombudsman exists to protect the rights of individuals who believe themselves to be the victims of unjust acts on the part of the public administration.  Accordingly, the ombudsman will receive complaints from members of the public and will investigate these complaints.  He or she will often act as a mediator between the aggrieved individual and the government.  The ombudsman is generally appointed by the parliament, but in some countries it is responsibility of the head of State, to whom the institution may also be required to report.

Should Albania decide to have this office, the constitution, or ordinary legislation, would have to solve other issues.  A provisional list would include the responsibility for the ombudsman’s appointment, the activities incompatible with the office, the length of the term of office, the powers (own motion powers?), whether a complainant must first exhaust all alternative legal and administrative remedies, its privileges and immunities, and so on.

Amending the Constitution

 It may sound strange to talk about changes in the constitution when one has not been drafted yet.  However, the result could not be perfect or simply could not be fit to tackle future political challenges in Albania.  Therefore a system must be defined already now to review the constitution, so that it corresponds to the changes that take place in the society and in the international community.  On the other hand, constitutions cannot be subject to changing majorities or party politics.  They have to be changed only when a broad consensus throughout the political spectrum exists.

Parliaments are normally allowed to propose constitutional amendments, but with much stricter limitations than for ordinary legislation.  Many constitutions provide that only non-basic provisions may be reviewed.  In some countries, the form of government, the inviolability of basic freedoms, the separation of powers cannot be revisited.  Some constitutions must be revisited by two different legislatures.  An amendment must first be approved by an absolute majority of the members, and then, after an election, by a qualified majority (such as 2/3 or 3/5) of the members of the newly elected parliament.  The aim is to ensure due deliberation by the elected representatives and input from the electorate to protect against rash revisionism.

Other constitutions provide that they can be changed by amendment or enactment of a constitutional law.  Proposals must be passed by each house of the legislature in two successive votes with an interval of at least three months.  The proposal may be submitted to referendum if so requested by a certain share of members of a house, a certain number of citizens, or a certain number of local government bodies.

The New Zealand constitution provides different solutions for amendments or total revision.  The first case just requires a qualified majority, whereas the second calls for the election of a constituent assembly and approval by qualified majority.

Conclusion

Although the legislative branch is known mainly as a lawmaking body, it is important to remember that it has many other significant responsibilities.  The reason for this is that parliament, which is at the core of the Western democratic tradition, represents the people and their different political opinions and choices.  Its powers are not unlimited and it is for the constitution to define what a parliament is entitled to do and how to do it.

Submitted by Giovanni Favilli
European Commission for
Democracy through Law
(Venice Commission)
Council of Europe
Rr Donika Kastrioti Villa 6
Tirana, Albania
Phone: 355-42-28419