The prime minister rejects reactions to wage growth, the Anti-Corruption Agency calls <x0-professional”

The prime minister's legal office has issued several legal findings regarding the opinion of the Anti-Corruption Agency, which said yesterday that the prime minister's decision to raise salaries is illegal.

In the media communiqué, ZKM listed 19 legal office reasonings, where AAK's opinion calls “incorrect” and “non-professional”.

The AKK's <x0.>Opinion is characterised not only with multiple legal inaccuracies but also with a non-professive, potentially influential approach, in interpreting legal provisions for the conflict of interest in the exercise of constitutional and legal functions on the part of the Government of the Republic of Kosovo”, it is said in the ZKM response.

It is said that initially, the implementation of the decision vote by deputy ministers is one of the legal inaccuracies of AKK opinion. The Government's decision-making only vote on members of the government, not even deputy ministers, and that this allows space to be found that the AKK's analysis has not been smoldering in precise material detail.

The “Do not state the conflict of interest situation during the Government's decision-making in question has been the result of free judicial and political conviction that the decision has been made on the basis of the government's constitutional competencies. In turn, none of the Government members have laid down the issue of possible conflict of interest, taking on grounds, besides the lack of any such practice in the past”.

The prime minister's decision to raise salaries is said to have also been taken because of the lack of a Law for Salaries of Government Members and given the practice thus far and that the government, on the basis of Article 93 (4) of the Constitution of the Republic of Kosovo, has constitutional competence, in addition, to make decisions.

The Kosovo government exercises executive power in accordance with the Constitution and the law. ”, where it says according to this article, results in government decisions having the executive title because the constitutional nature of government power is executive”.

It is then said that the Government's decisions cannot be reviewed in any other form, except parliamentary supervision by the Republic of Kosovo's Parliament or the review of constitutional Constitutional Court constitution under its proposed constitutional mandate as well as through judicial procedure.

The government, in accordance with Article 113 parag. 2 (1) of the Constitution of the Republic of Kosovo, in terms of constitutionality of its judicial acts, knows only the Constitutional Court's judgments, as the final authority in the Republic of Kosovo for interpreting the constitution in the sense of Article 112 and Article 4 (4) of the Constitution of the Republic of Kosovo”.

This reasoning is said to have been presented by the prime minister of the Republic of Kosovo on the occasion of presentation for review and approval before other members of the government of the “proposal the decision in question, its purpose, in addition, has been, in addition, to the level of salaries of members of the Government with the salaries of other branches of state power”.

In exercising their constitutional authorisations, and as Article 98 of the Constitution of the Republic of Kosovo defines, “Kosovo Government members enjoy immunity from prosecution, civil indictments and dismissal of actions and decisions within the scope of their responsibilities as members of the Government”. So the AKK would have to take into account the constitutional provision which guarantees functional immunity to members of the government during the exercise of its executive power.

The appeal continues with the fact that the Constitution has authorised Government to define by law and by regulation its way of work and decision-making procedures, because Kosovo still does not have the Law for Government.

“in Article 2 (2) of Order No. 02/2011, the Government has determined that “issues related to the work of the Government, which have not been regulated by this rule, are determined by decision or any other act of government, in accordance with the Constitution of the Republic of Kosovo, the law and with that rule”.

As a result of the aforementioned constitutional and legal provisions, the organs that are authorised by the Constitution for making decisions cannot be subject to conflict of interest during the exercise of their constitutional activity, due to their constitutional authorisation is imperative, and in their exercise it is not allowed to delegate this component to any other organ in order to avoid conflict of interest.

So, from this point on, the question in this case is which organ should make such a decision besides the Government?

The prime minister's legal office then raises several questions, citing the AKK's opinion: “Government's decision date No. 04/20, the 20.12.2017 date cannot be described as a conflict of interest for all who are the beneficiaries of this decision, the Conflict of Interest has been presented to officials who, by their vote, have influenced the decision to be of interest to personal benefit”. The question in this arrangement is which other legal way would we be able to make the government the high-ranking decision? Is the AKK aware of the necessary quorum for making government decisions, as Article 15 of Ruler No. 09/2011? Furthermore, in the absence of the Law for Salaries of High Functioners, how would the salaries of MPs, members of the Government, the president, carriers of independent institutions and so on? These questions are asked next to the AKK's presuming high opinion, with which it recommends that “The decision be turned into review, using other legal ways that do not conflict with the Law for Prevention of Conflict of Interest in the Public Function Army”. Would the situation of the conflict of interest be averted if the wage law, including MPs' salaries, were approved by the Parliament, since MPs could have “conflicted interest” after voting for their salary? Or on the occasion of the declaration of the law adopted by the Parliament, where the declaration would be made by the president under his constitutional mandate, in which law the president's own salary would be determined? Furthermore, are the Government's decisions on salary increases at odds with the government's earlier decisions on raising salaries in the public sector and decisions on setting the minimum wage in the private sector)”?

“These questions are asked to come to the legal conclusion that in any professional judicial interpretation, there can be no claim that the government, in case of such a vote, may be in a situation of conflict of interest for purely constitutional and legal reasons”.

Almost in the end it is said that the initiative of the procedure by the AKK overseer, the preliminary qualifications from the openly expressed oversight in our media, as well as the public disinclined disinclimate of the case from the AKK supervisor to its dependence, has created a potential situation of conflict of interest and that for the decisions of such nature, The AKK has issued no opinion about hundreds of government, presidency, Parliament and other institutions.

All in the end is said that when government decisions are challenged by other administrative bodies, then the question is, does the government exercise executive power or not and the nature of government acts of law.

“The constitution of the Republic of Kosovo in its Article 4 has determined that “Kosovo is the democratic Republic based on the principle of sharing powers and controlling balance between them, as defined by this Constitution”, therefore, in all meanings, the Constitution has placed the Government in constitutional obligation to exercise its executive power, considering that its power is balanced by legislative power through parliamentary supervision, and by judicial authority through the process of judicial review of its decisions. Furthermore, if the Government's decisions were rejected by other institutions, judicial security and government decision making would be violated and that ever, the Government would not feel clearly convinced that its decisions are constitutional and legal”.