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Let the king have fun/ Let the king have fun

2026-09-18 11:30:18Pikëpamje SHKRUAR NGA ARDIT KUKA

Let the king have fun/ Let the king have fun

Who is Ardit?

Thursday. Sunny day. Date 17 September 2026. Parliament of the Republic of Albania. Plenary session. The draft law submitted by two initiators of the law “On the status of judges and prosecutors”, which affects the salary of magistrates, is being discussed. The debate essentially concerns the implementation of the Constitutional Court Decision no. 15/2026 on the inviolability of the salary of judges and prosecutors. The day was not enough, the vote was held during the evening, as night work is done. The law entered into force immediately, which means that the President has given his consent for the immediate effect of a law that is approved by a qualified majority.

Despite my obligation to respect the ethics of the magistrate, which I will try to maintain to the maximum in these few lines, forgive me if there is a little excess, because this cannot contain the irritation that is caused when the decisions of the Constitutional Court are not respected. Consider it as a temporary overflow of the river. Not like the furious overflows of the Drini or Vjosa, which are difficult to return to their old state, but like the rare and light overflows of the Shkumbin River.

There is no excuse. I will try to bring it with a little humor or satire, call it what you will, and in words that are as understandable to you, the general public, as an author skillfully expressed: “The great Court of Appeal called Society”. Today, you are the judge. Satire, which seemingly creates the illusion of humor, in fact has anger, disappointment and all the other words that describe human pity. As Friedrich Nietzsche once said, “Man suffers so much that he had to invent laughter”.  

The parliament is the largest public forum of any Western democratic state. The names are different and sometimes similar to the Latin root “parliament”, “parlement”, “parlamento”, “skupstina”, which means “where it is spoken”. In Albanian, “kuvend” sounds so beautiful, where the elite, the elders, today the representatives of the people: the deputies, gather and discuss their opinions. Conceived as a “temple of public debate”, for several years now, it can hardly be considered such. There is no comparison with the parliament of 1920-1924 or 1992-1996, where intellectuals shone with the greatness of the power of their speech. Today, you hear more political debate in the neighborhood than in the Albanian Parliament. Every now and then you hear a deputy take the floor and give a lecture. It seems a luxury to speak the Albanian language cleanly, clearly and without mistakes. The vast majority simply pick up the cardboard.

The British philosopher of law John Locke stated that there are two powers of the state. A few decades later, Montesquieu proposed the idea that there are three powers: the legislative, the executive and the judicial. The French philosopher reasoned very logically that man is by nature arbitrary and the concentration of power in a single person creates a tendency towards arbitrariness. Therefore, these powers are separate. Montesquieu's ideas took hold. They were initially applied in the USA and then in Western Europe. When you see the Albanian legislator, it is difficult to accept Montesquieu's theory, to make a distinction between the legislative and the executive powers. What can you think of a hall where there is no debate? With humor, a magistrate of the court of appeal mentioned in the general meeting, "the judicial power" and "the other power", without making a distinction between the legislative and the executive. Because it is useless to delve into them, they seem one.

While discussing one of the hottest issues of recent days, I would go further, of recent decades: respect for the principle of the rule of law, respect for the principle of the separation of powers, respect for the independence of the judiciary, respect for and obligation to implement the instance that guarantees the preservation of the constitutional order - the Constitutional Court, it seemed like an ordinary plenary session. All of Chapter I of the Constitution - the fundamental principles, in what is called the "constitutional core". Nothing of importance for the honorable deputies. Nothing to be confused about.

The honorable deputies and representatives of the executive rushed to alarm public opinion that the Albanian Parliament is the sovereign, that it has interfered with its jurisdiction. Today's Parliament resembles the banned drama in 1832 titled "The King Amuses" (Le roi s`amuse) by Hugo. The drama, in short, has a character, the king, the absolute sovereign. Known in the royal court as a "womanizer", the king seeks to have fun. He travels from one neighborhood to another to look for young girls. While for the king it is simply entertainment, for the other characters their fate is at stake. His entertainment is a tragedy for others. This is exactly what the Parliament did today, while the approval of laws may seem like entertainment, the fate of Albanian magistrates and taxpayers is being discussed.

The Assembly looks like Penelope, not the majestic Homeric one, but the Black Penelope, who spins good laws by day and undoes them by night. She does not wait for Ulysses to save her along with Ithaca. The Justice Reform Laws, adopted with great difficulty in 2016, began to be undone, starting with the salary. Step by step 2021, 2023 and now in 2026, doing the opposite of what the Constitutional Court reasoned in its jurisprudence.

The Constitutional Court repealed the relevant article of the law, which affected the magistrate's reference salary. It did this several times in 2021, 2023 and most recently in 2026. The Constitutional Court said “no”. The reference to the President's salary is also not fair, because being a “fixed salary”, which very rarely undergoes an increase, it essentially constitutes a hidden decrease. The Assembly did not reflect, did not reason, but behaved angrily, sending the law with the same salary reference: to the President. This time the soldier shot himself in the foot. In short, it essentially approved the same law.

Representatives of the executive branch, but also analysts in the visual and written media rushed to proclaim that “the Assembly is the sovereign”, “Judges are setting their own salaries”. “The courts have exceeded their competences”. In fact, Article 2/1 of the Constitution expressly provides that “Sovereignty in the Republic of Albania belongs to the people”. So much has been said and said by Jean-Jacques Rousseau, that it is difficult for the great and the small, the educated and the uneducated, the drunk or the sober person to forget it. This sovereignty is exercised through the representatives of the people, who are the deputies of the Assembly, in what we call representative democracy. In rare cases, it is realized directly through a referendum. In 1998, the Albanian people approved the Constitution by referendum, defining the constitutional institutions and their competences: the Assembly, the President, the Constitutional Court, etc. From this point of view, the sovereign has authorized the separation and control of powers. The legislative branch adopts laws. The executive branch ensures the implementation of laws. The judicial branch delivers justice by implementing laws. The Constitutional Court checks the compatibility of parliamentary laws with the fundamental law of the state.

No one has questioned the legitimacy of the Assembly, its right to adopt laws. The emphasis is on the implementation of the Constitution, the principle of constitutionality, the exercise of the power to adopt laws within the limits of constitutionality. Respect for the Constitution as the fundamental law of the state. Respect for the rule of law, sanctioned in Article 4/1 of the Constitution “The law constitutes the basis and limits of the activity of the state”. This means that the laws of the Parliament must be in accordance with the Constitution, as the fundamental law has been understood and interpreted in a definitive manner by the Constitutional Court. The discretion of the Assembly to amend the law on magistrates is limited within the contours established by the Constitutional Court. Without wanting to dwell on it, laws were also adopted by the Hitler regime, laws were also adopted in the communist regimes. The crimes of the Holocaust were formally committed with laws. In order to keep parliament on the track of constitutionality, since the 1920s and then widely after the experience of World War II, Western democratic countries, embracing Kelsenian theory, created the institution of the constitutional court, as the guardian of the Constitution. Laws that contradict the fundamental law are repealed by the Constitutional Court. I wanted to point this out, because I read an article by a journalist these days. Despite its name, the Constitutional Court is not part of the judicial system, that is, it is outside the three-tier system of judicial power. Legal theorists consider it a “special institution” (sui generis). I felt it necessary to clarify this issue, because it is perceived as if the judiciary has brought grist to the mill of the judiciary, as if the judiciary has increased its salary.

We are not in the 18th century, where the “principle of the supremacy of parliament” against the power of the king had to be affirmed in England. We are not even in the time of the Jacobin assembly regime. We are in the era of the rule of law, where the principle of the supremacy of the Constitution over all other normative acts, including laws passed by parliament (the principle of constitutionality) operates. No one is above the Constitution, not even the Assembly itself.

The issue of magistrates' salaries has not been just an Albanian issue. The Constitutional Court of Slovenia in 2023 noted that the salary of judges in this country was 1.5 times the average salary in the country, while in the European Union the average was 2.3 times the average salary at the national level. The Court emphasized that "The salary should be such that it does not discourage legal professionals from becoming judges" (Decision no. 772/21-2023)

With Decision No. 15/2026, the Constitutional Court asked the Assembly to respect the salary category recognized in 2016, reminding it that Article 138 of the Constitution does not allow for a reduction in the salary of judges. The Constitutional Court went further. Neither an open nor a secret reduction in salary is allowed. The Constitution stipulates that the interpretation made by the Constitutional Court is final. The legislature must enforce what has been decided by this court. This decision was not a small battle for the parliament. It was Napoleon at Waterloo: the final defeat. This decision is now a cornerstone in constitutional jurisprudence, regarding the independence of the judiciary. The new law looks like a “100-day Napoleonic adventure”, because most likely the magistrates’ associations will seek its unconstitutionality in the Constitutional Court. There is nothing chimerical. This law will be short-lived. It will be one of the simplest cases for the Constitutional Court in its history, because it will find that it has before it the same law, the same constitutional violation. This time, not just a violation, but a mockery, a mockery, a disregard for the constitution. It only remains to emphasize that the matter is a matter of judgment, to toughen the tone, recalling the obligation that the Constitution imposes on all institutions to respect its decisions, including the legislator.   

A few years ago, I read an interesting book by the American author “Michael Gerhardt” entitled “The Power of Precedent”. The author proudly emphasized that since the creation of the Supreme Court in the 1800s and until the year when this book was written (2007), in its entire history, the American Congress had only 4 (four) times failed to respect the precedents set by this supreme court. In all of these cases, the Constitution had been revised. I do not have accurate statistics for our country on how many times the Assembly has failed to implement the decisions and guidelines of the Constitutional Court, but I can say with conviction that only the unconstitutionalities found in the law “On the Status of Judges and Prosecutors” have been 3 times so far: 2022, 2023 and 2026. The fourth and simplest will be the newly approved new law.

The Constitutional Court's reasoning in 65 pages, which cites that the salary should not be "frozen", that in determining the salary indicators such as inflation, price index, economic development, etc. should be taken into account, was crumpled into 2 pages of the draft law. The legislator was content with increasing the coefficient for the salary of magistrates from 0.36 to 0.38, but without changing the reference. This action brings to mind that small child, who rolls over on the floor and hits his feet and hands. When the adult approaches him and asks him "Why are you crying?". He answers briefly: "I don't want to". He does not reason, does not reflect, he simply acts. Emotion overcomes reason.

The legislative scenario resembles the novel "The Adversary" by author Emmanuel Carrère. The main character Romandi, had lost his wife, children and parents. He attempts suicide, but fails. Later he discovers that he was not a doctor. He had been lying for 18 years. Because he could not bear their gaze, on the eve of the discovery of this great lie, he decided to eliminate those whose gaze he could not bear. The Adversary was precisely himself.

*Judge


Në përputhje me standarded JTI

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