Kosovo sliding toward an institutional vacuum — Is there a way out?

Kosovo has once again found itself in a legal labyrinth following the failure to elect a new president and is drifting toward a scenario in which no institution would have full operational capacity. Although the Constitutional Court has yet to rule on whether the decree by which President Vjosa Osmani dissolved the Assembly is in line with the Constitution, interlocutors speaking to Kosovo Online point out that the Assembly and the Government are no longer operating with full mandates simply by virtue of Osmani signing such a decision. If the Court does not challenge it, Kosovo could find itself on even more uncertain ground after 4 April, when Osmani’s five-year mandate expires and the presidential function would be assumed by an acting officeholder.

Written by: Dusica Radeka Djordjevic

Politicians and legal experts in Pristina are debating whether Osmani dissolved the parliament on 6 March in accordance with the letter of the Constitution. The Constitutional Court will put an end to the debate. Yesterday, following the request of the Kosovo Government for the Court to assess the constitutionality of Osmani’s decision, the Court issued an interim measure prohibiting any action by the President of Kosovo in relation to the decree she signed, as well as any action by the Assembly, until 31 March.

One of the authors of the Kosovo Constitution, Ismet Saljihu, stated that President Vjosa Osmani’s decision to dissolve parliament was entirely in line with the Constitution and that such a step was both necessary and justified. However, opposing views also exist.

Regarding the Court’s measure prohibiting the Assembly’s activities until the end of this month, Naim Jakaj of the Kosovo Institute for Justice pointed out that in practical terms this means that during this period laws cannot be adopted, parliamentary committees cannot meet, and important appointments cannot be made.

Due to the newly emerged political circumstances in Kosovo, European Commissioner for Enlargement Marta Kos canceled her visit to Pristina that had been scheduled for the middle of this week.

In addition to the Assembly—which has effectively had its hands tied by the Constitutional Court’s interim measure—Duško Celic, Assistant Professor at the Faculty of Law of the University of Pristina with a temporary seat in Kosovska Mitrovica, believes that the Government also ceased to operate with a full mandate after Osmani’s decision.

According to his assessment of the situation in Kosovo, only Osmani is currently performing her duties in full capacity, and only until 4 April, when her mandate expires.

If the Constitutional Court fails to resolve the legal issue by that date, he believes Kosovo will enter a state of total institutional chaos.

Such a situation, in his view, suits Prime Minister Albin Kurti, who effectively governed throughout the previous year in a caretaker capacity without formal parliamentary oversight.

“I fear that the situation of institutional chaos, in which Kurti’s government remains in a technical mandate, will unfortunately lead to further systemic deterioration of the rights of Serbs, given the announced implementation of the Law on Foreigners as well as certain plans for the integration of the education and healthcare systems. I fear that in such conditions Kurti will have completely free hands to do whatever he wishes. I believe this will serve as an alarm for international actors to reconsider their positions and finally understand that the Albanian political majority is unable to govern itself or the institutions in Kosovo and Metohija, and that they may take measures that are not merely advisory,” Celic told Kosovo Online.

Hadžiu Acting President?

Former Kosovo ambassador to Albania, Silje Ukshini, also points out that if the decree by President Vjosa Osmani dissolving the Assembly remains in force, Kosovo will, after 4 April when Osmani’s mandate expires, be left only with a caretaker government.

“That would be a vacuum that Kosovo has never experienced since the war. If Ms. Osmani steps down and parliament is dissolved, the position would be assumed by Albulena Hadžiu (Speaker of the Assembly), with limited powers,” Ukshini told Kosovo Online.

The possibility of the same scenario is also highlighted by Miloš Pavković, Director of Strategy at the Centre for European Policies in Belgrade.

He notes that the mere fact that the Kosovo president dissolved the Assembly implies that the Government is operating in a caretaker capacity.

“This brings us to a situation in which we again have neither an Assembly nor a Government functioning with full capacity. The only political institution in Kosovo with full legitimacy is the president until the end of her mandate on 4 April. That is less than a month away, which risks leading us into a situation of institutional vacuum in which no institution operates with full capacity. The presidential function would then be assumed by the Speaker of Parliament, while the Government would remain in a caretaker capacity until elections are held and a new government is formed,” Pavković stated for Kosovo Online.

What Might the Court Decide?

According to Pavković, three possible scenarios could emerge following the Kosovo Government’s request for the Constitutional Court to assess the constitutionality of Osmani’s decree.

The first is that the Court could determine that Vjosa Osmani exceeded her powers—meaning that the Assembly was not legally dissolved—and that the 60-day deadline for electing a president must be respected. In that case, the Court would return the Assembly to session to attempt to elect a president, and only after the expiration of the 60-day period would elections be called.

“The second option is that the Court rules on the issue of quorum and whether MPs are obliged to attend Assembly sessions when the procedure for electing a president is initiated. The third scenario is that the Constitutional Court validates the decision of the President of Kosovo, confirms that the Assembly has been definitively dissolved, that the Government has fallen, and instructs the President to set a date for new parliamentary elections,” Pavković said.

Celic believes it is possible that the Constitutional Court will grant additional time for the election of a president, considering that only one round of voting was held “at the last minute.”

“According to their rules, three electoral rounds must be attempted, and only then would the automatic dissolution of the Assembly follow,” Celic says, while also pointing to another provision stating that the president must be elected no later than 30 days before the expiration of the previous president’s mandate—in this case that of Vjosa Osmani.

“That deadline has expired, which also indicates that the Assembly’s mandate has expired,” the professor emphasizes.

Ukshini, however, says that the Constitutional Court could annul Vjosa Osmani’s decree and allow the Self-Determination Movement to continue the process of electing the president of Kosovo.

“If the decree is not upheld, the Government would have a special opportunity to quickly reach a compromise with the Democratic Party of Kosovo (PDK) and obtain the necessary agreement to elect a president. I believe the Constitutional Court has the possibility to overturn this decree. If that happens, the game begins again,” Ukshini concludes.