The Lawmaker’s Chair

On Wednesday Albania’s judiciary set its own pay. No grievance in the file confers that power, and the file was checked.

By Renada Bici, Legal Desk

On Wednesday the High Judicial Council seized a competence of parliament. That is the precise description of what happened in the Council’s chamber, and the rest of this piece exists to establish it against the best arguments available to the contrary, because those arguments will be made, some of them in good faith, and they deserve to be beaten rather than ignored.

The act itself first. By nine votes to none, two of its eleven members absent, the Council fixed the reference salary of every judge in the country at 222,425 lekë a month, up from 156,825, attached the 14,000 lekë qualification supplement, set an effective date of 1 August, and ordered the budget offices of the courts to compute retroactive differences for the forty months from 1 April 2023 to 31 July 2026, a liability that runs, on the magistrates’ associations’ own annual figure extended across the period, to the order of 12 billion lekë. Pay levels for magistrates have sat in statute at every stage since the justice reform wrote them into Law 96/2016. The Council’s own functions around that pay, on the record of the constitutional case itself, are administrative and consultative: its offices calculate salaries under the statute, it proposes and administers the judiciary’s budget, and it gives opinions on draft salary laws, which is exactly the role it played in 2023 when the government’s bill came to it for comment. Nowhere in that architecture does an organ of eleven appear with the power to fix the figure. The Council’s own account confirms the void: in Wednesday’s session the decision was grounded on the reasoning of the Constitutional Court’s judgment, with one member arguing that the Court’s conclusions bind every institution, the Council included. A judgment’s reasoning is authority for what the law is, and in no legal order is it an enabling provision; the Council named no other. “With an unprecedented act,” said Gazment Bardhi, the Democratic Party’s group leader, “the judicial system, through the High Judicial Council, has set its own salary, assuming competences that belong to the lawmaker.” On the point of competence he is simply correct, and the point of competence is the entire constitutional question. What judges are owed is a matter of judgment and law. Who may say so is the architecture of the state.

Look at what the decision does, as a legal object. It fixes a figure. It attaches a supplement. It sets an effective date. It creates a forty-month liability that no budget law has appropriated, in a system whose budget law forbids the Treasury to execute payments above appropriated funds. Each of those is a normative operation. Together they are a payroll statute in everything but the organ that adopted it, and the organ that adopted it is the beneficiary’s own governing council. Administering an existing legal state looks like none of this. The Council enacted one.

Its position in the underlying litigation compounds the problem. The Council appeared before the Constitutional Court in the salary case as an interested subject arguing for the petition, and the judgment it now executes is a judgment it advocated. The Constitutional Court, when the government sought the recusal of two of its own judges from the case, answered with the necessity principle, borrowed from the American doctrine of United States v. Will: someone must be able to judge the constitutionality of judicial pay, or the political branches would cut it without review. The answer is sound and it is narrow. Necessity compels a bench, because no alternative bench exists. It compels nothing about enactment, because the enacting organ exists, sits across the capital, and was served with a reasoned judgment, five months of lead time and a deadline. A parliament unwilling is not a parliament absent, and even the necessity Court split: the February judgment passed by majority and accepted the petition only in part. So the question Wednesday must answer is not whether judges may govern judges. It is where, in any text of the Republic, a governing council obtains the power to create a monetary entitlement. No answer has been produced, because none exists.

Now the defense, because it is genuinely strong and the Council’s supporters will bring it. The file behind Wednesday is a documented history of legislative bad faith toward judicial pay, and nobody who has read it could pretend otherwise. The 2016 formula was misapplied from its first day, until a state audit ordered correction with back pay. Parliament answered by codifying the erroneous lower figure in Law 50/2021. The Constitutional Court struck that as a hidden cut in decision 35/2022. Parliament answered again, on 25 May 2023, by passing twin laws in one sitting, one pegging judges’ pay to 0.36 of the President’s salary, the other raising the President’s salary from 257,000 to 425,000 lekë, while the administration’s wages rose around forty percent by government decision six days later. The product of the new coefficient exceeded the constitutionally protected standard by 570 lekë, which the state’s own representatives told the Court was a rounding effect and not an intended increase. In February the Court struck this too, as a targeted freeze and a hidden reduction under Article 138, gave the Kuvend until 31 July to legislate on stated criteria, and in its reasoning described the basis of calculation that would apply on inaction. The Kuvend, with a coefficient proposal from two of its own deputies already public, voted on nothing and let the deadline die.

All of it true. None of it transfers a competence. The wrong done to the judges was real, adjudicated, and won, twice, before the organ entitled to say so. What the record supplies is motive, and motive is what every institutional self-aggrandizement in history has worn as its costume. The doctrine that an injured institution may exercise the powers of the institution that injured it appears in no constitution, because it is the end of constitutions. Grievance ripens into a judgment. It does not ripen into jurisdiction.

Watch how far Wednesday travels beyond the judgment it invokes. The operative part of the February decision contains five points. It partially accepts the petition. It strikes the first sentence of the salary formula and the retroactive transitional provision. It places the Kuvend under an obligation to adopt the necessary legal changes, in line with the judgment’s reasoning, by 31 July 2026. It defers the abrogation’s effects to the entry into force of those changes, and in any case no later than 31 July. And it declares itself final. That is the whole of it. No point enacts a salary formula. No point names an organ authorized to calculate one. The only institution the dispositive obligates, and it obligates it twice, is parliament. On the money for the past the Court was more specific still: the financial effects of the new law were to run from 1 April 2023, through a reasonable adjustment scheme for the back payments. A council can weigh reasonableness; any administrative body can. What no body can administer is a scheme that does not exist, and the Court created none. It required parliament to create one, inside the new law. The associations’ claim of a directly applicable formula after 1 August leans on the judgment’s reasoning, where the Court described the legal state that revives once the struck provision falls, and as a reading of the prospective salary it is at least arguable. For the arrears it has nothing to lean on: there was no scheme to apply, only a scheme to be written, by parliament. On Wednesday the Council ordered the computation of the retroactive liability whole, no scheme, no filter, and no statute behind any of it. Filling a gap the judgment left would have been one thing. Wednesday overrode a mechanism the judgment built.

Wednesday’s own terms betray the act’s nature twice more. First, its scope: the decision covers judges only. Prosecutors and judicial police officers, magistrates under the same status law, protected by the same judgment, received nothing, because their council was on holiday. An act executing a court ruling takes the ruling’s scope. This act took the scope of the body’s own jurisdiction, which is what power does and law does not. Second, its path: other roads stood open on 1 August, and each led through an organ entitled to speak. The Council could have petitioned the Constitutional Court on the execution of its own judgment and obtained an authoritative answer to exactly the question Bardhi now raises. It could have raised a dispute of competences, the procedure the Constitution provides for this deadlock by name. It could have paid August under the old figures, published the state’s default in every court bulletin in the country, and let the political cost land where it belonged. It chose the one road that required no other institution’s signature. Speed is what was gained. Competence is what was taken.

And the taking, not the money, is the durable damage. The sum involved is large; the template is larger. Every independent institution in the Republic now has it on file: secure a favorable judgment, wait out the deadline you expect the Kuvend to miss, declare the judgment self-executing through your own governing organ, and adopt the figure yourself, arrears included. SPAK has already asked for a police force of its own to arrest citizens; that request at least awaited someone else’s yes. Wednesday supplied the finished form, an institution paying itself, and dressed it in the best legal record any future imitator could hope to hold. The next council to try this will cite a worse file and the same precedent.

What follows from the diagnosis is short. Wednesday’s act should go where acts of contested competence go, before the Constitutional Court, brought by the government or the Kuvend, not because the answer is in doubt on this desk but because only that Court’s answer binds every institution in the Republic, and not to strip the judges of a lekë the February judgment owes them but to establish that no organ, however provoked, legislates its own pay. Parliament should then perform, at last, the single duty every actor in this story agrees it holds: pass the salary law on the Court’s criteria, in genuine consultation, and carry the arrears into the 2027 budget through precisely the instrument the February judgment prescribed, a reasonable adjustment scheme, adopted by statute, as an appropriated, voted, public figure, with the associations’ own arithmetic, which points to a liability on the order of 12 billion lekë, finally tested against a published method rather than a council instruction. The judges would then hold everything the Constitution promises them, delivered by the organ the Constitution names, which is the only form in which a constitutional promise exists.

The February judgment quoted Hamilton’s warning through the American case law: a power over a man’s subsistence amounts to a power over his will. It aimed the sentence at governments that discipline judges through their pay, and eight years of Albanian practice earned the aim. But turn the sentence around and read it facing the other direction. An institution that holds its own subsistence in its own hands has placed its will beyond every check the Constitution built, and it reached that position by taking a chair nobody offered. Parliament’s conduct in this file is a scandal, and scandals can be voted out, struck down, repaired. What the Council did on Wednesday is a precedent. Precedents are what remain when the scandals that produced them are forgotten, and this one now waits, fully formed, for the first institution shameless enough to cite it.

Renada Bici is a Tirana-based lawyer practicing in civil, criminal, and administrative law. She holds a law degree from the University of Tirana and has experience in both private legal practice and public administration. She writes for the Tirana Examiner Legal Desk.