Two Constitutional Court decisions have worsened Kosovo’s post-elections stalemate, and there’s no end in sight.
The aftermath of the June 8 elections has played out a bit like Kosovo’s version of Bush vs Gore in 2000 – the US Supreme Court decision that ultimately handed George Bush the presidency. The case, which concerned the counting of the ballots, remains divisive to this day – but for all the controversy surrounding it, it at least resulted in an unambiguous political outcome.
Kosovo hasn’t been so lucky. The highest court in the country, the Constitutional Court, in two rulings since the June 8 parliamentary elections has delayed the formation of a government and has injected further confusion into the process through interpretations of the constitution that have effectively put Kosovo’s political leaders up against a wall.
The decisions have given the outgoing ruling party, the Democratic Party of Kosovo, PDK, the advantage, by conceding that it has the right to be the first party to name a nominee Prime Minister, as well as the right to nominate a speaker of parliament – which is essential to parliament becoming functional.
The problem is that the PDK won only 30 percent of the vote in the elections and appears to lack the political support to make either of those things happen. This is because a coalition of other parties has a majority in parliament and is intent on keeping the PDK out of government.
Thus, while the PDK has the means to hold back the entire process, it lacks the ability to push it forward – unless it manages to get MPs or entire parties to defect, or a deal is reached with the opposition. Meanwhile, the PDK leader, Hashim Thaci, remains in power as caretaker Prime Minister with no clear end in sight – unless new elections are held, which analysts say might improve the position in parliament of the PDK.
“In the second decision, the essence of democracy is being infringed,” said Gjyljeta Mushkolaj, a University of Prishtina law professor who served on the Constitutional Court for three years and was part of the commission that drafted the constitution. “The main concept of the representational mandate of a deputy of parliament is being attacked.”
Mushkolaj said she was troubled that the majority apparently did not consider opinions from the Venice Commission, an off-shoot of the Council of Europe that analyzes issues of constitutional law, which Kosovo joined in June. “There are reports of the Venice Commission that are totally in contradiction with this decision,” she said.
Prishtina Insight spoke extensively with Mushkolaj and John Tunheim, a US District Court judge who also took part in the drafting of the constitution, as well as with several experts on Kosovo’s constitution who spoke off the record. This newspaper also commissioned an analysis from the Balkan Investigative Reporting Network’s legal advisor, Furtuna Sheremeti, who has worked on cases brought before the Constitutional Court.
Together, they paint a troubling picture of the recent decisions. They say the rulings have confused instead of clarified the issues, and have only prolonged a political crisis for the benefit of a political party, which had seemed about to be removed from power by democratic means.
One of the primary ideas behind the Kosovo Constitution was to make sure that there was an ability to create a functioning government at all times. John Tunheim
Prishtina Insight requested interviews with the judges themselves, but they declined. “No one is allowed to discuss or interpret the decisions of the Constitutional Court in public. They are final and binding!” court spokesman Veton Dula wrote in an email.
While the decisions themselves are final, because they come from the highest court in the country and because even critics stress the importance of respecting them — it appears unlikely that they will help resolve the political crisis.
Tunheim said the problem with the court rulings, which he characterized as sound legal decisions, is that they seem to miss the spirit of the constitution, which is designed to ensure the smooth formation and operation of government.
“It’s important when you look at the constitution in Kosovo, as one of the primary ideas behind it was to make sure that there was an ability to create a functioning government at all times and to try to stay away from long stalemates that would impact the ability of a government to act on behalf of the country,” Tunheim said in an interview given from Minnesota.
While Tunheim said he disagreed with the court’s specific interpretations of language in the constitution – such as defining the largest parliamentary group simply as the party or coalition that won most seats in the election – his main objection to its decisions is that they do not appear to be making it easier to form a government.
“The meaning of the words is secondary, in my view, to allowing groups that are willing to work together to create a government to try to reach the majority,” Tunheim said.
“If a party receiving the majority in the election can do that with coalition partners – great. That’s the way the system is supposed to work,” he added. “If they can’t, someone else has to do it because otherwise you’re not going to be able to govern.”
How we got here
The present problem is fundamentally political. In May, parliament was dissolved for early elections after MPs failed to reach agreements on key issues, including the formation of a national army and reserved seats for minorities.
The June 8 elections brought a new level of maturity to Kosovo’s young democracy. The widespread fraud seen in the 2010 election was reduced to isolated incidents, while Serbs across Kosovo went to the polls with support of leaders in Belgrade and the north. The campaign did not see many fresh ideas, however. The largest parties made almost indistinguishable promises about stimulating the economy, creating an unrealistic number of jobs and doing a better job overall.
As has been the case since 2001, when the first post-war parliamentary elections were held, no single party won a majority, thus necessitating the formation of a coalition government. The PDK, in power since 2008, came first with around 30 per cent of the votes, similar to its results in 2007 and 2010. While the PDK added several seats, winning 37 in total, it was dealt a blow when its former coalition partner, the New Kosovo Alliance, failed to meet the threshold to enter parliament, while at the same time a party led by former PDK leaders, NISMA, did so. At the same time, the two largest opposition parties, the Democratic League of Kosovo [LDK] and Levizja Vetevendosje [Self-Determination Movement], made modest gains.
No one expected former opposition parties to barricade themselves into an opposition bloc. It’s never been thought possible. Krenar Gashi
At the end of the day, the needle shifted slightly in favor of the opposition, but not as dramatically as some analysts had predicted, anticipating voter fatigue with the PDK. Ultimately, it was the politicians’ fatigue with Thaci and his PDK that was decisive. In the days following the elections, an unprecedented development occurred: the LDK, the Alliance for the Future of Kosovo [AAK], and NISMA banded together to prevent Thaci from getting a third mandate, instead backing former Prime Minister Ramush Haradinaj for the post. Vetevendosje then indicated that it might potentially back Haradinaj under certain conditions. This week Vetevendosje formally signed an agreement with LAN.
“No one expected former opposition parties to barricade themselves into an opposition bloc. It’s never been thought possible,” political analyst Krenar Gashi said.
With the opposition bloc holding 46 seats, and the PDK 37, a showdown emerged over whom President Atifete Jahjaga should nominate to form a government.
A public debate began over what the Constitution foresees happening in such a situation, which seemed to turn the entire country into a land of armchair constitutional lawyers, all picking apart two passages: 84.14 and 95.1.
Article 84.14 states that the President “appoints the candidate for Prime Minister… on the proposal of the political party or coalition holding the majority in the Assembly,” while 95.1 states: “After elections, the President… proposes to the Assembly a candidate for Prime Minister, in consultation with the political party or coalition that has won the majority in the Assembly necessary to establish the Government.”
The big question was whether this meant that the President had to nominate Thaci, whose party won the most seats in the assembly – but not a majority – or Haradinaj, whose post election-coalition mustered 47 MPs and enjoyed the potential backing of 16 more from Vetevendosje. There were murmurs that any nomination might bring a challenge in the Constitutional Court.
At this point, while the issue was hypothetical – the ink was barely dry on the elections results and parliament had yet to meet – President Jahjaga asked the court for advice. While much has been made about how the court interpreted the terms “majority” and “coalition,” Gjyljeta Mushkolaj, a former Constitutional Court judge who served on the committee that drafted the document, said the President made a mistake by consulting the court in the first place.
“We didn’t even have two parties; we just had one party asking questions to the Constitutional Court. The result of all this was that by submitting those questions to the Constitutional Court, the powers of the President of the Republic were limited then by the judgement,” Mushkolaj said.
In its July 1 ruling, the court decided that the President was constitutionally obliged to nominate a candidate offered by the party that won the most votes in the Assembly, which was the PDK. Only if that candidate failed to form a government would the President have some extra leeway concerning whom to nominate.
The court also concluded that post-election coalitions did not have any legal standing.
Mushkolaj said the ruling, in effect, weakened the president’s power by diminishing her role in proposing a nominee for Prime Minister.
An international lawyer with extensive constitutional experience in Kosovo was far blunter in criticism of the President.
“She should have made her own answer. It showed political immaturity,” the lawyer said. “If you’re going to run to the Constitutional Court on every occasion, you’re giving away the power to exercise your function. It infringes on the separation of powers.”
Judge Tunheim, from the US, said that while he disagreed with elements of the court’s ruling, he does not believe the President’s powers have been eroded. “The President does have significant authority to ensure that a government can be formed and that has to be done at some point in time in the process,” he said. “I don’t know that I see anything inconsistent about the first decision there.”
The President’s office did not respond to questions about why it solicited the court’s advice.
A former Kosovo government official who has worked closely with the President defended Jahjaga’s decision to consult the court.
“I believe that she did the right thing,” the former official said. “When there were two extreme interpretations about fundamental constitutional issues, it is understandable that she should request the opinion of the Constitutional Court. To have done otherwise would have potentially damaged her unifying role in the country. It is another matter whether or not the Court’s ruling favored a political party.”
While experts are split concerning the effects of the July 1 decision, its effects on the present political deadlock appear more limited than the controversy that arose a little more than two weeks later, when parliament convened for the first time on July 17.
Parliament’s first session – called a constitutive session – is intended to get the body of lawmakers up and running, which includes the election of the speaker and deputy speakers. But chaos dominated the session, with deputies going back and forth, consulting and arguing about how it was to proceed.
When the PDK attempted to nominate its own candidate as speaker, MPs from Vetevendosje, LDK, AAK and Nisma, boycotted the session. The absence of those lawmakers left parliament without a quorum and the session was adjourned. Later that day, the other MPs, 83 of them, returned to the chambers and elected Isa Mustafa, the president of the LDK and former Mayor of Prishtina, as speaker – or so they thought.
The PDK MPs, insisting that the session was illegitimate, appealed to the Constitutional Court. On July 23, the court agreed to hear the appeal, suspending parliament’s activities until a decision could be rendered. More than a month later, on August 26, the court overturned Mustafa’s election. It reasoned that the procedure concerning the election of the speaker had been illegal, as parliament had been adjourned. It further concluded that the Constitution’s stipulation that the “largest parliamentary group” nominate the speaker in fact meant the party that received the most votes in the election. The court fell back on its reasoning from the earlier decision that only coalitions formed before an election have any standing in the procedure.
The 43-page ruling is a challenging read. Much of it is a restatement of facts and large quotes from the constitutions of other countries. While its interpretation of what a parliamentary group means seems curious to some, the ruling does not offer a clear alternative in the event of a speaker not being elected. It furthermore adds a stipulation that every single member of the 120-member parliament must show up for the speaker to be elected.
“It’s daft that one disgruntled party can halt all constitutional business from ever happening,” the international lawyer said.
That includes the nomination of the Prime Minister. Meanwhile, unlike the former process, which has a clear 60-day deadline for completion before new elections are triggered, the business of the election of a speaker could conceivably go on indefinitely.
The court fell back on its reasoning from the earlier decision that only coalitions formed before an election have any standing in the procedure.
For now, the coalition has indicated that it is unwilling to concede the speakership. Its leaders have conceded that the PDK has the right to make the initial nomination, but it still says it will nominate Mustafa again once the PDK fails in its own attempt, perhaps setting the stage for another trip to the Constitutional Court.
Enver Hasani, the president of the Constitutional Court, has been making headlines recently for a lecture he gave at a Texas university six months ago. Responding to a question about gay marriage, Hasani explained that while Kosovo society might not accept it, the Constitution does not forbid it. The constitution “acts as an instrument to change Kosovar society,” he said.
In other words, the Constitution represents an ideal of what Kosovo could be. To Hasani, as he noted earlier in the talk, the judges who sit on Kosovo’s highest court “are guardians of the Constitution, which includes separation of power as one of the constitutional ingredients of a democratic society.”
In these two decisions concerning Kosovo’s political future, just one judge, Robert Carolan, one of three international jurists on the seven-member panel, indicated objections to the majority’s actions. In his second of two dissents he wrote: “The conclusion and reasoning of the majority in this case is wrong because it misinterprets specific language of the Constitution. It also erroneously attempts to answer questions that, as a Constitutional Court, it does not have the authority to answer.”
Mushkolaj, the former Constitutional Court Judge, despite being troubled by the latest decision, said it at least opened the door for some kind way out, through vaguely worded language that suggests MPs have other ways to elect a speaker. Although troubled by the decisions, she says it is important for everyone in Kosovo to respect them: “If you don’t respect these decisions, it’s going to be even worse. It would seriously shake the rule of law in this country.”
With reporting from Valerie Hopkins.
*This article was initially published in 2014 in the September 12-25 print issue of Prishtina Insight. To browse seven years of Prishtina Insight online, click here to become a subscriber.