Who Taught Them That?

The Constitution did not create a power above the powers. A decade of guardianship around the justice reform helped produce one, and on Thursday 271 judges invited its foreign guardians to enforce the result.

By Albatros Rexhaj (Tirana)

The General Meeting of Judges met at ten on Thursday morning and by early afternoon had a declaration of fourteen demands. Most go where a constitutional dispute goes: to the Treasury, the ministry, parliament, the President. The twelfth is addressed to nobody in Albania. It undertakes to raise the matter with “the European Commission, other international instances, as well as foreign diplomatic missions engaged in supporting and monitoring the building of the rule of law and the justice reform in Albania.”

Missions. Engaged in monitoring. The 271 signatories know the second article of their Constitution, under which sovereignty belongs to the people and is exercised through the people’s representatives or directly. When parliament and government refused the judiciary’s reading of its own powers, they named the embassies as a further place from which that refusal might be overcome. So who taught them?

On Sunday the Prime Minister wrote that every institution belongs in its place and that no one opens the Treasury door alone. On Tuesday the court presidents met and sent a criminal complaint to SPAK against the Finance Minister and the treasury officials who had followed his instruction. On Thursday the General Meeting closed its declaration with the Prime Minister’s own sentence, corrected: the judiciary asks only “that each power exercise its own competences, respect the limits of the other, and obey the final decisions of constitutional justice.” Somewhere in those five days the salary itself, a Council decision taken after parliament missed a Constitutional Court deadline, and one our Legal Desk finds outside the Council’s competence, had stopped being the subject. What was left was a claim about who may tell whom where their constitutional place is, with the embassies waiting offstage.

There is a Judge Dredd tendency in this, and the uniform is the least of it. The judge stops understanding himself as one constitutional power among others and starts understanding himself as the custodian of legality above them, so that when another branch exercises a competence of its own he experiences it as obstruction. Nobody wrote that instinct into the 2016 amendments.

What the amendments did write in, at Albania’s own request and for reasons the pre-2016 judiciary had supplied in abundance, was an annex creating the International Monitoring Operation: foreign observers, led by the European Commission, seated inside the vetting of judges and prosecutors, examining files and recommending outcomes. The EU Delegation described it in July 2016 as “a limited targeted role” and added that the international community “has never suggested having any executive power since it is essential for the Albanian authorities to keep full ownership.” The monitors were invited to watch a cleansing. In February 2022 the same Delegation and the US Embassy jointly urged all Members of Parliament to treat the constitutional extension of vetting as a matter of national interest and “vote accordingly.” Between those two dates, and since, parliament asked questions and queried budget lines, councils’ self-governance came under examination more than once, and often enough an ambassador found a microphone and the word “pressure” found a headline.

Foreign protection was supposed to make judges less dependent on domestic power. It also taught the institutions where to look when domestic power resisted them. The vocabulary did much of the teaching: scrutiny became “pressure,” political disagreement became a threat to independence, and diplomatic reassurance followed often enough for the sequence to become familiar. Thursday’s declaration shows how familiar.

If the missions step into this dispute on the judiciary’s side they will be doing something different from monitoring vetting; they will be taking a position on the allocation of constitutional power inside Albania, which their own 2016 statement said was not theirs to take. They helped create the expectation. What they do with it now is theirs to decide.

Parliament can settle the salary with a law. The belief behind the twelfth demand, that a judiciary answers to the people’s representatives when it agrees with them and otherwise to a jury of monitors the Constitution never appointed, will outlast the law. It was not in the annex. It was learned.

Albatros Rexhaj is an author, playwright, and analyst with a background in national security studies and nearly three decades of experience in political and security affairs.