In Its Place

Albania built independent institutions to keep politics out. Constitutional maturity requires those institutions to recognise the boundary in the other direction, too.

A Legal Desk editorial

“Secili institucion në vendin e vet.” Each institution in its place. The Prime Minister wrote it on Sunday, about a pay dispute, and the occasion was small enough that the sentence risks being filed with the day’s quarrels. It should not be. It states a principle Albania has needed to hear for some time, and it is worth taking seriously on its own terms, apart from who said it and why.

For a decade the country’s constitutional conversation has run in one direction. The problem to be solved was political control over courts and prosecutors, so the reform built walls: vetting, councils, a special prosecution, guarantees of tenure and pay. The vocabulary that grew up around those walls was the vocabulary of protection. Interference, pressure, capture. What the conversation rarely asked was the reverse question, which every constitutional order eventually has to ask: how the order itself is protected from institutions that exceed their competence. Rama’s sentence puts the reverse question from the top of the state.

Independence, properly understood, is protected competence. A court is independent so that no one may tell it how to judge. A prosecutor is independent in the exercise of the function so that political power may not dictate whom to charge. The councils that govern judges and prosecutors are constitutionally independent bodies so that careers and discipline stay out of political hands. Each of these is a fenced space, and the fence is real. But the fence has an inside as well as an outside. Independence does not mean sovereignty. Judicial independence is not judicial self-government without limit. Prosecutorial independence carries no legislative power. Parliament’s legislative authority gives it no judicial power, and the executive, which executes the budget, cannot adjudicate what it owes. Everyone gets a protected space. Everyone also gets a boundary, and the boundary is what makes the space a constitutional one rather than a fiefdom.

The pay dispute is the occasion because it tests the boundary at its weakest point, which is failure. The Constitutional Court found in February that the 2023 formula had hidden a cut in magistrates’ pay, struck it, and obliged parliament to legislate by 31 July. Parliament did not. Two councils then set the reference salary themselves, treating parliament’s failure to legislate as permitting them to give operative effect to the judgment. The Treasury declined to pay on that basis. Everything else in the affair, the letters, the associations’ statements, the ministerial explanations, is detail.

The principle underneath is simple to state. A power unused does not migrate. Parliament may neglect a constitutional obligation. An executive may dislike a judicial decision. A council may regard the legislature’s inaction as intolerable and may be right to. None of those facts transfers competence from the body that holds it to the body that resents its absence. Constitutional government would be impossible if it did, because every institution believes, sincerely and often correctly, that some other institution has failed. The Constitution provides remedies for institutional failure. It does not provide for the migration of competence.

Here is where Rama’s sentence stops being partisan and starts being interesting. Every successful reform of this kind meets an inverse problem. Institutions built to withstand political pressure can eventually come to experience ordinary constitutional limits as political pressure. The language of independence then performs a subtle transformation: a guarantee against interference becomes an argument against restraint. At that point, defending an institution’s independence and defending constitutional government are no longer necessarily the same thing. A mature constitutional order must be capable of telling the difference.

That is the maturity test for Albania’s post-reform state. The first test was whether its new institutions could resist interference. The next is whether they can accept limits as readily as they demand independence. The rule cannot be that institutions stay in their place only when the place suits them. The whole constitutional bargain is that the boundary holds precisely when crossing it would be useful.

(this editorial is approved for publication by Renada Bici, chief legal analyst of the Tirana Examiner)