When legal gaps guide constitutional decisions

The three logical fallacies in the Constitutional Court’s decision on the constitutionality of PM Haradinaj’s decision to raise his own salary.

They say that ‘salaries in the public sector are small, but the benefits are great.’ Very soon, high government officials may get both. On December 20, 2017, the government decided to increase salaries for certain executive positions, including that of the prime minister, whose salary is doubled, as well as ministers, deputy ministers, political advisors and a few selected civil servant positions.

This government decision was made a few days after the approval of the Draft Law on the 2018 Budget where no increase of salaries was stipulated. Furthermore, the decision was made when the government was in the process of approving the Law on Salaries, which would already deal with the issue of salaries for high government officials. But, then again, this is not the first time that the Haradinaj government has made contradictory decisions.

The reactions against this decision were numerous, both by civil society and the media, as well as by opposition parties. In January 2018, the Anti-Corruption Agency, ACA, assessed that part of the decision constitutes conflict of interest, because the prime minister and other ministers were increasing their own salaries. The government was quick to respond, stating that it will not consider the opinion of the ACA.

After that, 30 MPs sent the decision to the Constitutional Court, arguing that it was unconstitutional because the decision amounted to a conflict of interest, created inequality and violated the separation of powers. On June 11, 2018, the court published its verdict, ruling that the government’s decision to increase salaries does not go against the articles on which the MPs based their complaints.

In hindsight, the complaint by the MPs looks poorly argued. Since Kosovo’s Constitution does not mention conflict of interest or corruption anywhere, they based their argument on articles that can only indirectly be tied to conflict of interest. At the same time, the court’s verdict looks absurd for three reasons:

Firstly, the court declared the request by the MPs as valid, saying that it falls within the competence of the institution and will be dealt with (paragraphs 74-91 of the verdict). Yet, later, the court fully contradicts itself by saying “The Court considers that the Applicants did not prove how the Government has violated Constitutional competencies of the Assembly regarding the approval of the state budget, or any other constitutional competence. Consequently, in the concrete case, the Court is  not convinced that the decision to raise the salaries constitutes a matter of the constitutional level.” (paragraph 110).

If the Court is not convinced that the increasing of salaries constitutes an issue of constitutional level, then why did it declare the request valid? It would be much fairer if the Court had declared the request invalid on February 2018.

Secondly, the Court states that all countries that are part of the Venice Commission Forum, which were used as case studies for justifying the court’s verdict, have specific laws through which they regulate issues regarding salaries in the public sector (paragraph 99). In Kosovo’s case, salary increases have been made through executive government decisions since 2004; as the Law on Salaries continues to be dragged through parliament, as it has been for 14 years. The Court asks that such a law be approved to avoid cases where “decisions are made in a legal vacuum.” If the Constitution is the supreme legal act and other acts and laws need to be in accordance with the Constitution (Article 16 of the Constitution), and if a decision is made in a legal vacuum, how can that decision be in accordance with the Constitution, when it does not even have a legal basis?

Lastly, the Court declared that it is not within its function to rule whether the decision constitutes conflict of interest. According to the court, this evaluation was given by the ACA. Now, if the Law of Prevention of Conflict of Interest in Exercising a Public Function is in accordance with the constitution, and if the ACA is the competent institution to evaluate matters of conflict of interest,  and if it says that the case does constitute such violation, then how can the court throw out the case,  even though it could be against the law?

These three logical fallacies in the court’s verdict are easily identifiable even by a layman, and I consider myself one. The conclusions by the court go completely against the explications within the verdict.

In the same way there is a conflict of interest in the government’s decision to increase salaries for its own employees, there is also a conflict of interest in the court’s verdict. The salary of constitutional court judges are interconnected with the salary of the President of the Supreme Court, whose salary is in turn interconnected with the prime minister’s salary. Thus, the government’s decision for increasing salaries in the government indirectly increases the salaries in judicial institutions, including the constitutional court.

If we had a rational government, it would read the court’s decision as follows: Member states of the Venice Commission regulate salaries in the public sector through law. Since 2014, salaries in Kosovo are regulated through executive decisions, thus decisions are made within a legal vacuum. To avoid this, the government needs to annul the decision to increase salaries made on December 2017 and send to the Assembly a law for salaries that would rule out conflict of interest, as considered by the ACA in its opinion.

But, Kosovo does not have a rational government, and it is very likely that Haradinaj’s government will continue acting inside a legal vacuum, as this vacuum is now a constitutional principle.

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