President violates Constitution if second time fails to give the mandate to the majority

Former Constitutional Court Chairman Enver Hasani has explained all the way that the head of state should follow in forming the Government, according to the Constitutional Court's Constitutional Laws and Act.

According to Hasan, the government can even make another party that is not second, but proves to have a majority in the Parliament the second time, because after first-time exploitation, political forces are spoken of in the country.

Hasan in an interview for Kosovo Press estimates that State President Hashim Thaci will commit serious constitutional violations, unless it gives it a second time for forming the party or coalition government that has the majority in the Assembly.

Hasani has said that, under the 2014 constitutional act, she has decided to give the winning party or coalition to the government the first time. But, in the event of failure in the first time, according to Hasan, the second time is in the discretion of the head of state to give the mandate to that coalition, or that party, which proves it has a majority in the Assembly.

Hasani: Second Time President Must Give Majority in the Assembly · Global Voices

The constitution has interpreted that the first time is a non-competitive issue, the party is given, respectively, to the coalition that is winning in the election, to form Government. This always means that there is a Parliament, because the 15-day term, 10 days, respectively, or 60 days on the whole of the day that the Assembly needs to be formed, we always talk about the decision to be conditioned. As the Parliament is being established, then it's given a warrant and it starts counting, and for the first time it's no conflict. For the second time, we have said that it is in the discretion of the chief of state, but the disrepute does not mean arbitrators, but is based on the law or a decision, or an individual, in this case in the Constitutional Court's decision and in the Constitution of Kosovo, which it conditions within the duties the state chief has to guarantee the Constitution, to represent the constitutional judicial unity of the people and the stability of institutions, and that is the primary responsibility. And if he did not, they committed constitutional violations”, Hasani said.

Even, according to Hasani, the government can make another party that has not come in second, but proves to have a majority in the Assembly the second time. Because, Hasani says after first-time exploitation, political forces are being reconfigured in the country.

But, the former head of the Constitution, says the burden of proven falls completely on the president, not vice versa.

Hasani: The President must testify to most.

We're not talking about right now, because now it's a problem to know, so the law and the Constitution and the court have respected the sovereign vote by vote, and according to the automatism vote goes first, even by one vote. The second time, the political forces are free, after the assembly is formed and the body becomes a body as we say to the Constitution, it has a duty to form organs, for example, to the Government its head of state, and the Parliament self-forms itself, the Parliament does not have a superior, but it is self-formed. As soon as they get in, those political forces are free to re-install, and at the moment the re-commission is shown, the president has no choice but to listen to the will, we have said in court, I cannot refuse the candidate offered by the coalition or party, which then is a majority when I go to the Parliament, so the burden of the «you tried on him if you want to try otherwise. If it proves otherwise and fails the second time, then responsibility does not fall on MPs and political forces, but falls on the head of state, because it is on the head of state, because it is the responsibility of the head of state to form institutions”, Hasani points out.

He warns that in the event of failing to establish the government in the second time, the one who claims to have the majority, the president could be sent to the Constitutional Court.

The former Constitutional head calls it unconstitutional if the president tries to speak to MPs individually, whether MPs are free to act on his mandate, if he wants to go independent, to join another party or stay on that political subject.

Hasani: The President has no right to speak to MPs individually

No, it's not his right because he is, look at the powers are divided, power is neutral and intermediate power. It is neutral and intermediate because it is not part of the executive, nor in the legislature, but in all these powers it serves as mediator. Suppose in foreign politics the ambassador decrees, decrees judges, decrees the prosecutor, but the president's decision is not alone, he has a chain. He's his discretion only within the law. Same here. The granting of the mandate the first time, the second time, is discretion, but within the constitution, and as it is by bias”, he said.

The former head of the Constitution guard says there is no third time and if even the second time institutions cannot be formed, then the country goes to the polls because it differs from other countries, such as Macedonia's case.

Hasani: A third time

There's no third time. The country goes to the polls for different constitutions, for example Macedonians, so it gets stuck because it's been clear there as if it's in us now. Must be giving, says, to the one with the majority in parliament. He wouldn't give it up and there they don't go for elections and that's why he got stuck. Now even there has been formed a standard that is politically different”, he added.

Hasani adds that it may happen that appointed MPs or political parties give the vote on forming the government, but may not be part of the executive and remain in opposition.

Hasani: Parties or MPs could vote on government and stay in opposition

That could happen. But for the sake of respecting the will of the citizens, it becomes the opposition. But it's not that problem because I'm still repeating it's a naive illusion that in a proportional system that Kosovo has, someone will believe that someone can rule through the entire mandate of 2/3, ever. It means organ formation, you know, required by an absolute majority, 50+1 and others dynamic processes that create bipartisan coalitions on various issues. What is correct is the procedure that is interpreted and which is in force today, is clear, what is the parliamentary majority following the elections until the formation of the Parliament, and it is known who is the parliamentary majority following the formation of the” Assembly, Hasani stressed.

Hasan has even commented on the charges made against him on the 2014 decision, saying they have not read the verdict at all.

Hasani: They read the verdict at all

“They get without exception. You have three sets of fine law community. The first group is he who was praised and led to heaven, and today he is offended and vice versa. I've had the impression then and today, that so far they haven't read the text, but they've talked more... but now that this situation was created, they've read it and they've seen it and now it can look like that. There's another group that doesn't speak up and that are extraordinary constitutionalists, they don't talk about different reasons. But what matters is that the bias is extremely consistent and has references. It means that, in my time, there has been no trial for any case, including decisions that have not been on merit cases, which have not had an extraordinary judicial practice of the «different” countries, he said.

Despite these accusations, Hasani says he has never lost his loyalty to the act that has brought him to the helm of the Constitutional Court, because he estimates it has been a great help for constitutionalisation and parliamentarians in Kosovo.