There are many forms of democratic government in the world today.  However, all forms
of democracy have a chief executive who presides over that government.  The chief
executive could be a king or a queen, in a constitutional monarchical system, a prime
minister, in a parliamentary system, or a president, in a presidential system.  It is even
possible that a country could have a hybrid system with, for example, executive power
being shared between a president and a prime minister.

The oldest written constitution in the world, the constitution of the United States of
America, was
the first constitution to place executive powers with a president.  In Article Two of the
United States Constitution the responsibilities and powers of the president, and how a
president is elected and removed, are clearly specified.

Under the Albanian interim Law on the Major Constitutional Provisions (Albanian Interim
Constitution),  the President of the Republic of Albania is the Head of State.  Articles 24
through 32 of these provisions describe the office of the President of the Republic.
Albanians may want to incorporate all, part, or even none of the interim provisions on the
office of the President into a new constitution.  However, regardless of whether any
provisions from the interim constitution are incorporated,  Albanians might want to
consider the following issues:

1. The qualifications of the president: Age; Education; Nationality.
2. The election of the president: Legislative vs. Popular Vote; Secret vs. Open
Voting.
3. The term of the presidency: How long in Office; How often Elected.
4. The removal of a president from office: Basis for Removal; How Removal
Done.
5. The powers and responsibilities of the president.
6. The privileges and immunities of the president.
 

Qualifications

Perhaps the first thing to consider when selecting a president is what will be the
constitutionally required qualifications?  It is not unusual for a constitution to require that a
candidate for president attain a certain age (thirty-five years old under the U.S.
Constitution and forty years old under the Albanian Interim Constitution) and be a citizen
of the country he wishes to be president of (every Albanian national is eligible under the
Interim Constitution but the U.S. Constitution is even more stringent- only “natural born
citizens” can become president).  Albanians might want to put in their constitutions more
required qualifications- such as a certain level of education- or less.

However, a greater number of constitutionally required qualifications will diminish the
number of eligible people for the presidency.  Therefore, Albanians should carefully
consider the qualification requirements they want in their constitution.


Presidential Elections

An important question which needs to be considered is: how will the president become
president? Will the president be chosen or elected by the legislature or parliament or will
the president by elected by popular vote?  If the president is elected by the legislature or
the parliament will it be by secret ballot or will it be done by open voting as with other
votes in the legislature or parliament?  Presumably, if the election is done by popular vote
it will be done by secret ballot.
 

Presidential Term Limits

Associated with the question of the selection or election of the president is the length of
the presidents term in office and whether the president can be re-elected.  The length of
the president’s term varies from country to country (for example the president’s term of
office is four years in the United States, five years in Albania-under the Interim
Constitution- and seven years in France).  However, unlike the term of a prime minister,
which can be cut short, particularly if a prime minister is in a coalition government and he
loses the support of his partners, the term of a president is fixed.  Generally, a president
can be removed from office only through a specified process (like impeachment in the
United States) or by resigning (see Article 27 of the Albanian Interim Constitution).

Along with the length of the president’s term, the question of the number of terms a
president can be elected to serve should also be considered.  Some countries’
constitutions limit the number of times a person can be elected president (for example,
the United States Constitution limits a president to two terms or eight years, while the
Albanian Interim Constitution limits a president to two successive terms of 10 years but
otherwise does not limit the number of times a person can be elected to the presidency).
 

Removal of a President

Since a president generally remains in office for his entire term of office, the issue of
removing a president from office is an important one to consider. The process for
removing a president from office should be in the constitution, particularly if the executive
powers primarily reside with the president.  The method of removing a president should
also be in the constitution.


There are a number of different methods of removing a president from office.  One way
of removing a president from office is by popular recall.  Under this method citizens who
are unhappy with the president initiate a petition to remove the president from office.
Normally, when petition drives are allowed to take place a certain number of signatures
are required before a recall vote of a president will be allowed.  But, if a recall vote does
occur a simple majority of voters voting for a recall of the president is under most recall
systems enough to remove him from office.   Another way to remove a president from
office is through the legislature.  The method used in the United States to remove the
president from office is through the legislature.  Under the United States system, which
has only been used once, the lower house (the House of Representatives) can vote by a
simple majority to remove a president from office.  Once that occurs the upper house (the
Senate) then votes on whether the president should be removed from office.  However, in
order for the president to be removed the Senate must vote for the removal by a
two-thirds majority.  While the Albanian Interim Constitution has no similar mechanism
for removing a president, under Article 31 of the Albanian Interim Constitution a
president’s immunity for official acts can be removed by the People’s Assembly “through
a secret ballot with a majority of two thirds of the deputies.”  The effect of this could
mean that a president is prosecuted and convicted.  This could result in his removal under
Article 27 of the Albanian Interim Constitution.  But, because the ability of the Albanian
legislature is not clearly spelled out in the Albanian Interim Constitution, Albanians might
want to consider creating a mechanism for the removal of a president if a new constitution
is drafted for Albania.
 

Responsabilities of a President

The responsibilities of a president can vary widely depending on the type of constitution
adopted.  For example, under some constitutions the position of a president may be little
more than ceremonial (as it is in Ireland and Germany).  On the other hand, in some
countries, such as the United States, the president is responsible for the functions of the
executive branch and wields tremendous power and influence.  Among the responsibilities
of the U.S. president delineated in the constitution are:

1. The power to sign international agreements and treaties
2. The power to appoint ambassadors,  judges of the Supreme Court and other
federal courts, and the heads of federal departments (ministries)
3.  The position as commander in chief of the armed forces

However, it is also possible to have a hybrid system that combines presidential system
with a parliamentary system.  The current French Constitution (1958) is an example of
this type of system.  In France, the executive power is divided between the president and
the prime minister.  Some of the responsibilities and powers of the French president
include:

1. Appointing and removing the prime minister
2. Presiding over the cabinet
3. Veto power over laws

Under the Albanian Interim Constitution the role of the President is apparently
subordinate to that of the Prime Minister.  Among the powers delegated to the President
under the Albanian Interim Constitution are:

1. Nominating the Prime Minister and accepting his resignation.
2.   Upon the proposal of the Prime Minister, he appoints, discharges, or dismisses
by decree
ministers and other members of the government.
3.   The President appoints and discharges diplomatic representatives upon the
proposal of the  Prime Minister.

4.   The President prepares international treaties and agreements, ratifies or renounces
those no examined by the People’s Assembly itself.
5.   The President is the General Commander of the Armed Forces and Chairman of
the Council of  Defense.
 

Privileges and Immunities

Given the enormous responsibilities of a president, particularly in a pure presidential
system such as the United States, it is usually advisable to extend certain privileges and
immunities to the president in the performance of his duties.  While the constitution of the
most powerful presidential system in the world does not explicitly define the president’s
privileges and immunities, the president is recognized as having them.  The basis for the
president’s privileges and immunities is based in the United States on the doctrine of
separation of powers into three distinct branches-executive, judicial and legislative.  The
president’s immunity extends to actions undertaken in his official capacity.  The extent of
this immunity has not been clearly defined.  However, the threat of impeachment is always
available to deter presidential misconduct.

It may be that in an Albanian constitution the scope of presidential immunity would be
clearly defined, as it is in the Albanian Interim Constitution (Article 31).   The concept of
some immunity, if not an absolute immunity, for the official actions of the President is
worth considering.  However,  the extent of the immunity and also the creation of a
mechanism for lifting presidential immunity are subjects that should be discussed and
debated by all Albanians.
 

Conclusion

The Office of the President under a new Albanian Constitution, should Albanians decide
their nation should have a president, will be an important governmental position even if the
office is largely a ceremonial one.  Therefore, when Albanians consider what the Office of
the President should look like, what the powers and the responsiblities of the president
will be,  they should carefully consider the culture and history of Albania as well as the
constitutions of other nations.

Submitted by CEELI Liaison:  John Hutchinson Kelley
American Bar Association (ABA) Central and East European Law Initiative (CEELI)
Rr. Ismail Qemali, No. 30
Tirana, Albania
Phone/Fax:  355 42 34950
E-mail:   [email protected]