I.  Local Government Power

Albania’s new constitution could include provisions that spell out the power of local
government bodies such as District Councils, City Mayor’s Offices, and the Offices of the
Chiefs of Communes.  If the powers of the local governments are listed in the constitution,
the powers will be guaranteed to the local governments--and could not be taken away by
the government, parliament, or even the courts.  This will give the local government some
lasting independence from the central government.  If the local governments’ powers are
not specified in the constitution, it would be up to Parliament to decide whether to give
the local government any powers.  Each new Parliament might be tempted to change,
restrict, or even eliminate, the powers of the local government.

Currently in Albania, it is unclear to many people what powers local government bodies
have.  It is also unclear whether the local governments have any special governmental
powers such as the power to raise revenue, administer the local government budget, or
enact local regulations.  Without a constitutional provision on the point, it would not even
be clear whether local government bodies have the competency to perform simple tasks
such as holding bank accounts and entering into contracts.  Albania’s new constitution
could specifically grant and guarantee some or all of these powers to the local government
bodies.

Local government powers are discussed in more detail under two categories below:  “The
Powers of Legal Personage” and “Special Governmental Powers.”

A.  The Power of Legal Personage

Albania’s new constitution could state that local government bodies have the power of
legal personage.  The power of legal personage is simply the power to perform the
general tasks that all private persons and companies can perform.  For example, private
citizens and companies have the power to hold bank accounts, to buy and sell things, to
enter into contracts, to own land and other property, to form legal entities, and the like.
We call these powers the powers of legal personage because all legal persons can
perform these tasks.  Without the power of legal personage, local governments would
have very little authority even to perform simple tasks.

B.  Special Governmental Powers


In addition to the power of legal personage, most local governments have special powers
to perform certain governmental tasks.  If Albania’s new constitution specifically grants
local government bodies special powers, the powers will be guaranteed to the local
governments and could not be taken away by the central government, parliament, or the
courts.  These special powers could include the power to impose local taxes; the power
to raise revenue by issuing government bonds; the power to administer the local
government budget and to spend local government funds; the power to initiate educational
and cultural programs; the power to plan and zone communities; the power to enact local
laws and regulations; and the power to enforce the local laws and regulations through
local government police bodies.  Each of these special powers is discussed briefly below.

The Power to Impose Local Taxes.  Local governments need funds with which to
pay for their operations.  The local government bodies in many countries have the
power to impose local taxes.  Taxes might be imposed on income, on the sale of
goods, on the value of real estate, on the use of roads, or the like.  Without this
power, the local governments might have to rely solely on the central government
for funding.  This would make local governments dependant on the central
government.

The Power to Issue Bonds.  Another way for a local government to raise money
is by issuing bonds.  As does Albania’s central government, local governments in
some countries sell bonds to individuals to help finance their operations.  When
the local government sells bonds it would have to pay the amount back to the
investor with interest.  The local government would pay for the bonds and interest
by the money it collects on taxes or other revenue it receives.

The Power to Administer the Local Government Budget and to Spend Funds.
The constitution could specify that local governments have the power and
independence to decide how to spend their funds.  Without this provision, the
central government might try to dictate to the local governments what they should
do with their money.  If that happened, the local government might become
simply a puppet of the central government.

The Power to Initiate Educational and Cultural Programs.  The constitution could
also specify that local governments have the power to initiate educational and
cultural programs.  If local governments have true independence to determine
how to spend their funds, it would follow that they could also use the funds for
educational programs or for any other lawful purpose.

The Power to Plan and Zone Communities.  Local bodies are usually best suited
to planning the growth and development of communities.  In Albanian and other
countries, land can be zoned for certain types of uses--such as agricultural,
business, residential, or other uses.  The constitution could specifically state that
local government bodies have these powers of planning and zoning.

The Power to Enact Local Laws, Regulations, or Ordinances.  Local
governments in most countries have the power to enact local laws, regulations, or
ordinances.  These are usually of a very local character--such as restrictions on
where you can park an automobile, local laws relating to the planning and zoning
power discussed above, ordinances regarding noise, and the like.  The power to
make local laws, however, is not unlimited.  If a local law conflicts with a valid
national law, the local law is usually held to be invalid.

The Power to Enforce Local Laws and Regulations and to Enforce Certain
National Laws.  If local governments have the power to enact local laws and
regulations, they need the power to enforce them.  Otherwise, regulations will
exist on the books but will not be followed or implemented.  In addition, local
governments might have a need to be able to more effectively enforce national
laws.  For example, a local government might feel a need to enforce certain
criminal laws to make the local community safer.  The constitution might grant
local government bodies the power to establish a local government police force,
local court or tribunal, and other mechanisms for enforcing laws and regulations.
If a local government does not have enforcement power, its laws and regulations
might easily be ignored by individuals or by the central government.

II.  Conclusion

In drafting and adopting the constitution, the people of Albania have the right to decide
whether these special governmental powers and the powers of legal personage should be
guaranteed to the local government bodies.

Submitted by Legal Specialist Robert A. Pulver, Esq.
American Bar Association (ABA)Central and East European Law Initiative (CEELI)
Rr. Ismail Qemali, Pall.34, Ap.2
Tirana, Albania
Phone:  355 42 346 24
Fax:  355 42 331 97
E-mail:  [email protected]