Harvard Law School

Harvard European Law Association Working Papers’ Series

THE LORD OF TRANSITION: LEGAL REFORM IN THE MODERNIZATION

PROCESS

(Do Not Cite Without Author’s Permission---Footnotes are not yet definitive)

Ermal Frasheri*

Keywords : Law and Development, Critical approaches to law, Comparative Law, Legal Transplants, European Union Law, Law and Society, Transnational Law

Cambridge 2008

*S.J.D. Candidate, Harvard Law School I would like to thank my mentor professor David Kennedy, under whose supervision I wrote this paper as part of the LL.M. requirements, and under whose mentorship I was able to adopt a critical perspective and expand my horizon. I would also like to express my gratitude to Francesca Strumia, S.J.D. Candidate, HLS, Arnulf Becker, S.J.D. Candidate, HLS, and all the participants of the Harvard European Law Association Working Papers Series for their most helpful comments, critiques and suggestions.

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Table of Contents Abstract 3 Introduction 4 Looking at a Larger Picture 4 Structuring the Paper 7 I. Transition: Law and Norms 11 A. Politics of Formalization 11 Rule of Law and Lawmaking 20 B. Actors and Requirements of the Legislative Process 22 The International Stakeholders 23 Domestic Actors 29 II. The Traffic of Legal Norms 36 A. The Supply-Demand of Transplants Diversity of Origins-Diversity of Results 36 The Harmonization with the EU acquis 40 B. Transplants and the Legislative Process 43 III. Legal Reform and the Legislative Process 49 A. International Arrangements on Public Participation and Evaluation 50 Evaluation of legislation 52 B. Constitution Making and Public Participation 56 C. Albanian Perspectives on Public Participation 60 IV. Conclusions 63

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Abstract

The legal reforms in Central and Eastern Europe have aimed at introducing

content based values establishing democracy, rule of law, but also process oriented

directives, calling for transparency of decision-making processes and greater public

participation. The co-existence of parallel processes in the modernization project,

transformation with deliberation, formalism and informalism contains tensions and blind

spots. This drive towards reforming and modernizing legislation sits uneasy on the

legality of the process, i.e. fulfilling the formal requirements of passing legislation and

the indeterminate nature of the goals and objectives of the reforming processes

themselves.

The goal of this paper is to tell a story about the nature of the legal reforms and

law making practices, or legisprudence, and their relation to the efforts of modernizing

transitioning societies. The paper’s analysis and approach expose two different and

contradictory patterns that are inherent in lawmaking processes in transitional countries.

On one hand moving towards a rule of law society requires clear, transparent, predictable

rules, a certain formalism in the societal inter-relations, and on the other, the fluid nature

of transition demands solutions outside the legal framework. Juxtaposing transformation

with participation this paper sheds light in the dichotomy of legality v. legitimacy.

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I should have sought a country, in which the right of legislation was vested

in all the citizens; for who can judge better than they of the conditions

under which they had best dwell together in the same society?

Jean Jacques Rousseau, Discourse on the Origin of Inequality

INTRODUCTION

Over a period of four years I was involved in the legal reform in Albania, aligning

the domestic legislation with the European Union acquis and other international

standards. The work was fascinating for me, a recent law school graduate freshly returned

to Albania after some six years of studying and working abroad. It enriched me with

policy-making knowledge and practical approaches to take the legal reform a step ahead.

Working with the community of experts, local and international, and studying at the

Harvard Law School enabled me to share some of my work experience in this paper.

Looking at a Larger Picture:

In Central and Eastern European countries the political changes of the 1990s were

closely associated with the establishment of a new legal order. This was necessary for

building strong foundations of democracy, establishing the rule of law, and creating a

functioning market economy. In Albania, during 15 years of transition more than 3000

new laws and thousands of by-laws were adopted in order to establish a comprehensible

framework necessary to enable the society to function under the new conditions. As

argued by Fitzpatrick, it seemed that law and social order were inseparable, and that the

law is supreme and it governs all men. 1

The process of establishing this new legal order went hand in hand with the help

of international factors, such as the Council of Europe, European Union, World Bank, 1 See PETER FITZPATRICK, THE MYTHOLOGY OF MODERN LAW (1992).

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and foreign donors’ projects providing technical assistance and expertise in drafting new

legislation. The membership in international organizations also required the ratification

of numerous international agreements and the incorporation of their standards and legal

norms into the domestic law. This immense legal reform took place not only in Albania,

but also in all former communist countries, as Gianmaria Ajani calls it “an international

traffic of legal ideas.”2 In this paper I don’t prejudice nor analyze the methodology used

to materially transplant and incorporate “international standards” in the domestic legal

system. However it is worth noting that the existence of a legal base does not

automatically translate into optimal operation of laws in everyday life. The high number

of laws adopted, or the inflation of legislation as I call it, in most cases is totally detached

from the operation of the society.

The goal of this paper is to tell a story of the nature of the legal reforms and law

making practices, or legisprudence, and their relation to the efforts of modernizing

transitioning societies. This analysis and approach are in the function of exposing two

different and contradictory patterns that associate the lawmaking process in transitional

countries. On one hand moving towards a rule of law society requires clear, transparent,

predictable rules, a certain formalism in the societal inter-relations, and on the other, the

fluid nature of transition demands solutions outside the legal framework. Ultimately the

flight towards formalism is often patterned after the dualism of legality over legitimacy.

2 Gianmaria Ajani, By Chance and Prestige: Legal Transplants in Russia and Eastern Europe, 43 Am. J.

Comp. L. 93 (1995).

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It also raises some concern when we talk about a democratic legislative process,

in particular, providing for public participation in the law making process, ensuring

transparency and avoiding conflicting approaches vis á vis the methodology of legal

reforms.

In this context, it is necessary to note that there is more to the effectiveness and

legitimacy than a technically sound law. The legitimacy of law, where legitimacy means

acceptance as the basis of social coordination, requires a social and political foundation. 3

This raises the need to ensure a democratic and participatory process of lawmaking,

which is able to give legitimacy to adopted laws, and prevent law making within closed

doors chambers.

What makes studying Albanian legislative process attractive and a good example

of the development of a legal reform from a political and theoretical perspective into

legal reform in action, is the multitude of approaches taken and still being taken today in

reforming the legal system in the framework of the country relations, primarily with

European Union, as well as with exercising its rights and obligations as an active member

of the international community. Here we have the absolute embodiment of all the

versions of Frankenberg’s comparative lawyers,4 as well as different forms of mutations

3 Scott Newton, Transplantation And Transition: Legality And Legitimacy In The Kazakhstani Legislative

Process, in LAW AND INFORMAL PRACTICES, THE POST COMMUNIST EXPERIENCE (Denis J.

Galligan & Marina Kurkchiyan eds., 2003). Newton argues that foundation can be based on interaction and

reciprocity.

4 See Günter Frankenberg, Stranger than Paradise: identity and Politics in Comparative Law, 2 Utah L.

Rev. 259 (1997).

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of comparative law in action, which in addition are associated with differing political

wills from a multitude of domestic and international actors.

Structuring the Paper

The first chapter of the paper is devoted to the practices and requirements of the

lawmaking process, thus mapping the legal reform actors in the country. Taking into

consideration the “horizontalization” of law making, the role of various institutions in

drafting laws is analyzed against the background of the technical assistance projects on

the legal reform. Equal consideration goes to the effect of the diversity of origins of laws

introduced in the legal system and therefore to comparative law questions that influence

the implementability of legislation.

An interesting characteristic of the legal reform is reflected in the methodology of

reforming the legislation. In drafting laws, the international organizations and foreign

donors’ projects aimed at harmonizing them with existing standards of respective areas of

public international law, and transplanting legislation of developed countries, but not

only.5 In this context, as Ajani puts it, one could speak in terms of an offer and demand of

legislation, where the role of the foreign technical assistance providing it was not always

clear as to which side it belonged.

This process, although necessary, was very complex in itself and provided for

more questions than answers vis á vis the functionality of legislation originated from

different legal systems, comparative legal questions on the adoptability of newly

5 When OSCE was advising Albania to revise its Election Code, legal sources as far dispersed as from

former Zaire to Azerbaijan were presented as examples. I had just started working at that time, summer of

2000, and the materials were on my own desk.

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incorporated laws into the domestic system, implementation of the standards and norms

in local communities, compliance with requirements of a modern legislative process and

the civic participation in it. It also opened the box for questions regarding the practices of

adopting international standards and the role of the international organizations as

providers of technical assistance. The problems associated with these questions reflect the

obstacles to the well functioning of the legal system, implementation of laws, the

democratization and transparency of the legislative process, and the necessary reforms in

improving the process of law making.

The second chapter analyzes the legal reform from the perspective of the

lawmaking process. In this part, I raise the question of the relationship between the

legality of the lawmaking process and requirements for ensuring legitimacy. In presenting

methodologies of lawmaking I analyze this relationship in two ways: vis á vis the

legitimacy derived from a democratic law making process; and with respect to the

substance of the laws drafted in the framework of legal reform projects.

In this context I’ve found opinions among legal experts about the process of

drafting laws as a ‘technocratic’ process, rather detached from its social context.

According to Scott Newton6 this makes it unlikely that law could become legitimate.

Those to whom the law is addressed are not consulted, and the key influences are the play

of political interests with the country’s elite and the demands of the international

community. As an example, the methodology of law drafting working groups within the

framework provided by assistance projects has changed twofold. In early 90’s the aim

was to liberalize as much of legislation as possible, and the lack of coordination was

6 Legal expert involved in various legal reform projects in Eastern Europe and Central Asia.

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rampant, factoring in also the weak state structures charged with securing uniformity and

codification of legislation passed by various ministries and the Parliament. This approach

consisted of a methodology of closed working groups, no more than 3-4 experts working

on a particular law.

During this time, a legion of legal reform projects in similar areas, sometime even

working on the same law from two different perspectives has created a plethora of

results, which so far no one has dared embark into a study of evaluating its effects and

results.7 The myriad of legal reform projects combined with the diversity of experts,

bringing with them their own backgrounds in drafting law, resulted in conflicts in the

codification efforts in the late 90’s. Just to illustrate it, the civil code was drafted within

the framework of the Council of Europe technical assistance by an Italian lawyer who

drafted it according to the French Code Civil. In the same time, two projects from the

German Technical Assistance GTZ, were working on the commercial legislation and

competition, with German experts, who naturally brought their own German background

and perspective to the commercial legislation. The result was that after completing the

legislation and after the Parliament adopted it, the experts from both projects saw that

with respect to consumer protection and commercial registry the two pieces of

legislations had conflicting provisions and solutions.

7 There are no studies indicating the implementation or the extent of harmonization of particular pieces of

legislation with international standards broadly defined. However there are reports on the progress of

Southeast European countries toward membership or association with the European Union, which contain

passages on the status of different sectors related to the internal market, as well as project implementation

reports from the World Bank, and country reports in the WTO.

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The “modern” era of legal reform in the major part is devoted to the

approximation of legislation with the acquis. The challenge here, since the EU legislation

formally does not have direct effect in candidate or associated countries, is to transpose

the standards of the EU Treaties, regulations and directives into rules.8 The methodology

adopted recently by the Executive is to create working groups with experts from various

interested line ministries with the aim of transposing standards into rules resembling very

much their predecessors of early ‘90s.

In the third chapter, a comparative perspective is given through the introduction

of some forms of assessing and evaluating the law making practices. Proliferation of

legislation is what I call by the “inflation” of legislation, which is aimed at filling the gap

between law in the books and law in reality, in fact it only exacerbates the problems. The

implementation of legislation has encountered two barriers that in my opinion derive their

nature from the legislative process. First, with respect to the EU acquis there is little

understanding in the administration about the EU standards and how to transpose them

into the domestic system, followed by a poor performance in enforcing the adopted laws.

The desire for a closer integration has provided the incentive to adopt more laws than it is

possible to absorb. Most of the laws with a “European Union” label on them are fast

8 The choice of the legal median is left to the enforcing country, and it can either be a law, almost always

initiated by the executive branch and voted by the parliament in the so called fast track procedure, or

executive orders-by laws. Within 10 years, or sooner, any country associated with the EU, and aspiring for

membership, has to incorporate approximately 100, 000 pages of acquis, the number keeps growing each

year.

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tracked9 in the Parliament. The problem in this aspect is not just to weak administrative

capacities, but the approach of harmonization of legislation. Second, the judiciary is the

ultimate bearer of the legislative process. The first and foremost complain from judges is

their ignorance of recently adopted laws. Almost every report from the international

community accentuates the failure of the judiciary to enforce legislation.

Concluding, this paper elucidates the complexity of lawmaking in a transitional

setting and exposes conflicting aspects of the legal reform, which tend to favor legality

over legitimacy.

I. CHAPTER ONE

TRANSITION: LAW AND NORMS

A. Politics of Formalization

Contextualizing the legal reform in Albania in order to understand the complexity

of that task, it is of benefit to portray its fabric and relations not only with the

technicalities of the legislative process, but with the political, socio-economic-cultural

aspects of the post ‘90s early democratic life.

The transition from a communist country to a liberal democracy relied heavily on

law. Hart has argued that the need for certainty about the rules, the need to change rules

as the ideas and social conditions change, point to the need for a legal system.10 This

legal centralism, described as the necessary engine to achieve society’s goals and 9 The fast track procedure is widely used in Central and Eastern European parliaments, and as a matter of

fact it is adopted solely for the purpose of adopting laws required under the dynamic of the relationship

with the EU.

10 H.L.A. HART, THE CONCEPT OF LAW (2nd ed., Oxford University Press 1994).

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inspirations, is found in all over Central and Eastern Europe, and it can be best described

with what Kennedy says that “there is law at every turn.”11 The respect for law and the

rule of law12 have become sine qua non for the vocabulary of politicians and it dominates

the discussion of experts of all areas. Few actually understand what it means and agree on

its implications. However it is not the same law everywhere and it certainly does not have

the same significance. Everything aspires to be made under the auspices of the rule of

law, victims as well as aggressors strive for protection under this shell. In a way this can

be reduced to this maxim: stick with the legal process and the law would legitimize

anything. Indeed, the formalization of law or better put the drive towards formalism is so

pervasive today and surprisingly it originates from non formalist centers.

Within each society the law is differently embedded in the social texture, varying

in its form, substance, in its social functions, regulative impact13 and in its legislative

procedures. While the content and consequences of a law may be judged separately from

the process by which it is made, the process itself has an influence on attitudes towards

its acceptance. Needless to say, an open law-making process enables the law to positively

11 David Kennedy, Challenging Expert Rule: The Politics of Global Governance, Sydney L. Rev.

(forthcoming 2005).

12 It is worth mentioning that there is no translation of the “rule of law” into the Albanian language. The

substituted version, which supposedly mean rule of law in the local context is indeed “shtet ligjor”,

“Rechtsstaat”, “a legal state”.

13 Marina Kurkchiyan, The Illegitimacy of Law in Post-Soviet Societies, in LAW AND INFORMAL

PRACTICES, THE POST COMMUNIST EXPERIENCE 25, 31 (Denis J. Galligan & Marina Kurkchiyan

eds., 2003).

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deal with major social issues, inform the interested communities about the envisioned

goals, objectives and procedures, and adjust the role of implementing institutions.

In Albania, as well as in other Socialist countries under the Marxist ideology, law

was seen as a device serving the party’s needs.14 Whereas, in the other side of the

continent law was already perceived as an efficient tool to regulate the functioning of the

economy, and society. The establishment of “the rule of law,” or Rechsstaat, it is

portrayed to correspond with the victory of rules vs. informalism. However, the exact

definition of the rule of law in the transitioning societies is somewhat ambiguous,

constantly shifting according to the exclusive function of what an organization needs to

do to justify “rule of law” legal reforms. In Albania, the instrumental approach- that

success comes from treating other people as means to your own ends rather than as ends

in themselves- was a seed scattered on ground already fertilized by the communist

legacy. 15

The abrupt decentralization of governmental powers, along with the decrease in

competencies and size of the central and local government contributed to a gap between

law in books and law in action. What followed after the “collapse” of the old regime was

a move from centralism towards a mutation of “laissez faire” and back to centralization

of law as the rule of law became the word of the day. As the government shrank in size

and competencies the number of laws increased on a daily basis. Even today, the number

of laws produced by a given Ministry is the measure of effectiveness for that institution, a

measure of productivity and efficacy. It determines the fate of careers and furthermore, it

determines the understanding of law and the society’s relation to it.

14 The slogan was “What people say the party does, and what the party say, people do.” 15 Id.at 40.

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The lack of trust in the legal system translated into a surge of informalism, which

being more efficient, it contributed to the decline of “the trust in the system.”16 In the

context of customs, or informal normative aspects of the society and formal rules,

Sigismund Diamond wrote: “[c]ustom is the modality of primitive society; law is the

instrument of civilization, of political society sanctioned by organized force, presumably

above society at large, and buttressing a new set of social interests.”*

Social norms are relevant to legal failure writes Galligan. 17 In the first place they

tend to undermine the function of law as a distinct means of social regulations. They do

so by undermining or diminishing the special qualities law needs in order to be

effective.18 If law is not seen as important in serving social needs, the conditions for its

being able to develop in order to do so are likely to be missing. Another way social norms

are relevant to legal failure is where their content conflict with the law. What is puzzling

in the Albanian case with regard to the relation between social norms and laws is that

after the fall of communism so many social norms became taboo, and instead the society

16 A perfect example of the informalism in the economy and the silence of the legal system was with regard

to the financial “pyramid” of ’95-’97. Named by every single international organization with a presence in

Albania, as a success story among Central and Eastern European countries, the government encouraged the

system of informal money lending. The epilogue of this 2 years old process consisted in a police mission of

the European Community in Albania, April-August 1997 for restoring public order after the collapse of the

“pyramids”.

17 Dennis J. Galligan, Legal Failure in Post-Communist Europe, in LAW AND INFORMAL

PRACTICES, THE POST COMMUNIST EXPERIENCE 1, 4 (Denis J. Galligan & Marina Kurkchiyan

eds., 2003).

18 Id.

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turned to the law for guidance. However, what took place can be described as a

competition of forces in the vacuum resulting from a lack of social norms to operate in a

free society in one hand, and the lack of enforcement of laws in the other.

What can be observed in the last 16 years is this parallel development of social

norms and legal formalism. The former is a product of peripheries, people cut off from

the chores of running a state and the latter is a new born, a transplant, a product of the

center, the nation’s capital, where the domestic cooperates successfully with the

international.

The resulting disconnection between those two process can deeply affect the

legitimacy of the state. Advocates of transparency and anti-corruption constantly promote

the reform of the legal system toward broader standing rules, avoidance of conflicts of

interests, promoting transparency, strengthening the role of the judiciary, and greater

public involvement in rule-making. These reforms are not, however, to be characterized

as merely technical in nature, and we should not assume that they will be effective on

their own. Reforming the above-mentioned components is ultimately a political one, and

cannot be expected to emerge until a political coalition is in place to support it. Studies

have shown that there is a connection between the legality of actions and the fragile

status of a political group or individual.

One aspect of the reception of the rule of law rhetoric regards the economic

reforms. Over the transitioning period the international community and in particular the

European Union through the CARDS projects have allocated more resources to key areas

of reforms. In this context, the implementation of the legal reform has had fewer

obstacles as long as it did not threaten the positions of the economic elites, which is able

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to use the arguments and counterarguments related with the indeterminacy of reforms

goals and their correlation with the reform measures. The debate on the politics of

informalism as opposed to formalism in transitioning countries of the Central and Eastern

Europe has included studies from as far away places as Japan and Korea. Tom Ginsburg

says that:

“[T]he regulatory informalism and the divergent statutory approaches to

administrative procedure, reflect different political incentives with regard to the

institutional problems of bureaucratic discretion. In Japan, a long serving regime

had little incentives to open up policy-making and passed a statute that does very

little to constrain the bureaucracy. In Korea the political environment has

changed drastically as a result of democratization and constitutional reform.

These reforms have changed the institutional environment for politicians,

providing incentives to open up the policy process.”19

The two models reflect the political landscape of Albania. In two consequent

periods, ’92-’97, and ’98-’05, governments of two opposing parties have adopted both of

the above-mentioned approaches. During the first period, as best illustrated by the

financial crises,20 the government took informalism to the extreme. Informalism in the

economy, and informalism in the public administration. The later government of ’97-’05,

under considerable pressures from “the international factor” took steps at heavy

formalizing the economy, but leaving the public administration under a considerable dose

of informalism. Ginsburg writes that where a former communist party retains some

19 Tom Ginsburg, East Asian Regulatory Informalism, in LAW AND INFORMAL PRACTICES, THE

POST COMMUNIST EXPERIENCE 171, 187 (Denis J. Galligan & Marina Kurkchiyan eds., 2003).

20 The 1997 financial crisis was attributed to the collapse of the “pyramid schemes”.

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strength and cohesion, however, it may be more willing to perpetuate a system of

informal influence over bureaucrats. Such a party will be unwilling to impose procedural

controls that allow access to reformist politicians. The prediction is that the openness of

the system of administrative procedure is inversely correlated with the strength of the

former communist party. 21

This description of the complexities of transition from communist rules, to

democratic laws and the surge of informalism in the society and government practices

resonates strongly in the flexibility of the administration to draft laws and in the same

time refrain itself from enforcing them.

An interesting aspect of the significance of the relationship between the legal

culture and the enforcement of laws is found paradoxically in round tables of

parliamentary political parties in Albania. Too often, those parties would sit, with the

intervention and patronage of the international community in round tables, where they

sign protocols of understanding and solemnly declare that they will abide by the laws that

they passed a day before in the Parliament. What is most surprising here is not the fact of

the Albanian parties’ disregard for the rule of law, 22 instead is the “blessing” of the

international community for this sort of behavior which runs contrary to the advocated

formalism of law in the framework of the proposed legal reform and the establishment of

the rule of law, promoted by the numerous programs and projects of the same

international organizations.

21 Id.at 188.

22 There are several explanations for the failure of law, ranging from weak democratic principles to old

mentality from the socialist past.

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The axiom that law should be recognized as having an important part in social

organization is put under question mark by the primary actors who adopt it. Savigny’s

saying that “[l]aw is only law where it maintains a close relationship with the common

consciousness of the people”23 is further strengthened by the idea, as he says, that the

lawgiver must stand not apart from the nation, but at its center, so that we have to regard

him as the true representative of the people. The key element in the creation of public

confidence in the legal system is the belief that rules agreed to in a democratic manner are

followed by the entire society and by state structures.

Paradoxically, the rise of the authority of the international factor, during 15 years

after the change of the system, in determining constitutional solutions outside the

constitutional, institutional and regulatory framework, and the top-down approach of

disregarding the law, has created the belief of politics über alles, where even the well-

designed laws are likely to be used for unexpected purposes. It is absolutely not clear

how this situation fits within the description and final analyses of legal reform projects

and politicians training workshops on the desired effects of formalization. It is not

altogether uncommon for the same actors to be encouraged to find solutions outside the

system and the next day to participate in training on the absolute authority of institutions

and the rule of law. The former and latter rely quite seriously in transforming the local

culture by sowing the concept of law as incubated from the everyday counterpart, and

quite able to function within limits set to protect judges and decision makers from outside

influences.

23 FREDERICK K. von SAVIGNY, SYSTEM OF THE MODERN ROMAN LAW (Madras: J.

Higginbotham, 1876).

19

The discussion of political culture extends more specifically into the issue of the

rule of law. Where people are not effectively consulted in the development of law, and

have little reason to view the institutions defining the law to be legitimate, they do not

own the law. Consequently, they perceive little obligation to obey it, their decisions on

compliance resting on an assessment of the coercive power of the state.24 The reasons for

“illegitimacy” of law can also be found in adopting laws that are driven by interests,

pressures and ideas that are not common with the domestic factor. In this case the only

way to succeed in making the law work is to enforce it with impunity. 25 The adoption of

these kinds of laws is directly linked to the legislative process, which is a key variable,

and it may prejudice social attitudes towards the resulting law.

Rule of Law and Lawmaking

As a concept the rule of law may be taken to mean the existence of

constitutionally based procedures for the adoption of legislation and the existence of

authorized institutions for the enforcement of this legislation. As an instrument of public

action, the legal norm is an essential element of the rule of law. To fulfill its democratic

24 See Neil MacFarlane, Politics and the Rule of Law in the CIS, in LAW AND INFORMAL

PRACTICES, THE POST COMMUNIST EXPERIENCE 61, 74 (Denis J. Galligan & Marina Kurkchiyan

eds., 2003).

25 This leads to an interesting comparison of the intensity of enforcement of laws and deeply rooted social

norms. In Albania the Northern part of the country operated under the norms of the Leka Kanun, a 500

years old formalized customary law, that even existed during the Ottoman occupation, and regulated most

aspect of family, civil and penal law. The communist government enforced with an unprecedented

impunity its laws, and especially in the Northern part, and with a great success. However, as soon as the

communism fell, the norms of the Kanun resurfaced almost immediately.

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role and secure the support of the population, which it affects, legislation must be

effective and must be truly in keeping with the expectations of society.

The characteristics of “the modern state” emphasize the rationality of law and the

need for adopting legislative procedures – in particular to contend with inflationary

tendencies in legislative production - so as to guarantee the quality of legislation and

implement its results. The application of law sometimes takes tyrannical features. The

indispensability of following the legal process is attributed as part of the strengthening of

the rule of law vis á vis “ordinary” people, and completely disregarded in relation to the

political class. It is all right and widely acceptable for a head of any political party to

declare actions, which are per se violating any possible existing laws, and in the same

time, the law is implemented scrupulously in relation for example to issuing birth

certificates.

Legal certainty, the legitimacy of the law and political activity are seriously

advocated in the legal reform projects as key elements that construct a balanced

relationship between the rule of law and a democratic legislative process. It is enough

then to just have a constitution, active legislatures,26 established courts and authorized

law enforcement agencies, if one takes the ‘rule of law’ in this way then it is alive and

well. I would paraphrase here the explanations of Neil MacFarlane that:

“…[t]here is a deeper meaning to the concept: the notion that human behavior is

or should be subject to external (and impartial) constraint. It involves the

proposition that the law is not owned by any particular individual or set of

interests. It exists above them and independent of them as a restraint on impunity. 26 In Albania during 15 years the Parliament has been very active in adopting approximately 3,000 laws,

followed by thousands more executive orders implementing them.

21

Legal institutions are (or should be) in a position to adjudicate disputes between

individuals and groups and to protect their rights in a neutral fashion. For legal

institution to be able to play this role, they must be independent of politics and

protected from bureaucratic and other interference. They must possess adequate

resources to be able to function independently. Officials must be accountable to

them.”27

The relationship between democratic decision-making and rule of law principles

is a two way street. Just as democracy rests in considerable measure on the rule of law,

the latter in turn rests significantly on democratic institutions and processes. The

legislative process in Albania in the last 13 years has often been chaotic and hurried, and

very little opportunity has been given to the public to get it involved in the drafting of

new laws. The Legal Sector Report of the OSCE shows that public confidence in the

Albanian legal sector is low. 28 In this context the notion of law as an instrument to

reforms, economic and social, reflects a top-down approach, that societies in order to

develop needs to be directed from above. Notwithstanding the merits of this approach, 29

the need to reflect bottom-up considerations takes a more accentuated role in democratic

societies and is a legitimate one in the prism of participatory democracy.

27 MacFarlane, supra note 17, at 62.

28 OSCE Legal Sector Report: Albania (2004).

29 It is obvious that the adoption of Napoleon’s Civil Code was of benefit not only for the French society

but also had a strong resonance in other European countries as well, which as a result of the spill over effect

incorporated that code into their domestic legal systems. On the other hand, the paradoxes that associated

the communist legal reform regarding collectivization and the crimes against state are an example of seeing

the law as a mere instrument of government.

22

Traditionally, in authoritarian regimes the legislative process by definition is

hermetic. The democratic changes of the ‘90s regarding the legislative process described

according to their substance and procedure provide a confusing picture of the result of the

15 years old legal reform. The substance of legislation clearly constituted a clean break

from the socialist people’s democratic nature essential to the socialist regime, and being

an exercise of the legal powers effectively created new legal rights and duties.30 What

interests me most is the evolution of the legislative procedure. This is not to say that I

bypass the analyses of the content of the rules, Hart said that “…some of the distinctive

features of a legal system lies in the provisions it makes…,” my interests in the procedure

is closely connected with the outcome. In this context there are two elements that

dominate this process. The first concerns the relationship with the domestic

“constituents” and the second relates to the relationship with the international factor.

C. Actors and Constitutional Requirements of the Legislative Process

As mentioned in the Introduction, the legal reform that took place and still is

undergoing in Albania is the result of the interaction of the domestic need for regulations

and the “supply-demand” of the international factor present in the country.

International Actors

The international community assisting the legal reform can be divided in two

groups. The first consists of international organizations, mainly EU, Council of Europe,

World Bank, the second group consists of individual donor countries acting through their

own NGOs.

30 See Hart, supra note 7.

23

The approach taken by the international organizations was twofold. As a member

state, the incorporation of the treaties and conventions into the domestic legal system is

ex officio. This process, the internationalization of the legislation, as part of the

requirements from the said organizations is probably the fastest one, judging by the time

needed for a particular law to ratify a treaty or convention and the amount of the

Executive or Parliamentary discussions.

The European Community established contractual relations with Albania in 1992

in the form of a Trade and Co-operation Agreement, promoting trade on the basis of non-

discrimination and reciprocity. This agreement did contain a provision on the

approximation of legislation in the areas of the internal market, but it lacked an

institutional approach for a large-scale legal reform. An EC-Albania Joint Committee

monitored the implementation of the agreement.

The “great leap forward” in the EU-Albania relations took place with the launch

of the Stabilization and Association Process for the Western Balkans in 1999, a

framework in which various instruments - an assistance program (CARDS), technical

advice, trade preferences, co-operation in fields such as justice and home affairs, and

political dialogue - help the countries to undergo a political and economic transition

which prepares them for a new form of contractual relationship (Stabilization and

Association Agreements). The SAAs focus on respect for democratic principles and

strengthening links of the countries of the region with the EC single market. They foresee

the establishment of a free trade area with the EC and set out rights and obligations in

areas such as competition and state aid rules, intellectual property and establishment,

24

which will allow the economies of the region to begin to integrate with that of the EU. 31

The Stabilization and Association Agreements contain provisions for the approximation

of domestic legislation with the EU acquis in two stages during a 10 years period.

Starting on the date of signing of the Agreement the approximation of laws

extends to certain fundamental elements of the Internal Market acquis as well as to other

trade-related areas, along a program (National Plan of Adoption of Acquis),32 which is

defined in coordination with the Commission of the European Communities. Albania will

also need to define, in coordination with the Commission of the European Communities,

the modalities for the monitoring of the implementation of approximation of legislation

and law enforcement actions to be taken, including reform of the judiciary. Deadlines

will be set for competition law, intellectual property law, standards and certification law,

public procurement law and data protection law. Legal approximation in other sectors of

the internal market is an obligation to be met at the end of the transition period. During

the second stage of the transitional period the approximation of laws will extend to the

elements of the acquis that are not covered in the first stage.33

During the negotiation period, a Consultative Task Force along with the bilateral

meetings of the EU Commission-Albania examined the progress of legislation. Every six

weeks the Executive is obliged to submit a progress report to the Commission on the

31 See Albania: The EU Contribution,

http://www.europa.eu.int/comm/external_relations/see/albania/index.htm.

32 Otherwise referred to as simply NPAA, containing annual legislative and institutional measures to be

adopted with a year in order to implement Community legislation and raising administrative capacities to

enforce them.

33 Excerpts from the draft Stabilization and Association Agreement with Albania (2004).

25

status of legislative and institutional measures identified during the CTF, negotiations and

in the European Partnership document. In addition to this, the launch of the TAIEX

assistance for the approximation of legislation, monitors changes in legislation in a

monthly basis.

Issues related to the legal norms and legislative process, have been on the agenda

of the Council of Europe’s legal co-operation programs since the very beginning of the

‘90s. The assistance of the CoE since ‘90s has focused on the preparation of legislation in

the civil and criminal area, consistent with the CoE conventions and treaties. In particular

the civil code, Constitution, anti-corruption package, and special legislation in the

criminal area have been prepared with the CoE expertise. As a member state, Albania has

ratified 60 Council of Europe’s treaties.34 It is a work practice of the Ministry of Justice

to submit major draft laws35 to the CoE Legal Affairs Department for opinion and

expertise. In this context, there is a “silent agreement” between the Council and the

Executive to report before the Parliament and the public that a law is drafted with the

assistance of the Council, as long as a draft of that law is also submitted to the Council of

Europe. Needless to say, labeling a particular law with the CoE name on it provides for

enough incentives not to be messed around.

The purpose of the lawmaking project, implemented within the framework of the

legal co-operation program of the Council of Europe, was to support the member States’

34 See data from the Council of Europe, available at

http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=3&MA=999&PO=ALB&SI=2&CL=ENG.

35 Usually these are draft laws dealing explicitly with political ends. This practice is of importance to the

executive but also to other political forces because it can rubber stamp approval or disagreement to their

initiatives thus eliminating most of the contested domestic debate.

26

administrations in their efforts to improve the quality of law making. The project’s

activities aimed at promoting application of a uniform law-drafting technique and style

and identify and disseminate best practice concerning the management of the preparation,

discussion, adoption and publication of legislation. The major themes included

transparency of the legislative process where the project’s activities promote more active

consultation of external interested organizations and civil society representatives on draft

laws and regulations. Broad consultation was also one of the principal tools to enable

evaluation of the impact of legislation, which is another important activity of the project

aiming at improving the stability of legislation. The project dealt with issues concerning

better access to legislation, including the functioning of the official gazettes and design of

electronic legal databases.

The World Bank has been involved in the legal reform under different programs

and projects; it has characterized governance as neutral and technical in character.36 The

Bank has contributed to the development of legislation in the areas of pubic procurement,

property registration and property law, bankruptcy, collateral laws and laws on the

structure of the judiciary. In addition to developing particular laws, World Bank has

collaborated in developing decentralization and rural development strategies. Both these

documents contain legislative as well as institutional measures. The Legal and Judicial

Reform Project of 2000 aimed at providing required resources for technical assistance,

training, goods, and works that were needed to implement important aspects of the

institutional agenda for legal and justice system reforms, thereby contributing to the

strengthening of the rule of law in Albania.

36 World Bank, Governance: The World Bank’s Experience (1994).

27

The project had four main components. The first component aimed at improving

legal education at the Law School of the University of Tirana by funding twinning

arrangements to train faculty staff abroad and technical assistance; by strengthening the

institutional capacity of the Law School and funding textbook preparation and teaching

materials, financing investments, and rehabilitating and expanding the premises of the

law faculty building. The second component aimed at improving the court and case

management systems, providing judicial training, strengthening the enforcement of

judicial decisions, and reinforcing inspection services in the justice system. The third

component established a center for mediation and arbitration of commercial disputes. The

fourth component aimed at designing and implementing an efficient system to

disseminate all legal information gathered at, and published by the Publication Center.37

The implementation of recommendations from the World Bank in particular on

the part of national authorities, recently has taken the form of adopting a National

Strategy for Economic and Social Development, as part of the Comprehensive

Development, before the Bank can launch any projects.38 The nature of this document is

quite comprehensive that contain legislative and institutional measures.

37 See World Bank, Legal and Judicial Reform in Europe and Central Asia (2202), available at

http://web.worldbank.org/external/projects/main?pagePK=104231&piPK=73230&theSitePK=40941&men

uPK=228424&Projectid=P057182.

38 See World Bank Projects and Programs, at

http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/0,,menuPK:115635%7epagePK:64020917%

7epiPK:64021009%7etheSitePK:40941,00.html.

28

A considerable contribution to the legal reform comes from the assistance of

donor countries through the activities of individual national organizations, mainly:

German Technical Assistance GTZ, the USAID and CEELI.

Bilateral cooperation of the GTZ with Albania began in 1988, even before the

Communist era had ended, mainly in the economic sector, broadly defined.39 In this

framework the legal expertise of the GTZ has been crucial to the development of the

Albanian commercial legislation and registry of companies, civil procedure, insolvency

law, and recently of the competition and consumer protection laws. Since 2000 the GTZ

and IRZ, two leading German organizations have shifted the focus from just helping

implement reforms in Albania toward providing the impetus for domestic reform and

regional cooperation for a closer rapprochement with the European Union.

The USAID rule of law program has as its motto: “legal systems that better

support democratic processes and market reforms.” This program aims to improve the

rule of law in Albania by improving the professional and ethical performance of the

judiciary and judicial institutions, promoting anti-corruption and avoidance of conflicts of

interests, mobilizing citizens to demand accountability and transparency from the

government, and promoting public awareness and education, as well as providing training

to judges, on issues of anti- trafficking, domestic violence and the new family code.40

USAID has actively supported drafting legislation on public procurement, anti-

trafficking, energy, property registration, and commerce.

39 See GTZ in Albania, available at http://www.gtz.de/en/weltweit/europa-kaukasus-zentralasien/648.htm.

40 See USAID in Albania, Rule of Law, available at http://www.usaidalbania.org/en/so.aspx?Id=3.

29

The Central and Eastern European Legal Initiative (CEELI) has been active in

Albania since 1992. Since commencing its program CEELI's major projects have

included: substantial assistance in support of the drafting of a new, democratic

constitution, adopted through a popular referendum in 1998; promotion of judicial

independence by supporting the creation of the Albanian Magistrates School and

facilitating the establishment of the National Judicial Conference; and substantial support

of legal profession reform and legal education by providing expertise and assistance to

the National Chamber of Advocates. From 1998 to 2001 CEELI conducted a Criminal

Law Reform Program and from 2002 it has worked in the anti-corruption campaign. 41

Domestic Actors

On the domestic level, article 81§1 of the Constitution gives the Council of

Ministers, parliamentarians, and 20,000 voters the right to propose laws. The Albanian

Constitution,42 one of the latest constitutions adopted in Central and Eastern Europe post

‘90s, provides the framework of the lawmaking process.43 If we limit ourselves to the

constitutional provisions of what constitutes legitimacy regarding the normative acts it

reads as follow:

Art. 78§1: The Assembly decides with the majority of votes, in the presence of

more than half of its members, except in cases when the Constitution requires a

qualified majority.

41 See data from CEELI activities in Albania, available at

http://www.abanet.org/ceeli/countries/albania/program.html.

42 The Constitution was adopted in November 28, 1998 by a referendum.

43 The Albanian constitution was adopted by referendum on November 28, 1998.

30

Art. 81§1: The Council of Ministers, any MP, and 20,000 voters have the right to

propose laws.

Art. 84§1: The President of the Republic promulgates the approved law within 20

days from its presentation.

Art 117§1: Laws, normative acts of the Council of Ministers, of ministers, of

other central institution acquire juridical force only after they are published in the

Official Journal.

A textual interpretation of these provisions suggests that by following the above-

mentioned steps any law becomes binding. Unfortunately, the situation is more complex.

Noting the example of the political round tables, how is it then that laws adopted by a

majority of a democratically elected Parliament fails miserably the first test of being

implemented by the same people who voted for them? It looks like the simple act of

voting by the majority, disregarding the opposition’s demands, is directly linked to the

failure of laws.

An interesting statistic worth mentioning is that approximately 99% of all

legislation approved by the Parliament is initiated by the Council of Ministers.44 Article

26 of the law “On the Organization and Functioning of the Council of Ministers”

recognizes the right of legislative initiatives only for ministries and their dependent

agencies. Every ministry proposes legal acts in accordance with the area of competencies

and with the activities of the dependent agencies and central institutions.

The Ministry of Justice, reestablished in 1990, is one of the most important actors

in the Albanian system of justice. Through its Directorate of Codification it has a major

44 This is an estimated number from my own experience at the General Department of Codification in the

Ministry of Justice.

31

role in the preparation of the Albanian legislation and of the legislative reform. Among

its other major tasks is basic supervision of the legal system, giving due regard to the

independence of the non-executive branch institutions such as the judiciary and the

Prosecutor’s Office. According to the law “On the Organization and Functioning of the

Ministry of Justice,” it constitutes the principal state institution responsible for the

implementation of general government policy in the field of justice and is generally

responsible for justice and legislative reform. 45

According to Articles 5 and 6 of the above-mentioned law, the Ministry drafts and

implements policies, prepares laws and sub-statutory acts and oversees the necessary

services in relation to the judicial system in general. The Ministry also performs the

coordinating function within the Executive especially in the context of preparation of

legislation. Within the Ministry, the General Department of Codification constitutes one

of the most important divisions of the Ministry and is responsible for the preparation of

draft laws and bylaws in the field of justice or under the competencies of the Ministry,

and issuing of specialized opinions on various legal matters. In addition, the Department

prepares legal opinions on draft laws and other normative draft acts of the Council of

Ministers, ministries and other central institutions as well as on the international agreements

to which Albania is a party, to ensure compliance with the law.

According to the law of the Council of Ministers, all drafts of codes, laws,

Council of Ministers’ decisions and orders and other normative acts prepared by

45 Law No. 8678, dated 14/05/2001 "On the organization and Functioning of the Ministry of Justice".

32

members of the Council of Ministers or heads of central institutions (through the relevant

working groups) should be sent to the Ministry of Justice for review. 46

The Ministry of European Integration, since its creation in January 2004, has

developed a significant role in aligning the domestic legislation with the acquis. The

Ministry is in charge of leading and coordinating the process of European integration

through the approximation of legislation with the EU acquis, adopting policy papers on

integration, coordinating the financial assistance and informing the public abbout the

European integration process.

The Department of Approximation of Legislation, formerly under the Ministry of

Justice, coordinates, monitors, and analyzes the development of the approximation of

legislation; draft in cooperation with line ministries and other central institutions the

National Plan for the Adoption of the Acquis, as well as monitors the implementation of

that plan and of other programs related to the European Partnership; evaluates the

compatibility of normative acts with the European Union law, coordinates the work and

assists the line ministries and other central institutions in drafting legislation in order to

meet the obligations of the Stabilization and Association Agreement.47

The Ministry of European Integration proposes the creation of working groups,

part of fulfilling the obligations of the European integration process, and notifies the

relevant bodies of the European Union on the approximation of domestic normative acts

with the European Union law.

46 Id.

47 V.K.M. No. 580, dated 10/09/2004.

33

The law drafting in Albania starts with the preparation and adoption every

January by the Council of Ministers of an annual legislative plan, coordinated through the

Department of Coordination at the Prime Minister’s Office with legal departments in line

ministries and central institutions. According to the law “On the Organization and

Functioning of the Council of Ministers,” each ministry sets up working groups to come

up with planned legislative measures. Under lex specialis, representative from the

Ministry of Justice and the Ministry of European Integration are invited to participate in

the working groups charged with drafting normative acts.

After the working group completes drafting, the draft goes for revision to

interested ministries and to the Department of Coordination in order to settle disputes and

approve the final version before introducing the draft law for approval in the Council of

Ministers. Although formalized, this procedure is not exclusive and there have been

numerous occasions when draft laws are introduced outside this procedure. A sine qua

non of the legislative process is the opinion of the Ministry of Justice for all normative

acts and of the Ministry of European Integration for those normative acts that affect one

of the areas of the acquis.

Pending review and approval by the Council of Ministers, the draft law is

submitted to the relevant Parliamentary commissions with jurisdiction on the subject area

of the draft law and always to the Legal Affairs Commissions. Even though members of

Parliament have the legislative initiative very few laws are approved by member(s)’

initiative, thus giving the Executive a quasi monopoly on legislation. In my opinion the

identity crisis of the Parliament regarding the legislative process it self evident, but an

34

interesting question to note is whether it stands a chance to keep pace with the highly

technical and expertise driven legislation?

The meetings of parliamentary commissions are open and they reserve the right to

invite experts to discuss the proposed laws, and formally the process is intended to be

deliberative. Informally, the proceedings before parliamentary commissions are routine

matters, rarely someone reads the texts of the proposed legislative acts. Unless a

proposed law is of a political nature, all others are adopted, almost always unanimously.

After adoption by the relevant commissions, a report is prepared regarding the status of

the draft law. In case members of the commissions have reservations regarding the draft

law, they are included in the report.

Regarding the incorporation of international agreements into the domestic law the

situation is even simpler. Few would dare to run counter the “will” of integration and the

internationalization of the legal system. A draft law incorporating the agreement is sent

for opinion to the Ministry of Justice and the Ministry of foreign Affairs. The process of

reviewing the international agreements is practically non-existent. The pressure to

modernize the laws, and to have friendly relations with all international organizations and

donor countries, influences the depth of reviewing the contents of international

agreements. The proceedings before the Parliamentary commissions also in this case are

quite fast and without much debate.

In this respect, the membership in the WTO was a perfect example of the

hermetic nature of the legislative process. Most of the interested communities, local

producers, did not have a chance to participate in the negotiations and the preparatory

work for concluding the membership agreement. 6 yeas after the membership in WTO,

35

most of the business community still demands frequently the renegotiation of the

membership agreement, and the renegotiation of all free trade agreements with various

countries. The seriousness of the matter was taken into consideration by political parties

in their election campaigns of July 2005, promising to renegotiate all the concerned

agreements.

From a purely formalist position, it should be noted that there is no law

guaranteeing citizens the opportunity to become part of the process of drafting laws, and

this affects all ministries. As there is no legal provision that would require the Ministry of

Justice to regulate public participation in drafting laws or sub-statutory acts, the Ministry

of Justice sees itself under no legal obligation to do so.

The problem of the legislative actors is twofold. As part of the regulatory scheme,

the Constitution empowers the MPs with the right to initiate legislation. However, as the

statistics shows this right is used in very rare occasions.48 Downgrading the role of

Parliament from the legislator into the approver directly influences the parliamentarian

basis of the state.49 The development of civic movements and civil society at last

provided an alternative and sometimes a complimentary viewpoint to government’s

strategies and action plans. Restrictions in the legislative practices however do not allow

the civil society to actively participate in proposing laws, even though most of the

projects accorded to local NGOs contain law-drafting components. The benefits of direct

participation include increased access to the political system and greater voter

involvement in the legislative process.

48 www.parlament.al

49 Albania is a Parliamentary Republic, according to art. 1 of the Constitution.

36

II. CHAPTER TWO

THE TRAFFIC OF LEGAL NORMS

A common feature shared among local experts, but not always shared by the

international community present in the country, is the sense of dissatisfaction with the

existing legal system and the legislative instruments.

A. The Supply-Demand of Transplants: Diversity of Origins – Diversity of Results

Immediately after 1989 the legal systems of Central and Eastern Europe were

influenced by a heterogeneous mix of experts and organizations making legislative

proposals as part of technical and legal assistance programs. Sometimes this activity was

part of a larger program, traditionally devoted to developing and emerging countries,

more frequently due to ad hoc initiatives, sometimes from requests of Central and East

European governments, and sometimes from outside the area. In certain cases, adoption

of the proposal merely depends on prestige of the proposed model or of its proponents.50

The need to legislate in a short time and to fill the vacuum left by the previous

experience; pressure from supranational organizations as well as of international

institutions; as well as the simple desire of politicians and jurists to furnish the system

with tools already in use elsewhere for pure profit interests of both sets of actors within

and outside, thus creating a demand-supply lines for legal norms.

If we are to accept that law is a means to ends rather than the vice versa, the

answer to the question what should law reflect is obviously one that contains social

50 See Ajani, supra note 2.

37

norms within a particular society. 51 The after effect of the legal reform has made it

immensely difficult to trace the origins of laws adopted as part of the legal reform and

match the local needs with the effect of laws, drafted by experts working for international

and domestic actors, or what Frankenberg call the “[j]uridic midwives of capitalism…

monitored by representatives of supra-or international organizations they dismantle and

overhaul the old normative superstructure, importing, adapting, and transplanting legal

codes.”52 Formalism reaches a high point of matching gaps with rules as if to petrify the

idea that more precise and rigorous the rules are then the better off a society will be.

In one of my early days at work, I found a folder containing the practice of

drafting the Election Code. Being new to the job, curiosity took the better of me, and I

started going through the proceedings of the working group tasked with drafting the

Election Code. The working group was established under the auspices of the OSCE,

which was very active in 2000 in establishing the rule of law in the country, and several

of its experts were involved in drafting that code. I couldn’t believe the surprise and sheer

amazement when I found in the folder the Election Code of former Zaire. It was year

2000, in Albania, a country on the way to European Union that with the assistance of

democratic international organizations was trying to strengthen democratic institutions

51 For a contrary argument see ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO

COMPARATIVE LAW pp. 97, 109, (1993). “It follows from the four reflections to this point that usually

legal rules are not peculiarly devised for the particular society in which they now operate and also that this

is not a matter for great concern.” “…The fact is, I believe, that even in theory there is no simple

correlation between a society and its law.”

52 Frankenberg, supra note 4.

38

providing for fair elections. One needs to be especially skilled in legal engineering to

extract and adapt Mobutu’s Zaire electoral rules to Albania of 2001.

The period of 1990-2000 was characterized by this diversity of approaches and

methods in drafting laws. The result consisted of an amalgam of different types of laws,

broadly taken by the common law tradition and Germanic-Roman law. The Civil Code

was drafted by Ajani after the French Code Civil in the framework of a Council of

Europe project, in the same time when the GTZ experts, drafted the first part of the

Commercial legislation with the registry of companies after the French and German

legislation. The registration of private property recently was developed under the

auspices of the USAID, the criminal and criminal procedure code were aligned with the

Italian legislation, and of course the first version of the Election code had the exotic

nuances of Zaire.

The membership in the WTO requires constant revisions of new legislation and an

assessment study of the existing one in order to meet its requirements. An element worth

mentioning here is that there is a continuous debate in EU circles and academia about the

relationship of WTO norms and the impact of the strengthened system of international

trade law not only on the states individually but also on the EU and its institutions.53

There are two direct consequences resulting from the diversity of the

methodologies and projects of the legal reform: 1) a sense of confusion regarding the

chaotic nature of the legal system, the incoherence of the system, and 2) a sense that gaps

in knowledge are attributed to the vacuum in the legislation, thus making way for an urge

53 See, e.g., Armin von Bogdandy, EUROPEAN INTEGRATION AND INTERNATIONAL

COORDINATION (2002).

39

to adopt legislation in order to bring the country up to date with modern standards. This

creates a vicious circle, which perpetuates a need to adopt legislation every day, which in

return is practically never absorbed by the administration itself, let alone the general

public. As an example, shortly after I started working, during one of the negotiations in

the framework of accession to NATO, the representative of the Ministry of Foreign

Affairs had no data regarding the UN conventions ratified by the Republic of Albania.

The large number of adopted laws and by laws also makes the lawmaking process

difficult to manage.54 It is obvious to say that the process needs management in order to

ensure effectiveness in adoption and in implementation. Unfortunately, so far, this

coordination and management of the process has still to take place.

Rule generating is the measurement of success and efficacy of public institutions,

an imposed solution in a closed administration and civic society catering to the needs and

stomachs of projects awarders.

Pressure from the interaction with international organizations and donor countries

are being brought to bear on the Executive as well as the Parliament. Examples include

the need to incorporate structural changes and “rule of law” reforms into domestic law as

a condition for obtaining a loan from the World Bank, the orchestrated revision if the

monetary, banking and fiscal legislation with the IMF, prospective membership in the EU

requiring not only a comprehensive review of current legislation, but also an examination

of the entire legislative process to ensure that future laws meet the required standards; the

54 A direct result which is connected with the large number of normative acts adopted by the Government is

the lack of disseminating information in the communities of lawyers and judges. A shared complained by

the members of the judiciary is the frequent amendment to laws, and the lack of codification.

40

opening of domestic markets to international companies and the need to provide them

with a reliable legal framework; and recognition of the deplorable state of the body of

legislative instruments.55 It looks like the transformation of the society through legislation

is a task serious enough not to be trusted exclusively to the parlamentarians.

The Harmonization with the EU acquis

The legal reform in the context of the Trade and Cooperation Agreement of the

1992 and the regional approach of 1998 was limited to eliminating symmetrical barriers

to the trade on specific goods, and a general wish for more alignment with the EC acquis.

In 2000, the start of the bilateral talks with the European Commission on the feasibility of

negotiating a Stabilization and Association Agreement provided the incentive for a self-

assessment study on the compatibility of the domestic legislation with the EU acquis.

Taking into consideration the level of interactions with the Union and the necessity of

aligning the legislation with the acquis of the internal market, the working groups, in

cooperation with the findings of the European Commission started to base their

recommendations for amendments in the existing legislation and proposals for new laws

in the White Paper of the European Commission.

The White Paper is focused on the legislation, which is essential for the

functioning of the internal market. It presents this legislation in a way which shows the

key measures in each sector and those measures which should be tackled first, but it does

not attempt to establish priorities as between sectors. It also describes in some detail the

administrative and organizational structures, which are required in each sector if the

55 See, e.g., Robert C. Bergeron, Globalization of the Dialogue on the Legislative Process, 23 Statute L.

Rev. 85 (2002).

41

legislation is to be effectively implemented and enforced.56 Even though during 1994-

2001 the EC legislation has developed considerably, taking into account the Amsterdam,

Nice, and the adoption of numerous directives and regulations in the internal market, it

still provided for a framework in order to complete the comparative studies and propose

recommendations.

Until recently, the methodology of drafting laws consisted largely in transplanting

laws, or even parts of a law from different practices. For example, the working group on

the copyright tried to transplant part of the Italian, Romanian and Greek copyright law. 57

This approach stood in contrast to the process of approximation of legislation with the

acquis. The requirements of the EU alignment consist of the transposition of Treaty

provisions, regulations and directives into the domestic system. This form of

transposition demands a new strategy of drafting laws. Instead of eyeing similar

legislation in different Member States, some working groups, for example in the area of

competition and consumer protection, based their work on standards set by relevant

directives and regulations. The legislation of Member States in this approach has a

complimentary role, in providing a comparative bases for evaluating different approaches

and in reinforcing the supposition of a given law, rather than an in promptu translation

and incorporation into the domestic system.

56 White Paper of the European Council (1994).

57 The initial version comprising these different parts of the law, was rejected as being artificial and not

aligned with the international standards in copyright regime and with incorporating EU acquis. The

working group in 2004 finalized the drafting of a law, which largely transposed the EC directives in this

field.

42

The approximation of legislation is conceptualized in the National Plan for the

Adoption of the Acquis (NPAA), as well as in the Action Plan for the Implementation of

the European Partnerships (APIEP). Both of these plans contain annual as well as

medium term legislative and institutional building measures. The launch of European

Partnerships58 in 2004, in addition to the annual preparation of National Plan for the

Adoption of Acquis (NPAA), has put the focus on identifying short and mid-term

priorities regarding the preparations for further integration with the European Union

identified in the Commission’s 2004 Annual Reports and serves as a checklist against

which to measure progress. The NPAA and the APIEP are developed independently by

national authorities, subject to revisions and monitoring by the technical joint committees

associated country-European Commission.

The multitude of national strategies59 and action plans addressing particular

recommendations related to the legal reform of the interested actors can be evaluated

twofold. Firstly, there is a lack of coherence among the goals and objectives of legal

reform programs proposed by the interested actors, which results not only in sporadic

implementation, but resonates problems in codification, and creates the need for

repetitious revisions of all areas of legislation. Secondly, there is a lack of cohesiveness

within a single legal reform project, manifested in terms of maintaining uniformity and

cohesion in conceptualizing goals and objectives and drafting legislation. This lack of

cohesiveness results from an amalgam of factors, probing the relation between the 58 See European Partnerships for Western Balkans, at

http://www.europa.eu.int/comm/external_relations/see/docs/index.htm.

59 NPAA, APIEP are instruments regarding the European Union, whereas the National Strategy for

Economic and Social Development was adopted as a requirement from the World Bank.

43

recommendations of the international community and the objectives of national strategies

and action plans is of particular interest.

The process of adoption of the NPAA and APIEP was typical of the Albanian

administration, and in my opinion merits few words of explanations to illustrate how

these plans are usually prepared. The drafting process of the APIEP started in early May

with the aim of finalizing it by early June. The methodology adopted to draft the Plan

was the result of a “compromise” of two different EU technical assistance experts

assigned to the Ministry of European Integration, which had conflicting perspectives and

proposed different methodologies.60 The conflicting methodological viewpoint, poor

training on the part of ministries’ experts as well as the hermetic process of consultations

and drafting prevented the working group to come up with a final draft, even 4 months

after the formal start of the project.61 The question is not simply that if there were only

one expert then the confusion would have been avoided. The problem goes deeper into

the incoherence of strategy objectives in themselves and their recommendations.

B. Transplants and the legislative process

60 One of the projects was intended to support Albania with the approximation of legislation before the

negotiations for the Stabilization and Association Agreement were opened, preparing the country for them.

Thanks to the Brussels bureaucracy it started some 3 years later, after the negotiations started. The second

one was of course associated with the development of the SAA negotiations as technical support to the

administration.

61 The methodologies used for drafting the Plan were revised on a bi weekly basis, acting on differing

proposals from the two projects’ expertise. Needless to say it threw the whole administrative network

tasked with preparing the document into a state of constant chaos and incertitude.

44

The beginner’s luck was to accompany me during the first year at the Department

of Approximation of Legislation. During one of the visits of legal experts I was abruptly

introduced to the world of legal reform projects. Under the goal of modernizing the

legislation, an expert introduced me to the inefficiencies of the Albanian insolvencies

law, which was drafted by his organization some years ago, and eloquently argued that I

tell the Minister that we definitely needed to amend the legislation in order to align it

with the acquis and that he was ready to work on it immediately.

Newton says: “[t]he very term ‘transplantation,’ biased towards the technical,

masks the political realities, for ‘legal transplantation’ is always necessarily a species of

the genus legislation. To speak, as comparative lawyers typically do, of transplantation as

‘reception’ is to obscure the political calculations and complex play of interests behind

any modern instance of importing statutes (or concepts or provisions).”62 Watson

successfully argues that transplantation has occurred all the time and the modern legal

systems are the fruits of massive transplantations.63 Limited in the technicality of the

term, the reform in changing and aligning legislation with the international standards and

with the EU acquis becomes easier to be conceptualized and adopted. This approach

however misses the point of how are the transplants incorporated and how are

implemented?

It is significantly easier to adopt legislation that comes from a well-established

source. The authority of the legislation provides not only for a broader acceptance in the

Parliament but serves as a legitimacy claim by the Executive versus opposition, and

62 See Newton, supra note 3, at 152.

63 ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW (1993).

45

towards the population at large. The foreign technical expertise, alignment with the

international standards, the process of Europeanization of legislation, all contain

sufficient dosage of importance in order to make the adoption of laws easier.

The introduction of fast-track parliamentary procedures to pass legislation that

aims at approximating domestic laws with the EU acquis is an example of the importance

for parliamentary review of legislation. Under this procedure the Parliament has a limited

time to review a particular law introduced by the Council of Ministers, who has the sole

responsibility to carry out negotiations and the relations with the EU, and is under

pressure to adopt it. For fairness sake, the EU is not the only international organization

that yields the legislative power, OSCE, World Bank, IMF, UN, WTO, and any other

donor country have the prerogative in the legislative process and a de facto fast-track

procedure is established for adopting laws coming from these organizations.

The alignment of the domestic legislation with international standards is

commendable per se, what is overlooked is the emphasis on product over process.64 The

international organizations that promote and implement legal reform projects, have

contributed significant funds, and technical expertise to the effort of updating the

Albanian legislation and therefore facilitating the functioning of the market economy and

the strengthening of the rule of law. The contradictions that accentuate the need for a

careful review of the lawmaking process lay somewhere between the objectives and the

final outcome of the project.

The World Bank promotes that it works with the government and with the people.

In most of the transitioning countries, and especially in Albania, there is a wide gap

64 See Newton, supra note 3, at 153.

46

between the government and the people, is then the World Bank trying to bridge this

distance, and how so? The Legal and Judicial reform of 2000 established an Alternative

Dispute Resolution Center, in a country where it is fairly easy to bribe any judge, despite

numerous ethical and criminal provisions prohibiting it. In this context, what is there to

prevent anyone from corrupting any arbitrator, when there are no regulations against the

conflict of interests or subjecting arbitrators to the jurisdiction of the penal code? Fast

tracking the adoption of ethical codes for arbitrators won’t solve the deeply entrenched

lack of trust towards any institutions.

The interactions between local experts, governmental official, and the

international community can be described along the following lines. Legal reform

projects have become a source of income for many NGOs, founded by former or current

ministers, or their wives. The quest for funds bypasses gap analyses on the need for a

particular piece of legislation. The hierarchic and economic liaisons of workplace enable

many government experts to offer their expertise in the framework of the projects. In a

different axis, the mobility of work among former high level government civil servants

going into the private practice or in the international organizations influences the

conception and launch of assistance programs and the division of projects.

The legal reform programs often overlap in various components. In 2000-2001,

two leading German organizations, German Technical Assistance (GTZ) and the German

Foundation for International Legal Cooperation entered the market of approximation of

Albanian legislation with the EU acquis. Both of them were funded by the German

Ministry of Foreign Affairs and competing for the same assistance for the Department of

Approximation of Legislation in the Ministry of Justice. The competitive situation

47

derogated to the point that the intervention of the German Embassy was necessary to

basically remove IRZ from the approximation of legislation and encourage it to

participate in other activities in the country. The result of the competition among the legal

reform providers is not limited among projects working in the same area. Divergences

arise also on the approaches taken to reform laws that are complimentary to each other.

The element of agency capture is well analyzed in the literature. With interests for

the purpose of this paper, is the link between the lawmaking process, or law-drafting

process, and the lack of implementation. As described earlier in the chapter, the large

amount of legislation enacted every year, has contributed to the lack of implementation.

Another way of looking at this problem would be to address the question of would the

normative acts have a better chance of implementation were an open lawmaking process

permits the stakeholders and interested parties with a voice in formulating normative

provisions? I think that in the interest of promoting democracy, transparency and

accountability, such an approach would definitely have its rewards.

The issues of introducing normative acts, following the steps provided by the law

on the Council of Ministers, requiring the opinion of the Ministry of Justice and more

recently of the Ministry of European Integration have actually been rarely raised.

Following the formal requirement of the legislative procedure, or ensuring the formal

legality of the law drafting process, the issue of acquiring public legitimacy for the draft

act is not mentioned in the legislation. In this context, where does the approximation of

legislation with the EU acquis take us? Prior to the start of the negotiations for the SAA

the approach to legal reform varied from one actor to the other. As noted earlier, the

different approaches produced a myriad of results. The EU acquis were almost never

48

taken into consideration by any working group or legal reform project. The laws were

drafted to resemble particular legislation of different countries, Member States or not, or

particular pieces of those legislations.

The trend of legal transplants will continue to influence the process of

approximation of legislation. The benefits of having a comparative view of how a

particular standard is transposed in another jurisdiction only serve for the improvement of

the law drafting techniques. The approximation of legislation with the 100,000 pages of

acquis is a process that requires first of all a well-coordinated mechanism in order to

prevent frequent amendments of legislation and to ensure wide acceptance for the

necessary reforms. The participation of the Ministry of European Integration at an early

stage of the law drafting process in line ministries and central institutions is a first step

towards wider consultations with interested stakeholders and constituents. The Ministry

of European Integration, as part of its Strategy of Public Communication ought to work

to ensure that laws are not passed without being properly examined by the public. This

means inviting various organizations to comment on draft laws before they reach a final

stage. It would also be helpful to provide training for these organizations in order to

enable them to participate effectively.

The tendency to adopt and incorporate as many as possible international

agreements and EU acquis comes partly from the lack of deliberations in the legislative

process. In the situation when it is fairly easy to initiate a draft law under the label

“European Integration” even the formal requirements of the lawmaking process become a

mere formality. One can pass almost anything as long as it is properly labeled. The

49

heavier the authority under which the draft law comes, the faster the lawmaking process

works. They are in direct proportion.

Balancing the need for swift adoption of legislation, through the fast-track

parliamentary procedures in order not to hinder the integration process, with the need for

a greater public deliberation on important legislation secures broader acceptance, public

legitimacy, and perhaps better implementation.

III. CHAPTER THREE

LEGAL REFORM AND THE LEGISLATIVE PROCESS

How legislation is made, as well as what it says, are equally important and

complementary. Process has become equally as important as the content of the final

document for the legitimacy of legislation. Thomas Franck wrote that even general

democratic participation has been cons idered at best to be an "emerging right."65 A right

to public participation in democratic governance exists today in international law. This

right packs a moral punch but it lacks legal teeth and effective enforcement. Does this

right extend from everyday governance to the process of constitution making? The

United Nations Committee on Human Rights has recognized a specific right to participate

in constitution making. The Aarhus Convention, even though a regional instrument,

fortified the concept of public participation. 66 The previous chapters analyzed the 65 Thomas M. Franck, "The Emerging Right to Democratic Governance," 86 Am. J. Int'l L. 46, (1992).

66 A ruling in 1991 of the UNCHR, acting in its judicial capacity to hear individual complaints under

Optional Protocol I to the ICCPR, in the case of Marshall v. Canada (Human Rights Committee,

CCPR/C/43/D/205/1986, 3 December 1991). This was a case brought in 1986 and decided five years later,

first authorized a specific right to participate in constitution making as an undoubted part of public affairs.

50

contradiction among rules, and the deficits of the legislative process. In this chapter I’d

like to devote some perspectives on the gap between law in books and implementation,

and on the evaluation of laws as part of estimating the implementability of laws.

A. International Arrangements on Public Participation and Evaluation

It is of interest to study how international law deals with the access to legal norms

and what can we learn from the EU response. The right of public participation to legal

norms and legislative process has been recognized in international law. Such an

instrument is the Convention on Access to Information, Public Participation in Decision-

Making and Access to Justice in Environmental Matters. It was adopted on 25 June 1998

in the Danish city of Aarhus at the Fourth Ministerial Conference in the "Environment for

Europe" process. The Convention although relates to the environmental issues, represent

the most advanced instrument that regulates the right to public participation. Since

signing the Convention in 1998, the EU has taken important steps to update existing legal

provisions in order to meet the requirements of the Aarhus Convention by adopting

The right to participate in constitution making might logically be derived from the general meaning of

"democratic participation" in the UN Declaration of Human Rights (1948, Article 21) and especially

Article 25 of the ICCPR (a covenant agreed in 1966 and entered into force in 1976). Article 25 establishes

a right to participate in public affairs, to vote, and to have access to public service: "Every citizen shall have

the right and the opportunity . . . without unreasonable restrictions: (a) to take part in the conduct of public

affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic

elections which shall be by universal suffrage and shall be held by secret ballot, guaranteeing the free

expression of the will of the electors; (c) to have access, on general terms of equality, to public service in

his country." The right of public to participate was also recognized by the UNECE Convention on Access

to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters,

adopted on 25th June 1998.

51

directives for the Member States, but also for its own institutions. In particular, two

directives67 concerning access to environmental information and public participation in

environmental decision-making ("first" and "second pillar" of the Aarhus Convention)

were adopted by the European Parliament and the Council in 2003. They have to be

implemented in national law respectively by 14 February and 25 June 2005.

The Convention adopts a rights-based approach and establishes minimum

standards to be achieved but does not prevent any Party from adopting measures which

go further in the direction of providing access to information, public participation or

access to justice. Article 1 guarantees the rights of access to information, public

participation in decision-making, and access to justice in environmental matters in

accordance with the provisions of this Convention. 68 The main thrust of the obligations

contained in the Convention is towards public authorities, which are defined (article 2) so

as to cover governmental bodies from all sectors and at all levels (national, regional,

local, etc.), and bodies performing public administrative functions. Although the

Convention is not primarily focused on the private sector, privatized bodies having public

responsibilities in relation to the environment and which are under the control of the

aforementioned types of public authorities are also covered by the definition.

Article 6 of the Convention establishes certain public participation requirements

for decision-making on whether to license or permit certain types of activity listed in

67 Council & Parliament Directive 2003/4/EC of 28 January 2003 On Public Access to Environmental

Information and Repealing Council Directive 90/313/EEC, (OJ L 41 of 14.02.2003, p. 26), Directive

2003/35/EC of the European Parliament and of the Council of 26 May 2003.

68 The UNECE Convention on Access to Information, Public Participation in Decision-Making and Access

to Justice in Environmental Matters (1998).

52

Annex I to the Convention. The “public concerned” is defined as 'the public affected or

likely to be affected by, or having an interest in, the environmental decision-making', and

explicitly includes NGOs promoting environmental protection and meeting any

requirements under national law. 69

The public participation requirements include: timely and effective notification of

the public concerned; reasonable timeframes for participation, including provision for

participation at an early stage; a right for the public concerned to inspect information

which is relevant to the decision-making free of charge; an obligation on the decision-

making body to take due account of the outcome of the public participation; and prompt

public notification of the decision, with the text of the decision and the reasons and

considerations on which it is based being made publicly accessible.70

What is important in this picture is to take into consideration the spirit and scope

of its provisions.

Evaluation of Legislation

The aim of all legislative work is to produce relatively good laws, because to

produce absolutely good laws means to attain justice and justice is an ideal. 71 The

mechanic process of adopting laws in Albania has contributed to a large number of

adopted laws over a relatively short period of time. This provoked a lack of transparency,

69 Id.

70 Id.

71 Council of Europe, Evaluation of Legislation, Proceedings of the Council of Europe’s Legal Co-

Operation and Assistance Activities (2000-2001), available at

http://www.coe.int/T/E/Legal_Affairs/Legal_co-

operation/Law_making/Evaluation_of_legislation/Eval%20_legislat_publicat.asp#P30_917.

53

because it is more difficult to know all the new laws and amendments passed, and also

reflected in the quality of laws. As the previous chapters have helped to show this

tendency is the result of some handicaps of the lawmaking process: the deficiencies in the

functioning of supply-demand for legal norms, contributing in the inflation of legislation;

coordination problems of the lawmaking process that do not allow enough time for

reflection and consideration by different stakeholders and interests groups; and also

constitutional issues reflecting tensions between the Executive and other branches of the

government. .

The evaluation of the effects of laws is a relatively recent development in Europe.

Its growing importance is related to changes in the form of legislation. Modern legislation

has taken the form of programs, which are targeted to achieve certain goals. Therefore,

the CoE findings conclude, the traditional verification of the legality of legislation is

gradually being accompanied or combined with the evaluation of the effects of

legislation. 72

The most frequently mentioned evaluation criteria are the effectiveness, efficacy

and efficiency. The focus is on the content of the law rather than on the procedures of

collecting the input of the target populations into the given legislation.

The approach taken by the Council of Europe with respect to evaluation of

legislation restricts itself to the effect and the implementation of the legislation. Little is

said about the need to evaluate the legislative process itself. This approach focuses on the

72 Id.

54

technicality of the lawmaking process, leaving out side political, economical, and social

factors that are the driving forces of legislation. 73

In this context, legislative evaluation is seen as an indispensable aspect of the

democratic debate. In order to fully play its part in ensuring legal certainty, evaluation

cannot be restricted to purely financial concerns or consistency of the legal order, but

must also monitor how efficacious, efficient and effective a given norm is, as well as any

other expected or unexpected effects.

There must be provision for evaluation both at the time of the preparatory work,

so as to foresee the effects (ex ante evaluation), and during the implementation, so as to

be able to draw conclusions about the legislation’s content and the implementation

methods (ex post evaluation).74

In this framework, evaluation of legislation is thought to be an element of the

sociology of legislation as well as an essential part of legislative methodology. Unlike

73 Id. Legislative evaluation is a necessary discipline, but it has still to be widely developed in all European

countries. Every Council of Europe memb er state or candidate for membership should independently look

into the question and set itself the goal, when drafting legislation, of establishing machinery that makes it

possible to have a better understanding of the legislation's impact. As part of its ADACS legal co-operation

program, the Council of Europe might encourage and support these efforts by organizing both bilateral

activities and discussion among all the countries in the program, and by developing, in partnership with

national and NGO bodies concerned, networks for monitoring and exchange of information and

experience…”

74 Council of Europe, Evaluation of Legislation, Proceedings of the Council of Europe’s Legal Co-

Operation and Assistance Activities (2000-2001), available at

http://www.coe.int/T/E/Legal_Affairs/Legal_co-

operation/Law_making/Evaluation_of_legislation/Eval%20_legislat_publicat.asp#P30_917.

55

legislative drafting, it thus concerns the material, substantial aspects of legislation rather

than its formal aspects and it is particularly concerned with the relation between

normative contents and their consequences in the social reality, in the "real world."75

Therefore, I think that it is imperative to indicate a nexus between the substance and

procedure of lawmaking.

The analytical or theoretical model underlying the methodical approach to be

used for preparing legislation considers the legislative process as a reiterative learning

process;76 a process in which the evaluation of the effects of legislation is one of the

fundamental prerequisites - and tools - for learning; a process, too, in which the

responsiveness of the legislator to social reality and the social adequacy of legislative

action should be guaranteed. The attention to the implementation of the Stabilization and

Association Agreement should be accompanied by a more scrupulous process of

reviewing legislation initiated by the executive in the framework of the Europeanization

of legislation.

The introduction of TAIEX programs in Albania, will evaluate the legislation in

an automatic basis. Every month, line ministries and the Ministry of European Integration

are obliged to update a list of all normative acts adopted by the Council of Ministers and

the Parliament in a database monitored by the European Commission TAIEX office. This

process will evaluate how many laws are adopted in a particular area and their level of

compatibility with the acquis. During the implementation of the Stabilization and

Association Process Joint working groups and committees will evaluate the

implementation of the agreement and ex officio as well they will evaluate the

75 Id. 76 Id.

56

enforcement of legislation. The concern here is not at all about preserving nationalist or

culturalist sensitivities, it is more about providing alternatives and achieving a higher

standard of comparison and evaluation rather than the basic level of alignment with the

acquis.

There are few aspects that merit attention when talking about the effectiveness of

evaluation. What I find missing and consider worth noticing is the important question of

the subjects of the evaluation. Should we set up expert groups within or outside the

executive tasked with evaluating ministerial or agency legislation or should we opt for

more parliamentary scrutiny in passing and reviewing the implementation of legislation?

Answers to these questions raise identity prerogatives for the executive and parliament.

Should we opt for the executive structures in determining the “value” of legislation, we

risk the chance of removing the control to more remoteness and giving the executive

powers of competence-competence. In this context, taking into account the move of

power from the legislature to the executive, regulatory agencies and ever increasing

judicial review, perhaps it is time to give something back to the “law-makers”. Whereas

the parliament does no longer control the units of legislation produced by the executive it

can at least provide evaluation for them.

B. Constitution Making and Public Participation

Access to law is an essential element of any state governed by the rule of law.

Apart from the traditional means of publicizing the law such as “official gazettes”,

information technology is now extensively used to enable wide-ranging possibilities for

electronic access to legal texts. Public participation should not be taken to mean voting,

as for example electing a constitutional convention or ratifying a constitutional text by a

57

referendum. At its best, participatory constitutionalism works and counteracts the

arguments in support of elite negotiation as the sole effective model.

During the process of drafting the Albanian Constitution, 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.77

Despite the practice of a participatory lawmaking process that characterized the

Constitution making process, the supreme law of the country does not contain a single

provision for the public access in the lawmaking process. The process of drafting the

Constitution took into account the need for a wide participatory approach in order to best

exploit the resources of local and international NGOs, and reflect the perspectives of the

local experts and of the public in a more general tone.

The Administrative Center for the Coordination of Assistance and Public

Participation (ACCAPP), a joint initiative of ABA/CEELI, GTZ, and OSCE, served as a

liaison between and among Albanian and international participants in the constitutional

drafting process; ensuring that all interested parties had the opportunity to participate

fully and to avoid duplicative and conflicting initiatives; soliciting assistance from

Albanian NGOs and international donors to provide materials, training, and financial

assistance; working with NGOs and international donors to develop strategies for

organizing assistance and promoting public participation in the constitutional drafting

77 Günter Frankenberg, notes from The Three Powers Symposium On the Constitution-making in Albania,

May 13-15, 1998.

58

process; and reporting on these activities, in English and Albanian, on a regular basis to

ensure increased coordination. 78

The Albanian institutions along with ACCAPP worked together to implement a

national program of public participation. The program consisted of two phases, to collect

input into the drafting of the Constitution and to submit draft provisions to the public for

comment. Phase I of the plan consisted of more than a dozen fora and symposia at which

constitutional issues were discussed and public input gathered. The results of these fora

provided Commission members and its technical staff with a basic outline of the issues

that the public considered important. Phase II consisted of a broad-based review of the 5

August text by individuals and organizations within and outside of Albania. This public

review was in addition to the drafting consultations provided by foreign experts.

Throughout all phases of the drafting process, foreign constitutional experts were

consulted for an independent analysis of the technical substance of the various

provisions.79

Although the Constitution drafting project involved input gathering in a national

scale it didn’t provide answers to the methodologies adopted to filter the information

gathered from the public participation into the drafting. The problem was threefold. One

78 Scott Carls on & Molly Inman, Forging a Democratic Constitution: Transparency and Participation in the

1998 Albanian Constitutional Process, available at

http://www.abanet.org/ceeli/about/staffarticles/carlson_inman_2004.pdf#search='legal%20process%20albania'. In the

fall of 2003, the US Institute of Peace in cooperation with the UNDP organized series of workshops with experts on

constitution making practices. I was invited to participate as a country expert in the workshop of the Constitution

making in Albania. In the workshop we discussed the findings of Scot Carlson’s paper, as well as debated on the

legitimacy questions of public participation and the politicization of the Constitution making process.

79 Id.

59

was the relation of the political class to the final outcome. The second was the role of the

international community to legitimize the whole project, and the third was the relation of

selected expertise and the opinions supposedly generated in town hall meetings. Despite

that this exercise formally introduced the concept of the general public as a participant to

the legislative process and constituted a break from the established mentality of closed

doors working groups, it makes for the valid argument that by having an open process

without adequate methodological framework and proper safeguards does not guarantee

that what the public thinks will eventually end up in the final draft.80

The legal framework establishes virtually no formal opportunities for public

participation in governmental and parliamentary decision-making.81 The relationship

between the government, NGOs, and the public is a complicated one. Because of the lack

of procedures for incorporating public input, relations between the government and the

public and NGO community depend heavily on the goodwill of governmental officials.

The predominant attitude among government and parliamentary officials is that public

participation hinders the lawmaking process instead of improving it. Moreover, public

80 Frankenberg’s article Stranger than Paradise, provides an example of a typical working group, 2-3 local

experts and a foreign consultant, tasked with drafting a major law, such as the Administrative Procedure

Code. This practice until early 2000 was well trenched in the set up and proceedings of the working groups.

81 Law no. 9000, dated 30/01/2003 “On the Organization and Functioning of the Council of Ministers”.

Article 24 of the law provides:

1. The initiators send the draft acts along with an explanatory memo on the goal, objectives and the

substance of the draft act for opinion to the interested ministries and other institutions.

2. In any case, the draft acts, with the exception of those with an individual character, are sent for

opinion to the Ministry of Justice, on the legality of their form and substance.

60

administration tends to show interest in public participation in the lawmaking and policy

preparations process only when it expects that the public will approve of their intended

decisions.

The law on the Council of Ministers, the following regulations and the

Parliamentary commissions do not prohibit the participation of other experts in the

drafting process, but in the absence of an explicit provision, the right to invite outside

experts is left in the discretion of the chairperson of the legislative working groups. There

is a contradiction in the proceedings of the working groups. When a particular law is part

of a legal reform project, the project experts have rather a strong voice in the proceedings

and in the final outcome of the law. However, if an interested NGO, or a concerned

community were to ask to participate in some of the meetings of the working groups, the

decision to invite or not would be the chairperson’s alone. Taking into consideration the

past practices of lawmaking, the need for public consultations should be explicitly

provided in the law rather than left to the discretion of the administration. The only direct

participation by the public in public life consists in electing representatives to the

Parliament

C. Albanian Perspectives on Public Participation

According to Fuller, non-publication of law, contradictory rules, and a gap

between law and implementation are among the elements that contribute to failing to

make law. 82 In the context of implementation, well designed institutions are not the only

answer, since the best institutions will fail in making law effective unless both officials

82 L.L. FULLER, THE MORALITY OF LAW (New Haven: Yale University Press, 1964).

61

and citizens display general attitudes of respect and compliance, unless, that is, they have

a view of legal rules as binding.

Every single report on Albania evidences the relatively sound legal base, and the

drastic lack of implementation. There are several factors that contribute to the failure of

law, starting from socio-anthropological arguments on the attitude of Mediterranean

populations towards formalized rules, lack of clarity in adopted legislation, lack of

administrative capacities and resources and the lack of political will to implement

reforms and recommendations of the international community. The “production” of laws

has negatively influenced their quality vis-á-vis clarity and precision. Legislative

problems are universal problems; they should be dealt with in a multidisciplinary way,

they have a theoretical as well as a practical dimension.

The legislative loophole in the Albanian legislation regarding the participation in

the lawmaking process has contributed to minimal initiatives to get the public to

participate in the legislative drafting process throughout the years. Adding to the

confusion, it has also led to inadequate publicizing of draft laws and poorly developed

media contacts that would allow the process to be open to the public, not mentioning the

failure to publish adopted law and by laws. With the exception of some isolated cases,83

the public generally has not played an active part in the process of legislative drafting.

83 Cited from the OSCE Legal Sector Report: Albania (2004). For example, public participation in

discussions related to legislation package on NFO-s, draft laws on environmental issues (which reflects the

obligation required by the “Convention on Access to Information, Public Participation in Decision-Making

and Access to Justice in Environmental Matters”, signed in Aarhus, Denmark on 25 June 1998 and entered

into force on 30 October 2001, ratified by Albania on 27 June 2001).

62

This has sometimes led to allegations that enacted laws have lacked sufficient

transparency and were predestined not to be implemented.

In order to open this process and ensure that the public has a voice in the process

of drafting legislation the executive should and in some sporadic cases has started

working to provide proper conditions to achieve participation, especially through the

open invitations via such simple mass media as internet. The lack of a clear obligation set

by law cannot constitute an excuse for not having interested groups play an active role in

drafting legislation. Developing the necessary legal standards for determining when

public participation is required and educating the public about the importance of public

participation in legislative drafting are of primary importance because it would improve

the quality of the laws eventually adopted. In the words of Vivien Hart “[t]he context of a

traditional constitution, presumed to stand above and to structure democratic politics, the

extension of democratic process to include free, open, and responsive discussion of the

constitutional settlement itself represents a radical departure, but one that attempts to

overcome the problems of entry of new participants and of an equal voice for all

concerned regardless of their expertise.”84 It would also encourage citizens to participate

in the various associations that would be involved in the process of commenting on

legislation, thereby instilling important civic virtues.85

Innovative ways to bring about great participation are usually commendable, but

when in shortage, valuable tools can be used from other practices. Comparisons with the

84 See Vivien Hart, Democratic Constitution Making, Special Report, United States Institute of Peace 107

(2003).

85 OSCE Legal Sector Report: Albania (2004).

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U.S. notice and comment practices can thus be a starting point. In order to make these

methods work efficiently in practice, there must be proper methodological mechanisms

guaranteeing sufficient and real participation. The most important ones are the

dissemination of information (public notice of and access to the latest drafts, either

through the production and publication of information leaflets or through media and

internet coverage), the creation of concrete possibility of organizations and interested

parties to comment on existing draft laws at various stages, and ensuring that hearings are

held at a time and in a manner that it is truly possible for comments to be evaluated and

the final decisions to be influenced.86

It should be stressed that these are not simply matters of ensuring citizen rights,

though they do enhance democratic principles. By allowing sufficient participation in the

drafting process, the public administration can avoid considerable amounts of criticism

after laws have been passed. Participation also ensures the anticipation of a wider range

of potential problems with the draft laws, thus lessening the need to amend legislation at

a later stage.

Despite the criticism of participatory like arrangements and their shortcomings in

lawmaking procedures, the situations that I analyzed earlier in the paper indicate an

urgent need to reform the reform. Extracting the legislative process from the incubator to

a more open and mature environment cannot but bring healthier products.

86 Id.

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CONCLUSIONS

The co-existence of parallel processes in the modernization project,

transformation with deliberation, formalism and informalism, legality and legitimacy, is

nothing new, but what is daily experienced in most of the transitioning societies. The

relationship of local based values with prescription from the center is subject to a

legitimacy test. In other words, when cooking the legal harmonization the local product

that supposedly is to change will find itself in the final meal, either as a proud ingredient

or mutating the meal altogether.87 Therefore, how law is made does matter. It matters

whether groups and the population at large are able to contribute to the process.88 A claim

of necessity for participation is based on the assumption that the outcomes will have the

legitimacy as coming from the right way of channeling the political power that resides in

individuals. Thus participation has the potential, although not exclusive, to become a

criterion of a legitimate process. Lawmaking can no longer be confined exclusively to the

domain of "high politics" and negotiations among elites, what need to be avoided is

exactly the tendency to favor legality over legitimacy.

87 Glyn Morgan, THE IDEA OF A EUROPEAN SUPERSTATE: PUBLIC JUSTIFICATION AND EUROPEAN INTEGRATION (2005). 88 See Galligan, supra note 13, at 23.