Kosovo marks the twelfth anniversary of its Constitution entering into force while facing another political crisis concurrent with a public health emergency. Nevertheless, the Constitution and its court have always ensured that political crises do not become constitutional crises.
The twelfth anniversary of the Kosovo Constitution entering into force was celebrated this week on April 9, the height of the global struggle to contain the coronavirus pandemic. As the virus spreads aggressively across the globe, Kosovo, with the help of its newly formed government, has managed to prevent the pandemic from creating a humanitarian crisis.
This has been possible so far in spite of a dire health system that consistently neglects its doctors and health staff. Measures to financially assist marginalised groups of society made more vulnerable by the pandemic have also helped to mitigate potentially disastrous economic effects of the virus.
The government has also attempted to counter the paralysis of everyday life caused by the virus using innovative methods. Measures like distance education, responsible communication with members of the diaspora who wanted to return to Kosovo, as well as emergency packages to assist over 25,000 families struggling to support themselves, were widely supported by citizens and hailed by the international community.
Nonetheless, for some politicians, wranglings over protagonism and party interests during the pandemic have prevailed over the health and wellbeing of citizens.
Kosovo President Hashim Thaci’s failed attempts to declare a State of Emergency were an underhand effort to misuse the health crisis to take control of the state. It also helped create another crisis that brought down the government less than two months after it began its mandate.
Opposing the government’s methods of handling the crisis, the president also petitioned the constitutional court to rule the restrictions put in place by the government limiting freedom of movement and assembly as unconstitutional and a violation of the human rights of Kosovo residents.
The president’s request to the Constitutional Court confused the concept of derogating from fundamental rights and freedoms with that of limiting them and, consequently, confused the interpretation of the European Court on Human Rights – as was brought to light by the Constitutional Court itself.
Noting a difference in meaning between “limiting” human rights and “derogating” from them, the court clarified that Thaci’s state of emergency is not required for limitations on movement to be put in place to keep people safe.
This flaw in his reasoning demonstrates that the current president is unworthy to take the reins during this emergency. His relationship with human rights is most poignantly illustrated by the fact that under his governance, Kosovo has still not signed the European Convention on Human Rights.
The president is not the only one to blame for this, but he has certainly played a pivotal role in successive administrations that have failed to make this most crucial international commitment. Since Kosovo’s declaration of independence, Hashim Thaci has been Kosovo’s prime minister, its foreign affairs minister and its president.
Under his watch, Kosovo’s representatives have failed time and time again to join the Council of Europe, despite positive signals from Council members that they would have enough votes to do so, and thus enabling the country to sign the Convention, which requires Council membership.
As a consequence, Kosovo citizens cannot hold their government accountable for its human rights abuses. Our president has taken care to ensure that Kosovo remains a ‘black hole’ when it comes to international human rights protections.
The Constitutional Court ruled the government’s decision on the measures taken to contain the pandemic as unconstitutional, because the measures taken, while necessary, went beyond what the government has the power to do as prescribed by law.
However, it seems that precisely because the court considers the measures necessary to deal with the pandemic, it left time until April 13 for the Kosovo Assembly to make a decision regarding how to replace these measures. This gives the Assembly a window of opportunity to build an airtight legal basis for the restriction of freedom of movement and ensure its compatibility with the rights laid down in the constitution.
Unfortunately, the Kosovo Assembly has so far remained silent. Two thirds of the MPs that the citizens of Kosovo pay generously to safeguard the wellbeing of the country have abandoned them at a most crucial time, and their reasoning for doing so does not stand.
To argue that they cannot risk convening the Assembly because of the spread of coronavirus is contradictory, given that the Assembly gathered for a marathon session during the lockdown to vote for the motion of no confidence on March 26.
However, the Constitution gives room for other relevant bodies to make decisions to contain the pandemic.
Kosovo law gives municipalities the competence to to deal with local emergencies, so in cooperation with each municipality separately, the Ministry of Health can take the necessary measures to restrict freedom of movement that can cater for the individual situation that each municipality finds itself in.
Taking this route may become particularly necessary as the warmer months approach, when the necessity for agricultural work will require creativity when determining how to shape measures to combat the pandemic to complement the needs of the country’s people.
This will not be the easiest method. It wouldn’t surprise anyone if efforts to coordinate with the mayors of Kosovo’s municipalities were countered by attempts by others to encourage their non-cooperation. However, it is likely that these efforts would not succeed: after all, mayors are elected by popular vote, and are aware that they have special responsibilities – their proximity to citizens puts them at the forefront of the political response to the pandemic.
President Thaci’s failure to take command of the country by attempting to declare a state of emergency twice in a row did not deter him. Claims that Kosovo’s sovereignty was under attack after Serbian medical staff entered North Mitrovica were another attempt at scaremongering, with Thaci professing citizens in the northern municipalities as respecting Serbia’s rules, and not Kosovo’s.
On the contrary, since this government’s administration began, the police uniforms of Serbia have never been seen in northern Kosovo, and Kosovo Police officers have been present at all times. The only action taken there while the country has been on lockdown is the precise implementation of the government’s rules on restriction of movement.
Since its first days as an independent state, Kosovo has lived through successive political crises. Bad governance, organised crime and corruption have made one government after another unstable, and the state extremely fragile in turn. It has hampered Euro-Atlantic integration, and has kept its citizens isolated from the rest of Europe.
However, over these twelve years, our constitution has ensured the country’s political crises do not become constitutional ones. The Constitutional Court has been unfairly charged with resolving political issues, yet its decisions have generally been respected by all political parties and groups.
Even when many believed that the decisions of the Constitutional Court have modified the text and spirit of the constitution, political parties and the citizens of Kosovo have respected the rules of the game set by the Constitutional Court. They have built their own strategy for participating in the elections, the campaign and the voting, based on the rules set by the Constitutional Court.
The opinions expressed in the opinion section are those of the authors only and do not necessarily reflect the views of BIRN.
Gjyljeta Mushkolaj was a member of the Constitutional Commission of Kosovo, the body of historical importance for drafting the Constitution of the Republic of Kosovo, where she headed the subcommittee on human rights and headed the office for public relations. She is a professor at the Law Faculty at the University of Prishtina.
10 April 2020 - 18:30
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