2 hours agoHe landed in the vault: When Politics Faces Constitution
Periskopi(9 months ago)
(9 months ago)It is in the framework of the Kosovo Assembly that has sparked strong debates on the interpretation of the Constitution and the role of political parties. While the Constitutional Court has rendered several judgments, their implementation has remained partial, raising questions about the need for possible constitutional changes. The Constitutional Court has already issued two convictions for the constitutional institution. [...]
The Constitutional Court has already handed down two convictions for the Kosovo Assembly binding, and at least one third is expected.
Inaccuracies and doubts about steps taken in this process have forced political parties to address the highest instance in the interpretation of the Constitution, follows Periscope.
From the debate over the secret vote to the split election of deputy leaders from minority communities, a series of issues have been placed under the rule of constitutionality.
But even though the judgments have been declared, they have not been fully observed.
The June 26th decision, ordering the constitution within 30 days, is the most clear example: the deadline has passed, while the Assembly has not yet been fully introduced.
The lack of punitive measures in the Court's judgments has left room for various interpretations by both politicians and legal experts.
One of the questions being asked among the commentators is: Can it be called a functional Assembly with a leader and four vice - mayors, as it is today?
The constitution clearly defines: The Assembly must have one chairman and five vice-presidents, and it doesn't mention any other formula.
But in this institutional vacuum, there is another question: is it time for constitutional changes that would bring more clarity, or, simply, more space for new interpretations?
Some constitutional law experts and political analysts, with whom Free Europe spoke, do not see the change of the Kosovo Constitution necessary.
According to them, the current concern in the constitution's framework does not stem from constitutional uncertainties, but from the party's lack of political will.
“In principle, the constitutions are designed to be predictable for a long time and that the eventual dilemmas about the content of constitutional norms are resolved through constitutional interpretation”, says Visar Morina, professor of Constitutional Law at Pristina University.
According to him, frequent changes would overshadow the role of the Constitution itself.
“... would produce judicial uncertainty and make it a flexible act, whose content differs depending on the level of political dynamics in the country”, Morina says in a written response to Radio Free Europe.
Kosovo's constitution was adopted on April 9th 2008 and went into effect on June 15th that same year.
It was changed several times, as if to mark the end of Kosovo's international independence oversight in 2012, or to include the Council of Europe Convention against violence against women and domestic violence in 2020.
Morina recalls that to avoid frequent changes, the Constitution of Kosovo contains strict material and procedural criteria: they allow amendments only when they are really necessary for a constitutional goal, which cannot be achieved through other means, such as constitutional interpretation.
The constitutions are never perfect documents and fully clear language, according to him.
Kosovo's “constitution is no exception to this standard. First, they (competions) define only the basic principles of state functioning, and it is not expected to contain details of any concrete” situation, Morina points out.
He adds that the broad language commonly used in the constitution is deliberate, leaving room for interpretation.
This, according to him, enables constitutional courts and judicial practice to meet gaps through jurisdiction and the development of doctrine.
Political issue acquaintance, Avni Arifi, also estimates that the Constitution does not need to be changed to avoid institutional cramps, such as the current one.
The constitution of the Republic of Kosovo cannot replace political parties. If political parties want to deviate from the Constitution, then the Constitutional Court cannot defend Constitution”, Arifi points to Radio Free Europe.
The Assembly Constitution was stuck with the Serbian deputy chairman's election.
The Serbian list, like the largest party in the Assembly, nominated only one candidate, who in three rounds did not get enough votes.
The Speaker of the Parliament, Dimal Basha, unlike what is written in the Constitution, cast lots to determine the other Serbian candidate, and, unlike all the other practices, did not put him in for voting in the package with the non-Serb minority candidate.
Neither of the nine short-listed candidates received the 61 votes required.
The constitution is clear and gives the majority of MPs in the Serb community the right to propose Deputy Chairman”, Arifi says.
The Serbian list then addressed the Constitutional for the manner of voting the Serbian deputy chairman.
What do political parties say?
Whether or not constitutional changes should be made to avoid institutional drives, MPs from parliamentary parties share different opinions.
Arber Rexhaj, deputy of the Vetevendosje Movement, tells Radio Free Europe that the constitution and the blockade that has lasted for months, the Constitution offers clear solutions and, according to him, needs no changes.
“Deputes have used all constitutional rights to vote”, Rexhaj says.
In contrast, Nait Hasani, deputy of the Democratic Party of Kosovo, estimates that the deadlock in the constitution's framework has proved that Kosovo has entered a political phase where constitutional changes are necessary to offer clear solutions and avoid similar situations in the future.
In this regard, he especially views changes related to the way the president is chosen.
According to him, the president should be elected directly by citizens and not by Parliament deputies, as currently happens, and explains why:
This would download the possibilities of political combinations for creating the Government and restoring the Assembly. Partys appearing in the elections, the first [winner] party is easier with the second or third party to make combinations of governance, in the event it is not in this combination the post of president”.
On the other hand, Lutfi Haziri, deputy of the Democratic League of Kosovo, estimates that the current stalemate in the Assembly is not related to constitutional uncertainties, but to the lack of willingness of political parties to co-operate in implementing the spirit of the Constitution.
According to him, this lack of will has led political parties to address the Constitutional Court and then reinterpret its own decisions.
There's no constitution, no constitution has... many explosives has rights and mechanisms. The whole problem is political. Calling out to procedures and regulations, they try to distort the constitutional spirit. That's the problem. The constitution has no problem”, according to Haziri.
The other party in the Parliament, the Alliance for the Future of Kosovo, did not respond to Radio Free Europe's request to comment on the topic.
However, for any constitutional change, two-thirds of the votes of all Parliament deputies are necessary, as well as two-thirds of the votes of MPs representing non-US communities.
Morina, while not seeing the change of the Kosovo Constitution necessary for the time being, says that, in principle, it should remain open to social evolution, as political, economic and social realities constantly change.
At the same time, it also refers to “everlasting language”, which “due to their fundamental character, cannot be the object of constitutional change”.
In Kosovo's case, it would, without question, have been able to access freedoms and constitutional rights”, says, among other things, Morina.
Public opinion is now pending the Constitutional Court's decision on the request of the Serbian List.
Kosovo President Vjosa Osmani has earlier addressed this court, with the request to clarify what happens if the 30-day term for the constitution, set by the tribunal, is not respected.
Later, Osmani has withdrawn the request, given the fact that Judge Radomir Lyban, who was reporting for the case, considers “a threat to national security”.
However, connoisseurs of constitutional issues estimate that even after Osmany's request is withdrawn, the Court has the right to continue the procedure. /REL/
