The prime minister is misinterpreting the Constitutional Court's interpretation of competencies in dialogue

Whenever the Constitutional Court has issued any ruling that is related to politics, there are many interpretations of its act of judgment. But always according to the interests of certain individuals and political groups.

These days, we are seeing that Prime Minister Avdullah Hoti is often referring to the Constitutional Court's act of competence in the dialogue, without actually knowing what it contains in reality, Periscope follows.

The interpretation that Prime Minister Hoti is doing to the Constitutional Court's Court act in case no. KO 43/19 for assessing the Constitution of Law No. 06/L-145 for the tasks, responsibilities and competencies of the state delegation of the Republic of Kosovo in the process of dialogue with Serbia is completely political.

This act of Constitutional Court issued on June 27, 2019, following the MP's request to assess constitutionality of Law No. 06/L-145 for the tasks, responsibilities and competencies of the state delegation of the Republic of Kosovo in the dialogue process with Serbia has not addressed the president's competencies at all, because they were not the subject of demand. The purpose of MPs who had submitted that request, but also of the Constitutional Court itself was very clear: assessment of whether that law was in accordance with the Constitution? So the object of the issue was only the assessment of the constitutionality of that law and not the definition of competencies, because that clears up the Constitution of Kosovo.

As a result of that request, the Constitutional Court of the Case No. No. 06/L-145 for the tasks, responsibilities and competencies of the Kosovo Republic state delegation, which was opposed, was incompatible with the Constitution. So everyone should have made it clear that the object of the case was an assessment of the constitutionality of the contrary Law, taking into account relevant provisions of the Constitution according to the claims of the petitionors: Nets 2.1, 4, 7.1, 18, 20 (l) and (2) 65 (1) and (12), 93 (1), 94 (1) and (9). From the claims of the petitionors and the contents of the Act that flow according to these claims, from the beginning no assessment of the compliance of Article 84.10 [the president's credentials] has been made, because the Constitutional Court has done a review of the pre-proposal claims and on the basis of specific competencies with the constitutions, limiting itself to the mandate of constitutional institutions that have authorisations directly related to foreign policy on the basis of the above-spectical constitution.

Article 84.10 [The President's comits] stipulates:

Article 84 [The President's Comissions]

President of the Republic of Kosovo: [...] (10) leads the country's foreign policy; [...]

In addressing the high-profile motionrs' claims, in relation to the provisions of the constitution, the Common Read Court has clarified general principles involving the form of governance and power sharing, as well as democratic values embedded in the Constitution.

The Constitutional Court has outlined these at points 67, 68 and 69, stressing:

Point 67, among other things, determines: The court notes that the constitutional order of the Republic of Kosovo, among other things, is based on democratic values of division of power and rule of law. Consequently, the people's trust in democratic values and rule of law represents the essence of the functioning of representative democracy in the country. [...]. To continue then to point 68: The court stresses, that general democratic principles are based on the functioning of a series of institutional mechanisms, ahead of the Constitution and other laws issued by the Parliament. In this case, the Court is aware that the Parliament by law can establish troops/institutions bearing a certain mandate under the law, but that competence must always be exercised under the Constitution, by respecting the principle of division of power and by not violating already envisioned competencies with the Constitutions for respective institutions. And at the point 69: The court re-exemplifies that under the legal system, all other norms are subject to the superiority of the constitutional rate. The court estimates that, when a matter is determined by the Constitution, it cannot be changed, undermined or transformed through an act of lower judicial power like the law. Given the constitutional rating's superiority, the Court recalls that all other legal acts should be in accordance with it. In this context, the Constitutional Court at 73 points out: [...] The principle of power sharing presents democratic value within the Constitutional Order Body in the Republic of Kosovo.

Despite the Constitutional Court Act in Case No. KO 43/19, it has conducted a review of pre-requisite claims, however, on the basis of the competencies defined in the Constitution, at the 89th point succinctly highlights the competencies of constitutional institutions in relation to foreign policy: “Regarding the foreign representation of the Republic of Kosovo by its constitutional institutions, the Court re-exemplifies the obligation of institutions in question -- of the Parliament, the President and Government, respectively -- that their competencies in foreign policy exercise within their constitutional mandate. This implies, before all else, that any negotiations or other action involving the linking international agreements on behalf of the Republic of Kosovo should be within the constitutional obligations the institution of the Parliament, the President and Government has to exercise their competencies within the spirit and letter of the Constitution”.

To clarify this, further to the 90th point says: “[...] The established institutions with the Constitutions are competent in all phases of dialogue on reaching international agreements, and suchness cannot be carried or transferred. [...].” And at the point 101, Constitutional Court “It stresses that constitutional institutions have concrete duties and competencies defined with the Constitution. Any creation of legal-designed interdependence, for mutual approval, violates the competency and mandate of constitutional institutions, as is envisioned with the Constitution.”

 So does the dot. 102 further clarifys the competencies of constitutional institutions in relation to foreign policy: “The court recalls, that competent constitutional institutions in the foreign policy sphere, the Government/Prime Minister and the president, respectively, are tasked with interilateral consultation between them. But this task of co-ordination and co-ordination does not lie in other bodies that are not pre-represented with the Constitutions, such as the state delegation..” To later conclude at 103 “[...]that any mechanism that is not envisioned with the Constitution and has no constitutional mandate cannot condition the co-ordination and adoption of actions with the constitutional institutions of the Republic of Kosovo. ”

 As a result of the foregoing, it may be concluded that:

• Constitutional Court Act in Case No. KO 43/19 for assessing the Constitution of Law No. 06/L-145, i n No. 06/L-145, in its entirety, is incompatible with the Constitution;
• Constitutional Court in Case No. KO 43/19 has made a review of pre-requisite claims, so it has not made an assessment of the compliance of Article 84.10 [The President's Compits], which determines: President of the Republic of Kosovo: [...] (10) leads the country's foreign policy; [...]
• However, the Constitutional Court in Case No. Joint-reading Euro 43/19 has also outlined general principles concerning the form of governance, power sharing and democratic values embedded in the Constitutions and competencies of constitutional institutions in relation to foreign policy. In this direction, this summing up is the Constitutional Court's emphasis:

• The Constitutional Order of the Republic of Kosovo, among other things, is based on democratic values of division of power and rule of law;
• General democratic principles are based on the functioning of a series of institutional mechanisms, ahead of the Constitutions and other laws issued by the Parliament;
• Under the constitutional legal system all other norms are subject to the superiority of the constitutional rate;
• Regarding the foreign representation of the Republic of Kosovo by its constitutional institutions, the Court re-exerts the obligation of institutions in question -- of the Parliament, the President and Government, respectively -- that their competencies in foreign policy exercise within their constitutional mandate;
• Any negotiation or other action involving linking international agreements on behalf of the Republic of Kosovo must be within the constitutional obligations the institution of the Parliament, the President and Government has to exercise their competencies within the spirit and letter of the Constitution.
• The established institutions with the Constitutions are competent in all phases of dialogue on reaching international agreements and suchness cannot be carried or transferred;
• Constitutional institutions have concrete duties and competencies defined with the Constitution;
• The competent constitutional institutions in the foreign policy sphere -- the Government/Prime Minister and the president, respectively -- are tasked with inter-institutional consultation between them. But this task of co-ordination and co-ordination does not lie in other bodies that are not meant for the Constitution.
• Any mechanism that is not envisioned with the Constitution and has no constitutional mandate cannot condition the co-ordination and adoption of actions with the constitutional institutions of the Republic of Kosovo. /Periscopi/