Hasani: Keeping the Government session is unconstitutional

According to him, Kosovo President Vjosa Osmani has rushed to decree Vetevendosje Movement leader Albin Kurti, as a mandate for the formation of the executive and, as it puts it, has arbitraryly outlined the Kosovo Parliament's constitution.

The Assembly Constitution has been contested by the Serbian List, which has been addressed to the Constitutional Court after Deputy Speaker of the Parliament by the ranks of Serbian deputies was elected Nenad Rassic, by the Party for Freedom, Justice and Survival, writes. REL, broadcast Periscope.

“Zija Osmani, with the rush shown, has committed a serious violation of the Kosovo Constitution”, Hasani points out.

He expects a Constitutional Court decision regarding the request of the Serb List in the future, as well as the new government's eventual election from the Parliament of Kosovo on Sunday, will be actions that will combine and complicate the situation.

 Professor Hasan, the Constitutional Court has not published any ruling so far regarding the Serbian List's complaint to the election of Serbian Deputy Speaker Nenad Raspic, as well as the provisional requirement. Do you view such a decision as an emergency, despite the court's 60-day legal deadline for a decision, since October 16th, when the Serbian List submitted the complaint?

Enver Hasani: No doubt the request by the Serbian List is clearly based and has substance in proportion to the merits of the case: the Constitutional Court's recent act of justice clearly shows that the candidate's proposal for the Parliament's deputy chairman from the ranks of Serbian deputies should come from either the party or the coalition that has won the majority of Serbian votes, which in this case is the Serbian List. This has not been the case, because the proposal has come from an Albanian, Mr. Dimal Basha, who has recently manipulated the lots with the intention of denying the political representation of Kosovo Serb constitutional representatives.

The main emergency, meanwhile, in relation to the provisional measure, is related beyond any doubt to the irreparable consequences created by the formation of the government by the unstinted Kosovo Assembly.

With Kurti mandated, Osmani “broke the Constitution”

 How do you see the decree of Vetevendosje Movement leader Albin Kurti as a mandate for forming the new government on the part of Kosovo President Vjosa Osmani, without a decision or a preliminary judgment by the Constitutional Court for the request of the Serbian List? Has there been a deadline for such a thing that President Osmani had to consider in case of decree?

Enver Hasani: It is not the first time Miss Osmani has violated the Constitution of Kosovo. In fact, in most of the time, it has been brought to terms with the Constitution and the law as if they did not exist at all. He was in some kind of sync with Mr. Kurt.

The deadline has not, but it is judged by its past behavior, this haste for decree leaves for doubt of its motives. As it is known, Mrs. Osmani for chief state prosecutor. The case for the decree of Blerim Isufaj has oriented parties to regular judicial procedures, outside of any standards, because it is not fair courts who decide on the issue of electing the head prosecutor of state. After all, Mrs. Osmani we've been here waiting for what the Constitutional Court will say when it was in question of its application for the constitutionalisation of this Parliament, which the Vetevendosje Movement had declared binding [before the latest act]. What changed now? Nothing.

This violation is the most serious one to date, because it has been arbitraryly determined to constitutionalise the Kosovo Assembly on the part of Ms. Osmani, despite the fact that there are three clear judgments in the Constitutional Court that say the constitution's constitutionalisation occurs only when Serb vice president is elected by the party or coalition of Serbian MPs representing the majority of the Serb community in Kosovo. The court, moreover, has shown in the latest indictment that Serb representatives lose this right only when they do not propose their candidate for deputy chairman. This wasn't the case. The blame for non-compliance has always been, under the last sentence, on Kosovo's Parliament deputies, who have not implemented the constitutional obligation to elect all the vice-presidents of the Parliament and, therefore, to the constitution.

Lady Osmani, with the rush shown, has made a serious violation of the Kosovo Constitution far more serious than the case [of former Kosovo President Fatmir] Sejdiu, because he has broken the parameters of functioning of the constitutional organs. The weekend decree can occur only under the state of emergency. There are precedents in European constitutional justice when such decrees given at such times have been annulled, or when the deadlines are calculated has not taken into account the time of the week's standard vacation.

This decree, in addition to being made at the weekend and on the eve of political elections, generally violates the president's primary constitutional post of the Republic's neutrality and the intermediate role of stabilising organs and political processes in the country.

The opposition has had to submit its case to the Constitutional Court for serious violations of the Constitution.

The “Assembly has not been converted”

 Meanwhile, without having a decision by the Constitutional Court regarding the request of the Serbian List, Kosovo's Assembly on Sunday will hold the session for the election of the new Kosovo government. Do you expect the combination and complications of these two situations?

Enver Hasani: The Kosovo Assembly is not constitutionally constituted according to the order of three Constitutional Court judgments, according to the letter and spirit of the Constitution of Kosovo and the Assembly Order, which is an act of constitutional importance, or “the Constitution of the Kosovo Assembly”. Keeping the Government session is unconstitutional after all.

Following the recent act of the Constitutional Court, the Assembly of Kosovo was held and brutally violated any provision of its order. Power, with its allies in civil society, however few, even without hearings being closed, found something that didn't happen. The presidency approved these absurd findings. Internationals kept quiet, even though they know the situation is what I'm saying.

Such behavior cannot go without consequences. In the first place, I am very sure that this leads to the exclusion of Serbs from the Kosovo constitutional order and to the federalisation of Kosovo, where they will have a judicial and constitutional space shared by the majority people's space. This, as we know, is envisioned with the Ohrid Agreement and with the EU draft state. The recent behaviours of Kosovo's power towards Serbs have only legalised Serb demands from the Ohrid Agreement and the draft status treaty, which can now receive, and of course they take, the form of the autonomous constitutional unit.

Internationals are quieting, meanwhile, in hopes the future government will immediately submit EU draft status to the Constitutional Court. Albin Kurti knows, as everyone knows, that the absolute priority of internationals is to send the draft state [to the Association of Serb majority municipalities] to the Constitutional Court.

This international obligation of Kosovo, which Mr. Kurti received in 2023, must implement any government that comes to power. Apparently, no one does this better than Mr. Kurt himself. Then things go easy because, as you know, there will be an arbitration mechanism that sets out for the rights and freedoms of the Serb community in relation to central power in Pristina. This is the essence of the Third Republic of Kosovo.

If the government is formed, “it will be declared unconstitutional”

What will be the procedures in the event of an eventual decision in the days ahead of the Constitutional Court in favour or against the request of the Serbian List?

Enver Hasani: If it comes to the formation of the Government of Kosovo on Sunday, then it is certain that within 60 days, the same will be declared unconstitutional. That will happen if the Constitutional Court decides in favour of the Serbian List's request.

If the Constitutional Court declares the constitutional constitution of Kosovo's Parliament, the vote by parliamentary MP Kurti and other ministerial ministers, then ultimately the constitutional constitutional principle of forming central bodies after the elections and, in the future, the constitution and formation of the Kosovo government after the elections will take place according to the political forces report and given who can terrorise more judges of the Constitutional Court and justice system in general.

If the Constitutional Court violates its three judgments on issues of material constitutional law, then there will be serious problems to protect the fundamental rules of the profession and the oath given. I have felt sorry, like the whole community of lawyers, for the terror and psychic violence that judges have suffered in the last few months, but this situation is fleeting and remains in the country's constitutional history as an ugly thing to carry on their shoulders as long as they are alive, those individuals who have generated such primitive terror.

As a consequence of this primitive and brutal terror, the Court in the recent act has tolerated violations from previous parliamentary practices and from its three convictions of division of the procedure, but has made clear the MP's constitutional subliminal obligation to the constitution of Kosovo. This procedural release, however, cannot serve as an example for the material aspect of serious constitutional violations that have occurred at the recent Kosovo Assembly meeting, which the power declared to be constitutional. Evidently, procedure is misunderstood by power to continue even more brutally with the attack on the constitutional system.

The Constitutional Court, in case of deployment, certainly also decides on the fate of the decisions of an unconstitutional and illegal government, because it is exclusive preliminary. You know that in the case of [former Kosovo president, Behgjet] Pacolli and, in some cases, the Constitutional Court has declared unconstitutional the procedure of choice, but has put legal acts taken by such bodies in an unconstitutional way. This is the standard of European constitutional trial. /Periscope/