Hasani: BQK has no legal or constitutional authorization to appoint currency, the rule of law treats the Constitution

The Serbian lawyer from Kosovo, Vasilije Arsic, along with several of his colleagues, has taken the Kosovo Constitutional Court to the issue of the new Central Bank of Kosovo's Central Bank regulation of cash operations and recognises the euro as the only official currency in Kosovo, thus excluding the dinar from use.

As Arisq claims, regulation of the CEC is contrary to the Constitution, since the CEC has the right to make such decisions, since according to the Kosovo Constitution, the issue of currency is regulated by law and not by regulation. The Serbian lawyer says Kosovo still rules which currency is valid, and according to him the UNMIK regulation that recognises the dinar as legal currency.

Regarding this issue in an interview, former Constitutional Court head and one of the country's best connoisseurs, Enver Hasani, has spoken.

Hasan says the Serbian lawyer is right when he says the issue of determining currency cannot be done with regulation, however, says the Constitutional Court is not the right place to complain. Hasan says no one can challenge the BQC regulation in Constitutional because they have constitutional authorisation. The former head of the Constitution explains that regulation of the CEC is not the regulation of the government, nor its judicial act, and can only be challenged in terms of law enforcement for administrative conflicts. Hasan says that regular courts establish on this case.

Professor Hasani also refutes and claims by the Serbian lawyer for the validity of UNMIK regulations, clarifying that supervised independence has ended in 2012 and that since then, Kosovo's Constitution is the highest judicial act in the country.

In the end, Hasan, speaking of the legal power of the CEC Law, says that only by law can the currency issue be regulated and that nowhere in the world is such a matter determined with illegal acts. In short, Hasani says BQK has no legal or constitutional authorisation to specify national currency as a sole, or other means of payment.

QUESTIONS: Does Kosovo have a fix on the issue of currency under law and Constitution, and in a judicial sense does the new BQC's regulation have problems?

HASANIA: The introduction of the euro as a payment tool in Kosovo is made with a UNMIK decision. As it is known, without the declaration of independence, Kosovo with the Ahtisaari Plan and the Constitution in force has taken over unilateral implementation of UNMIK's legal structures, including this in terms of setting the euro as a payment tool. In a narrow and entirely legal sense, it is not a contradiction that the euro is a payment tool. In that UNMIK decision, however, it is not said that the euro is the only means of payment, because even the Serbian dinar has been named as such. This has resulted in the long-standing toleration of both the Serbian dinar as payment tool. Here, then, there is no constitutional guarantee: the euro does not have such a status. Article 11.1 of the Constitution is specified that a single currency is used in Kosovo, thus not defined as such.

QUESTIONS : What is your analysis of the Serbian lawyer's claims, which says the currency issue can be regulated by regulation but only by law and that Kosovo does not have such a law?

HASANIA : The Serbian lawyer is right to the implementation fact of Article 11.1 of the Kosovo Constitution can never be the sublegal act, such as regulation of the CEC.

QUESTIONS : Is it possible that the Constitutional Court will declare such a CEC regulation as unconstitutional, can it be the subject treated by the Constitution?

HASANIA : No, the Serbian lawyer cannot be a party to procedure near the Constitutional Court on this issue. It lacks active legitimacy, so it does not enter either of the categories of authorised parties in the sense of Article 113 of the Constitution of Kosovo. No one can challenge this regulation in the Constitutional Court because they have no constitutional authorisation from Article 113 of the Constitution. The legal act in question, namely, regulation of the CEC, is not government regulations or its legal act. Acts of independent institutions and agencies can only be challenged in terms of their legitimacy under the law in power for administrative conflicts. For these cases, regular courts are established, the Department for Administration Affairs near the Foundation Court in Pristina, respectively.

QUESTIONS: Since Kosovo according to the Serbian lawyer has no currency law, can UNMIK's regulation on this issue be taken as a legal basis, so that the Constitution will decide on the basis of this UNMIK regulation, since Kosovo has law?

HASANIA : No. The time has passed when UNMIK and the Ahtisaari Plan rules have been worthwhile. Kosovo has had a deadline for harmonisation of constitutional rule following the independence of February 17th 2008, and that period has been closed. For the purposes of direct operation in Kosovo's judicial order, UNMIK or Ahtisaari Plan rules can never be applied. In September 2012, supervised independence has been closed and such provisions have been removed from the Constitution of Kosovo, which is today the highest judicial act in the country.

QUESTIONS : What is the legal and legal power of the BQC, so does something like currency need to be determined by the Law?

HASANIA :  Yes, only more law can break the rate from Article 11.1 of the Kosovo Constitution. Never and nowhere in any country is allowed to have the national currency determined under law. This is done by the constitution, or law, according to constitutional authorisation. In our case, it would have to be legal to determine this by breaking the authorship of Article 11.1 of the Constitution. The current law in effect for the CEC, for the worse fact, has not done such a thing, which is extinguished by its articles 16 and 17. Furthermore, Article 16.1 stipulates that Kosovo's “Valta will be determined by law in accordance with Article 11 of the Constitution”. This formulation of this law is strange because it speaks as if it were the mouth of the Kosovo Constitution. There's no need for the Law on BQ to show that the currency is determined by law, because that's what Article 11.1 of the Constitution says. In short, however, the CEC has no legal or constitutional authorization to name the national currency as a sole means (one or other). /Express