Constitutional ambiguities could deepen the crisis because of the president

The country could plunge into institutional crisis and constitutional uncertainty if the political parties fail to elect a new president by April next year.

According to the Constitution, "the post of acting president of the Republic of Kosovo cannot be exercised for a period longer than six months". Vjosa Osmani took office on November 5, the day when President Thaçi resigned after the confirmation of the indictment by the Special Court.

The Constitution is silent regarding the situation when the incumbent's term ends, and her successor is absent.

The highest legal act is silent on the time within which the president must be elected in such a situation.

But the former president of the Constitutional Court, Enver Hasani, says that the election of the new president is not related to the terms that Thaçi had as elected president with a full mandate, but to the six-month term that Osmani now has.

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"The president, or rather the acting president, is the legitimizing body of the Government and a number of other constitutional bodies, therefore if this does not happen for six months, the acting president cannot exercise that position and it is a problem, because there is no one to mandate the Government after the elections", said Hasani.

"Constitutional terms do not change, they are what they are. What changes is the six-month term of the acting woman, because for her there is a decision of the Constitutional Court that has specified exactly what she can do and what she cannot do. Within this six-month period, all procedures for the election of the president of the Republic must be carried out".

Hasani recalled that in the judgment on the Jahjaga case, they said that it could be extended to three months, but this refers to situations where the president is unable to exercise his position, which is not similar to the last case.

"If the procedures are not carried out and elections are held without a president, this would be premature, because it is destroying an institution. If this happens, the president must be elected and he will then choose the government," Hasani emphasized.

Although the Constitution does not determine the time within which the candidacies must be announced after the resignation of the head of state, the procedures can start immediately. Meanwhile, 60 days is the deadline within which the president must be elected, the moment they begin. In case of failure, the Assembly is dissolved and the country goes to early elections.

The highest legal act of the state recognizes the circumstance of the president's temporary absence, in which situation he can voluntarily transfer the duties of his post to the Speaker of the Assembly, until he resumes the exercise of his responsibilities. But not the circumstance when the head of state resigns from this post.

"In the event that the President of the Republic of Kosovo is temporarily unable to fulfill his/her responsibilities, he/she may voluntarily transfer the duties of his/her post to the Speaker of the Assembly, who will be acting of the office of the President of the Republic of Kosovo. The President's order for the transfer of responsibilities must specifically contain the reasons and duration of the transfer of responsibilities, if there is knowledge of them. The President of the Republic of Kosovo will resume the exercise of his responsibilities when he is able to exercise his responsibilities, and thus the Speaker of the Assembly shall cease to be the acting President", says Article 90 of the Constitution.

And the subsequent article that talks about the dismissal of the president says that his/her mandate can be terminated by the Assembly "if he/she has been convicted of committing a serious crime or if he/she is not capable of exercising the responsibilities of this position due to serious illness or if the Constitutional Court has determined that he/she has committed a serious violation of the Constitution".

However, Enver Hasani referred to the case of the former mayor of Rahovec Municipality, Qazim Qeska, to argue that the resignation also means the end of the president's mandate.

On July 1, 2010, Qeska publicly addressed the citizens of the Municipality of Rahovec, through a communiqué, announcing his irrevocable resignation.

On the other hand, former president Fatmir Sejdiu on August 27, 2010 addressed the Constitutional Court with the question - "which institution of the Republic of Kosovo is responsible for evaluating the effectiveness and validity of the resignation and for ascertaining the eventual termination of the mandate of the mayor of a municipality in based on a communique addressed to the citizens, the ambiguity of which makes it impossible for the president to take further action in accordance with the constitutional principle of free and equal elections?".

In this case, the Constitution had decided that the resignation of any mayor is final and definitive, which ends the mandate of the mayor.

"The Constitution cannot foresee all situations, because then it would have 1000 articles. We explained the issue of resignation and its legal nature in the Qeskaj case and said that it has the same effect, wherever and whenever. Also, Fatmir Sejdiu has resigned and it has had an immediate and irrevocable effect", emphasized Hasani.

AAK and PDK aim for the post of president

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KOHA has continuously reported that the LDK will try to patch up the Government by including the PDK, to which it is ready to offer the post of president and several ministers. The chairman of the LDK, a few days ago asked the Prime Minister Avdullah Hoti to start the consultations with the political parties.

Despite the warnings, Prime Minister Avdullah Hoti has not yet scheduled meetings with party leaders on the issue of the president. The Director of the Office for Public Communication in the Government of Kosovo, Antigona Baxhaku, said in a written response that there is nothing concrete.

"If there will be any development during the week, we will inform you", she said.

Until now, the Alliance for the Future of Kosovo and the Democratic Party have expressed their intentions for the post of head of state. For several months, Ramush Haradinaj has announced his candidacy, but he has not found the support of the main coalition partner - the LDK.

Meanwhile, PDK will vote for the president only on the condition that the proposal comes from them.

Meanwhile, the Vetëvendosje Movement has made it clear that it does not support any candidate for president of the country, without new elections.

Lack of votes

Parties in a single coalition cannot elect the president. They make up only half of the deputies of the Assembly, while for the election to be considered constitutional, the support of two-thirds of the legislators is required.

LDK and PDK are unable to elect the president only with the support of the non-majority communities, without the 14 votes of the Alliance deputies. According to the Constitution, the president can be elected with 61 votes, but with the condition that 80 deputies participate in the vote.

In the first two rounds, it is required to be elected with two thirds, that is, 80 votes, while in the third, 61 votes are required, with the condition that 80 deputies participate in the voting. If in the third vote no candidate is elected president of the Republic of Kosovo, according to the Constitution, the Assembly is dissolved and new elections are announced, which must be held within forty-five days.

According to article 86.3, each citizen of the Republic of Kosovo can be nominated as a candidate for president of the Republic of Kosovo, "if she/he secures the signatures of at least thirty (30) deputies of the Assembly of Kosovo. The deputies of the Assembly can only sign for one candidate for president of the Republic of Kosovo".

Thaçi becomes the second president to resign without completing his mandate. Former president Fatmir Sejdiu resigned from his post on September 27, 2010 after the decision of the Constitutional Court that he was in violation of the constitution, since he simultaneously exercised the function of the head of state and that of the party chairman. At that time, the former speaker of the Assembly, Jakup Krasniqi, who is also accused of war crimes by the Special Court, was appointed acting president.

Clashes between partners

The fragility of the coalition has meant that even the minimum votes of the simple majority to pass the draft laws are not secured. As a result, many laws have been passed several times in a row, including those related to the COVID-19 pandemic.

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The disagreements and lack of communication between Hoti and his partners in the Government were also confirmed with some recent decisions. They appeared after the decrees issued by the Ministry of Foreign Affairs and Diaspora, which is led by Meliza Haradinaj (AAK), for the appointment of general consuls. The last case is the decree of Flakron Shala, the son of AAK deputy, Haxhi Shala, for which Hoti said that there was no coordination in decision-making.

After the reporting by KOŠA, the acting president revoked the decree for Shala and three other appointees. While Hoti announced a functional review for all diplomatic missions. Haxhi Shala's vote was decisive for the formation of the Hoti Government on June 3. Only a day earlier he had warned to vote against, but he made the change after ex-president Thaçi and ex-prime minister Haradinaj had gone to his guest house at midnight.