IKD: The Constitution has violated its mission with the decision about government salaries

The IKD has described this act as contrary to its mission of preserving constitutionality in the country.

In this plan, the IKD's response says, the Constitutional Court's decision is primarily in line with its mission and authority in ensuring the functionality of the country's institutions in accordance with the Constitution and seriously violates the basic principles of the form of government, such as the division of powers between the three governance powers, as well as their control and balance.

Under the Constitution, the Government is authorised to exercise executive power, within functions, areas of activity and borders that are in accordance with the Constitution and the law. The Government's decision regarding salary raising does not in any article refer to any law. Rather, the same is referred to below 92 and 93 of the Constitution, which limits the competence of the Government only to its competence to act on “compatibility” and the function of “implementing a 34x3> law. Every time the law is claimed to be constitutional until the opposite is confirmed. This is a well-known principle of constitutional democracies around the world.

In the concrete case, the Government's decision has not indicated whether it is aimed at implementing the Law on Boards or implementing any other law regulating the salaries of senior state officials and specific categories of public servants. The court's position at the 95th point of the Act seriously violates Article 18 of the Budget Law for 2018, which clearly stipulates that “Whenever proposed a new legislation, strategy or any other similar act, the proposal gives it in advance to the Ministry of Finance, along with the Formari on the Bungeor Influence assessment. The Finance Ministry makes a detailed assessment of the impact that proposed legislation can have on Kosovo's budget and on the economy for at least three (3) fiscal years to come. ” The constitution of this law has never been questioned, so its constitutionality is guaranteed, and this Court has had to consider.

Neither the Government's decision to raise salaries nor its responses nor the Ministry of Finance, nor the Constitutional Court Act provide any clues regarding the assessment or financial impact the controversial decision may have on the year 2018 and the next two years.

Analyzing the decision points, The IKD notes that the Court at Act 98 point stresses the fact that the Republic of Kosovo still has no law, or other particular act, that regulates the public sector wage issue. Such a stand by the Constitutional Court conflicts with its role and function to ensure the functionality of the country's institutions in accordance with the Constitution. It is contrary to this court's mandate and mission that bad and illegal practices justify through its decisions. Such an approach fosters and promotes judicial uncertainty in the Republic of Kosovo, which in practice and under the Constitution, this court itself would have to be its Guardian and promoter. In the concrete case, the Court has had to impose on the Parliament to play its role by lawmakers and issue the law on wages, not to presuppose as constitutional the individual decisions of the Government taken outside its constitutional competencies: Only constitutionality of the law can be presified and that constitutes a standard, never the constitutionality of individual executive decisions or any other constitutional body.

According to the IKKD, the Government's decision has specifically counted government officials who benefit from “reaching” wage: the same decision also “reached “the salaries of all judges, prosecutors and Constitutional Court judges, according to the proportions specified in Article 29 of the Law for Courts, Article 21 of the Law for State Prosecutors and Article 15 of the Constitutional Court.

Such an approach, says the Kosovo Institute for Justice, conflicts with international practices and standards, part of which is the Republic of Kosovo itself. The response adds that that government decision does not submit to parliamentary control and power sharing.

The IKD commemorates that the Constitutional Court in December 2012, had adopted the Guide on Practices No. 06/2012, on the functioning and structure of the Legal Unit. According to this Guide, the Legal Unit, among other things, investigates legislation, judicial authorities and proper jurisdiction that connects with cases that are the subject of procedure at the Court, in co-ordination with the Rapporteur Judge, Chief Judge of the Research College, Court and Chairman.

In this regard, the Court's Act regarding the Government's decision conflicts with the practice built by this tribunal in the September 9, 2013, case. This decision on salaries should be seen in light of the Constitutional Court's earlier jurisdiction, which the court ruling had declared the decision of the Parliament's right to adopt the budget and control its implementation. The jurisdiction cited in that decision, a set of research according to Guide 06/2012 as above, is more convincing and standard in terms of executive restrictions in the area of legislation on financial and budgetary matter. That fact makes it meaningless and not based on the passage of the Constitutional Court, with its ruling June 11, 2018, says the response

The Constitutional Court through this decision, according to the IKD, has legitimised the executive and policy of its act. With this step the Constitution has “changed executive power to lawmakers, while the lawmakers pushed it quietly into public wages, forcing it to in the future to leave an open opportunity for potential wage increases through arbitrary government decisions.

Finally The IKD recommends that Kosovo's Assembly change the constitution to regulate the damage caused by the Constitutional Court, proposing constitutional amendments through which it will determine that the executive could never decide for such a decision and that six months before the elections, executive power is entitled to obtain financial means in excess of 10,000 euros.