Constitutional Court Declares Negotiator Team Illegal

The Constitutional Court of the Republic of Kosovo has ruled in the Ko43/19 case, set forth by: Albulen Haxhiu, Driton Selmanaj and thirty other deputies of the Republic of Kosovo Assembly at the review session held on 13 June 2019.

The object of the issue of the motion demanded was to assess the constitutionality of nines 1, 2, 4, 10 (paragraph 4 sub-paragraphs 1 and 2) and 11 (paragraph 3) of Law No. 06/L-145 for Duties, Responsibilities and Compensations of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia (Contradicted Law).

Predators claimed the controversial Law as a whole is not in agreement with the Constitution and essentially had three key claims: defining and changing the constitutional institutional hierarchy and decision-making hierarchy in dialogue with Serbia; the legal competencies of the state delegation directly interfere with the constitutional competencies of executive and legislative power, as well as providing the lex speciality of the controversial Law.

The court appreciated the acceptable request for consideration and in explaining the merits of the request found:

The state delegation, which was founded on the controversial Law, is not pre-represented with the Constitution and is not seen within the form of governance and power division. As such, the state delegation cannot be included in interoperating division, control and balance of powers, either the structure of power sharing, as defined by Article 4 of the Constitution.

Furthermore, the Court found that conveying the competencies of constitutional institutions to the specific “mechanism, defined with Article 7 of the Constitution, is intervention in the exercise of the competencies of institutions defined by the Constitution and is incompatible with the democratic values and rule of law, defined by Article 7 of the Constitution, because they refer to the state delegation functions that do not comply with constitutional provisions.

The court also found that, with constitutional norms expressly, the obligation pertaining to the exercise of constitutional competencies in the realm of foreign policy for competent institutions and that the competencies to dialogue with a third state cannot be carried to the state delegation as the specific “medocism by a lower judicial act, such as the contrary Law.

Furthermore, the Court found that the Parliament of the Republic of Kosovo is obliged to oversee foreign policy within the framework of previous constitutional competencies, according to paragraph 12 of Article 65 of the Constitution. The court also pointed out that Article 93 of the Constitution defines the government's competencies in “the proposal and implementation of the country's internal and external policy”, while paragraphs 1 and 9 of Article 94 determine that the prime minister, as the first of the Government, “represents and leads the Government”, as well as “is recommended with the president for implementing the country's foreign policy”.

Consequently, the Court concluded that representation in the foreign policy sphere is the task of constitutional institutions of the Republic of Kosovo. This competence is defined with the Constitution and implies, first of all, that any negotiation or other action involving linking international agreements on behalf of the Republic of Kosovo should be within the constitutional obligations that the institutions of the Republic of Kosovo have. The court also concluded that, competencies for reaching international agreements cannot be delivered or transferred from constitutional institutions to a special “mocanism“, as provided with the controversial Law.

The court finally ruled that Article 1 (paragraph 1), 2, 4, 10 (paragraph 4, sub-paragraphs 1 and 2), and Article 11 (paragraph 3) of Law No. 06/L-145 for Duties, Responsibilities and Compensations of the State Delegation of the Republic of Kosovo in the Dialogue Process with Serbia, are not in compliance with paragraphs 1, 2, 3 and 4 of Article 4 [The Foundation of Governance and Power Division], Article 1 paragraph 7 [Verrat], Article 12 and Article 65 [The Framework of the Assembly], paragraph 1, November 93 [The Government Committees], and paragraphs 1 and 9 of Article 94 [The prime minister's] co-ordinators of the Constitution, and that subsequently the controversial Law, in its entirety, is incompatible with the Constitution.