27.05.2020

“Waiting the Decision from the Constitutional Court”

Author of the Editorial: Ehat Miftaraj, Executive Director, Kosovo Law Institute (KLI)

Once more, the Constitutional Court is becoming a topic for the political debates of the political and institutional leaders. In recent months, this Court again is subject to external pressure and interference from the political and institutional actors, concerning the constitutional review of the President’s Decree for the nomination of the candidate for the position of the Prime Minister. For this topic, in Tuesday's Saloons organized by Democracy for Development, panelists from legal academic field have discussed about aspects of Constitutional Court and the decision that will be taken in coming days. Panelists consider that it will be difficult for this Court to correct the precedent dating from 2014, and that the Constitutional Court during the decision-making cannot come up with a new constitutional norm, because the Court’s task is to only interpret the President’s Decree.

The 2014 verdict, in the case of VLAN (coalition formed from Vetëvendosje, LDK, AAK, NISMA), according to them, was a procedural decision, which does not favorize those losing the elections, but instead safeguards the constitutional standards. The Judgment clearly defines who the winners are and who lost the elections and hence stems the right of the winner of the elections to form the institutions at the central level. It remains to be seen whether with the new Judgment the Constitutional Court shall safeguard or change this practice, and if there will also be a change in the so far practice in which the Constitutional Court found solutions to the political problems.  

Kosovo in its Constitution has installed a consociational democracy, which is a direct influence from the international community during the process of the drafting of the Declaration of independence and of the Constitution of Kosovo. Also, due to the lack political and pluralistic tradition in Kosovo, a practice has been established that political problems are solved using the constitutional mechanisms. According to this viewpoint of the panelists, the main problem that the Constitutional Court shall face in relation to the President’s Decree is not what the Constitution says, or which shall be the constitutional solution, but the precedent dating from 2014. This Adjudication has developed several levels for Government formation and for President’s competencies. On the other hand, the Constitutional Court in the past often times has been blamed for going beyond its limits with the issued Judgments. This mainly due to the fact that the political elites in Kosovo are not emancipated, and that they do not understand the foundations of the democracy, as well as the Constitution. It is for this reason that the Court was aggressive in its behavior due to the polemics it caused in relation to the setting of norms in the institutional life. The politicians used this approach from the Constitutional Court for their own interests.  

The most disputed matter in public between the political parties and the public opinion is connected to the fact that if following the successful no-confidence vote, the country will have elections or continue with the forming of the new Government. This means, if Article 82.2 of the Constitution is going to be implemented and the Assembly shall be dissolved, or if Article 95 of the Constitution shall be implemented, which is connected to the President’s exercise of discretion for the formation of the Government without having any elections; or the circumvention from the President of the winning political party from forming the Government. According to a view, based on the parliamentarian practice established from cases of successful no-confidence vote in 2017 and 2019, in no case Article 95 was implemented, instead the country went for elections by implementing the Article 82 of the Constitution. Another fact, according to this opinion of the panelists, is the deadline of 20 days for the winning party to send a proposal to the President for the new Prime Minister, but this deadline is not stipulated in the Constitution.  

The President, with the signing of the Decree undertook competencies which do not belong to his functions. The Decree is interpreting the Constitution, by leaving aside the 2014 Judgment of the Constitutional Court. This Judgment has established a precedent, according to which following the no-confidence vote, the country immediately goes to elections. The President’s approach is considered an abuse of power and disregard for the Constitutional Court. There was a consent that the Constitution does not provide for a legal time-frame for forming of the Government. The Assembly has to exercise bigger control with Acting Governments ensuring the fulfillment of legal obligations.  

The Constitutional Court has to play its constitutional role by interpreting the Constitution when scrutinizing the Decree issued by the President. The Constitutional Court should not serve as a constitutional mechanism for solving of political problems caused by the institutions or the political parties; whereas the leaders and the political parties have to recognize and have respect for the constitutional role of the Constitutional Court when interpreting the Constitution and thus ensuring the functionality of the institutions of the country, in accordance with the Constitution.

Video of the debate can be found here:

Friedrich-Ebert-Stiftung 
Kosovo

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10000 Prishtina
Republic of Kosovo

+383 (0) 38 600 108
info(at)fes-kosovo.org


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