Focused Discussion Group No.1 & 2 on Executive Issues

Suggestions from the Focused Discussion Group on the Constitutional Issues raised at the NGO Forum held on 14 and 22 April 1998

I. Election of the President

Many participants at the NGO Forum selected this issue as important. Problems and concerns were raised during the discussion such as the method of electing a President and criteria regarding his dismissal, age, and affiliation with political parties. Many of them were of the opinion that from the moment of election to the office of president, the person elected should relinquish his or her party functions and stay apart from the political parties.

Participants in the discussion mentioned the importance of clearly defining procedures and necessary criteria for election of the President in constitutional provisions. The method of election was discussed in specific detail. Considering the principle that power stems from the people and belongs to them, some of participants emphasized that it should be specifically reflected in the manner of electing a President as a person who represents national unity.

Related to this, participants suggested the following:

The President should be directly elected from the people. Some emphasized that, in some Eastern European Countries, this manner of voting goes through two phases: approval by parliament and after words a popular vote;
The procedure for dismissal of the President should be specifically defined in the Constitution.

Concerning the criteria and qualities of the candidate, some participants suggested as follows:

Any Albanian citizen with Albanian nationality who was born in Albania may be elected to the Office of President of the Republic.
The candidate should be over 40 and have the right to vote.
Candidate for the Office of President may not be a politician or a parliamentarian.

With regard to the relation of the President with political parties, some of the participants were of the opinion that staying apart from political parties is not of a great importance. This is more of a formality. Others were of the opinion that distance is necessary because it would increase his authority as the representative of national unity.

II. Functions and Competencies of the President

This issue was discussed widely by all participants. They talked about different issues such as: incompatibility of the office of the President with other functions, removal of the President, his/her relations with other powers, the executive competencies of the President in nominating the high army ranking officers, his/her competencies over the armed forces, relation between the competence of the President with those of the Prime Minister, veto power, etc. One of the most important issues according to the participants was the determination of state of emergency and the competencies of the President regarding issues of national security and the secret service.

Participants expressed different ideas regarding the basic functions and powers. Some of them emphasized the close relation that exists between the grant of Presidential powers and choosing a system of government. Regarding the President's competencies over the state security service, some participants were of the opinion that such a responsibility should be shared with the Prime Minister. Others emphasized maintaining the current competencies of the President: he should be the person to appoint the chief of the state security service.

Participants expressed different ideas on the executive competencies of the President. Some emphasized that it is necessary that the current executive competencies of the president are not only maintained but also strengthened. The President should not only be seen as an honorific figure but at the same time he should serve as head of the executive. Others emphasized that this is also closely related to choosing the system of government. If a Parliamentary Republic, is chosen, this should be reflected in the definition of the competencies of the President. Within this framework, other participants expressed the need to change the method whereby the President approves changes in the Cabinet. In regard to this, they emphasized the need and importance of setting deadlines and correct procedures. One of the participants proposed that this deadline be 10 days, starting from the day the Prime Minister sends the proposal to the President for decree.

Regarding the legislative competencies of the President, some of the participants emphasized that he should maintain the current competencies that he has regarding the issuance of decrees. On the subject of veto power, some participants thought that the veto might turn into a barrier to the exercise of legislative power.

Regarding the competencies and relations of the President with the Judiciary, some participants emphasized that the role of the President should be that of a controller. The President should serve to guarantee proper checks and balances.

Almost all participants believed that the Office of the President is incompatible with the holding of any other function.

III. Choosing a System of Government

Parliamentary, Presidential, Semi-Presidential, and Monarchical forms were taken into consideration. Some participants suggested that this be an issue for the referendum on the Constitution.

The participants considered this issue very important and expressed different ideas on the topic. Some of them emphasized the fact that in the referendum of 1997 the people chose the Parliamentary Republic as the system of government. Others thought that, in the referendum to approve the Constitution, people should have the chance to vote for the system of government, mentioning the Parliamentary, Presidential, Semi-Presidential and Monarchical systems. Participants also expressed their concern about the complexity of the above mentioned issue. Some of them emphasized that voting for the system of government will result in postponing the approval of the Constitution because the current draft is drafted in terms of a parliamentary republic.

IV. The Role of the Executive in Cases of Governmental Crisis and Mechanisms for a Peaceful Transition

Participants identified as important the procedures to be followed in cases of governmental crisis. Constitutional provisions should help achieve a peaceful transition of power and avoid conflicts that might be harmful to the state and the well-being of the society.

Most of the participants thought that two main distinctions should be made relating to this issue: Procedures for resolving governmental crisis and procedures for resolving parliamentary crisis. Most of them emphasized that it is important that a distinction be made because the procedures followed in each case should be different. For example in the case of governmental crisis caused mainly by a weak performance of the Cabinet, there could be a shift in the Cabinet. In case of crisis caused by loss of government support in Parliament, calling new elections might be seen as a solution. But such a solution should only be used after having attempted all other legal political means, such as meetings with political parties and consultations between them. Regarding this, participants suggested the following:

Rules in the constitution on the authority of Parliament, the Government, and President in such situations;
The President of the Republic, as the representative of the national unity, should be able to call on representatives of political parties in the government for consultations so that an appropriate solution is found;
Relations and competencies of the Prime Minister and the President, as heads of the Executive, should be clearly defined by law.

Regarding the peaceful transition of power from one government to the other, participants recalled the bitter experiences from which Albania suffered a great deal. They emphasized that, in a fragile democracy that has just started to consolidate, Albanians should learn that the power does not belong to one political force for an unlimited time. The universal principle that power stems from people and belongs to them should be considered by the Albanian politicians. Related to this topic, many participants suggested as follows:

Albanian legislation provides for peaceful transition, but what should be strengthened is proper application and respect of these provisions;
The President of the Republic in his or her role maintaining the balance of powers should play a significant role in achieving a general understanding between political forces.

V. Exercise of Legislative Power

Regarding this issue, participants thought the Cabinet should be granted the right to legislate, but only when the legislature is not capable of doing this and that necessity must be based on defined circumstances.

Participants were of the opinion that the Cabinet should not be granted the right to legislate generally because this would infringe upon the powers of other organs of the state. For example, in some cases this right is granted to the Executive in the competencies allocated to the Office of the President of the Republic. Within this framework, participants emphasized the important role the Cabinet should play in legislative initiative which by no means should be confused with legislative power. The People's Assembly is the body that should examine these initiatives and approve laws. They suggested as follows:

The President of the Republic should maintain the right to decree normative acts. This right becomes of a great importance in states of emergency and when the legislative body, the Parliament, is not in session and capable at exercising its legislative functions due to the situation;
The role of the Cabinet must not include that of the legislative initiative. Some participants emphasized that the Prime Minister should not have the right to issue normative acts.

VI. Structure, Function and Competencies of the Council of Ministers

Many participants considered this issue as one of the most important executive power issues. They talked about composition of the Cabinet and the political criteria for appointing its members as well as the state administration. They also addressed the need to review the relations that the Cabinet should build with the public and NGOs in particular. They considered the balance between transparency and confidentiality of the Cabinet to be a significant public interest. Some raised the need to define the structure of the Cabinet in the Constitution.

Regarding this issue the participants had different opinions. For example, some emphasized that there is no reason for the structure of the Cabinet to be defined in constitutional provisions because that might vary based on the economic and social changes in the country. This is especially true because a different procedure from that of normal law making is followed for making changes in the Constitution.

Others thought that constitutional provisions should address the structure of the Cabinet in a specific way.

Participants thought that the relations between the Cabinet and the public, and more specifically NGOs, should be improved. Participants also discussed the composition of the Cabinet and criteria for appointing its members. To this regard, participants suggested that:

Members of the Cabinet not be chosen only based on their political merits but also on their professional qualifications;
One of the main functions of the government should be managing public property;
Members of the Cabinet, who are deputies when selected, should give up their parliamentary seats. This would be more consistent with the principle of the separation of powers.

VII. Election and Competencies of the Prime Minister

Participants were concerned about the manner and procedure of electing the Prime Minister. They also discussed the relationship between the competencies of this office and those of the President's. Some of them emphasized that these competencies should be particularly defined for the state of emergency.

Participants thought that it is important that the Constitution define in specific detail the procedure for electing the Prime Minister and the authority of this office.

Participants suggested that the Prime Minister should be elected by the political force that wins the majority in parliamentary elections. Other participants thought it is not necessary that the candidate is the chairman of the victorious party.

Regarding the appointment of the Prime Minister, some of the participants thought this authority should be granted to the President who should take into consideration the parliamentary majority.

Regarding the current relations between the Prime Minister and President during a state of emergency, some participants thought that the current situation should be maintained, and there should not be a duplication of authority.

VIII. Relations Between the Central and Local Government

Participants raised different concerns regarding this issue, but agreed on the need to strengthen the competencies of the local government. In particular, they emphasized that the local authorities should have competence to tax.

Some participants pointed out that the relationship between the central and local government is a normal legal question, and others emphasized that Constitution should define the local organs and their relations with the central government.

Some participants raised their concern related to the terms that must be used when talking about this issue. Some gave arguments that the term independence of the local government is not very appropriate. The local government has autonomy, but not complete independence. Others gave arguments that this is not a problem as far as it is clear that it means financial independence from the central government.

Participants also discussed about duties, competencies and immunity of officials of the local government. Some raised their concern regarding the current procedures of dismissal of local officials. One of the participants thought that the President should not have the authority to dismiss officials of the local government.

Others, after pointing out that constitution cannot address all the issues in details, talked about the importance of clearly defining the competencies of the local government. They emphasized the need to expand the current competencies of the local government (especially related to collection and use of taxes) which can be achieved through narrowing the authority of the central government.

IX. Relations Between Political Officials and Civil Servants

Participants raised their concern about the need to improve the current legislation to make this issue clear. Most participants emphasized that civil servants should be protected in completing their duties. A clear definition of responsibilities of the ministers and civil servants is needed. They talked about political affiliation and membership in the Cabinet. They also raised the issue of professional criteria in the selection process and what type of immunity should apply to government officials and personnel for their actions.

Participants commented on several issues that Albanian officials and particularly civil servants have to deal with. Some of them pointed out that an improvement of the current legislation is necessary. This should be done so that the civil servants are protected and not influenced by changes in political parties that come into power. Some participants suggested that:

The Constitution define the functions and political officials (for example: in the cabinet, the Prime Minister, ministers and their deputies);
The status of the civil servant and their relations with political officials, during work, be regulated by a specific law;
Define the compatibility or incompatibility of the office of a minister with that of a parliamentarian.

Regarding the criteria for the selection of civil servants, participants emphasized that this should be fully based on professional abilities, skills, and fair competitions.
List of participants

1. Arben Imami: Minister, Ministry of Legislative Reform
2. Thimio Kondi: Minister, Ministry of Justice
3. Artan Hoxha: Ministry of Justice
4. Violanda Theodhori: Ministry of Justice
5. Vjollca Prroni: Ministry of Justice
6. Tetis Lubonja: Ministry of Justice
7. Avni Shehu: Chief Judge, Court of Cassation
8. Sokol Berberi: People's Assembly
9. Nejla Osmani: Ministry of Legislative Reform
10. Enton Lita: Ministry of Legislative Reform
11. Andrea Lako: Ministry of Legislative Reform
12. Ylvi Myrtja: Deputy General Prosecutor
13. Arben Puto: Albanian Helsinki Committee
14. Njazi Jaho: Albanian Helsinki Committee
15. Andi Nano: Ministry of Economic Assistance and Foreign Aid Coordination
16. Miranda Gaçe: Society for Democratic Culture
17. Vladimir Vata: Society for Democratic Culture
18. Ridvan Shehu: Expropriated Property with Justice
19. Ahmet Sulstarova: Expropriated Property with Justice
20. Gëzim Boçari: Environmental Doctors' Association
21. Valbona Vladi: Association of the Students of Law Faculty
22. Irena Reso: Lawyer
23. Ylli Manjani: SOROS Legal Center
24. Bledar Doracaj: European Law Student Association, ELSA
25. Dritan Mishto: European Law Student Association, ELSA
26. Ahmedie Daci: Law and Rural Women's Right Association
27. Mrike Cara: Law and Rural Women's Right Association
28. Nesti Zoi: National Albanian Farmer Union
29. Mirela Bogdani: Law Faculty, Student
30. Hasan Metuku: Law Faculty, Student
31. Edlira Kalemi: Law Faculty, Student
32. Edit Lako: Useful to Albanian Women
33. Kastriot Selita: Law Faculty, Student
34. Afrim Shehu: Law Faculty, Student
35. Alban Qafa: Law Faculty, Student
36. Edmond Xheleshi: Law Faculty, Student
37. Fatmir Ajrali: Law Faculty, Student
38. Rezarta Bitri: Law Faculty, Student
39. Nevila Dalipi: Law Faculty, Student
40. Ditmir Bushati: Law Faculty, Student
41. Sokol Gjoshi: Law Faculty, Student
42. Eriona Haxhia: Law Faculty, Student
43. Shkëlzen çuni: Law Faculty, Student
44. Naim Isufi: Young Lawyers Association
45. Altin Shkurti: Magistrates School

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