At this second Focused Discussion Group, the Participants were joined by four members
of the Technical Staff of the Constitutional Commission of the Parliament and a Member
of Parliament.  With the added participants, discussion focused on more technical
alternatives and supporting arguments.
 

I.   Form of Government

Participants agreed that the form of government is a preliminary issue in the Constitution.
Considering the current stage of the drafting, participants focused on whether Albania
should have a parliamentary, presidential, or mixed republic, as opposed to a more
preliminary question of whether Albania will be a republic or a monarchy.  As one
political representative pointed out, the latter issue has been tabled for now: the
Constitutional Commission of the Parliament is already working on the basis of a republic.
Decisions about the form of governance could have been decided through a referendum
before starting the draft.  A representative of the Technical Staff stated that although there
was consensus on having a republic, there was still room for discussion on its limitations
and form.

Participants debated the importance of people deciding which form of government
they want. Some argued that based on Albania’s previous history that power should
not be left to one person.

One participant noted that it is important to pay more attention to election of the
number one than defining his power.  When powers are not defined, ways can be
found to appropriate them. It was suggested that some items of the Constitution
should pass to the referendum, and this might be one of them.  Others disagreed
that the issue should go to referendum as a referendum deals with more serious
problems, and it was asserted that if the three forms of a republic are presented in
a referendum, they may not be fully understood by the voters.


II.  Position of the Parliament in the Division of Powers

At the NGO Forum, NGOs raised the following questions: what should be the powers of
parliament, how should they be exercised, and  how can the Constitution define the
formulae to secure the  independence of the various powers.  Focused Discussion Group
participants presented several options for distributing powers among the branches and
avoiding dominance of one branch over the rest.

One participant commented that the presidential system offered equal powers.  It
was also noted that, even when parliament has the supreme power, other tools can
be used to balance the power, such as granting a lot of law making authority to the
executive.

It was also noted that the electoral system itself plays a role in the definition of the
status of parliament.  A parliament elected by a majority system acquires more
power. It is proven by experience. The proportional system creates diversity in
positions and does not allow any party or branch to prevail.

Another expert reminded the others that, in general, Albania had never suffered
from supremacy of the parliament. Instead, he pointed out that politics has always
dominated.  Independence of the powers would depend on the system. In a
parliamentary republic, the responsibility of the government is essential, and only in
certain moments, the parliament is more superior.

Another person stated that the executive power should always maintain a certain
independence from parliament.

Participants also debated the relation in powers between the judiciary and the
legislature.  It was noted that the relationship between the parliament and judiciary
may be considered new. The important consideration is that different powers
should have enough authority to be protected from another. A participant asked:
consequently, what authority should  an ordinary court have? What safety should
the judiciary have in order to criticize the law? Should there be judges chosen by
the criteria defined in the Constitution?

Another participant agreed that there should exist something/somebody to serve as
an arbiter in the balance of powers and this should be specified in the Constitution.
Several participants felt that although the three powers ought to be separate,
controlling each other mutually,  power should emanate from the people and that
the body that takes it directly from the people is the parliament.
 

III. Authority to Define National Policies


An issue raised by the NGOs concerned who should determine national policies, and
what role should the parliament have.  The discussion addressed several key issues.
First, participants discussed what is meant by the term “national policies” and other terms
such as “strategies” and “programs”.  They also discussed who should make these
policies or at least have input into policy formulation.

Some participants defined national policies as a four-year governmental policy.
Others defined it as policies dictated by party platforms.  Debate also ensued over
the way in which party policies will be incorporated into a national “strategy.”  It
was asserted that the policy and strategy of the nation cannot be monopolized.
National policies must represent the interests of the general public.

One participant also suggested that national policies should involve a system of
referendum.  Several participants suggested that there was a difference between
government “programs” (lasting four years) which are incorporated into the
national policies and “strategies” which dealt with issues not resolvable in four
years, e.g., privatization.  One  suggested that some body higher than government
should set these “strategies.”  Others agreed that long-term strategies must be
decided based on consensus, and government programs should be developed in
balance with the strategy.  One participant refuted the idea of a higher body
determining strategies, citing that there was no precedent for a higher policy
setting body other than the government or a group of deputies.

NGO representatives stated that there should be an open discussion with NGOs on
setting national policies.  The importance and necessity of public opinion should be
considered when determining who sets the national policy.  A trend to open the
decision-making processes to NGOs was noted: the new parliamentary regulations
allow for NGO attendance at committee hearings and give NGOs the ability to
present testimony on draft laws to the parliament.

One participant said that who determines the policies depends on what type of
policies are being referred to--national or broader.  For example, he suggested that
defense policies should remain with the parliament due to its primary role in
expressing sovereignty.  Another expert added that if “national policies” means
policies for particular problems, then the power to determine these policies belongs
to the government and the parliament.
 

IV. Who has the Competence to Call and Dissolve the  Parliament and
When? Who has the Power to Announce New Elections and When?

Participants detailed many options for convening and dissolving parliament.  As for the
first session of the parliament, there are different possibilities for convening parliament.
For instance, the president or head of the state may be obligated to call parliament, within
defined time limits, after which the parliament may be convened by itself.  Some
participants supported the parliament convening itself.

Participants recognized that early dissolution is the existing practice, and that,
under current law, dissolution is done by the President with the counter-signature
of the Prime-Minister.  In case the parliament has no necessary majority and is
unable to create a government, then it is dissolved.  One constitutional expert
identified self-dissolution as the classic system.  However, it was noted that there
are situations when the dissolution of the parliament is opposed by members in
self-dissolution cases, and there are examples where dissolution can then be made
with 100,000 signatures.

Participants recommended that criteria concerning dissolution of the parliament be
set forth in the constitution, leaving the question of when to dissolve parliament to
a mechanical application of rules.

Participants noted that the Constitution should determine how soon after
dissolution a new electoral campaign should begin  and not be left up to political
opportunity. Others stated that the time period in which to run an electoral
campaign should not be fixed by the  Constitution as conditions are difficult and
time limits are difficult when the mail does not even function.
 

V. The Right of Voters to Recall their Representative in Parliament.  When,
How and the Reasons the Voters Can Revoke the Mandate of a Deputy

NGOs considered this issue within the framework of enlarging democracy.  The
relationship between constituency and deputy is established or terminated at the time of
the election. Participants discussed whether it might be necessary to extend that
relationship with the voters to the right to recall their representative.  Participants listed
possible reasons for revoking a mandate, including, failure to keep campaign promises or
inappropriate moral behavior of the deputy towards his constituency.

Some participants strongly opposed the idea of revocation, citing it as an outdated
institution which directly contradicted the principle of representation.  One expert
stated that the practice of revocation has been abolished everywhere. From the
time of the Lushnja and Zogu mandate and later with the drafts of the Constitution
of 1991 and 1994, Albania abolished the concept.  In Albania, during the times of
totalitarianism there were recorded flagrant cases of revocation, accompanied by
terror against deputies. It is precisely with view to avoiding such situations, that in
some countries it is absolutely forbidden for a deputy to sign a blank sheet of paper,
which in case of political change, could be used against him to declare, for
instance, his resignation.

Others noted that in order for Albanian society to change in a positive sense, it
should conform to Europe. Thus, the parliament should be elected to assure stable
governing of the country and not to establish a principle by which a deputy may be
removed over minor things, such as whether he installed a fountain in a town
square, etc.

Other participants listed additional concerns on the ability of removing a deputy,
such as in cases in which the deputy follows political party positions and not that of
the constituents.  One example given was a political party ordering members to
boycott parliament.  One expert noted that there existed ways to deal with simple
cases of absence.  For example, in the Constitution of the Monarchy, it was
sanctioned that if a member of the Parliament is simply absent for a certain time,
he could be considered to have resigned or been dismissed. However, it would not
apply with revocation or boycott.

Another participant pointed out that there was no need to talk about revocation
because it is something of the past, and in cases of parliamentary boycott, it is up to
the political force to evaluate its responsibility to its constituency.  Thus, it is a
political decision.

Participants addressing simple absenteeism noted there are two major factors
involved:
Desire to be re-elected, which is always a permanent pressure (according to
foreign practice, a deputy is re-elected by the same constituency); and
Pressure by deputies from his own political party, obliging him to be in
permanent contact with his constituency, from which the Party itself
politically benefits.  Within this framework, participants did not think that it
was necessary for members to attend every session of the parliament. For
instance, the mere fact that a member is not present while a draft law is
discussed does not mean that he is not working.  He might be with his own
constituency.

Participants noted that several boycotts have taken place in recent years, and the
issue needed to be resolved carefully.  One participant cautioned that it would be
difficult to include a positive disposition in the Constitution for practical reasons:
revocation would involve elections in the concerned constituency and political
parties.  Another participant supported the position that the Constitution could
resolve these types of problems:  for example, dismissal procedures could be
triggered in cases where 20,000 constituent signatures are collected to support
dismissal.  It was suggested that this might reduce boycotts in the future.  Another
expert pointed out that such a rule might create difficulties between members
elected from districts and those selected at-large. In the latter case, it is difficult to
identify constituents who should have the authority to recall.

Another solution suggested was, as in some countries, to hold elections for the
chamber of representatives every two years.

Another suggestion was to avoid constituent dissatisfaction with their
representative by increasing voter information and awareness of the candidate
during the election campaign.  Such information and awareness--accompanied with
voter responsibility to obtain it-- might increase selectivity of voters and create
stronger support for the candidates finally elected.

Another suggestion was that political parties nominate more than one candidate for
each electoral campaign in a district.


VI. Who Appoints/Elects the President and the Competence to Remove the
President

Participants commented that the election of the president follows from the form of the
republic.  In parliamentary republics, the president may be elected in parliament, as well
as be dismissed in certain circumstances.  In a presidential republic, a president may be
elected directly from the  people or an elected body.  The issue becomes more serious in
case of a conflict between president and parliament when confronted with a “braccio di
ferro” [ “arm wrestling match” ], and the president may dissolve the parliament.

Many participants supported the current law in which the president is elected by the
parliament for the following reasons:
Fewer popular elections reduces state expenses;
Direct elections could result in a lot of elections being held at a given
moment, and no elections some years because terms are different for
president and parliament (5 and 4 years, respectively);
Direct elections by the people would favor a populist politician for
president, while deputies are better informed and more responsible in voting
for a head of state.

Others opposed the current law and supported the concept of presidential election
direct from the people for the following reasons:
Current trend globally is that the head of the state is elected by a wider
electorate; in Italy, the process changed so that the president is elected by a
joint meeting of the senate and lower chamber;
Full expression of democracy leads to the election of the president by the
people;
There is also a tendency towards semi-presidential states like France.
 

VII. The Right of Veto

Participants agreed that there was a need for the presidential veto, but they were
concerned about how to prevent abuse of that right or overturn a veto.  Some
participants noted that once the veto is used a law should only pass if it gets a second
2/3ds vote from the parliament.  Others were not convinced that a 2/3ds was necessary,
because that would mean that the law would become as important as a constitutional law
which requires such a majority.  Some feared a deadlock in parliament and its policies if a
2/3ds vote was required to overturn a veto.  Parties might abstain so that a 2/3ds majority
could not be achieved.  Participants commented that even with a simple majority
requirement it would not be easy to overturn the presidential veto, and it would ensure the
president did not abuse the right of veto.
 

VIII. Guaranteeing Implementation of Laws


Participants drew a distinction between two aspects of legal implementation:  how to
guarantee implementation of  laws generally;  and enactment of implementing laws and
regulations for incomplete or general laws. Participants all agreed that the Constitution
should guarantee the implementation of laws.  In relation to the legislative powers, the
Constitution could provide parliament the power to control the implementation of laws
through oversight of its parliamentary commissions over related ministries.  Currently,
these commissions may, at any moment, control the activity of the government.
Participants recognized, however, that there have been times in which this power did not
function because the parliament itself did not function, being under the dictate of a party
or even of a person.

In relation to laws which require additional implementing regulations, the
participants agreed that political and legal controls should exist.  Participants
supported current provisions in which parliamentary commissions have not only the
right to make laws, but also the duty to check their implementation, and they
agreed that greater focus is needed in this area.  One participant pointed out that,
during the period 1991-1994, the main focus of parliament was to approve new
laws, considering the existing vacuum of modern legislation. With the completion of
the legal framework, focus should be more evenly distributed towards approval of
amendments to improve the implementation of laws and oversight of the executive
in implementation of laws.

One participant noted that financial aspects of laws sometimes hinder
implementation of laws.  Participants supported the idea that appropriation issues
must be considered when passing a law.  For example, important environment laws
have been passed, however, no financial support in the form of a budget
appropriation accompanied the law.  Thus, the deputies have to accompany the law
with the proper budget appropriation to cover costs.

One participant linked the issue of publication of  laws with the guarantee of
implementation.   A recommendation was made that the constitution maintain that
laws must be published to be legally effective.
 

IX. Publication, Interpretation and Entry of Laws into Force

Participants agreed that publication of all types of laws, including statues, regulations, and
orders, was a fundamental obligation of the state, which must be completed before laws
could enter into force.  The participants agreed that the Constitution should guarantee
publication.
 

One participant recommended that the price for publication and interpretation of
the law should be included in the economic cost of laws when drafted.

Participants noted the lack of adequate distribution of laws and their amendments
to government institutions.

Another shortcoming noted is that the Official Gazette, publishes only the laws
ratifying international agreements, but not the agreements themselves.

Most participants noted a general dissatisfaction with the delay in publication of
laws.

On the subject of interpretation of laws, participants disagreed on who should make
interpretation of the laws, but they did agree that the Constitution should delineate who is
obligated and has the right to provide interpretation of  laws.

Many participants noted that the court, especially the high court, is currently
responsible for issuing interpretative guidance.  However, such is not currently the
practice.  Some advocated that the parliament should issue better interpretive
material inside or accompanying a law which abrogates or amends another law or
some articles of other laws.


 Participants in the Focused Discussion Groups, Legislative Powers
 March 19-20, 1998, Tirana


NGO Representatives
 
1.  Foundation for Reconciliation of Disputes
     Tomi Treska/Professor and Lawyer

2.  Young Lawyers Association
     Naim Isufi/Lawyer

3.  National  Union of Albanian Farmers
     Nesti Zoi/agronomist

4.  Union of Vlora Intellectuals
     Ylli Lalo/Oil Engineer
     Dhionis Andoni/Marine Officer
     Mihallaq Argjiri/Oil Engineer

5. Assistance Center of Business Associations/Korca
    Kostika Roco

6. Aquarius
    Adrian Vaso/Manager

7. Albanian Helsinki Committee
    Arben Puto / Historian

8. Center for Economic and Social Studies
    Ilir Gëdeshi / Economist
    Ejonta Pashaj/Economist
    Etleva Dashi / Economist

9. Foundation “For Juridical Culture”
    Ilir Dhima/Executive Director

Specialist

10. Luan Omari
      Lawyer/Public Law
      (Foundation for Juridical Culture)

11. Jusuf Alibali
      Lawyer/History of State and the Law
      (Law Office of Jusuf Alibalit)

12. Ylvi Myrtja
      Lawyer
      (Secretary of National Chamber of Advocates)
 

13. Njazi Jaho
      Lawyer/Panelist
      (Albanian Helsinki Committee)

14.  Vjollca Mecaj
      Lawyer/Notary
      (Women Lawyers Association)

15.  Arta Mandro
       Lawyer/Professor at the University of Tirana, Law Faculty

16.  Paskal Haxhi
       Ministry of Justice In charge of “Drejtësia”
17.  Artan Hoxha
       Consultant in Economics Executive Director, Institute of Contemporary Studies
 
18.  Elio Mazreku
       Lawyer/Environment & Penal Law, “Aquarius” Association
 
19. Teuta Dilo
      Rector of the University of Elbasan

20. Banush Mezini
      Rector of the University of Gjirokastra

21. Aurela Anastasi
      Lawyer/Professor at the University of Tirana,
      Law Faculty

22. Vladimir Molla
      Judge/District Court of Korca

23. Blerta Kraja
      Lawyer/Journalist

Government Officials

24. Kristaq Traja
      Technical Staff for Drafting the Constitution

25. Genti Ibrahimi
      Legal Advisor at Ministry of Leg. Ref.

26. Andrea Lako
      Legal Advisor at Ministry of Leg. Ref.

27. Sokol Berberi
      Staff Lawyer of Albanian Parliament
 
Representatives of Political Parties

28. Petrit Kalakula
      Right Democratic Party

Observers

29. Council of Europe
      Giovanni Favilli

30. International Republican Institute
      Eric Heighberger