If the principle is established that the constitution can be breached when there is enough popular and political consensus about it, it will set a dangerous precedent for Kosovo.
I address myself to Vetevendosje because talking to the other parties is, I think, pointless. The reason, if you allow me to replace a long explanation with an imprecise but mercifully short metaphor, is that they are, in varying degrees, gangs of thieves. So Vetevendosje is the only party that has both the liberty and the interest to make its choices based on reasoned discussion.
I have three reflections to offer to them, all based on three starting points.
The first is that a veto is a veto. When the constitution says that the KSF cannot be turned into an army without a two-thirds majority vote, it says just that: it cannot be done. The purpose of this rule is not to force the majority to discuss the matter with the minority, but to force the majority to persuade them. Otherwise the rule would say that after a certain number of votes or months the veto goes away. It follows that sidestepping the veto with an ordinary law—the one now contemplated, which achieves the same pragmatic result (i.e., creating something that can be called an ‘army’)—means, quite simply, breaching the constitution. (It is not an open breach, of course, one that uses brute force: but who breaches laws and says it? All breaches of laws are done by way of euphemism or such linguistic tricks. So, this is a breach like any other one).
The second, which is but an implication of the first, is that Kosovo has a ‘right’ to an army only in a figurative, moral, or ideal sense. Kosovo has no absolute ‘right’ to an army but merely a conditional one, tied to the veto rule. This is true not just on a domestic plane, but also on an international one, because in 2008 Kosovo pledged to all states of the world to respect the Ahtisaari plan, which includes that veto. In other words, the absence of an absolute right to have an army is one of the conditions under which Kosovo became independent. It may be resented now, but breaching it means breaching Kosovo’s word to the world. One may not care about this, but one cannot ignore it.
The third starting point is that since February 2008 the constitution has been breached countless times, including by its foremost guardians, the presidency of the republic and the constitutional court. This is a manifestation of the weakness of the rule of law in Kosovo as well as a proximate cause of it, in a very damaging vicious circle. From a more pragmatic viewpoint, those breaches almost invariably went to the benefit of the ruling majority, often of PDK, many times of specific persons in PDK. The reverse of the coin is that those breaches went almost invariably to the detriment of the opposition, parliamentary or social. In particular, they went to the detriment of the only real opposition, which is Vetevendosje.
My reflections will by now be obvious. They concern the question of whether or not Vetevendosje should assist the ruling coalition to breach the constitution (i.e., add its own votes in favor of the ordinary law establishing the army). First, it is wrong in principle. According to Plato, Socrates told his friends who had come to rescue him from prison on the night before his execution that yes, the death sentence was unjust, but he could not flee because by doing so he would have broken the laws by which Athenian society sustains itself. “What shall I say to the Laws when I meet them in the underworld, and they will tell me that I killed them?”: this is what my memory recalls of his main argument. Yet politics is not (only) about principles, and I move on to the pragmatic considerations.
Does Kosovo have a greater need for an army or for a credible constitution? The answer is not obvious at all. On one hand, the constitution has been breached so many times that respecting it once won’t materially improve the rule of law. NATO is a very effective protection, moreover, but not one that Kosovo controls and not necessarily a permanent one (especially with the new US administration). On the other hand, would Serbia or someone else ever invade Kosovo? Yes, Macedonia may blow up and then anything may happen. But the risk seems far-fetched; whereas it is certain that breaching the constitution would further deepen the vicious circle of illegality feeding on illegality.
One might answer: ‘you are wrong here, because this one is not a normal breach of the constitution: it is a consensual one, on which the whole nation agrees.’ This is true (except, remember, for that blocking minority). But if the principle is established that the constitution can be breached when there is enough popular and political consensus about it, why keep a constitution at all? What if tomorrow there is a consensus that an LGBT (or Islamic Democrat) party ought to be banned on grounds of immorality (or security)? What else but a constitution can protect their political rights?
The last consideration is about the relationships between government and opposition, and is even more obvious. If Vetevendosje assists the ruling coalition in breaking the constitution, what credibility will it have tomorrow when it denounces another breach to the constitution to its own detriment? When, for instance, the police again illegally arrest and detain one of their parliamentarians.
My conclusion is that Vetevendosje should assist the ruling coalition in breaking the constitution only (1) if it calculates that the probability of actually needing tanks to dissuade or repel an enemy is greater, in the long term, than the probability of losing NATO’s protection, and (2) if it can realistically expect, after having breached the constitution, to be able to do something to strengthen its credibility (the only solution, I think, is to re-do the constitutional process from scratch, and do a proper and democratic one, not the farce of 2008). As both conditions seem hard to meet, if in doubt I would not vote for the army law. And, while doing so, I would try to benefit as much as possible from Thaci’s defeat (which is, in this case, a very secondary consideration: because he will never resign, and because the problem is the elite, not him).
To conclude, one might retort: ‘yes, this may all be right, but those who vote for Vetevendosje primarily for its patriotism will be displeased, and might even shift to PDK.’ This may well be true, but only with reference to how the public debate stands today: they can be persuaded that voting against the army law is the better choice. It is often said that politics is the art of the compromise. It is equally true that political leaders should inform, shape, and indeed lead public opinion, not merely follow it.
Andrea Lorenzo Capussela served as head of the economic department of the International Civilian Office in Kosovo in 2008-11. He is the author of State-Building in Kosovo: Democracy, Corruption and the EU in the Balkans.