Introduction

Each branch of government -- the legislative, executive, and judicial -- has a distinct role
that complements the functions of the other branches.  However, the three branches are
interdependent, and, to some extent, their roles may overlap.  The following concept
paper describes in brief the role of each branch, and then posits a hypothetical situation
involving a government’s desire to encourage foreign investment to illustrate the difference
in how each branch operates.
 

Legislature

The legislative branch is responsible for passing laws that are reflective of the popular will.
The popular will is difficult to determine, however, because there is rarely consensus
among the citizens on a particular issue.  This lack of consensus is institutionalized in a
presidential form of government, where the executive and legislative branches are elected
independent of each other, and is minimized in the parliamentary system of government,
where executive authority arises out of the legislative branch.  More specifically, it is
common in a presidential system for the president and legislators to be from different
political parties, with different policy agendas and political platforms.1  Because the
president has the power to veto legislation, the legislators must consider the executive
branch’s point of view in drafting its laws.  Further, with a bicameral legislature, the
possibility exists that the chambers will be ruled by different political parties.  In these
instances, compromise must occur between the legislative drafters from the different
chambers in order for a bill to be passed.  Passage of legislation can sometimes be a slow
and cumbersome process, with political accountability obscured as each party points to
the other as the reason why a particular compromise on a piece of legislation was
necessary.  But an advantage to this system is that the law that is ultimately passed is a
product of true consensus, reflecting the compromises that are inevitably required in a true
democratic state.


The situation is far different in a parliamentary system, where the executive and legislative
branches are controlled -- by design -- by the same political party.  In such a system, the
legislative branch is considered supreme to the executive.  The legislature is responsible
for the selection of both the president, representing all three branches of government, and
the prime minister, embodying only executive functions.  The prime minister is responsible
for selecting the other ministers who, together, form the cabinet.  Although part of the
executive branch, the prime minister, as the leader of the majority party, retains his
position only with the support of parliament.  In such systems, the legislative agenda of the
party in power is passed with relatively little controversy.  The advantage to this system is
that the ruling party is directly accountable to the people for its legislative agenda.  The
structure of the parliamentary system prevents the party in power from being able to claim
that the opposition party either blocked important legislation, or insisted on a compromise
that was unpalatable to the ruling party.  The disadvantage to this system is that a law that
is not well reasoned, or is politically motivated, can be passed without much debate or
controversy, and can be operational unless the ruling party is voted out of office at the
next election.

With respect to any particular legislative initiative, the legislature has the responsibility of
establishing policy as reflected in the law.  For example, with respect to a law on foreign
investment, the legislature has the prerogative of deciding a variety of issues, including:

1.  whether foreign entities should be able to repatriate profits from investment;
2.  whether foreign investors should be obliged to develop local infrastructure; and
3  whether foreign investors should be required to buy their raw materials from local
suppliers.

Executive

While laws are passed by the legislature, regulations are typically necessary to implement
the laws.  Laws are relatively broad in outline, with regulations providing the specifics of
implementation.  The executive branch is charged with drafting regulations because the
substantive expertise typically resides within administrative agencies or ministries.

Take, for example, the hypothetical involving a law on foreign investment.  As noted
above, the legislature will be required to make a number of policy choices regarding how
the law is drafted.  Assume the legislature seeks to encourage, but not require, foreign
investors to buy their raw materials from local suppliers, based on the fact that local
suppliers might not be able to provide consistently high quality of the goods or materials
demanded by the foreign investor.  In drafting the law, the legislature may decide to
provide tax incentives to those investors who use local suppliers.  The executive, in the
form of the tax authorities, will be required to determine what information foreign
investors need to submit in order to be eligible for the tax break, how often such
information should be submitted, and what kind of oversight is required to prevent
falsification of such information.  The same division of authority would operate with
respect to requiring foreign investors to develop local infrastructure, such as roads.  The
legislature may conclude that, for the privilege of mining minerals, the foreign investor
should be obliged to develop and maintain roads to the mining facilities.  The agency or
ministry responsible for transportation would then establish the guidelines for the kinds of
roads and necessary maintenance.


The executive can also issue decrees or orders, most typically to guide the operations of
the executive branch agencies or ministries.  The executive also exercises this power in
times of national emergency.  Assume, for example, Albania went to war with another
country.  Presumably, Albania would not want to allow individuals or companies from
that country to invest in Albania.  By executive decree, the president or prime minister
could prohibit any foreign investment by citizens of that country.  Any decree or order can
be reviewed by the judiciary for any constitutional violation or incompatibility with another
law.

Judiciary

The judiciary’s role is unique among the three branches of government because it is not
directly accountable to the popular will.  Judges are typically selected for lengthy, if not
lifetime, appointments.  To this extent it is the one branch uniquely designed to protect
minority rights from being trampled by the majority.  In the presidential system as it exists
in the United States, the constitutional rights of free speech and free assembly are
examples of those rights that, when exercised by certain individuals, may not be popular
with the majority.

The judiciary also passes on the legality of executive and legislative action, including
reviewing laws and the conduct of executive branch agencies or ministries.  Once again,
the judiciary is uniquely qualified to determine whether any particular law or agency action
is consistent with the constitution, or with other laws.  The judiciary, however, does not
have the authority to pass on the wisdom of those laws.

With respect to a law on foreign investment, the judiciary will have the authority to
determine whether the law violates any provision of the constitution or is inconsistent with
any other law.  For example, if the constitution authorized the repatriation of profits from
foreign investment, and the law prohibited it, the judiciary would have the responsibility to
nullify the law in favor of the supremacy of the constitution.  It would not, however, be
authorized to strike down the law on the ground that, as drafted, it does not accomplish
the goal of encouraging foreign investment.  This is within the legislature’s prerogative.
The judiciary would play the same kind of role with respect to any executive decree or
order.  It has the authority to review it for any constitutional violation, as well as for any
inconsistency with a law.  Further, as an aspiring member of the European Community,
the judiciary of a country like Albania would also be obliged to enforce, among others,
the nondiscrimination provisions of the European Union, and ensure that other Albanian
laws do not conflict with European Community law.

Submitted by Kim Meyer
American Bar Association (ABA) Central and East European Law Initiative (CEELI)
Address: Rr. Ismail Qemali, P.34, Ap.2
Tirana, Albania
Phone: 355 42 349 50