On May 13-15, 1998, CEELI, in conjunction with ACCAPP and GTZ, hosted the Three Powers Symposium in Tirana.  As its name indicates, the Symposium was structured to focus on the three classic constitutional themes of legislative, executive, and judicial powers.  Each of the three days was devoted to a different branch of government.

The President of Albania, Rexhep Meidani, opened the Symposium, with United States Ambassador Lino, German Ambassador Disdorn, and OSCE Ambassador Everts contributing opening remarks.  Three foreign experts participated, all of whom have been involved in Albanian constitutional reform for several years:  John Paul Jones, Professor of Law at the University of Richmond School of Law (United States), Guenter Frankenberg, Professor of Law at J.W. Goethe University (Germany), and George Katrougalos, a constitutional scholar at the Center of European Constitutional Law (Greece).  Prior to the Symposium, the foreign experts had an opportunity to meet with the Albanian Technical Staff of the Parliamentary Commission on the Constitution to discuss those issues the technical advisors have focused on during the drafting process.  These technical advisors included Krenar Loloçi, Legal Advisor to the Prime Minister, Kristaq Traja, Legal Advisor to the Minister of State for Legislative Reform and Parliamentary Relations, Perikli Zaharia, Department of Foreign Relations at the Court of Cassation, Theodhori Sollaku, Legal Advisor to the President, and Maksim Haxhia, President of the Tirana Chamber of Advocates.  All of these advisors served as symposium panelists along with the foreign experts.

The structure of the Symposium departed somewhat from the standard workshop format.  Each day the Symposium began with the foreign experts giving a brief presentation on issues associated with the topic to be covered that day, followed by presentations from the Commission Technical Staff.  Parliamentary Commission members as well as members of the audience then debated with the experts the merits of the issues.  Members of the Constitutional Commission were joined by colleagues from around the country, including the Minister of Justice, members of the Court of Cassation and Constitutional Court, prosecutors, district court judges, mayors, lawyers, NGO representatives, government officials, and High Council of Justice members.  Approximately 100 participants attended each day.

What follows is a full report of the views expressed at the Symposium, which have been condensed into a news magazine program that the government will televise as part of its public education effort on the constitution process.  Below is both an outline and detailed description of the issues covered.

With respect to the legislative branch, the following issues were discussed, in order of importance:

?    Unicameralism vs. bicameralism;
?    Legislative process and legislative initiative; and
 ?    Appointments process.

With respect to the executive branch, the following topics were addressed:

? Whether Albania should have a strong president or a strong prime minister, and the powers associated with each;
?    Selection of the president;
?    Requirements for political stability; and
?    Issues concerning local government.

And with respect to the judiciary, the principal topics included:

?    Power of the courts in relation to the other two branches of government;
?    Judicial independence;
?    Selection/promotion of judges;
?    Structure/organization of the judiciary;
?    Placement of the prosecutor general’s office within a constitutional framework;
? Whether the constitutional court should be a separate body or whether its functions should be commingled with the functions of the Court of Cassation;
?     Public perception of the judicial system;
?    Existence of a High Council of Justice;
?    Role of international legal opinions in Albania; and
?    Judicial decision-making.

 DAY 1:  THE LEGISLATIVE BRANCH
 

Dr. Katrougalos opened the substantive portion of the first day with a discussion of whether Albania should adopt a unicameral or bicameral structure for its legislature.  This issue dominated the first day, almost to the exclusion of other issues.

Unicameralism vs. Bicameralism

Dr. Katrougalos pointed out that the principal historical justification for two chambers is the representation of regional interests.  However, based on Central and Eastern European experience in this period of transition, generally no second chamber has existed where a strong president is present and no regional/district tradition exists.  The strong president, then, provides the requisite check on legislative excess.  Because Albania has suffered under a strong president, sentiment exists against institutionalizing such strength in the constitution.  Thus, a second chamber could assume the role played by a strong president, and operate as a check on the legislature, by having the authority to return legislation to a joint parliamentary session in accordance with carefully drafted parliamentary rules.  However, the chambers should not have identical responsibilities; all legislative matters need not necessarily pass from the first to the second chamber.

Kristaq Traja noted that bicameralism has a couple of facts in its favor.  First, Albania has experienced dramatic swings from one super majority to another, and a bicameral system may soften these radical swings.  Second, the intense urbanization that Albania is currently undergoing may require that local government be restructured, which, in turn, may create the conditions under which a second chamber may be necessary in order that regional interests are adequately represented.

Krenar Loloçi stated that the second chamber should not be granted a veto, but rather an additional level of review.  Special laws, such as election laws, should be given special attention.

Perikli Zaharia offered some additional reasons in favor of bicameralism:  (1) enhanced review of proposed legislation resulting in a slower, more deliberative process; (2) greater scrutiny of the budget, which currently passes very quickly through parliament; and (3) increased representation from outside Tirana (most MPs are currently from Tirana).  In response to the argument that a second chamber would be too costly, Mr. Zaharia pointed out that the current parliament could be reduced in size to allow for the second chamber.  Further, he noted that cost should not be used as an argument against bicameralism if a second chamber will provide these benefits.

Arguments against two chambers were originally articulated by Professor Frankenberg and Dr. Katrougalos.  At a training seminar in Washington, D.C., earlier this year, Professor Frankenberg said that a bicameral legislature:  (1) increases complexity, possibly leading to conflicts; and (2) may be unnecessary in a small country that cannot afford double the staff and costs.  However, if two chambers lead to better representation and better deliberation, then he felt it should be considered.  If it leads to more conflicts, rather than to better conflict resolution, it should not be used.  Further, any second chamber must have real power, rather than simply advisory responsibilities.
 Noting his original opposition to bicameralism, Dr. Katrougalos said he had been persuaded by the arguments in its favor, including the fact that staggered elections will assure continuity and will give the minority a clearly defined role in the parliament.

The Legislative Process

Professor Frankenberg set forth five rules to guide the legislative process:  (1) institutions must be simple; (2) functions must be clearly divided among the institutions; (3) the legislative process must be transparent; (4) the legislative process must be efficient (as guaranteed by public scrutiny); and (5) popular participation must be permitted.

With respect to legislative initiative, Professor Frankenberg stated that the people should have the power to initiate legislation, with the number of signatures required to put an initiative on the ballot dependent upon the country’s communication system.  In Holland, 50,000 signatures are required to initiate legislation.  In Albania, 20,000 signatures seems appropriate.  If parliament changes the draft law submitted by popular initiative, then the draft law should be subject to popular referendum.  If parliament adopts the bill submitted by popular initiative, then it can adopt it as a parliamentary initiative that will be addressed through the regular law process (without being subject to a referendum).

The next question is whether veto power should exist, who can exercise it, and to what extent.  Professor Frankenberg argued that the president should have limited veto power; namely, the president should veto legislation only on the constitutional ground of whether proper steps for passage were followed.  If the president exercises this limited veto power, then the issue should pass to the constitutional court.

Appointments

Professor Jones discussed how he views the appointments process, keeping two questions in mind:
(1) To what extent do we want electoral winners to have and enjoy power?
(2) Are there spheres of state activity that we want to insulate from party politics?

Selection of the President.  If elected by parliament, the president will be an instrument of the party in power.  If elected by the people, he will “compete” with parliament.  If the president is to serve as a check on other powers, he should be elected by the people.  Another way to have a non-political president is to give each party in parliament one vote for his selection.  Then, the question becomes whether a simple or super majority should determine who becomes president.  Dr. Katrougalos noted that the president must enjoy majority support and be impartial, and, therefore, a broad electorate is needed.  He argued that Professor Jones’ idea is unrealistic in Albania’s current polarized climate.
 
 Judges of Higher Courts.  If the judges are to be regarded as non-political, then they should be selected by a process other than by a simple majority vote of parliament.  An alternative would be parliamentary recommendation with presidential approval.  Mr. Zaharia made the point that the United States has an open/transparent process for appointment, and that the use of specific criteria serves to remind the individual selected of the importance of their job and duties.

Ambassadors.  Professor Jones stated that because ambassadors carry the government’s program, they should be selected by the parliament.
 

 DAY 2:  THE EXECUTIVE BRANCH

No single issue stood out as controversial on the day devoted to the executive branch.  Rather, the presentations and discussions focused predictably on the relationship between the prime minister and ministers, the relationship between the prime minister and the president, and the powers associated with each of these positions.  Krenar Loloçi spoke generally about the role the executive branch should play in defining government policy, proposing draft laws, and executing laws, with this role forcing the executive to be politically accountable.

Prime Minister versus Council of Ministers

Professor Frankenberg inaugurated a discussion of this issue by making the following assumptions regarding parliamentary democracy:  (1) the president is normally weak, impartial, and neutral unless there is a crisis, in which case he is strong; (2) the parliament is the center of government; and (3) the council of ministers, headed by the prime minister, is the highest executive organ.

He recommended that Albania develop a system with a strong cabinet, strong council of ministers, and a strong parliament.  This would require, however, a strong check on the executive and firm controls on the parliament.  Consequently, parliament should elect the prime minister to give him strong legitimacy from the center of the government, who, in turn, should nominate the council members with confirmation by the president.

As for dismissals, Professor Frankenberg suggested that the prime minister should have the authority to dismiss council members.  Parliament could have a no confidence vote to dismiss the prime minister, but to avoid perpetual instability, parliament should be required to present an alternative at the same time as the vote of no confidence, i.e., a constructive no confidence vote.  Krenar Loloçi stated his opinion that Albania should follow the German example and make use of the constructive no confidence vote.  Professor Frankenberg noted that the constitution could provide that the prime minister could also be recalled by the people.  However, this option would require a motion from a quorum of Albanians, then a referendum or recall.  If this option is chosen, he recommended that the new government be put on the referendum as well.  Mr. Loloçi suggested that the president have the authority to dissolve parliament in extraordinary situations.

Powers of Prime Minister

 During ordinary times, the prime minister should form policies for the country, relying on his ministers for assistance.  Ministers retain authority within their respective ministries, although the prime minister has the authority to overrule ministry policy.  During times of crisis, Professor Frankenberg suggested a mechanism to circumvent legislative deadlock – namely, the council of ministers and president of the parliament would pass a particular bill, which the constitutional court would be afforded the opportunity to review for its constitutionality at a later date.  Two mechanisms, however, should exist to ensure against legislative excess.  First, the term “emergency” should be defined in the constitution.  Otherwise, any serious situation will be labeled an “emergency.”  Second, the council of ministers and the parliament’s president should not be given the power to circumvent legislative deadlock during an entire legislative session, but only with respect to a particular bill that is declared urgent.

To the extent the prime minister no longer has parliamentary support, he can ask for a vote of confidence.  If the vote is one of no confidence, the prime minister can ask the president to dissolve the parliament within two weeks and call for new elections, or the majority in parliament can choose a new prime minister, interrupting the process of dissolution and new elections.

The Role of the President

Professor Jones discussed two opposing views of the presidency:  politically involved and active, or politically uninvolved and idle.

?    Politically Active

A politically involved and active president can act independently, serving as a check on the powers of the prime minister.  Some functions are suitable for an activist president, such as commander-in-chief of the armed forces.  The president will become a “lame duck,” however, to the extent he serves a parliament other than the one that elected him.  With limited removal power, this could create conflicts.  Finally, in contrast to the prime minister, the president should not be able to be dismissed.

?    Politically Inactive

To the extent the president is politically uninvolved and idle, he can serve as a constitutional guardian and as the embodiment of the people’s sovereignty.  Kristaq Traja noted that the president should be the neutral arbitrator between state institutions.  Krenar Loloçi noted that, with a parliamentary system, it is not generally necessary to have a strong president.

(a) Constitutional guardian
 
In this capacity, the president would:  (a) nominate and confirm judges to the highest court; (b) nominate the prosecutor general; (c) veto legislation on the grounds that it violates the constitution; (d) appoint and remove senior military commanders; and (e) appoint and remove the director of intelligence operations and border security.

(b) Embodiment of the people’s sovereignty

As embodiment of the people’s sovereignty, the president would:  (a) confirm appointment of ambassadors; (b) appoint the prime minister and council of ministers (although they could be rejected by parliament); (c) receive and recognize foreign delegations; (d) recognize or refuse to recognize foreign treaties; and (e) grant clemency, pardons, restore civil rights, and relieve fines.

 Theodhori Sollaku stated that the president should serve a unifying role so that the separation of powers does not go too far.  The president could serve as a defender of the judiciary as well as a check on it.  Clemency, for example, serves as a remedy for judicial excess.

Mr. Sollaku said the president needs the following powers:

? to guard the constitution, including providing oversight for the manner in which
magistrates and judges are recruited or appointed;
? to maintain balance of power between the institutions;
? to retain competence to resolve problems in times of emergency;
? to appoint and nominate ministers and other high-ranking figures to guarantee stability within the state administration;
? to decree laws, both in the short-term and emergency situations, although emergency powers should be more carefully defined;
? to validate all laws;
? to exercise veto power; and
? to assume additional powers if parliament is dissolved and a new president needs to be elected.
 
Dr. Katrougalos discussed how to avoid mistakes made by other post-communist countries, many of which have made the mistake of having a strong president who has the potential to abuse power.  The president may have a veto power with regard to unconstitutional legislation, but only formal nominating powers, with any nomination requiring ministerial countersignature.

In order to avoid the legacies of authoritarianism, Dr. Katrougalos emphasized the necessity of reinforcing civil society through popular participation, and defining the following constitutional relations:

? Relation of President to Government
President has limited power to dismiss the prime minister, especially if the president is to be considered apolitical;
President has limited power over the council of ministers; president should not preside over the council.
? Relation of President to Parliament
a)   Non-discretionary power to convene ordinary sessions of parliament;
Discretionary power to convene extraordinary sessions of parliament, but needs countersignature of the prime minister;
Dissolve parliament in an emergency to avoid parliamentary paralysis.
 ? Emergency Powers
Parliament should have primary authority in emergency situations.  However, should the parliament be unable to function, the council of ministers should pass laws to the president for signature.  The president should have authority to declare martial law in war or crisis if parliament, during an extreme emergency, cannot respond within 5 days after receiving a proposal from the council of ministers.

The Constitution should also contain a clause that defines the constitutional organ that will exercise unspecified authority.  Example:  parliament has all powers not allocated to other organs.

Selection/Election of the President

Minister Imami asked whether the president should be elected from the majority party or popularly elected.  The experts expressed contrary views on this point.

Dr. Katrougalos stated that the president should cut all party ties and remain apolitical in order to be able to achieve consensus, and that a popular election strengthens the president’s political power.  The problem is that it also reinforces the president as a political player, rather than as a person outside of party politics.

Professor Jones noted that a popularly elected president has political legitimacy and can solve political failures.  However, presidential elections will be costly if they do not occur at the same time as parliamentary elections.

Krenar Loloçi said if the president were popularly elected it would conflict with the role of the prime minister.

Recommendations for Political Stability

Minister Imami asked the experts to comment on measures that could be taken to increase political stability.  Professor Frankenberg offered the following suggestions:  (1) establish a threshold percentage of votes in order for any party to be represented in parliament; (2) create an election law embodying either a majoritarian or proportional system; (3) exclude the possibility of popular recall; and (4) require elected officials to leave office either when their term has expired or when parliament passes a constructive vote of no confidence.

Professor Frankenberg noted that he is opposed to these suggestions to the extent they sacrifice democracy for stability.  He said, however, that the suggestions may be necessary in an unconsolidated democracy, which is defined as any democratic system that has not successfully passed through several elections and changes of government and at least one serious crisis.

Dr. Katrougalos said that conflicts can be avoided within the executive branch by not giving substantive powers to the president and by providing steps to be taken when no party has an absolute majority.
  Issues Concerning Local Government

Minister Imami also asked the experts for their recommendations to create a strong local government.  Professor Frankenberg advocated:  (1) guaranteeing self-governance for local affairs, (2) not defining local affairs, (3) leaving all undelegated federal powers to the local government, and (4) providing for how local government should be financed.
 
A debate ensued concerning whether prefectures are necessary.  Minister Imami noted that local government does not have either the personnel or capacity to handle local issues, and that supervision in the form of the prefectures is essential.  Professor Frankenberg argued that the prefectures detracted from both the centralized government and local government structures, and, therefore, should not exist.
 

 DAY 3:  THE JUDICIAL BRANCH

Power of the Courts

Professor Jones began the third day of the Symposium with a description of judicial review as a check on executive power.  Certain matters, however, may be beyond the limits of judicial review, such as clemency, appointment decisions, and political questions.  Courts have the power to consider individual cases and issues.  Courts are, by design, not majoritarian like the parliament.

Constitutional Review is undertaken by a variety of organs:
? The executive branch must choose constitutional interpretations in applying laws; there should be a presumption that the executive interpretation is valid, and challengers must make the case to the contrary.
? Courts must address the constitutionality of matters before them; even if a court is not the “Constitutional Court,” it must still decline to apply unconstitutional laws; further, it must decide the case on nonconstitutional issues, if possible, deciding the constitutional issue only as a matter of last resort.

If another branch acts unconstitutionally, the court will first state that the act was unconstitutional and then compel the branch, as a party to the suit, to act in accordance with the court’s decision.

Professor Jones stressed that it is important that the court be able to control its own work by selecting which cases it will decide.  Courts should be able to refuse to decide political questions,  unripe  and moot  cases.  While rendering “advisory opinions” on cases that are not before the court may help explain and bring certainty to the laws, constitutional review absent a case in controversy presents the following problems:  (1) it affords the party that just lost in parliament the opportunity to “replay the game;” (2) it can lead to frivolous rulings on cases brought by someone with no real interest in the case; (3) it may make it difficult for a court to control its workload, making more acute the inevitable conflicts between the judiciary and other branches of government;  and (4) it may lead to a court deciding issues before any analysis has taken place by other organs of government.

Krenar Loloçi stated that all courts should address constitutional issues, because to the extent the law causes a person harm, even first instance courts must be able to provide redress.

 Independence of the Judiciary

Dr. Katrougalos noted that there are special guarantees of personal and functional independence of judges.  Personal independence stems from immunity, economic security arising out of an adequate salary, professional status and discipline.  Exceptions include judges being dismissed for incapacity or after being convicted of a crime.  Functional independence arises out of the limits placed on other political actors interfering with judicial functions.
 
Dr. Katrougalos also stressed the importance of judges not having a second job.  Exceptions should be made, however, for judges to serve as law professors and as members of legal committees.

Selection and Promotion of Judges

There are two categories of judicial appointment.  Dr. Katrougalos stated that lower court judges should be selected by an examination of peers after certain professional qualifications have been satisfied.  Higher court judges and the general prosecutor should be the result of a political decision made by the parliament and executive branch.

Dr. Katrougalos suggested that judges should be promoted by a council containing members from a broad cross section of the legal profession, including lawyers and government officials.

Structure and Organization of the Judicial System

Dr. Katrougalos stated that the constitution should have a prohibition against extraordinary courts, i.e., courts established for special cases or persons, because they are not created to judge, but to condemn.  Extraordinary courts should be contrasted with specialized courts, however, such as military and juvenile courts, which cover an entire subject field.  Further, the hierarchy of courts must be defined, and a supreme court should harmonize conflicts.

Location of Prosecutor General’s Office

 One issue that arose is whether the prosecutor general’s office should fall within the judicial or the executive branch.  As Dr. Katrougalos pointed out, the problem is that the function of the prosecutor general’s office contains aspects of both branches of government.  The prosecutor’s ability to close a case is similar to that of a judge, and, in such instances, the prosecutor should enjoy the same immunity as a judge.  On the other hand, the prosecutor’s authority to press charges for violations of the law is similar to the functions of the executive, which is responsible for enforcing the laws.  Krenar Loloçi opined that the prosecutor general is closer to the executive rather than to the judiciary because it is obliged to strengthen the police and organize a response to the high number of criminal cases.  This dichotomy is inherent in the functions of the prosecutor general, however, so Albania simply needs to choose where it would like the prosecutor general to fit within the constitutional framework.  Further, as argued by Spartak Ngjela, former Minister of Justice, the problem with Eastern European countries is that under communism, the prosecutor general dominated the courts.  He claimed that placing the prosecutor general’s office within the executive branch will give too much power to that branch.

Technical expert Maksim Haxhia echoed Mr. Ngjela’s comments, noting that linking the prosecutor general’s office with the executive could result in more human rights violations because the prosecutor general would act more aggressively and may not be as vigorous in checking police excess (also an executive branch agency).  Current Minister of Justice Thimio Kondi disagreed that the prosecutor general dominated the courts under communism, noting that both the courts and the prosecutor general’s office were part of a totalitarian state and thus were both dominated by the party/dictator.

Public Perception of Judges/Judicial System

Professor Frankenberg focused on the importance and responsibilities of judges, noting that when individuals find themselves in court, they must feel that the process is sound.  The basic integrity of the legal system is dependent upon four criteria, all of which should be addressed in the constitution:
? functional independence - independence from other branches of government;
? financial independence - stems from lifetime tenure and adequate salaries;
? immunity - judges should not be able to be tried at will;
? incompatibility of having another job, either public or private - a judge cannot also be a politician, administrator, or legislator.

Judicial immunity presents a particularly complex issue.  Judges should not have immunity to perform either unlawful official activity or unlawful private conduct.  For example, if a judge commits fraud or a miscarriage of justice, his immunity should be lifted and he should be subject to normal criminal procedures.  However, judges should not be able to be tried for poor performance.  Depending upon the degree of misbehavior, the appeals process is generally the mechanism by which poorly reasoned decisions are corrected.  If a judge is not satisfying his official obligations, however, a high body of judges should be convened to handle disciplinary problems.  Professor Jones pointed out that judges should not be subject to civil liability, because no matter how weak the suit is, the judge would still be required to mount a defense.  The possibility for abuse is too great.  Finally, Professor Frankenberg argued that judges should generally not be criticized on political grounds.  Rather, judges should only be able to be criticized on constitutional grounds, thus avoiding unfair criticism of judges but more importantly, also avoiding jeopardizing judicial independence.

The Existence of a High Council of Justice

Professor Frankenberg pointed out that, because there is so much distrust of the Albanian judicial system at the moment, an independent body needs to exist like the High Council of Justice that is responsible for selecting and removing judges.  However, a body like this makes sense only if it is independent and impervious to political influence.  What appears to be controversial is the composition of this body.  Professor Frankenberg recommended that it have:  (1) a majority of judges; (2) a minority of lawyers; (3) the Minister of Justice; and (4) law professors.

 Professor Jones stated that while a boundary should be drawn between judicial and political life, parliament does have a role in the selection of judges.  However, because parliament is a political body, it should not be the only body involved in judicial selection.  Professor Jones argued that parliament should not have any role whatsoever in the evaluation, discipline, or removal of judges.

Role of International Legal Opinions

Professor Frankenberg addressed the complicated question of whether:  (1) international law should be binding and valid in Albania; and if so, (2) should it be completely incorporated.  There are several concerns that must be considered before answering these questions.  First, international law is not a structured system.  Second, some international laws are of dubious scope and origin.  Under these conditions, it is unwise to regard as binding all international laws.  Selective incorporation appears to be the best option.  The question, then, becomes whether incorporation should be automatic or should require an act of transformation.  The answer to this question depends upon the issues involved, but in principle incorporation should be done by parliamentary ratification.  Exceptions include laws concerning human rights, like those involving displaced persons or refugees, and international trade treaties.  Laws concerning these issues should be incorporated automatically out of what Professor Frankenberg called “political respectability.”

Krenar Loloçi suggested that the constitution contain a provision making it possible to apply directly EC law in Albania if, and when, Albania becomes a member.

Decision-making

With multiple bodies such as the Constitutional Court and the Court of Cassation, the question was raised how constitutional disputes should be reconciled between the bodies.  Professor Frankenberg came up with four rules that should be kept in mind that can prevent deadlock:  (1) every court interprets and applies the constitution; (2) every court interprets and applies laws in light of the constitution; (3) every court is obliged to seek an interpretation of the law so that it is in conformity with the constitution, and (4) there must be one body that pronounces final decisions on constitutional interpretation.  With respect to this last principle, only if it is clear that the law is unconstitutional must the lower court stay the proceeding and seek a decision of the constitutional court.  After deciding the issue, the constitutional court sends the case back to the original court for decision.

Dr. Katrougalos noted that because Albania has no tradition of judicial control, he is afraid that lower court judges cannot efficiently determine whether a law to be applied violates the constitution and if so, not to apply the law.  Therefore, he agreed with Professor Frankenberg’s suggestion that final constitutional interpretation reside in one court.

 Minister of Justice Kondi asked what should be done if a judge rules on a political question.  Professor Jones responded that if a judge acts in a political way, the normal solution is correction by a higher court.  If a decision of the highest constitutional court is political, and most people disagree with it, the appropriate correction is to amend the constitution.  But this power should be used with great care and quite sparingly.  For example, this power has been used only twice in the United States to correct a decision of the Supreme Court.  The third time resulted in civil war.  These two or three occasions are against a backdrop of hundreds of times when many people believed a decision of the Supreme Court was wrong or political.

Professor Frankenberg added that it is almost impossible to say that a constitutional court is not political.  However, under the political question doctrine, a court should avoid purely political questions.  Very often U.S. and German courts forget this rule.  The rule of restraint, however, provides that a court should restrain itself from intervening in politics and political questions.

Kim Meyer
Liaison
ABA/CEELI
Rr. Ismail Qemali No. 30
Tirana, Albania
Tel:  (355 42) 346 24/331 97
Tel/Fax:  (355 42) 349 50