For borders, referendum does not replace Constitution

For the change of the constitution, double voting is needed, respectively, two-thirds of the majority of MPs' votes and two-thirds of the minority communities' votes are needed.

The referendum issue was currentised in Kosovo on two occasions. Initially, in the absence of constitutional changes due to positions against MPs from the Serb community, the possibility of forming the Kosovo Army through the referendum was cited. As recently, Kosovo President Hashim Thaci has raised the question of referendum dealing with changing the border, or as he calls correction of borders.

Thaci has said the referendum could be used to ask Kosovo citizens if they are for border correction, which would unite Presevo municipalities, Bujanoc and Medvedja with Kosovo.

Former Commission member for drafting the Constitution, Professor Arsim Bajrami, speaking of The REL says that for any process that emerges outside the Constitution of Kosovo, there must be a process of revising or changing the Constitution along with the referendum.

Kosovo's “Constitution stipulates that sovereignty in the Republic of Kosovo is realised in two ways, through elected representatives of the people -- that is, the Parliament -- and through free expression of the will of the people, that is, the” referendum, Bajrami says. “This means that the referendum as an institution exists and is a constitutional category and there is no obstacle in the Kosovo Constitution to declare the people in the referendum on specific issues, but in advance to implement the referendum there must be a Law for referendum defining the modalities of the referendum implementation process”.

But when it comes to the eventual achievement of a final agreement between Kosovo and Serbia, which could be in conflict with the Constitution of Kosovo, according to Professor Bajrami, it must also contain the arrangement for changing the Constitution, which the process does not go to referendum but goes directly through the Parliament.

Whatever changes to the Kosovo Constitution cannot be done with the referendum process, but directly in the two-thirds majority vote coalition and two-thirds of minority votes”, Bajrami points out. “For any process that emerges outside the Kosovo Constitution needs along with the referendum to have a process of reviewing or changing the Constitution. So, in this case, the referendum does not replace the Kosovo Constitution”.

According to the Kosovo Constitution, Article 1, point 3 says the Republic of Kosovo has no territorial claims on any state or part of any state and will not seek to join any state or part of any state”.

To realise a referendum issue, such as President Thaci's concrete proposal, it would have to have the Law for the referendum in advance. Opposition MPs have now undertaken initiatives for adopting such a law, but not on the issue that is mentioning President Thaci. Kosovo Democratic Institute analyst Artan Murati says that just as the Parliament is currently functioning it would make it very difficult to adopt a Law for Referendum at this moment.

But, according to him, if the referendum is made, there will have to be a question for citizens not to put before an act committed and which question would not be real with the agreement that can eventually be reached between Kosovo and Serbia.

If you go with a question in the referendum whether you are for uniting the Presevo Valley with Kosovo, I believe there will be no Albanians who would vote no. But in practice this idea of exchanging territories or correcting territories has never been specified by the president as to what it means in principle. Therefore, the question as such would be flawed because it would not present the real situation, which lies on the ground”, Murati points out.

According to him, a different answer would be expected if the question is whether territories are in exchange with Serbia, respectively, in the northern part of Kosovo with the Presevo Valley.

Meanwhile, political affairs analyst Naim Rashit says the referendum issue has nothing to do with what agreement with substance or mode, but whether or not the agreement will be made between Kosovo and Serbia and whether it will be comprehensive agreements that end the conflict between the two countries.

“If Kosovo and Serbia speak of a comprehensive peace agreement, the emphasis is on the positive component and less on what the combinations of eventual change of borders are. In the event that Kosovo and Serbia, after a long conflict, speak of a closure of an agreement with a referendum, which then ensures its legitimacy, in particular where constitutional changes are required in Serbia, but also in Kosovo, which could be passed by two-thirds and could become any particular law because of the context and the issue that complicates the” agreement, Rashi says.

He says Kosovo and the European Union would have to take a lesson from the referendum held Sunday in Macedonia on the name issue. According to him, Macedonia has a wrong referendum law, since it requires 50 per cent voter exits, which in practice is not applicable in most Western countries.

Meeting people in referendums in the Western Balkans, Rashi adds, will be difficult.

He says there may be a situation in Kosovo where the political scene will be divided and frustrated, and in the end there can be a referendum that, despite modalities and the agreement, could also fail.

The learning that needs to be learned I believe that it is to require greater inclusion, to build a preliminary consensus and a dialogue as familiar to the public as to what is going on in these negotiations and perhaps there may be stages of implementation that become as acceptable as”, Rashi says.

Meanwhile, in a response, the Kosovo Presidency has stressed that the <x0 evental agreement between the Republic of Kosovo and Serbia will receive the will of Kosovo citizens through the referendum, and then be ratified by the Kosovo Parliament by voting two-thirds of MPs”.